44 Printing 2013 Up - Political Law PDF

CONSTITUTIONAL LAW 1 VOTING MAJORITIES ....................................................... 14 DISQUALIFICATION FROM OTHER POSITIONS OF OFFICES ......... 35 FILIPINO FIRST ..............................................................
44
The Constitution .................... 2 DISCIPLINE OF MEMBERS ........................................ 14 THE SUPREME COURT .............................................. 35
COMPOSITION OF THE SUPREME COURT .............................. 35
EXPLORATION, DEVELOPMENT AND UTILIZATION OF
NATURAL RESOURCES............................................. 45
DEFINITION, NATURE AND CONCEPTS ...................... 2 ELECTORAL TRIBUNALS AND THE COMMISSION ON EN BANC AND DIVISION CASES........................................... 35
POLITICAL LAW ............................................................... 2 APPOINTMENTS....................................................... 14 PROCEDURAL RULEMAKING ............................................. 36 FRANCHISES, AUTHORITY AND CERTIFICATES FOR
CONSTITUTIONAL LAW ...................................................... 2 ELECTORAL TRIBUNALS ................................................... 14 ORIGINAL AND APPELLATE JURISDICTION............................. 36 PUBLIC UTILITIES ..................................................... 45
CLASSIFICATION OF CONSTITUTIONS ..................................... 2 COMMISSION ON APPOINTMENTS ...................................... 15 NATURE OF THE FRANCHISE ............................................. 45
BASIC PRINCIPLES OF CONSTITUTIONAL INTERPRETATION.......... 2 JUDICIAL PRIVILEGE ................................................. 36
TYPES OF JUDICIAL REVIEW ................................................ 2 POWERS OF CONGRESS ........................................... 16 ACQUISITION, OWNERSHIP AND TRANSFER OF
INHERENT POWERS ........................................................ 16 PUBLIC AND PRIVATE LANDS .................................. 46
PARTS OF THE CONSTITUTION .................................. 2 LEGISLATIVE POWERS ..................................................... 16
NON-LEGISLATIVE POWERS (SCOPE) ................................... 16
Constitutional PRIVATE LANDS ............................................................. 46
AMENDMENTS AND REVISIONS ................................ 2 SPECIFIC POWERS .......................................................... 16 Commissions ............................. 37 PRACTICE OF PROFESSIONS .................................... 46
AMENDMENT .................................................................. 2 LEGISLATIVE ................................................................. 16 INSTITUIONAL INDEPENDENCE SAFEGUARDS ........ 37
REVISION ....................................................................... 3 LIMITATIONS ON REVENUE, APPROPRIATIONS AND TARIFF INSTITUTIONAL SAFEGUARDS ........................................... 37 ORGANIZATION AND REGULATION OF
DIFFERENCE BETWEEN AMENDMENT AND REVISION ................. 3 MEASURES .................................................................... 17 CORPORATIONS, PRIVATE AND PUBLIC .................. 46
LEGAL TESTS .................................................................. 3 NON-LEGISLATIVE .......................................................... 19 POWERS AND FUNCTIONS ....................................... 37 STEWARDSHIP CONCEPT .................................................. 46
STEPS IN THE AMENDATORY POWERS ................................... 3 CIVIL SERVICE COMMISSION .............................................. 37
SUMMARY OF TWO STAGES OF AMENDATORY/REVISION PROCESS 3 MONOPOLIES, RESTRAINT OF TRADE AND UNFAIR
TABLE OF CASES RE: CONSTITUTIONAL AMENDMENTS AND
Executive Department .............. 20 COMMISSION ON ELECTIONS ............................................. 38
COMMISSION ON AUDIT ................................................... 39 COMPETITION .......................................................... 46
CHANGES IN GOVERNMENT ................................................ 4 THE PRESIDENT ....................................................... 20 MONOPOLIES ................................................................ 46
QUALIFICATIONS ........................................................... 20 CENTRAL MONETARY AUTHORITY ...................................... 46
PROHIBITED OFFICES AND INTERESTS....................40
ELECTION .................................................................... 20
SELF-EXECUTING AND NON-SELF-EXECUTING
PROVISIONS ............................................................... 5 PRIVILEGES, INHIBITIONS AND
JURISDICTION ..........................................................40
CIVIL SERVICE COMMISSION ..............................................40
Social Justice &
DISQUALIFICATIONS ................................................ 20
GENERAL PROVISIONS ............................................... 5 PRIVILEGES .................................................................. 20
COMMISSION ON ELECTIONS .............................................40 Human Rights .......................... 47
COMMISSION ON AUDIT ...................................................40 CONCEPT OF SOCIAL JUSTICE .................................. 47
VICE-PRESIDENT .......................................................21 1987 CONSTITUTION ...................................................... 47
REVIEW OF FINAL ORDERS, RESOLUTIONS, AND
PROHIBITION .................................................................21
General Considerations ...............6 DECISIONS ...............................................................40 COMMISSION ON HUMAN RIGHTS ........................... 47
NATIONAL TERRITORY .............................................. 6 QUASI-JUDICIAL FUNCTIONS .............................................40
POWERS ................................................................... 22
SCOPE ........................................................................... 6 ADMINISTRATIVE ........................................................... 41
EXECUTIVE AND ADMINISTRATIVE POWERS IN GENERAL .......... 22
TREATY LIMITS OF THE PHILIPPINE ARCHIPELAGO .................... 6 POWER OF APPOINTMENT ................................................ 22 Education, Science, Technology,
POWER OF CONTROL AND SUPERVISION .............................. 25
DOCTRINE FOF SOVEREIGN IMMUNITY ..................... 6 MILITARY POWERS ......................................................... 25 Citizenship .................................. 41 Arts, Culture and Sports ........... 48
STATE ........................................................................... 6 PARDONING POWER ...................................................... 27 WHO ARE FILIPINO CITIZENS? ................................. 41 RIGHT TO EDUCATION PROVISIONS ........................ 48
BASES ........................................................................... 6 DIPLOMATIC POWER ...................................................... 28
CONCEPT ....................................................................... 6 POWERS RELATIVE TO APPROPRIATION MEASURES ................ 29 MODES OF ACQUIRING CITIZENSHIP ....................... 41 ACADEMIC FREEDOM............................................... 48
HOW STATE’S CONSENT IS GIVEN ......................................... 7 DELEGATED POWERS ...................................................... 30 FOUR ESSENTIAL FREEDOMS OF A UNIVERSITY ...................... 48
SYNTHESIS OF RULES ON SUING GOV’T AGENCIES ..................... 8 VETO POWER ................................................................ 30 NATURALIZATION AND DENATURALIZATION ......... 41 HIGHEST BUDGETARY PRIORITY TO EDUCATION ..................... 48
EXECUTIVE PRIVILEGE ..................................................... 30 NATURALIZATION .......................................................... 41
PRINCIPLES AND POLICIES ........................................ 8 RESIDUAL POWERS ........................................................ 30 DENATURALIZATION ....................................................... 42 CONSTITUTIONAL LAW 2
SEPARATION OF POWERS .......................................... 8 RULES ON SUCCESSION ............................................ 31
CHECKS AND BALANCES ............................................ 9

PRESIDENT ................................................................... 31
DUAL CITIZENSHIP AND DUAL ALLEGIANCE ........... 42
DUAL CITIZENSHIP ......................................................... 42 Fundamental Powers
DUAL ALLEGIANCE ......................................................... 42
of the State ........................ 50
CONSTITUTIONAL DUTY ON CONGRESS IN CASE OF VACANCY IN THE
OFFICES OF PRESIDENT AND VICE-PRESIDENT ....................... 31
DELEGATION FOF POWERS ........................................ 9 VICE-PRESIDENT ............................................................ 31 LOSS AND REACQUISITION CONCEPT, APPLICATION AND LIMITS ...................... 50
TESTS FOR VALID DELEGATION OF POWERS ............................ 9 OF FILIPINO CITIZENSHIP ........................................ 42 POLICE POWER .............................................................. 51
GROUNDS FOR LOSS OF CITIZENSHIP .................................. 42 EMINENT DOMAIN .......................................................... 51
FORMS OF GOVERNMENT ........................................ 10 Judicial Department .................. 32 HOW MAY CITIZENSHIP BE REACQUIRED .............................. 43 TAXATION .................................................................... 51
DEFINITION .................................................................. 10 CONCEPTS................................................................ 32 RA 9225 ..................................................................... 43
DE JURE AND DE FACTO GOVERNMENT ................................ 10 JUDICIAL POWER ........................................................... 32 REQUISITES FOR VALID EXERCISE ........................... 52
JUDICIAL REVIEW ........................................................... 32 NATURAL-BORN CITIZENS AND PUBLIC OFFICE ..... 43 POLICE POWER .............................................................. 52
Legislative Department ............. 10 FUNCTIONS OF JUDICIAL REVIEW........................................ 32
ESSENTIAL REQUISITES FOR JUDICIAL REVIEW ....................... 32
NATURAL-BORN ............................................................ 43
WHO MUST BE NATURAL BORN? ........................................ 43
EMINENT DOMAIN .......................................................... 52
TAXATION .................................................................... 52
WHO MAY EXERCISE LEGISLATIVE POWER .............. 10 OPERATIVE FACT DOCTRINE .............................................. 33
MOOT QUESTIONS .......................................................... 33 SIMILARITIES AND DIFFERENCES ............................ 52
HOUSES OF CONGRESS............................................. 11
COMPOSITION, QUALIFICATIONS, AND TERM OF OFFICE ............ 11
POLITICAL QUESTION DOCTRINE ........................................ 33
National Economy & Patrimony SIMILARITIES ................................................................ 52
DIFFERENCES ............................................................... 52
LEGISLATIVE PRIVILEGES, INHIBITIONS AND

SAFEGAURDS OF JUDICIAL INDEPENDENCE ............ 33 .................................................... 44 POLICE POWER V. EMINENT DOMAIN ................................... 53
GOALS ...................................................................... 44 POLICE POWER V. TAXATION ............................................. 53
DISQUALIFICATIONS ................................................. 13 JUDICIAL RESTRAINT ............................................... 34 LICENSE FEE [PP] V. TAX .................................................. 53
PRIVILEGES ................................................................... 13
DISQUALIFICATIONS ........................................................ 13 REGALIAN DOCTRINE .............................................. 44
APPOINTMENTS TO THE JUDICIARY ......................... 34 DELEGATION ............................................................ 53
DUTY TO DISCLOSE .......................................................... 13
SYNTHESIS OF CONSTITUTIONAL AND POLICE POWER .............................................................. 53
NATIONALIST AND CITIZENSHIP REQUIREMENT
STATUTORY CLASSIFICATIONS ........................................... 34 EMINENT DOMAIN .......................................................... 53
QUORUM AND VOTING MAJORITIES ........................ 14 PROVISIONS ............................................................. 44
CONSTITUTIONAL REQUIREMENTS ..................................... 34 TAXATION .................................................................... 54
QUORUM ..................................................................... 14 CITIZENSHIP REQUIREMENTS ............................................ 44
PROCEDURE OF APPOINTMENT ......................................... 35
GENERAL RULE FOR WARRANTLESS SEARCHES: PROBABLE CAUSE NON-ESTABLISHMENT CLAUSE ................................ 71 NECESSITY ................................................................... 76
Private Acts and REQUIRED .................................................................... 61 CONCEPT ...................................................................... 71 PRIVATE PROPERTY ........................................................ 76
the Bill of Rights ....................... 54 WARRANTLESS SEARCHES RECOGNIZED BY JURISPRUDENCE .... 61

SEARCH INCIDENT TO A LAWFUL ARREST ............................. 61
BASIS .......................................................................... 71
ACTS NOT PERMITTED BY NON-ESTABLISHMENT CLAUSE .......... 71
TAKING ....................................................................... 76
DUE PROCESS ............................................................... 76
IN GENERAL ............................................................. 54
SEARCH OF MOVING VEHICLES ........................................... 61 ACTS PERMITTED BY THE ESTABLISHMENT CLAUSE .................. 71
PLAIN VIEW DOCTRINE .................................................... 61 EXPANSIVE CONCEPT OF “PUBLIC USE” .................. 76
BASES AND PURPOSE .............................................. 54 STOP AND FRISK SEARCHES .............................................. 61 FREE EXERCISE CLAUSE ............................................ 71 JUST COMPENSATION ..................................................... 76
VALID EXPRESS WAIVER MADE VOLUNTARILY DUAL ASPECT ................................................................ 71 DETERMINATION ........................................................... 76
ACCOUNTABILITY..................................................... 54 AND INTELLIGENTLY ....................................................... 62 LAWS AND ACTS JUSTIFIED UNDER FREE EXERCISE CLAUSE ...... 72 EFFECT OF DELAY ........................................................... 77
CUSTOMS SEARCH ......................................................... 62 BENEVOLENT NEUTRALITY DOCTRINE ................................. 72
Due Process .............................. 55 EXIGENT AND EMERGENCY CIRCUMSTANCES ......................... 62 ABANDONMENT OF INTENDED USE AND RIGHT OF
IN GENERAL ............................................................. 55 VISUAL SEARCH AT CHECKPOINTS ...................................... 62 TESTS ....................................................................... 72 REPURCHASE........................................................... 77
DEFINITION .................................................................. 55 PROPERTIES SUBJECT TO SEIZURE ...................................... 62 CLEAR AND PRESENT DANGER TEST ................................... 72
NOTED EXCEPTIONS TO DUE PROCESS ................................. 55 COMPARISON OF PROCEDURES IN OBTAINING SEARCH WARRANTS BENEVOLENT NEUTRALITY-COMPELLING STATE INTEREST........ 72 MISCELLANEOUS APPLICATION .............................. 77
AND ARREST WARRANTS ................................................. 62 CONSCIENTIOUS OBJECTOR .............................................. 72 “TAKING” UNDER SOCIAL JUSTICE CLAUSE ........................... 77
RELATIVITY OF DUE PROCESS .................................. 55
WARRANTLESS ARRESTS ........................................ 62
PROCEDURAL AND SUBSTANTIVE DUE PROCESS .... 55
SCOPE ......................................................................... 55
REQUISITES FOR ISSUANCE OF A VALID ARREST WARRANT ....... 62
REQUISITES OF A VALID WARRANTLESS ARREST .................... 63 Liberty of Abode and Contracts Clause ................ 77
REQUISITES .................................................................. 56
ADMINISTRATIVE ARRESTS ..................................... 63 Freedom of Movement ...... 72 APPLICATION OF THE CONTRACT CLAUSE .............. 77
REQUISITES .................................................................. 77
CONSTITUTIONAL AND STATUTORY DUE PROCESS. 57 LIMITATIONS ............................................................ 72
CONSTITUTIONAL DUE PROCESS ........................................ 57 DRUG, ALCOHOL AND BLOOD TESTS ....................... 64 WHO MAY IMPAIR AND WHEN RIGHTS MAY BE CURTAILED ........ 72 CONTEMPORARY APPLICATION OF THE CONTRACT
STATUTORY DUE PROCESS ............................................... 57 CLAUSE ................................................................... 78
PRIVATE AND PUBLIC COMMUNICATIONS ............... 64 RIGHT TO TRAVEL .................................................... 72 WHEN NON IMPAIRMENT CLAUSE PREVAILS.......................... 78
HIERARCHY OF RIGHTS ............................................ 57 REQUISITES OF EXISTENCE OF PRIVACY RIGHT ....................... 64 WATCH LIST ORDER ........................................................ 72 WHEN NON IMPAIRMENT CLAUSE YIELDS ............................. 78
INTRUSION, WHEN ALLOWED ............................................ 64 HOLD-DEPARTURE ORDER ............................................... 73
JUDICIAL STANDARDS OF REVIEW ........................... 57 FORMS OF CORRESPONDENCE COVERED .............................. 64 LIMITATIONS ............................................................ 78
RATIONAL BASIS TEST ..................................................... 57 TESTS OF REASONABLE EXPECTATION OF PRIVACY ................. 64 RETURN TO ONE’S COUNTRY ................................... 73
STRICT SCRUTINY TEST .................................................... 57 WRIT OF HABEAS DATA.................................................... 65
IMMEDIATE SCRUTINY TEST .............................................. 57 Freedom of Expression ................................... 65
Legal Assistance and Free
CONCEPT AND SCOPE .............................................. 65
Right to Information ........... 73
VOID-FOR-VAGUENESS DOCTRINE .......................... 57
VOID FOR VAGUENESS ..................................................... 57
BASIS ......................................................................... 65
PRIOR RESTRAINT (CENSORSHIP) ...................................... 66 POLICY OF FULL PUBLOIC DISCLOSURE V. RIGHT TO Access to Courts ................. 78
VOID FOR VAGUENESS DOCTRINE ....................................... 57 SUBSEQUENT PUNISHMENT .............................................. 66 INFORMATION ......................................................... 73 RA NO. 9999............................................................. 78
Equal Protection .............................................. 58
CONTENT-BASED AND CONTENT-NEUTRAL SCOPE OF RIGHT TO ACCESS INFORMATION............ 73
CONCEPT.................................................................. 58
DEFINITION .................................................................. 58 REGULATIONS ......................................................... 66
CONTENT-BASED RESTRICTIONS ........................................ 66 LIMITATIONS ............................................................ 73 Rights of Suspects .............. 79
CONTENT-NEUTRAL RESTRICTIONS .................................... 67 MIRANDA RIGHTS .................................................... 79
REQUISITES FOR VALID CLASSIFICATION ................ 58
PUBLICATION OF LAWS AND REGULATIONS............ 74
EXAMPLES OF VALID CLASSIFICATION.................................. 58
FACIAL CHALLENGES AND THE OVERBREADTH RA 7438 .................................................................... 79
ALIENS ........................................................................ 58
DOCTRINE ................................................................ 68 ACCESS TO COURT RECORDS ................................... 74
FILIPINO FEMALE DOMESTICS WORKING ABROAD ................... 58
FACIAL CHALLENGES ...................................................... 68 AVAILABILITY ........................................................... 79
LAND-BASED V. SEA-BASED FILIPINO OVERSEAS WORKERS ...... 58
OVERBREADTH DOCTRINE ................................................ 68 RIGHT TO INFORMATION RELATIVE TO ................... 74 CUSTODIAL INVESTIGATION .............................................. 79
QUALIFICATION FOR ELECTIVE OFFICE ................................. 58
GOVERNMENT CONTRACT NEGOTIATIONS ............................ 74 CRITICAL PRE-TRIAL STAGE .............................................. 79
ELECTION OFFICIALS V. OTHER MUNICIPAL OFFICIALS.............. 58
TESTS ....................................................................... 69 DIPLOMATIC NEGOTIATIONS ............................................. 74 SHOW-UP AND POLICE LINE-UP ......................................... 79
OFFICE OF THE OMBUDSMAN ............................................ 58
DANGEROUS TENDENCY TEST ........................................... 69 COURT HEARINGS .......................................................... 74 POLICE LINE-UPS ...........................................................80
PRINT V. BROADCAST MEDIA ............................................ 58
CLEAR AND PRESENT DANGER TEST ................................... 69 REQUISITES ..................................................................80
BALANCING OF INTEREST TEST .......................................... 69 RIGHT AGAINST SELF-INCRIMINATION .................................80
STANDARDS FOR JUDICIAL REVIEW ........................ 58
DIRECT INCITEMENT TEST ................................................ 69
GRAVE-BUT-IMPROBABLE DANGER TEST ............................. 69
Right to Association ............ 74 RIGHT TO COUNSEL ........................................................80
RIGHTS TO VISITATION AND CONFERENCE ............................80
MILLER TEST................................................................. 69 LABOR UNIONISM .................................................... 75
Searches and Seizures ...... 59 O’BRIEN TEST ............................................................... 69 LEGAL PERSONALITY AS PRE-CONDITION FOR EFFECTIVE
ASSOCIATION ACTION ..................................................... 75
WAIVER ....................................................................80
RULE ON WAIVER ...........................................................80
CONCEPT.................................................................. 59
STATE REGULATION OF DIFFERENT TYPES OF MASS ELIGIBILITY TO JOIN, ASSIST OR FORM UNION EXPRESSLY DENIED RA 7438 .....................................................................80
NATURE ...................................................................... 59
MEDIA ...................................................................... 69 BY LAW ....................................................................... 75 BURDEN OF PROVING VOLUNTARINESS OF WAIVER.................80
SCOPE ......................................................................... 59
MOVIE CENSORSHIP........................................................ 70
TELEVISION CENSORSHIP ................................................. 70 COMMUNIST AND SIMILAR ORGANIZATIONS .......... 75
WARRANT REQUIREMENT ....................................... 59
PURPOSE ..................................................................... 59
REQUISITES .................................................................. 60
RADIO CENSORSHIP........................................................ 70
INTEGRATED BAR OF THE PHILIPPINES ................... 75 Rights of the Accused ........ 81
COMMERCIAL SPEECH ............................................. 70 CRIMINAL DUE PROCESS ......................................... 81
PLACE TO BE SEARCHED .................................................. 60
DESCRIPTION OF PLACE/THINGS ....................................... 60
DESCRIPTION OF PERSONS SEARCHED ................................ 60
GENERAL WARRANT ....................................................... 60
PRIVATE V. GOVERNMENT SPEECH .......................... 70
Eminent Domain ................ 75 BAIL.......................................................................... 81
WHO MAY AVAIL ............................................................ 81
HECKLER’S VETO....................................................... 71 NON-ESTABLISHMENT CLAUSE ............................... 75 BAIL AS A MATTER OF RIGHT VS. MATTER OF DISCRETION ........ 81
FORCIBLE ENTRY JUSTIFIED .............................................. 61
GENERALLY .................................................................. 75 WHEN AVAILABLE .......................................................... 82
UNLAWFUL SEARCH ....................................................... 61
SPECIFICALLY ............................................................... 75 STANDARDS FOR FIXING BAIL............................................ 82
WHO HAS JURISDICTION? ................................................. 75
WARRANTLESS SEARCHES ...................................... 61
Freedom of Religion ............ 71 SCOPE AND LIMITATIONS ................................................. 76 PRESUMPTION OF INNOCENCE ................................ 82
RIGHT TO BE HEARD................................................. 82 Excessive Fines and Cruel and Modes and Kinds of SOURCE OF POWERS AND AUTHORITY ................... 101
ASSISTANCE OF COUNSEL ....................................... 82 Inhuman Punishments ...... 87 Appointment....................... 94 DUTIES OF PUBLIC OFFICERS .................................. 101
RA 9346 ................................................................... 87 CLASSIFICATION OF APPOINTMENTS ...................... 94 TO BE ACCOUNTABLE TO THE PEOPLE, TO SERVE THEM WITH
RIGHT TO BE INFORMED .......................................... 82 UTMOST RESPONSIBILITY, INTEGRITY, LOYALTY AND EFFICIENCY
STEPS IN APPOINTMENT PROCESS .......................... 94 ................................................................................ 101
RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL . 83 FOR APPOINTMENTS REQUIRING CONFIRMATION ................... 94
IMPARTIAL TRIAL ........................................................... 83 Non-Imprisonment DUTY TO MAKE PUBLIC DISCLOSURE OF STATEMENTS OF ASSETS
AND LIABILITIES .......................................................... 102
AVAILABILITY ................................................................ 83 PRESIDENTIAL APPOINTEES .................................... 95
for Debts ............................. 88 WHO CAN BE NOMINATED AND APPOINTED ONLY WITH THE
TO OWE THE STATE AND THE CONSTITUTION ALLEGIANCE AT ALL
TIMES ....................................................................... 102
RIGHT OF CONFRONTATION .................................... 83 SCOPE ...................................................................... 88 COMMISSION ON APPOINTMENTS’ CONSENT? ....................... 95
WHO CAN THE PRESIDENT APPOINT WITHOUT CA’S APPROVAL? 95
COMPULSORY PROCESS .......................................... 83
DISCRETION OF APPOINTING OFFICIAL ................... 95 Rights of Public Officers .. 102
TRIALS IN ABSENTIA ................................................ 83 Double Jeopardy ................ 88 PRESUMED................................................................... 95 IN GENERAL ........................................................... 102
WHEN CAN TRIAL IN ABSENTIA BE DONE .............................. 83 TERMINATION OF JEOPARDY .................................. 88 DISCRETIONARY ACT....................................................... 95 RIGHTS INCIDENT TO PUBLIC OFFICE ................................. 102
WHEN PRESENCE OF THE ACCUSED IS A DUTY ........................ 83 RIGHTS AS A CITIZEN .................................................... 102
REQUISITES ............................................................. 88 EFFECTIVITY OF APPOINTMENT ............................... 96
WHEN SUBSEQUENT PROSECUTION IS BARRED ...................... 88 RIGHT TO SALARY .................................................. 102
Writ of Habeas Corpus ...... 84 EXCEPTION ................................................................... 88

WHEN DEFENSE OF DOUBLE JEOPARDY IS AVAILABLE .............. 88
EFFECTS OF A COMPLETE, FINAL AND IRREVOCABLE
APPOINTMENT ......................................................... 96
BASIS OF RIGHT TO COMPENSATION ................................. 102
RIGHT TO RETIREMENT PAY ............................................ 102
AVAILABILITY ........................................................... 84
MOTIONS FOR RECONSIDERATION AND APPEALS ... 88 OTHER RIGHTS ....................................................... 103
RESTRAINT OF LIBERTY ........................................... 84 DISMISSAL WITH CONSENT OF ACCUSED ................ 88
Eligibility and Qualification RIGHTS UNDER THE CONSTITUTION .................................. 103
RIGHTS UNDER THE CIVIL SERVICE DECREE AND THE NEW
Requirements .................... 96 ADMINISTRATIVE CODE ................................................. 103
Writ of Amparo, Habeas Data Ex Post Facto and Bills of DEFINITION .............................................................. 96
NEXT-IN-RANK RULE .................................................... 103
PERSONNEL ACTIONS ................................................... 103
and Kalikasan ..................... 84 Attainder ............................ 89 POWER TO PRESCRIBE QUALIFICATIONS ................ 96

RIGHTS UNDER THE REVISED GOVERNMENT SERVICE INSURANCE
ACT .......................................................................... 103
WRIT OF AMPARO .................................................... 84 EX POST FACTO LAWS.............................................. 89 RIGHT TO REINSTATEMENT AND BACK SALARY .................... 103
PETITION FOR WRIT ........................................................ 85 TIME OF POSSESSION OF QUALIFICATIONS ............. 97 RIGHT TO PROPERTY, DEVICES AND INVENTIONS ................. 103
BILLS OF ATTAINDER ............................................... 89
WRIT OF HABEAS DATA ............................................ 85 ELIGIBILITY PRESUMED ........................................... 97
RIGHT TO INFORMATION PRIVACY V.
LEGITIMATE STATE INTEREST ............................................ 85
LAW ON PUBLIC OFFICERS
QUALIFICATIONS PRESCRIBED BY CONSTITUTION .. 97 Liabilities of
WRIT OF KALIKASAN ................................................ 85 RELIGIOUS TEST OR QUALIFICATION Public Officers ................... 104
WHO MAY FILE .............................................................. 86 General Principles .............. 91 IS NOT REQUIRED .................................................... 97 GENERAL RULE ON LIABILITY ................................ 104
WHO HAS JURISDICTION .................................................. 86 CONCEPT AND APPLICATION................................... 91 STATUTORY LIABILITY ................................................... 104
DOCKET FEES ................................................................ 86 DEFINITION .................................................................. 91 QUALFICATION STANDARDS AND REQUIREMENTS
WHEN IS WRIT ISSUED ..................................................... 86 PURPOSE ..................................................................... 91 UNDER THE CIVIL SERVICE LAW ............................... 97 CRIMINAL LIABILITY ............................................... 104
RETURN OF RESPONDENT ................................................ 86 ELEMENTS ................................................................... 91 QUALIFICATION STANDARDS ............................................ 98
HEARING ..................................................................... 86 PUBLIC OFFICE V. PUBLIC EMPLOYMENT ............................... 91 POLITICAL QUALIFICATIONS FOR AN OFFICE ......................... 98 THREE-FOLD RESPONSIBILITY
PUBLIC OFFICE V. CONTRACT ............................................ 91 NO PROPERTY QUALIFICATIONS ......................................... 98 OF PUBLIC OFFICERS ............................................. 105
PUBLIC OFFICE IS NOT PROPERTY ....................................... 92 CITIZENSHIP ................................................................. 98
Self-Incrimination Clause . 86 CREATION OF PUBLIC OFFICE ............................................ 92

METHODS OF ORGANIZING PUBLIC OFFICES .......................... 92
EFFECT OF REMOVAL OF QUALIFICATIONS DURING THE TERM .... 98
EFFECT OF PARDON UPON THE DISQUALIFICATION TO HOLD PUBLIC
LIABILITY OF MINISTERIAL OFFICERS .................... 105
SCOPE ADND COVERAGE ......................................... 86 MODIFICATION AND ABOLITION OF PUBLIC OFFICE .................. 92 OFFICE ........................................................................ 98 COMMAND RESPONSIBILIY .................................... 105
EXAMPLES ................................................................... 86 ESTOPPEL IN DENYING EXISTENCE OF OFFICE ........................ 92
FOREIGN LAWS.............................................................. 86 PREVENTIVE SUSPENSION AND BACK SALARIES .. 105
APPLICATION ........................................................... 86
PUBLIC OFFICER....................................................... 92
DEFINITION .................................................................. 92 Disabilities and Inhibitions of KINDS OF PREVENTIVE SUSPENSION ................................. 105
EXPANDED APPLICATION ................................................. 86

EFFECT OF DENIAL OF PRIVILEGE........................................ 86 CLASSIFICATION OF PUBLIC OFFICES AND PUBLIC Public Officers .................... 98 ILLEGAL DISMISSAL, REINSTATEMENT AND BACK
SALARIES ............................................................... 105
OFFICERS ................................................................. 93 DISQUALIFICATIONS TO HOLD PUBLIC OFFICE........ 98
IMMUNITY STATUTES .............................................. 86
TRANSACTIONAL IMMUNITY ............................................. 86
Immunity of
USE AND FRUIT OF IMMUNITY ........................................... 86
Modes of Acquiring Title to Powers and Duties of Public Public Officers ................... 106
Public Office ........................93 Officers .............................. 100 DOCTRINE OF OFFICIAL IMMUNITY FROM LIABILITIES
Involuntary Servitude and MODES OF COMMENCING OFFICIAL RELATION ....... 93 CLASSIFICATION OF POWERS AND DUTIES ........... 100 FOR PUBLIC OFFICERS ........................................... 106
Political Prisoners ............... 87 ELECTION .................................................................... 93

APPOINTMENT .............................................................. 94
AS TO NATURE ............................................................ 100
AS TO OBLIGATION TO THE OFFICER TO PERFORM HIS POWERS AND OTHER PUBLIC POLICY CONSIDERATIONS ............. 106
INVOLUNTARY SERVITUDE ...................................... 87 DUTIES ....................................................................... 101
AS TO RELATIONSHIP OF THE OFFICER TO HIS SUBORDINATE .... 101 OFFICIAL IMMUNITY DISTINGUISHED FROM STATE
POLITICAL PRISONERS ............................................ 87 IMMUNITY ...............................................................107
AUTHORITY OF PUBLIC OFFICERS ........................... 101
OFFICIAL IMMUNITY NOT ABSOLUTE .....................107
IMMUNITY FROM SUIT OF THE PRESIDENT .............107

SCOPE ..................................................................... 112
CIVIL SERVICE COMMISSION’S (CSC’S) JURISDICTION .............. 112 TYPES OF ADMINISTRATIVE AGENCIES ................... 118 Registration of Voters ...... 126
RECALL OF APPOINTMENT ............................................... 112 DEFINITION .............................................................126
REVIEW APPOINTEE’S QUALIFICATIONS .............................. 112
De facto Officers ............... 107 WHAT IT CANNOT DO ..................................................... 112

Powers of Administrative SYSTEM OF CONTINUING
REGISTRATION OF VOTERS .....................................126
DE FACTO DOCTRINE ..............................................107 APPOINTMENTS TO THE CIVIL SERVICE .................. 112
SCOPE ........................................................................ 112 Agencies ............................. 118 PERIODS OF REGISTRATION OF ........................................126
DE FACTO OFFICER DEFINED...................................107 CLASSES OF SERVICE ..................................................... 112 QUASI-LEGISLATIVE (RULE-MAKING) POWER ........ 118 ILLITERATE OR DISABLED VOTERS .........................126
REQUISITES ................................................................. 112 DOCTRINE OF SUBORDINATE LEGISLATION .......................... 118
OFFICER DE JURE V. OFFICER DE FACTO .................107 NON-DELEGATION DOCTRINE .......................................... 118 ELECTION REGISTRATION BOARD ..........................126
OFFICER DE FACTO V. INTRUDER .......................... 108 COMPOSITION ..............................................................126
ELEMENTS OF A DE FACTO OFFICERSHIP ............... 108 The Civil Service ................. 112 LEGISLATIVE DELEGATION ..................................... 118
REQUISITES FOR A VALID DELEGATION ............................... 118 CHANGE OF RESIDENCE OR ADDRESS .................... 127
WHO ARE NOT CONSIDERED DE FACTO OFFICERS?................ 108 SCOPE ..................................................................... 112 WHAT IS A SUFFICIENT STANDARD .................................... 118 CHANGE OF RESIDENCE TO ANOTHER CITY OR MUNICIPALITY ... 127
OFFICE CREATED UNDER AN UNCONSTITUTIONAL STATUTE .... 108 CIVIL SERVICE COMMISSION’S (CSC’S) JURISDICTION .............. 112 FORMS OF THE SUFFICIENT STANDARDS ............................. 118 CHANGE OF ADDRESS IN THE SAME MUNICIPALITY OR CITY ...... 127
RECALL OF APPOINTMENT ............................................... 112 KINDS OF ADMINISTRATIVE RULES AND REGULATIONS ........... 119
LEGAL EFFECT OF ACTS OF DE FACTO OFFICERS .... 108 REVIEW APPOINTEE’S QUALIFICATIONS .............................. 112 REQUISITES FOR VALIDITY ............................................... 119 CHALLENGES TO RIGHT TO REGISTER .................... 127
WHAT IT CANNOT DO ..................................................... 112 WHO MAY CHALLENGE APPLICATION FOR REGISTRATION ........ 127
LIABILITY OF DE FACTO OFFICERS.......................... 109 QUAS-JUDICIAL (ADJUDICATORY) POWER ............. 119 FORM ........................................................................ 127
APPOINTMENTS TO THE CIVIL SERVICE .................. 112 SOURCE ..................................................................... 119 WHEN FILED ................................................................ 127
RIGHT TO COMPENSATION OF DE FACTO OFFICER 109 SCOPE ........................................................................ 112 DISTINCTIONS FROM JUDICIAL PROCEEDINGS ....................... 119 HEARING .................................................................... 127
CLASSES OF SERVICE ..................................................... 112 DECISION .................................................................... 127
REQUISITES ................................................................. 112 FACT-FINDING, INVESTIGATIVE, LICENSING AND
Termination of Official PERSONNEL ACTIONS ............................................. 113

RATE-FIXING POWERS ............................................ 121
ASCERTAINMENT OF FACT ............................................... 121
DEACTIVATION OF REGISTRATION ......................... 127
CAUSES OF DEACTIVATION .............................................. 127
Relation ............................. 109 OTHER PERSONNEL ACTIONS ........................................... 113 INVESTIGATIVE POWERS ................................................. 121
LICENSING FUNCTION .................................................... 121 REACTIVATION OF REGISTRATION ......................... 127
EXPIRATION OF THE TERM OR TENURE OF OFFICE109 FIXING OF RATES, WAGES, PRICES..................................... 122
REACHING THE AGE LIMIT (RETIREMENT).............. 109 Accountability of Public CERTIFIED LIST OF VOTERS ..................................... 127
GROUNDS WHEN LIST OF VOTERS WILL BE ALTERED............... 127
DEATH OR PERMANENT DISABILITY ...................... 109 Officers ............................... 113 Judicial Recourse ANNULMENT OF BOOK OF VOTERS ......................... 127
RESIGNATION ........................................................ 109

IMPEACHMENT ....................................................... 113
GROUNDS ................................................................... 114 and Review ........................ 122 OVERSEAS ABSENTEE VOTER ................................ 128
REQUISITES ................................................................ 109 DOCTRINE OF PRIMARY ADMINISTRATIVE DEFINITION ................................................................ 128
FORM OF RESIGNATION ................................................. 109 OMBUDSMAN ......................................................... 114 JURISDICTION ......................................................... 122 COVERAGE ................................................................. 128
RESIGNATION REVOCABLE BEFORE FUNCTIONS ................................................................. 114 RATIONALE ................................................................. 122 PERSONAL OVERSEAS ABSENTEE REGISTRATION ................. 128
NOTIFICATION OF ACCEPTANCE ........................................ 110 DISCIPLINARY POWER OVER PUBLIC OFFICERS ...................... 114 REQUISITES ................................................................. 122 NATIONAL REGISTRY OF OVERSEAS ABSENTEE VOTERS ......... 128
EFFECTIVE DATE OF RESIGNATION ..................................... 110 JUDICIAL REVIEW IN ADMINISTRATIVE PROCEEDINGS ............. 115 WHEN THE DOCTRINE IS INAPPLICABLE............................... 123
COURTESY RESIGNATION ................................................ 110 JUDICIAL REVIEW IN PENAL PROCEEDINGS........................... 115 EFFECT ....................................................................... 123
ACCEPTANCE OF AN INCOMPATIBLE OFFICER ....... 110 SANDIGANBAYAN ................................................... 115 DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE Inclusion and Exclusion
WHEN INCOMPATIBLE .................................................... 110 COMPOSITION .............................................................. 115
EXCLUSIVE ORIGINAL JURISDICTION .................................. 115
REMEDIES ............................................................... 123
REQUISITES ................................................................. 123 Proceedings ...................... 128
ABANDONMENT OF OFFICE .................................... 110 OFFICIALS AND PRIVATE INDIVIDUALS RATIONALE ................................................................. 123 JURISDICTION IN INCLUSION
ABANDONMENT ........................................................... 110 SUBJECT TO ITS JURISDICTION .......................................... 115 EXCEPTION TO THE DOCTRINE OF ADMINISTRATIVE REMEDIES.. 123 AND EXCLUSION CASES ......................................... 128
REQUISITES ................................................................. 110 EXCLUSIVE APPELLATE JURISDICTION ................................ 116 EFFECT OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES .. 123
SPECIES OF RESIGNATION ............................................... 110 APPELLATE JURISDICTION OF THE SUPREME COURT ............... 116 APPEAL .................................................................. 128
DOCTRINE OF FINALITY OF ADMINISTRATIVE
PRESCRIPTION OF RIGHT TO OFFICE ...................... 110 ILL-GOTTEN WEALTH .............................................. 116 JURISDICTION ......................................................... 123 OVERSEAS ABSENTEE VOTER ................................ 128
REMOVAL ................................................................. 111 TERM LIMITS ........................................................... 116 ELECTION LAW
Political Parties ................. 128

IMPEACHMENT ........................................................ 111 ADMINISTRATIVE LAW
Suffrage ............................. 125 PARTY SYSTEM ...................................................... 128
ABOLITION OF OFFICE .............................................. 111 SCOPE .....................................................................125
REQUISITES .................................................................. 111
IS ABANDONMENT EQUIVALENT TO ABOLITION? .................... 111 General Principles ............. 118 KINDS OF ELECTION .......................................................125 JURISDICTION OF THE COMELEC OVER POLITICAL
PARTIES ................................................................. 128
DEFINITIONS ........................................................... 118 ELECTION PERIOD ...................................................125 PARTY....................................................................... 128
CONVICTION OF A CRIME ........................................ 112 PARTY-LIST SYSTEM ..................................................... 128
HISTORICAL CONSIDERATIONS .............................. 118 POLITICAL PARTY ......................................................... 128
FAILURE TO ASSUME ELECTIVE OFFICE
WITHIN SIX MONTHS FROM PROCLAMATION ......... 112 Qualification and 3 KINDS OF PARTIES ......................................................129
RECALL ................................................................... 112 Administrative Agencies ... 118 Disqualification of Voters . 125 PURPOSE ................................................................129
MODES OF CREATION OF QUALIFICATIONS ....................................................125 REGISTRATION .......................................................129

ADMINISTRATIVE AGENCIES .................................. 118 PROCEDURE FOR REGISTRATION ......................................129
The Civil Service ................. 112 WHEN IS AN AGENCY ADMINISTRATIVE .................. 118
OVERSEAS ABSENTEE VOTERS ...............................126 GROUPS WHICH CANNOT BE REGISTERED
AS POLITICAL PARTIES ...................................................129
PURPOSE OF REGISTRATION ............................................129
GROUNDS FOR REFUSAL /CANCELLATION OF REGISTRATION ....129
COMPOSITION OF
BOARD OF ELECTION INSPECTORS ........................ 137 Prosecution of Election DEVOLUTION .......................................................... 151
CERTIFIED LIST OF REGISTERED PARTIES.............................129 QUALIFICATIONS .......................................................... 137

Offenses ............................ 143
NOMINATION OF PARTY -LIST REPRESENTATIVES ..................129
QUALIFICATIONS OF PARTY LIST REPRESENTATIVES.............. 130
DISQUALIFICATIONS ...................................................... 137
JURISDICTION OVER ELECTION OFFENSES.............143 Powers of
PARAMETERS IN ALLOCATION OF SEATS FOR PARTY-
POWERS OF BOARD OF ELECTION INSPECTORS .... 137 INVESTIGATION AND PROSECUTION ...................................143
TRIAL AND DECISION .....................................................143 Local Government Units .... 151
LIST REPRESENTATIVES ........................................ 130 COMPOSITION OF BOARD OF CANVASSERS............ 137 SOURCES OF POWER .............................................. 151
20% ALLOCATION ....................................................... 130 PREFERENTIAL, DISPOSITION OF
2% THRESHOLD .......................................................... 130 PROHIBITIONS ON BOC ...........................................138 ELECTION OFFENSES ............................................. 144 POLICE POWER (GENERAL WELFARE CLAUSE) ....... 151
PROPORTIONAL REPRESENTATION................................... 130 NATURE ..................................................................... 151
3-SEAT LIMIT .............................................................. 130 CANVASS BY THE BOC .............................................138 ELECTION OFFENSES ............................................. 144 LIMITATIONS ............................................................... 151
REGISTRATION ............................................................ 144 ILLUSTRATIONS – POLICE POWER APPLIED .......................... 151
EFFECT OF CHANGE OF AFFILIATION ..................... 130 CERTIFICATE OF CANVASS AND STATEMENT OF CERTIFICATE OF CANDIDACY ........................................... 144 ILLUSTRATIONS – POLICE POWER DOES NOT APPLY ............... 151
VOTES .....................................................................138 ELECTION CAMPAIGN .................................................... 144
NATIONAL BOC FOR PRESIDENT AND VICE-PRESIDENT ...........138 VOTING ..................................................................... 144 EMINENT DOMAIN .................................................. 151
Candidacy .......................... 130 PROCLAMATION .....................................................138

COUNTING OF VOTES .................................................... 144
CANVASSING .............................................................. 144
NATURE .....................................................................152
REQUISITES .................................................................152
QUALIFICATIONS OF CANDIDATES ........................ 130 WHEN PROCLAMATION VOID ............................................138 ACTS OF GOVERNMENT OR PUBLIC OFFICERS ...................... 144 JUST COMPENSATION ....................................................152
CANDIDATE, DEFINITION ............................................... 130 PARTIAL PROCLAMATION ................................................138 COERCION, INTIMIDATION, VIOLENCE ............................... 144 IMMEDIATE ENTRY BY THE LGU .........................................152
QUALIFICATIONS ......................................................... 130 ELECTION RESULTING IN A TIE ..........................................138 OTHER PROHIBITIONS ................................................... 145 SOCIALIZED HOUSING ....................................................152
DISQUALIFICATIONS ...................................................... 131 PROCLAMATION OF A LONE CANDIDATE .............................139 PENALTIES ................................................................. 145
TAKING POWER.......................................................152
FILING OF CERTIFICATES OF CANDIDACY ............... 132 ARRESTS IN CONNECTION FUNDAMENTAL PRINCIPLES ON TAXATION BY AN LGU ............152
EFFECT OF FILING .......................................................... 132
SUBSTITUTION OF CANDIDATES ....................................... 132 Remedies and Jurisdiction in WITH ELECTION CAMPAIGN ................................... 145 SOURCES OF LGU FUNDS .................................................152
COMMON LIMITATIONS ON TAXING POWER ..........................152
MINISTERIAL DUTY OF COMELEC TO RECEIVE CERTIFICATE ....... 132
NUISANCE CANDIDATES.................................................. 133 Election Law ...................... 139 PRESCRIPTION....................................................... 145 EXEMPTION OF THE NATIONAL GOVERNMENT FROM TAXATION 153
FUNDAMENTAL PRINCIPLES ON
PETITION TO DENY OR CANCEL CERTIFICATES OF CANDIDACY ... 133 PETITION NOT TO GIVE DUE COURSE TO OR CANCEL PROHIBITED ACTS UNDER RA 9369 ....................... 145 THE FINANCIAL AFFAIRS OF AN LGU ................................... 153
EFFECT OF DISQUALIFICATION ......................................... 133 A CERTIFICATE OF CANDIDACY ...............................139 PENALTY ................................................................... 145
WITHDRAWAL OF CANDIDATES .........................................134 CANCELLATION OF CERTIFICATE OF CANDIDACY ....................139 NATIONAL ELECTIVE OFFICE ........................................... 145 CLOSURE AND OPENING OF ROADS........................ 153
PENALTY ................................................................... 146 SCOPE – WITHIN JURISDICTION OF THE LGU ......................... 153
PETITION FOR DISQUALIFICATION .........................139 FOR TEMPORARY CLOSURE ............................................. 153
Campaign .......................... 134 PROCEDURE ................................................................139 LOCAL GOVERNMENT CODE FOR PERMANENT CLOSURE ............................................. 153
FOR CLOSURE BY CITIES, MUNICIPALITIES, AND BARANGAYS ... 153
PREMATURE CAMPAIGNING...................................134 PETITION TO DECLARE FAILURE OF ELECTIONS .....139
PROHIBITED CAMPAIGNING DAYS ......................................134
ELECTION CAMPAIGN OR PARTISAN POLITICAL ACTIVITY .........134
WHAT CONSTITUTES AN ELECTION ....................................139
FAILURE OF ELECTIONS ..................................................139 Public Corporations .......... 148 LEGISLATIVE POWER ............................................. 154
REQUISITES FOR VALID ORDINANCE .................................. 154
CAMPAIGN PERIOD ........................................................134 DECLARATION OF FAILURE OF ELECTION ........................... 140 CONCEPT ............................................................... 148 LOCAL INITIATIVE AND REFERENDUM ................................ 155
EQUAL ACCESS TO TIME AND SPACE ...................................134
ELECTION SURVEYS ....................................................... 135 PRE-PROCLAMATION CONTROVERSY ................... 140 CLASSIFICATIONS .................................................. 148 CORPORATE POWERS ............................................ 156
APPLICATION FOR RALLIES, MEETINGS AND OTHER POLITICAL JURISDICTION ............................................................. 140 TO SUE AND BE SUED .................................................... 156
ACTIVITY .................................................................... 135 WHEN NOT ALLOWED .................................................... 140
NATURE OF PROCEEDINGS ............................................. 140 Municipal Corporations..... 148 TO ACQUIRE AND SEAL REAL PROPERTY ............................ 156
TO ENTER INTO CONTRACTS ............................................ 157
PROHIBITED CONTRIBUTIONS ................................ 135 ISSUES THAT MAY BE RAISED .......................................... 140 ELEMENTS ............................................................. 148
DEFINITIONS ................................................................ 135 ISSUES THAT CANNOT BE RAISED ...................................... 141
PROHIBITED CONTRIBUTIONS .......................................... 135
PROHIBITED FUND-RAISING ACTIVITIES ............................. 135
PROCEDURE ................................................................ 141
EFFECT OF FILING PRE-PROCLAMATION CONTROVERSY ......... 142
NATURE AND FUNCTION........................................ 148
DUAL NATURE............................................................. 148 Liability of LGUs .................157
REQUISITES OF A PROHIBITED DONATION............................ 135 EFFECT OF PROCLAMATION OF WINNING CANDIDATE ............ 142 ON CONTRACT ........................................................ 157
PETITION TO ANNUL OR SUSPEND PROCLAMATION ............... 142 REQUISITES FOR CREATION, CONVERSION, DIVISION,
LAWFUL AND PROHIBITED MERGER, OR DISSOLUTION ................................... 148 ON TORT ................................................................ 158
ELECTION PROPAGANDA ........................................ 136 ELECTION PROTEST ............................................... 142 MINIMUM REQUIREMENTS ............................................. 148
LAWFUL ELECTION PROPAGANDA ..................................... 136 NATURE .................................................................... 142 GENERAL REQUIREMENTS .............................................. 148 BY EXPRESS PROVISIONS OF LAW ......................... 158
PROHIBITED ACTS ......................................................... 136 PURPOSE ................................................................... 142 CREATION .................................................................. 149 ARTICLE 2189, CC ...................................................... 158
WHO MAY FILE ............................................................ 142 INTERNAL REVENUE ALLOTMENTS ................................... 149 ARTICLE 2180, CC ...................................................... 158
LIMITATIONS ON EXPENSES ................................... 136 WHEN ....................................................................... 142 ATTACKS AGAINST VALIDITY OF INCORPORATION ................. 150
FOR CANDIDATES.......................................................... 136 WHO HAS JURISDICTION ................................................ 142 DOWNGRADING ........................................................... 150 ON VIOLATION OF LAW .......................................... 158
CANDIDATES WITHOUT A POLITICAL PARTY ......................... 136 GROUNDS .................................................................. 142 DIVISION AND MERGER .................................................. 150
FOR POLITICAL PARTIES ................................................. 136 PAYMENT OF DOCKET FEES ..............................................143 ABOLITION ................................................................. 150 PERSONAL LIABILITY OF PUBLIC OFFICIAL ............ 158
EFFECT OF FILING PETITION TO ANNUL OR TO SUSPEND THE
STATEMENT OF CONTRIBUTIONS AND EXPENSES.. 136 PROCLAMATION ...........................................................143
EFFECT OF FAILURE TO FILE STATEMENT ............................. 136
QUO WARRANTO ....................................................143 Principles of Settlement of Boundary
WHO MAY FILE .............................................................143
Local Autonomy ................ 150 Disputes ............................. 159
Board of Election Inspectors WHEN ........................................................................143
WHO HAS JURISDICTION .................................................143 LOCAL AUTONOMY ................................................ 150 APPEAL .................................................................. 159
(BEI) and Board of GROUNDS ...................................................................143

EXECUTION PENDING APPEAL ..........................................143
DECLARATION OF POLICY ............................................... 150
MAINTENANCE OF THE STATUS QUO ..................... 159
Canvassers (BOC) .............. 137 DECENTRALIZATION ............................................... 151
Succession of PUBLIC INTERNATIONAL LAW

Diplomatic CONSEQUENCES OF STATE RESPONSIBILITY ......... 185
DUTY TO MAKE REPARATIONS ......................................... 185
Elective Officials ................ 159 Concepts ........................... 168 and Consular Law .............. 177 FORMS OF REPARATION ................................................ 185
SUCCESSION IN PERMANENT VACANCIES ............. 159 FORMAL SOURCES V. MATERIAL SOURCES ........... 168 AGENTS OF DIPLOMATIC INTERCOURSE................. 177
PERMANENCY OF VACANCY ............................................ 159
POSITION OF LOCAL CHIEF EXECUTIVE BECOMES VACANT ....... 159 OBLIGATIONS ERGA OMNES .................................. 168
HEAD OF STATE ............................................................ 177
THE FOREIGN OFFICE .................................................... 177 Jurisdiction of States ........ 186
TEMPORARY VACANCIES ................................................ 160 THE DIPLOMATIC CORPS ................................................. 177 PRINCIPLES OF STATE JURISDICTION .................... 186
JUS COGENS ........................................................... 168
DIPLOMATIC IMMUNITIES AND PRIVILEGES ........... 177 RESERVED DOMAIN OF DOMESTIC JURISDICTION 186
Discipline of CONCEPT OF EX AEQUO ET BONO .......................... 169 THEORETICAL BASIS OF DIPLOMATIC PRIVILEGES
AND IMMUNITIES .......................................................... 177 DOCTRINE OF STATE IMMUNITY ............................ 186
Elective Officials ................. 161 PERSONAL INVIOLABILITY ............................................... 178
International and National INVIOLABILITY OF PREMISES AND ARCHIVES ........................ 178

GROUNDS OF DISCIPLINARY ACTION ..................... 161 RIGHT OF OFFICIAL COMMUNICATION ................................. 178
Treatment of Aliens .......... 188
JURISDICTION ......................................................... 161 Law .................................... 169 IMMUNITY FROM LOCAL JURISDICTION ............................... 178
EXEMPTION FROM TAXES AND CUSTOMS DUTIES .................. 179 INTERNATIONAL STANDARD OF JUSTICE .............. 188
ADMINISTRATIVE COMPLAINTS ......................................... 161 RELATIONSHIP OF PUBLIC INTERNATIONAL LAW
WHERE FILED ............................................................... 161 WITH MUNICIPAL LAW .......................................... 169 CONSULAR RELATIONS .......................................... 179 DOCTRINE OF STATE RESPONSIBILITY (WITH
OMBUDSMAN JURISDICTION ............................................ 161 THE ROLE OF INTERNATIONAL LAW WITHIN THE NATIONAL LEGAL RANKS ....................................................................... 179 SPECIFIC REGARD TO TREATMENT OF ALIENS)..... 188
ORDER ...................................................................... 169 FUNCTIONS ................................................................. 179 CONDITIONS FOR THE ENFORCEMENT
PREVENTIVE SUSPENSION......................................162 THE ROLE OF NATIONAL LAW IN THE INTERNATIONAL LEGAL NECESSARY DOCUMENTS ............................................... 180 OF STATE RESPONSIBILITY ............................................. 188
UNDER THE LGC............................................................162 REGULATION .............................................................. 169 IMMUNITIES AND PRIVILEGES.......................................... 180
UNDER THE OMBUDSMAN ...............................................162 EXTRADITION......................................................... 189
UNDER THE SANDIGANBAYAN ..........................................162 THEORETICAL VIEWS ON THE RELATIONSHIP Treaties .......................................................... 181 FUNDAMENTAL PRINCIPLES ........................................... 189
BETWEEN PIL AND MUNICIPAL LAW ...................... 169 REQUISITES FOR VALIDITY .................................... 182 AS DISTINGUISHED FROM DEPORTATION ........................... 189
REMOVAL ................................................................ 163 MONIST VIEW .............................................................. 169
DUALIST VIEW .............................................................170 THE TREATY-MAKING PROCESS ............................ 182
Administrative Appeal ...... 163 MONIST-NATURALIST VIEW .............................................170
COORDINATIONIST VIEW .................................................170 DOCTRINE FOR TRANSFORMATION .......................183 International Human Rights
PERIOD FOR APPEAL .............................................. 163
Sources ............................... 170 PHILIPPINE LAW ...........................................................183
AMENDMENT OR MODIFICATION OF TREATY ........................183
Law .................................... 190
TO WHOM APPEALABLE .......................................... 163 PRIMARY SOURCES ................................................170 CLASSIFICATION OF HUMAN RIGHTS .................... 189
RESERVATIONS.......................................................183
EFFECT OF APPEAL ................................................. 163 SUBSIDIARY SOURCES ............................................170 UNIVERSAL DECLARATION OF HUMAN RIGHTS .... 190
DEFINITION OF TREATY ...................................................170 INVALID TREATIES ..................................................183
DOCTRINE OF CONDONATION ................................ 163 INTERNATIONAL COVENANT ON CIVIL AND
CUSTOMARY INTERNATIONAL LAW .......................170 GROUNDS FOR TERMINATION ...............................183 POLITICAL RIGHTS ................................................. 190
DISCIPLINE OF APPOINTIVE OFFICIALS .................. 163 ELEMENTS ..................................................................170 OBLIGATIONS OF THE STATE PARTIES ................................ 190
DISCIPLINARY JURISDICTION ............................................ 163 NORMS OR PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW AS COMMON PROVISIONS IN THE ICCPR AND THE ICESR ............. 190
Nationality
IDENTIFIED BY THE PHILIPPINE SUPREME COURT AS FORMING
RESIGNATION OF APPOINTIVE OFFICIALS .............. 163 PART OF PHILIPPINE LAW ................................................ 171
RECALL .................................................................. 164

PRINCIPLE OF PERSISTENT OBJECTOR ................................ 171
DUALITY OF NORMS ....................................................... 171 and Statelessness ............ 184 International Humanitarian
REQUISITES ................................................................ 164
PROCEDURE ............................................................... 164 GENERAL PRINCIPLES OF LAW ............................... 171
NATIONALITY ......................................................... 184
Law and Neutrality ........... 190
LIMITATIONS ON RECALL ............................................... 165 ACQUISITION ......................................................... 184 CATEGORIES OF ARMED CONFLICT ........................ 190
SUBSIDIARY SOURCE: JUDICIAL DECISIONS ........... 172 BY BIRTH .................................................................. 184 INTERNATIONAL ARMED CONFLICTS ................................. 190
BY NATURALIZATION .................................................... 184 INTERNATIONAL OR NON-INTERNATIONAL ARMED CONFLICT .. 191
Term Limits ........................ 165 SUBSIDIARY SOURCE: PUBLICISTS ......................... 172 HAGUE CONVENTION OF 1930
ON CONFLICT OF NATIONALITY LAWS ............................... 184
WAR OF NATIONAL LIBERATION ........................................ 191
LENGTH OF TERM .................................................. 165 OTHER SOURCES .................................................... 172 PRINCIPLE OF EFFECTIVE NATIONALITY .............................. 184 CORE INTERNATIONAL OBLIGATIONS OF STATES IN
FOR ELECTIVE LOCAL OFFICIALS, IHL .......................................................................... 191
EXCEPT BARANGAY OFFICIALS ......................................... 165 LOSS OF NATIONALITY .......................................... 184
FOR ELECTIVE BARANGAY OFFICIALS AND MEMBERS OF THE
SANGGUNIANG KABATAAN ............................................. 165 Subjects ...............................172 VOLUNTARY ............................................................... 184
INVOLUNTARY ............................................................ 184
PRINCIPLES OF INTERNATIONAL HUMANITARIAN
LAW......................................................................... 191
STATES.................................................................... 172 TREATMENT OF CIVILIANS ...............................................192
RA 9164 .................................................................. 165 REQUISITE ELEMENTS .................................................... 173 STATELESSNESS ................................................... 184 PRISONERS OF WAR ......................................................192
RECOGNITION .............................................................. 176 THE UNIVERSAL DECLARATION OF HUMAN RIGHTS ............... 184
RA 9006 ................................................................. 165 COVENANT RELATING TO LAW ON NEUTRALITY .............................................192
INTERNATIONAL ORGANIZATIONS ........................ 176 THE STATUS OF STATELESS PERSONS ................................ 185 PROTECTING POWER .....................................................193
LIMITATION OF CONSECUTIVE TERMS ................... 166 PRECONDITIONS FOR INTERNATIONAL PERSONALITY ............. 176 RA 9851 ....................................................................193
WHAT CONSTITUTES A TERM OF OFFICE ............................. 166 CAPACITY TO BRING A CLAIM FOR REPARATION .................... 177
RULES FOR “FULLY SERVED” TERM .................................. 166
EFFECT OF JUDICIAL DECLARATION THAT THE OFFICIAL’S INDIVIDUALS .......................................................... 177 State Responsibility ......... 185 Law of the Sea .................. 197
PROCLAMATION IS VOID ................................................ 166 DOCTRINE OF STATE RESPONSIBILITY................... 185
EFFECT OF RECALL ELECTIONS ........................................ 166 ELEMENTS ................................................................. 185 BASELINES .............................................................. 197
EFFECT OF CONVERSION OF THE LGU................................. 166 ACTS THAT ARE ATTRIBUTABLE TO STATES UNDER THE DRAFT NORMAL BASELINE ....................................................... 197
EFFECT OF PREVENTIVE SUSPENSION ................................ 166 ARTICLES ................................................................... 185 STRAIGHT BASELINE ...................................................... 197
ARCHIPELAGIC STATES .......................................... 198
TWO KINDS OF ARCHIPELAGOS ........................................ 198
STRAIGHT ARCHIPELAGIC BASELINES ................................ 198
ARCHIPELAGIC WATERS ................................................. 198
ARCHIPELAGIC SEA LANES PASSAGE ................................. 198
INTERNAL WATERS ................................................ 198
TERRITORIAL SEA .................................................. 198
EXCLUSIVE ECONOMIC ZONE ................................. 199

JURISDICTION OF COASTAL STATE OVER EEZ ....................... 199
CONTINENTAL SHELF............................................. 199

EXTENDED CONTINENTAL SHELF ...................................... 199
LIMITS OF THE CONTINENTAL SHELF ................................. 199
RIGHTS OF THE COASTAL STATE
OVER THE CONTINENTAL SHELF .......................................200
RIGHTS WITH RESPECT TO CONTINENTAL SHELF V. EEZ ..........200
INTERNATIONAL TRIBUNAL
FOR THE LAW OF THE SEA ......................................200
SETTLEMENT OF DISPUTES .............................................200
CHINESE NINE-DASH LINE CLAIM .....................................200
PHILIPPINES TAKES CHINA TO ARBITRATION ....................... 201
Madrid Protocol and the Paris

Convention for the Protection
of Industrial Property ...... 202
MADRID PROTOCOL ............................................... 202
THE PARIS CONVENTION FOR THE PROTECTION OF

INDUSTRIAL PROPERTY ......................................... 202
SUBSTANTIVE PROVISIONS ............................................. 202
THE RIGHT OF PRIORITY ................................................. 202
International and
Environmental Law ......... 202
PRINCIPLE 21 OF
THE STOCKHOLM DECLARATION ........................... 202
BASIC PRINCIPLES ........................................................ 202
International
Economic Law .................. 203
UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION UP COLLEGE OF LAW CONSTITUTIONAL LAW 1 BAR OPERATIONS COMMISSION
The Constitution (2) Enacted (conventional) v. evolved (cumulative)

A conventional constitution is enacted, formally struck
DEFINITION, NATURE AND CONCEPTS off at a definite time and place following a conscious or
POLITICAL LAW deliberate effort taken by a constituent body or ruler. A
Branch of public law which deals with the organization and cumulative body is the result of political evolution, not
operations of the governmental organs of the State and inaugurated at any specific time but changing by
defines the relations of the State with the inhabitants of its accretion rather than by any systematic method. [CRUZ,
territory. [People v. Perfecto (1922)] id, at 5]
The entire field of political law may be subdivided into: (3) Rigid v. flexible
(1) The law of public administration -organization and A constitution is classified as rigid when it may not be
management of the different branches of the amended except through a special process distinct
government from and more involved than the method of changing
(2) Constitutional law - guaranties of the constitution to ordinary laws. It is supposed that by such a special
individual rights and the limitations on governmental procedure, the constitution is rendered difficult to
action change and thereby acquires a greater degree of
(3) Administrative law - exercise of executive power in the stability. A constitution is classified as flexible when it
making of rules and the decision of questions affecting may be changed in the same manner and through the
private rights same body that enacts ordinary legislation. The British
(4) The law of public corporations -governmental agencies Constitution is flexible.
for local government or for other special purposes
[SINCO1] N.B. The Philippine Constitution is written, enacted and
rigid.
CONSTITUTIONAL LAW
Designates the law embodied in the Constitution and the Date of Effectivity of the 1987 Const.: February 2, 1987, the
legal principles growing out of the interpretation and date of the plebiscite, and not on the date its ratification
application of its provisions by the courts in specific cases. was proclaimed. [De Leon v. Esguerra (1987)]
It is the study of the maintenance of the proper balance
between the authority as represented by the three inherent BASIC PRINCIPLES OF CONSTITUTIONAL INTERPRETATION
powers of the State and liberty as guaranteed by the Bill of (1) Verbal legis– whenever possible, the words used in the
Rights. Constitution must be given their ordinary meaning
except where technical term are employed;
CONSTITUTION DEFINED (2) Ratio legis est anima– words of the Cnstitution should
(1) The body of rules and maxims in accordance with which be interpreted in accordance with the intent of the
the powers of sovereignty are habitually framers;
exercised.[COOLEY, THE GENERAL PRINCIPLES OF LAW IN THE (3) Ut magis valeat quam pereat– the Constitution should
UNITED STATES OF AMERICA] be interpreted as a whole [Francisco v. House of
(2) It is the document which serves as the fundamental law Representatives, 415 (2003)]
of the state; that written instrument enacted by the
direct action of the people by which the fundamental TYPES OF JUDICIAL REVIEW
powers of the government are established, limited and US Judicial Review
Europe Judicial Review
defined, and by which those powers are distributed (Followed by the PHL)
among the several departments for their safe and Constitutional Courts: US Supreme Court:
useful exercise, for the benefit of the body politic. centralized, only one court decentralized; all courts
[MALCOLM, PHIL. CONSTITUTIONAL LAW] can exercise can exercise judicial review
(3) "A law for the government, safeguarding individual Principaliter: questions are Incidenter: question that is
rights, set down in writing." [HAMILTON] independent of disputes recognized by the Court
(4) According to Schwartz, "a constitution is seen as an must be part of the
organic instrument, under which governmental powers controversy
are both conferred and circumscribed. Such stress
upon both grant and limitation of authority is PARTS OF THE CONSTITUTION
fundamental in American theory. 'The office and (1) Constitution of Government – establishes the structure
purpose of the constitution is to shape and fix the of government, its branches and their operation; e.g.
limits of governmental activity.'" [FERNANDO, THE Art. VI, VII, VIII, IX
CONSTITUTION OF THE PHILIPPINES 20-21 (2nd ed., 1977)] (2) Constitution of Sovereignty - provides how the
Constitution may be changed; i.e. Art. XVII
CLASSIFICATION OF CONSTITUTIONS (3) Constitution of Liberty - states the fundamental rights
(1) Written v. unwritten. of the people; e.g. Art. III [Lambino v. COMELEC
A written constitution is one whose precepts are (2006)]
embodied in one document or set of documents. An
unwritten constitution consist of rules which have not AMENDMENTS AND REVISIONS
been integrated into a single, concrete form but are (ART. XVIII –AMENDMENTS OR REVISIONS)
scattered in various sources, such as statutes of
fundamental character, judicial decisions, commentaries AMENDMENT
of publicists, customs and traditions. [CRUZ, An addition or change within the lines of the original
Constitutional Law 4-5; NACHURA, Outline Reviewer in constitution as will effect an improvement, or better carry
Political Law 2] out the purpose for which it was framed; a change that
PAGE 1 PAGE 2
adds, reduces or deletes without altering the basic (b) Constitutional Convention – Called into existence by TABLE OF CASES RE: CONSTITUTIONAL AMENDMENTS AND CHANGES IN GOVERNMENT
principles involved; affects only the specific provision being (i) 2/3 of all members of Congress OR (ii) the TItle Facts Held and Ratio
amended. [Lambino v. COMELEC (2006)] electorate, in a referendum called for by a Mabanag v. Lopez Vito Resolution of Congress proposing the Parity Petition dismissed. Proposal of amendments to the
majority of all members of Congress [CONST., art. (1947) Amendment was assailed on the grounds that constitution is a political question. The enrolled
REVISION XVII, sec. 3] Congressional Resolution it did not comply with the ¾ rule prescribed copy of the resolution in which it was certified that
A change that alters a basic principle in the constitution, (c) People (through a People’s Initiative)- petition of at proposing the Parity by the Constitution. the proposal had been approved by the required
like altering the principle of separation of powers or the least 12% of the total number of registered voters; Amendment vote was conclusive upon the courts.
system of checks-and-balances; alters the substantial every legislative district must be represented by at Modified by Gonzales, infra, and Tolentino, infra.
entirety of the constitution, as when the change affects least 3% of the registered voters therein. Gonzales v. COMELEC RBH No. 1 called for increase in the Petition denied.
substantial provisions of the constitution. [Id.] (i) Limitation on Initiative: No amendment in this (1967) membership of the HOR; RBH No. 2 called for (1) Proposal of amendments is not a political but a
manner shall be authorized (1) within 5 years Resolutions of Both a Constitutional Convention; and RBH No. 3 justiciable question subject to judicial review.
DIFFERENCE BETWEEN AMENDMENT AND REVISION following the ratification of the 1987 Const. nor Houses (RBH) calling for called for amendment of Sec.16, Art.VI to (2) Congress may propose amendments and at
Revision generally affects several provisions of the (2) more often than once every 5 years the 1971 Constitutional allow members of Congress to become the same time call for a Constituent Assembly.
constitution, while amendment generally affects only the thereafter. Convention and delegates to the CONCON without losing (3) Ratification may be done simultaneous with a
specific provision being amended [Id.] This distinction is (ii) Enabling Law: Constitutional provision on amendments to the 1935 their seats. Petitioners seek to restrain general election or in a special election called
significant because the 1987 Constitution allows people’s amendments via People’s Initiative not self- Constitution respondents from enforcing the law passed by specifically for that purpose.
initiative only for the purpose of amending, not revising, the executory [Santiago v. COMELEC (1997)] Congress submitting RBH Nos. 1 and 2 for (4) There was a proper submission.
Constitution.[See Lambino, supra] ratificationduring the general elections
(2) Ratification – the proposed amendment shall be scheduled on Nov. 1967.
LEGAL TESTS submitted to the people and shall be deemed ratified
Tolentino v. COMELEC Validity of a CONCON Resolution(submitting, Petition granted. All amendments proposed by the
Lambino considered the two-part test: the quantitative test by the majority of the votes cast in the plebiscite, held
(1971) for ratification, the proposal to lower the same Constitutional Convention shall be
and the qualitative test. not earlier than 60 days nor later than 90 days:
1971 Constitutional voting age to 18)was assailed. The question submitted to the people in a single election.
(1) Quantitative test - The court examines only the number (a) After approval of the proposal by Congress or
Convention convened here is whether piecemeal amendments to
of provisions affected and does not consider the degree Concon;
the Constitution could be submitted to the
of the change. (b) After certification by the COMELEC of sufficiency of
people for ratification or rejection.
(2) Qualitative test - inquires into the qualitative effects of petition of the people.
Planas v. COMELEC Petitioners seek to enjoin respondents from Petition dismissed. The issue of validity of calling
the proposed change in the constitution. The main
(1973) implementing PD 73, which called for a for a plebiscite (submission) is justiciable; BUT,
inquiry is whether the change will “accomplish such far Doctrine of Proper Submission – A plebiscite may be held
Plebiscite cases plebiscite (to be held on January 15, 1973) for issue became moot.
reaching changes in the nature of our basic on the same day as a regular election [Gonzales v.
the constitution approved by the CONCON on
governmental plan as to amount to a revision.” The COMELEC (1967)]. The entire Constitution must be
1972, on the theory that: (a) the power to
changes include those to the “fundamental framework submitted for ratification at one plebiscite only. The people
submit is lodged exclusively in Congress, and
or the fundamental powers of its Branches,” and those must have a proper “frame of reference”. [Tolentino v.
(b) there is no proper submission to the
that “jeopardize the traditional form of government COMELEC (1971)]. No “piecemeal submission,” e.g.
people.
and the system of check and balances.” Whether there submission of age amendment ahead of other proposed
is an alteration in the structure of government is a amendments. [Tolentino, supra] Javellana v. Executive Petitioners seek to enjoin the respondents Although the question of whether a Constitution
proper subject of inquiry.[See Lambino, supra.] Secretary (1973) from implementing any of the provisions of was validly ratified is a justiciable question, the
N.B.The process of revision is the same in all respects Ratification cases the “new constitution” not found in the 1935 question of whether a Constitution has come into
STEPS IN THE AMENDATORY PROCESS except that it cannot be proposed via a People’s Initiative. Constitution, on the theory that it was not force and effect is a political question beyond the
There are two steps in the amendatory process: (1) [See Lambino, supra] validly ratified in accordance with the competence of the Courtto decide.
proposal, and (2) ratification provisions of Art.1, Section XV.
Judicial Review of Amendments – The validity of the Sanidad v. COMELEC Petitioners question the authority of the (1) The amending process, both as to proposal and
(1) Proposal – The adoption of the suggested change in process of amendment is not a political question because (1976) President in issuing several PDs proposing ratification, raises a justiciable question.(2) In a
the Constitution. the Court must review if constitutional processes were 1976 Amendments amendments to the New Constitution and crisis government, the President shall have the
(a) Congress (as a Constituent Assembly) – a vote of ¾ followed. [See Lambino, supra] calling for a national referendum-plebiscite power to assume the constituent power to
of ALL its members. for the said amendments. propose amendments lodged in the Legislative
body.
SUMMARY OF TWO STAGES OF AMENDATORY/ REVISION PROCESS Mitra v. COMELEC (1981) Petitioners argue that the 1973 Constitution Even without valid ratification, a new Constitution
By Proposal Ratification Martial Law lifted.1981 never validly took effect, Javellana aside, on could come into force and effect by the
A. Congress (as Constituent Amendments the theory that the 1973 Constitution was still acquiescence of the people. Popular acquiescence
By a vote of ¾ of all its members and is still at the stage of proposal. to a new Constitution gives the document the
Assembly)
(In practice) per internal rules, force and effect of the Fundamental Law of the
Via Plebiscite, 60-90 days after Land, regardless of the method of ratification. If it is
Amendments B. Constitutional Convention limited by the Doctrine of Proper
submission of the amendments accepted by the people, in whom sovereignty
Submission
Upon COMELEC’s certification of resides according to the Constitution,the courts
C. People’s Initiative cannot refuse to yield assent to such a political
the sufficiency of the petition
decision.
A. Congress (as Constituent
By a vote of ¾ of all its members Legazpi v. Minister of Petitioners questioned Marcos’ legislative President retained his legislative powers even
Assembly)
Via Plebiscite, 60-90 days after Finance (1981) powers after the lifting of Martial Law. after the lifting of Martial Law and the 1981
Revision (In practice) per internal rules,
submission of the revision Martial Law lifted.1981 Amendments to the 1973 Constitution (which
B. Constitutional Convention limited by the Doctrine of Proper
Amendments vested executive powers back to the President) by
Submission
virtue of Amendment No.6.
Lawyers’ League for a Petitioners questioned legitimacy of the The question of legitimacy of a new government
Better Philippines v. Aquino government. arising from a successful revolution is a political
Aquino (1986) question beyond the pale of review by the courts.
EDSA Revolution
De Leon v. Esguerra Petitioners question the appointment of Date of effectivity of 1987 Constitution retroacts to
(1987) respondents as barangay officials and the date of the plebiscite, i.e. 2 Feb. 1987.
1987 Constitution ratified maintain that with the ratification of the 1987 Provisional Constitution deemed to have been
PAGE 4
PAGE 3
TItle Facts Held and Ratio (4) Police Force [sec. 6] Straight baseline method– consists of drawing straight
Constitution, the OIC did not have the superseded by 1987 Constitution on said date of (a) One police force lines connecting appropriate points on the coast without
authority to simply appoint their effectivity. (b) National in scope departing to any appreciable extent from the general
replacements. (c) Civilian in character direction of the coast, in order to delineate the internal
Santiago v. COMELEC Petitioners seek to enjoin respondent COMELEC permanently enjoined from entertaining waters from the territorial waters of an archipelago
(1997) COMELEC from acting on the petition by the or taking cognizance of any petition for initiative (5) Consumer Protection [sec. 9]
PIRMA case PIRMA group asking for an order fixing details until a sufficient law shall have been validly enacted See R.A. No. 9522–amended R.A. No. 3046, entitled "An
on how to collect signatures for a people’s to provide for the implementation of the system. (6) Mass Media [sec.11] Act to Define the Baselines of the Territorial Sea of the
initiative to amend the Constitution The system of initiative found in Article XVII, Sec.2 Ownership and management limited to (i) citizens of Philippines;" specified that baselines of Kalayaan Group of
is not self-executory. It needs an enabling law the Philippines or (ii)corporations, cooperatives or Islands and Bajo de Masinloc (Scarborough Shoal) shall be
before the right of the people to could be associations wholly-owned and managed by Filipino determined as “Regime of Islands” under the Republic of
exercised. However, an examination of its citizens the Philippines, consistent with the UNCLOS.
provisions reveals that RA 6735 is incomplete,
inadequate, or wanting in essential terms and (7) Advertising Industry [sec. 11] R.A. No. 9522 is not unconstitutional: it is a statutory tool
conditions insofar as initiative on amendments to (a) Can only be engaged in by (i) Filipino citizens or (ii) to demarcate the maritime zone and continental shelf of
the Constitution is concerned. corporations or associations at least 70% of which the Philippines under UNCLOS III, and does not alter the
Estrada vs. Desierto Estrada questions legitimacy of Arroyo (Legal distinction between EDSA I and EDSA II) is owned by Filipino citizens national territory. While UNCLOS III does not bind the
(2001) government and claims, inter alia, that he did The government arising from EDSA I was extra- (b) Participation of foreign investors is limited to their Philippines to pass a baselines law, Congress may do so.
EDSA II not resign from position and that Arroyo is constitutional, while EDSA II was a constitutional proportionate share in the capital The law also does not abandon the country’s claim to
merely an acting president. exercise of the right to free speech, freedom of (c) Managing officers must be Filipino citizen Sabah, as it does not expressly repeal the entirety of R.A.
assembly, and to petition the government for No. 5446. [Magallona v. Ermita (2011)]
redress.
Lambino vs. COMELEC Petitioners seek review of COMELEC decision The constituent power reserved to people under Note: Please refer to the section on Law of the Sea of the
(2007)
Lambino Group People’s
denying due course to a people’s initiative to
amend the 1987 Constitution.
Art.XVII Sec.2 is limited to the power to propose
amendments to, not revision of, the Constitution. General Considerations PIL Reviewer [p. 198], II for further discussion on Baselines
Initiative Moreover, “direct proposal by the people” means DOCTRINE OF SOVEREIGN IMMUNITY
that the petition signed by the people should NATIONAL TERRITORY (STATE IMMUNITY FROM SUIT)
contain the full text of the proposed amendments
to the Constitution. SCOPE (ART. II – NATIONAL TERRITORY) STATE
Comprises: A community of persons, more or less numerous,
SELF-EXECUTING AND NON-SELF-EXECUTING Legislative’s failure to pursue policies do not give rise to a (1) Philippine archipelago, with all the islands and waters permanently occupying a definite portion of territory,
PROVISIONS cause of action. (Id.) embraced therein. independent of external control, and possessing a
Self-Executing: Provisions which are complete in Internal waters – waters around, between, and government to which a great body of the inhabitants
themselves and do not need enabling legislation for their N.B.A provision may be self-executing in one part, and connecting the islands of the archipelago, regardless of render habitual obedience; a politically organized
operation; judicially enforceable per se. “The nature and breadth and dimension sovereign community independent of outside control
extent of the right conferred and the liability imposed are non-self-executing in another. (Manila Prince, supra) (2) All other territories over which the Philippines has bound by ties of nationhood, legally supreme within its
fixed by the constitution itself [Manila Prince Hotel v. GSIS sovereignty or jurisdiction territory, acting through a government functioning under a
(1997)].” GENERAL PROVISIONS regime of law. [Collector of Internal Revenue v. Campos
ART. XVI – GENERAL PROVISIONS Consists of: Rueda (1971)]
General Presumption: All provisions of the constitution are (1) Flag of the Philippines [sec. 1] (1) Territorial sea, seabed, subsoil, insular shelves, and
self-executing. [Id.] (a) Red, white and blue, with a sun and three stars other submarine areas BASES
(b) Design of the flag may be changed only by (2) Terrestrial, fluvial, and aerial domains Constitutional (Textual) Basis:“The State may not be sued
Exception: Statements of general principles, such as those in constitutional amendment [BERNAS] without its consent.” [CONST., art. XVI, Sec. 13].
Art. II, are usually not self-executing. (Id.)Other examples Archipelagic Doctrine- A body of water studded with
in jurisprudence: constitutional provisions on personal (2) Name of the country, national anthem, and national islands, or the islands surrounded with water, is viewed as International Law Basis:“Par in parem non habet imperium”
dignity, sanctity of family life, vital role of the youth in seal [sec. 2] a unity of islands and waters together forming one
nation-building, values of education, social justice and (a) May be changed by Congress by law integrated unit. [N.B. Embodied in Art. II, specifically by the Jurisprudential Basis:
human rights, promotion of general welfare, vital role of (b) Such law will only take effect upon ratification by mention of the “Philippine archipelago” and the (1) Positivist Theory - There can be no legal right as against
the youth in nation-building, promotion of total human the people in a national referendum specification on “internal waters.”] the authority that makes the laws on which the right
liberation and development are merely guidelines for depends. Also called the doctrine of Royal Prerogative
legislation(Id; citations omitted.) (3) Armed Forces of the Philippines [sec. 4] TREATY LIMITS OF THE PHILIPPINE ARCHIPELAGO of Dishonesty. [Kawananakoa v. Polyblank (1907)]
(a) Composed of a citizen armed force (1)Treaty of Paris of 10 December 1898: “Spain cedes to the (2) Sociological Theory - If the State is amenable to suits,
Exception to the Exception:The right to a balanced and (b) Shall take an oath of affirmation to uphold and United States the archipelago known as the Philippines all its time would be spent defending itself from suits
healthful ecology is self-executing [Oposa v. Factoran defend the Constitution [sec. 5(1)] Islands, and comprehending the islands lying within and this would prevent it from performing its other
(1993)] (c) May not be appointed or designated to a civilian the following line” xxx functions. [Republic vs. Villasor (1973)]
position in the government including GOCCs or
N.B.Other “exceptions” to the exception, e.g. right to their subsidiaries [sec. 5(4)] Article 3 defines the metes and bounds of the archipelago CONCEPT
information in art. III [See Legaspi v. CSC (1987)] and the (d) Laws on retirement of military officers shall not by longitude and latitude, degrees and seconds. Technical When against the state
Filipino First Policy [See Manila Prince, supra] are self- allow extension of their service [sec. 5(5)] descriptions are made of the scope of the archipelago as A suit is against the State regardless of who is named the
executing because they actually fall under the general (e) Recruited proportionately from all provinces and this may be found on the surface of the earth. defendant if:
rule. cities as far as practicable [sec.5(6)] (1) It produces adverse consequences to the public treasury
(f) Tour of duty of the Chief of Staff shall not exceed (2) Treaty of Washington of 7 November 1900 between the in terms of disbursement of public funds and loss of
Non-Self Executing:Provisions which merely “la[y] down a three years [sec. 5(7)] United States and Spain: Ceding Cagayan, Sibuto and government property.
general principle.” [Manila Prince, supra] Sulu. (2) Cannot prosper unless the State has given its consent.
BUT may be extended by the President in times of war
Declaration of principles and state policies are not self- or other national emergency declared by the Congress (3) Treaty of 2 January 190 between the United States and
executing. [Espina v. Zamora (2010)] [Id.] Great Britain: Ceding the Turtle and Mangsee Islands.
PAGE 5 PAGE 6
When not against the state Philippines under the provisions of this Act; but a copy only be liable for proprietary acts (jure gestionis) and (3) Renunciation of war [Sec. 2]
It was held that the suit is not against the State: thereof duly certified by the clerk of the Court in which not for sovereign acts (jure imperii). (4) Only refers to wars of aggression, not defensive war
(1) When the purpose of the suit is to compel an officer judgment is rendered shall be transmitted by such clerk to (5) Adoption of generally-accepted principles of
charged with the duty of making payments pursuant to the President of the Philippines, within five days after the SYNTHESIS OF RULES ON SUING GOV’T AGENCIES international law [Sec. 2]
an appropriation made by law in favor of the plaintiff to same becomes final. Type Function Rule (6) Adherence to a policy of peace, freedom, and amity
make such payment, since the suit is intended to with all nations [Sec. 2]
compel performance of a ministerial duty. [Begoso v. Sec. 8. The President of the Philippines, at the Incorporated Governmental CAN be sued IF (7) Civilian supremacy [Sec. 3]
PVA (1970)] commencement of each regular session of the Legislature, or proprietary charter allows (8) Civilian authority (Section 3, Article II) is not defeated in
(2) When from the allegations in the complaint, it is clear shall transmit to that body for appropriate action all Unincorporated Governmental CANNOT be sued a joint task force between the PNP and Marines for the
that the respondent is a public officer sued in a private decisions so received by him, and if said body determine unless consent is enforcement of law and order in Metro Manila as long
capacity; that payment should be made, it shall appropriate the sum given as control is left to the PNP. [IBP v. Zamora (2000)]
(3) When the action is not in personam with the which the Government has been sentenced to pay, Proprietary CAN be sued (9) (6) Role of the armed forces [Sec. 3]
government as the named defendant, but an action in including the same in the appropriations for the ensuing (a) Protector of the people and the State
rem that does not name the government in particular. year. Suits against Public Officers – The doctrine of state (b) Secure the sovereignty of the State and the
immunity also applies to complaints filed against officials integrity of the national territory
HOW STATE’S CONSENT IS GIVEN Torts (7) Compulsory military and civil service [Sec. 4]
of the State for acts performed by them in the discharge of
Express consent Provinces, cities and municipalities shall be liable for their duties within the scope of their authority. Under conditions provided by law
Effected only by the will of the legislature through the (8) Maintenance of peace and order, promotion of general
damages for the death or injuries suffered by any person
medium of a duly enacted statute;may be embodied either by reason of the defective conditions of roads, streets, Exception:The doctrine of immunity from suit will not apply welfare [Sec. 5]
in a general law or a special law: and may not be invoked where the public official is being (9) Recognition of a hierarchy of rights [BERNAS]
public buildings and other public works under their control
and supervision. [Art. 2189, CC] sued in his (1) private and personal capacity as an ordinary (a) Life
General Law citizen, for (2)acts without authorityor in excess of the (b) Liberty
Authorizes any person who meets the conditions stated in powers vested in him. (Lansang vs CA [2000]) (c) Property
the law to sue the government in accordance with the As to the vicarious liability under CC art. 2180(6): The (10) Separation of Church and State [Sec. 6]
procedure in the law Government is only liable for the acts of its agents, officers
and employees, when they act as special agents within the Note:Acts done without authority are not acts of the State
Policies [sec. 7-28]:Guidelines for the orientation of the
Money Claims arising from contract express or implied meaning of the provision. state [BERNAS]
Exceptions to Prior Consent Rule
Special Agent - One who receives a definite and fixed Caselaw provides that the following are well-recognized
Act No. 3083 exceptions when the state/public officer MAY be sued (1) Independent foreign policy [Sec. 7]
An Act Defining the Conditions under which the order or commission, foreign to the exercise of the duties of (2) Freedom from nuclear weapons [Sec. 8]
his office if he is a special official. [Merritt v. Gov’t of the without prior consent:
Government ofthe Philippines may be Sued. (3) Promote a just and dynamic social order [Sec.9]
Philippine Islands, (1916)] (4) Promote social justice in all phases of national
Sec. 1. Subject to the provisions of this Act, the Government (1) To compel him to do an act required by law;
of the Philippines hereby consents and submits to be sued (2) To restrain him from enforcing an act claimed to be development [Sec. 10]
Special Law - may come in the form of a private bill (5) Personal dignity and human rights [Sec. 11]
upon any moneyed claim involving liability arising from authorizing a named individual to bring suit on a special unconstitutional;
contract, express or implied, which could serve as a basis (3) To compel the payment of damages from an already (6) Family as basic social institution [Sec. 12]
claim (7) Vital role of youth in nation-building [Sec. 13]
of civil action between private parties. appropriated assurance fund or to refund tax over-
payments from a fund already available for the (8) Role of women in nation-building [Sec. 14]
Implied consent (9) Fundamental equality before the law of women and
Sec. 2. A person desiring to avail himself of the privilege purpose;
(1) When the State enters into a business contract or itself men [Sec. 14]
herein conferred must show that he has presented his commences litigation; (4) To secure a judgment that the officer impleaded may
claim to the Commission on Audit and that the latter did satisfy by himself without the State having to do a (10) Right to health [Sec. 15]
(2)If the gov’t files a complaint, defendant may file a (11) Right to a balanced and healthful ecology [Sec.16,
not decide the same within two months from the date of its counterclaim against it. When the state files complaint, positive act to assist him;
presentation. (5) Where the government itself has violated its own laws. Oposa v. Factoran]
suability will result only where the government is (12) Priority to education, science and technology, arts,
claiming affirmative relief from the defendant. [Sanders v. Veridiano II, (1988)]
Sec. 3. Original actions brought pursuant to the authority culture, and sports [Sec. 17]
(3) When it would be inequitable for the State to invoke its (13) Labor as a primary social economic force [Sec.18]
conferred in this Act shall be instituted in the Regional Scope of Consent (Suability v. Liability)
immunity. (14) Self-reliant and independent national economy
Trial Court of the City of Manila or of the province where Consent to be sued is not concession of liability:Suability
(4) In instances when the State takes private property for [Sec.19]
the claimant resides, at the option of the latter, upon which public use or purpose. depends on the consent of the state to be sued, and
court exclusive original jurisdiction is hereby conferred to liability on the applicable law and the established facts. (15) Role of private sector [Sec. 20]
hear and determine such actions. The circumstance that a state is suable does not (16) Comprehensive rural development and agrarian
Specific Rules reform [Sec. 21]
Suits against Government Agencies – Depends on whether necessarily mean that it is liable, but it can never be held
Sec. 4. Actions instituted as aforesaid shall be governed by liable if it does not first consent to be sued. When the state (17) Recognition and promotion of rights of indigenous
the agency is incorporated (i.e. there is a separate charter) cultural communities [Sec. 22]
the same rules of procedure, both original and appellate, or unincorporated (i.e. no separate personality). does waive its sovereign immunity, it is only giving the
as if the litigants were private parties. plaintiff the chance to prove that it is liable. [United States of (18) Community-based, sectoral organizations [Sec.23]
America v. Guinto (1990)] (19) Role of communication and information in nation-
(1) Incorporated – If the charter provides that the agency building [Sec.24]
Sec. 5. When the Government of the Philippines is plaintiff can sue, then suit will lie. The provision in the charter
in an action instituted in any court of original jurisdiction, PRINCIPLES AND POLICIES (20) Autonomy of local governments [Sec. 25]
constitutes express consent. [See SSS v. Court of (21) Equal access for public service and prohibition of
the defendant shall have the right to assert therein, by way Appeals (1983)] ART. II – DECLARATION OF PRINCIPLES AND STATE
of set-off or counterclaim in a similar action between POLICIES political dynasties [Sec. 26]
(2) Unincorporated – There must be an inquiry unto the (22) Honesty and integrity in public service [Sec. 27]
private parties. Principles [sec.1-6]: Binding rules which must be observed
principal functions of government. (23) Policy of full public disclosure [Sec. 28]
(a) If governmental: NO suit without consent. [Bureau of in the conduct of government [BERNAS]
Sec. 6. Process in actions brought against the Government
Printing v. Bureau of Printing Employees Association SEPARATION OF POWERS
of the Philippines pursuant to the authority granted in this (1) The Philippines is a democratic and republican state
(1961)]. The separation of powers is a fundamental principle in our
Act shall be served upon the Solicitor-General whose duty (b) If proprietary: Suit will lie, because when the state [Sec. 1]
it shall be to appear and make defense, either himself or (2) The Philippines, under the Const., is not just a system of government. It obtains not through express
engages in principally proprietary functions, it provision but by actual division in our Constitution. Each
through delegates. descends to the level of a private individual, and may, representative government but also shares some
aspects of direct democracy such, for instance, as the department of the government has exclusive cognizance of
therefore be vulnerable to suit. [Civil Aeronautics matters within its jurisdiction, and is supreme within its
Sec. 7. No execution shall issue upon any judgment “initiative and referendum” under Art. VI, Sec. 32
Administration v. Court of Appeals (1988)]. State may own sphere. But it does not follow from the fact that the
rendered by any court against the Government of the [BERNAS]
PAGE 7 PAGE 8
three powers are to be kept separate and distinct that the requires the President or an agency to submit the It indicates the circumstances under which the sworn to uphold the fundamental law of the Republic
Constitution intended them to be absolutely unrestrained proposed implementing rules and regulations of a law to legislative command is to be effected.[Edu v. Ericta under her government. (In re Bermudez (1986) citing
and independent of each other. The Constitution has Congress for approval, is unconstitutional. It encroaches (1970)] Lawyers League for a Better Philippines v. Aquino (1986)]
provided for an elaborate system of checks and balances on:
to secure coordination in the workings of the various BOTH tests must be complied with. [Pelaez, supra] In the cited cases [Lawyers League for a Better Philippines
departments of the government [Angara v. Electoral (1) The executive - it allows Congress to take a direct role and/or Oliver A. Lozano v. President Corazon C. Aquino, et
Commission (1936)]. in the enforcement of its laws; N.B.The legislature may leave to another body the al], we held that the government of former President
(2) The judiciary - administrative issuances enjoy a ascertainment of facts necessary to bring the law into Aquino was the result of a successful revolution by the
The government established by the Constitution follows presumption of validity, and only the courts may decide actual operation. [See Abakada v. Ermita (2005)] sovereign people, albeit a peaceful one. No less than the
fundamentally the theory of separation of power into the whether or not they conform to statutes or the Freedom Constitution declared that the Aquino government
legislative, the executive and the judicial [Angara v. Constitution. [Abakada Guro Partylist v. Purisima FORMS OF GOVERNMENT was installed through a direct exercise of the power of the
Electoral Commission (1936)]. (2008)] DEFINITION Filipino people "in defiance of the provisions of the 1973
“Government of the Philippines” is defined as: Constitution, as amended."
Separation of powers is not expressly provided for in the DELEGATION OF POWERS The corporate governmental entity through which the
Constitution. But it obtains from actual division found in General Rule: Delegata potestas non potest delegari – what functions of government are exercised throughout the It is familiar learning that the legitimacy of a government
Section 1 of Articles VI, VII, VIII, where the three great has been delegated can no longer be delegated. Philippines, including sired by a successful revolution by people power is beyond
powers of the government are canalized. (1) the various arms through which political authority is judicial scrutiny for that government automatically orbits
Rationale:Since the powers of the government have been made effective in the Philippines, whether pertaining out of the constitutional loop. In checkered contrast, the
Separation of powers is founded on the belief that, by delegated to them by the people, who possess original to: government of respondent Arroyo is not revolutionary in
establishing equilibrium among the three power holders, sovereignty, these powers cannot be further delegated by (a) the autonomous regions, character. The oath that she took at the EDSA Shrine is the
harmony will result, power will not be concentrated and the different government departments to some other (b) the provincial, city, municipal, or barangey oath under the 1987 Constitution. In her oath, she
thus tyranny will be avoided [BERNAS]. branch or instrumentality of the government. subdivisions, or categorically swore to preserve and defend the 1987
(c) other forms of local government. [Sec. 2(1), Constitution. Indeed, she has stressed that she is
CHECKS AND BALANCES Usually applied to legislative powersince the legislative Administrative Code] discharging the powers of the presidency under the
It does not follow from the fact that the three powers are power of Congress is already a delegated power given to authority of the 1987 Constitution.
to be kept separate and distinct that the Constitution them by the people (thru Article 1, Section VI of the
“Government” is that institution or aggregate of
intended them to be absolutely unrestrained and Constitution), Congress cannot pass laws delegating such institutions by which an independent society makes and In fine, the legal distinction between EDSA People Power I
independent of each other. The Constitution has provided power to some other department, branch, or EDSA People Power II is clear. EDSA I involves the exercise
carries out those rules of action which are necessary to
for an elaborate system of checks and balances to secure instrumentality of the government. enable men to live in a social state or which are imposed of the people power of revolution which overthrew the
coordination in the workings of the various departments of upon the people forming that society by those who possess whole government. EDSA II is an exercise of people power
the government. For example, the Chief Executive under Expections of freedom of speech and freedom of assembly to petition
the power or authority of prescribing them. [US v. Dorr
our Constitution is so far made a check on the legislative (1) Subordinate legislation made by administrative agencies (1903)] the government for redress of grievances which only
power that this assent is required in the enactment of laws. – Under the theory of Administrative Law, what is affected the office of the President. EDSA I is extra-
This, however, is subject to the further check that a bill may delegated is in fact not “law-making” power, but “law- constitutional and the legitimacy of the new government
DE JURE AND DE FACTO GOVERNMENTS
become a law notwithstanding the refusal of the President executing power.” Hence, administrative agencies have De jure government that resulted from it cannot be the subject of judicial
to approve it, by a vote of two-thirds or three-fourths, as the power to “fill up the details” of a statute passed by review, but EDSA II is intra-constitutional and the
(1) Has rightful title but
the case may be, of the National Assembly. The President Congress in the course of its implementation. (2) no power or control, either because this has been resignation of the sitting President that it caused and the
has also the right to convene the Assembly in special (2) Delegated legislative power to local governments – withdrawn from it, or because it has not yet actually succession of the Vice President as President are subject to
session whenever he chooses. On the other hand, the Local governments may be allowed to legislate on judicial review. EDSA I presented a political question;
entered into the exercise thereof. [In re Letter of
National Assembly operates as a check on the Executive in purely local matters.(See CONST., art. IX, sec. 9, explicitly Associate Justice Puno, (1992)] EDSA II involves legal questions. xxx
the sense that its consent through its Commission on mentioning “legislative bodies of local governments;”
Appointments is necessary in the appointments of certain sec. 20 providing for the coverage of legislative powers Even if the petitioner can prove that he did not resign, still,
De facto government
officers; and the concurrence of a majority of all its delegated to autonomous regions via the latter’s Government of fact, that is, it actually exercises power or he cannot successfully claim that he is a President on leave
members is essential to the conclusion of treaties. organic acts; see also Local Gov’t Code) on the ground that he is merely unable to govern
control without legal title. [Co Kim Cham v. Valdes, (1945)]
Furthermore, in its power to determine what courts other (3) Legislative power reserved to the people by the temporarily. That claim has been laid to rest by Congress
than the Supreme Court shall be established, to define provision on initiative and referendum.[CONST., art.VI, (1) The gov’t that gets possession and control of, or usurps, and the decision that respondent Arroyo is the de jure,
their jurisdiction and to appropriate funds for their support, sec.1] president made by a co-equal branch of government
by force or by the voice of the majority, the rightful
the National Assembly controls the judicial department to (4) Emergency power delegated to the Executive during legal gov’t and maintains itself against the will of the cannot be reviewed by this Court. [Estrada v. Desierto /
a certain extent. The Assembly also exercises the judicial State of War or National Emergency [CONST., art. VI, Estrada v. Arroyo (2001)]
latter.
power of trying impeachments. And the judiciary in turn, sec.23(2)]
(2) That established as an independent gov’t by the
with the Supreme Court as the final arbiter, effectively (5) Certain taxing powers of the President [CONST., art. VI, inhabitants of a country who rise in insurrection against
checks the other departments in the exercise of its power sec.28(2)]. The Congress may authorize the President
the parent state.
to determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution. [Angara
to fix, within specified limits, and subject to such
limitations and restrictions as it may impose, tariff
(3) That which is established and maintained by military
forces who invade and occupy a territory of the enemy
Legislative Department
v. Electoral Commission, id.] rates, import and export quotas, tonnage and
in the course of war, and w/c is denominated as a gov’t
wharfage dues, and other duties or imposts within the of paramount force, like the Second Republic WHO MAY EXERCISE LEGISLATIVE POWER
Congressional oversight is not per seviolative, but is framework of the national development program of the Legislative power is the authority to make laws and to alter
established by the Japanese belligerent.
integral, to separation of powers. However, for a post- Government. and repeal them. It is vested in:
enactment congressional measure to be valid, it must be The legitimacy of the Aquino government is not a (1) The Congress of the Philippines, which consists of a
limited to: TESTS FOR VALID DELEGATION Senate and a House of Representatives [CONST., art. VI,
justiciable matter. It belongs to the realm of politics where
(1) Scrutiny -Congress’ power of appropriation, i.e. budget (1) Completeness test – law sets forth the policy to be only the people of the Philippines are the judge. And the sec. 1]
hearings, and power of confirmation executed, carried out, or implemented by the delegate people have made the judgment; they have accepted the (2) The people to themselves, by the system of initiative
(2) Investigation and monitoring of implementation of laws (Abakada, supra), such that there is nothing left for the and referendum [Id.]
government of President Corazon C. Aquino which is in
– using its power to conduct inquiries in aid of delegate to do but to enforce the law [Pelaez v.Auditor effective control of the entire country so that it is not
legislation. General (1965)] Legislative power may also be exercised by:
merely a de facto government but in fact and law a de jure
(2) Sufficient standard test– standard is sufficient if it (1) Regional/local legislative assemblies – N.B. A regional
government. Moreover the community of nations has
A legislative veto, i.e. statutory provision (which may take defines legislative policy, marks its limits, maps out its recognized the legitimacy of the present government. All assembly exists for the ARMM
the form of a congressional oversight committee) that boundaries and specifies the public agency to apply it. (2) President, under martial rule or in a revolutionary
the eleven members of this Court as reorganized have
PAGE 9 PAGE 10
government. [See CONST., art. VI, sec. 23(2)]. Congress (4) A registered voter Tenure may be shorter than the term or it may not exist at Disqualified parties:
may delegate legislative powers to the president in (5) Resident of the Philippines for at least 2 years all. These situations will not change the duration of the (1) Religious Sects
times of war or in other national emergency. [BERNAS] immediately preceding the day of the election term of office. [Dimaporo vs Mitra (1991)] (2) Foreign Organizations
(3) Those Advocating Violence or Unlawful Means
th
Congress - Grant of legislative power to Congress is Term of Office: 6 years, commencing at noon on the 30 Term Limits: No member of the House of Representatives (4) It is receiving support from any foreign government,
plenary.Congress may legislate on any subject matter day of June next following their election shall serve for more than 3 consecutive terms. foreign political party, foundation, organization,
provided that constitutional limitations are observed. whether directly or through any of its officers or
Term Limits: only up to 2 consecutive terms. However, they Party-list System members or indirectly through third parties for partisan
Initiative and Referendum may serve for more than 2 terms provided that the terms BOC’s Note: Atong Paglaum v. COMELEC, G.R. No. 203766, election purposes.
The power of initiative and referendum is the power of the are not consecutive. April 3, 2013 is beyond the 2013 Bar Coverage cut-off date, (5) It violates or fails to comply with laws, rules or
people directly to “propose and enact laws or approve or but the decision reversed and significantly modified regulations relating to elections;
reject any act or law or part thereof passed by the House of Representatives previous Court rulings on the party-list system. (6) It declares untruthful statements in its petition;
Congress or local legislative body.” (art. VI, sec. 32) [Art. VI, Sec. 5-8] (7) It has ceased to exist for at least one (1) year; or
Composition: Not more than 250 members, unless Atong Paglaum Guidelines (8) It fails to participate in the last two (2) preceding
The operationalization of initiative and referendum has otherwise provided by law, consisting of: (1) Three different parties or organizations may participate elections or fails to obtain at least 2 per centum of the
been left by the Constitution to Congress (art. VI, sec. 32; in the party-list system: (a) national; (b) regional; or (c) votes cast under the party-list system in the two (2)
BERNAS); District Representatives - Elected from legislative districts sectoral; preceding elections for the constituency in which it has
apportioned among the provinces, cities, and Metro Manila registered.
The provision is not self-executory [Santiago v. COMELEC area (2) National and regional parties or orgs do not need to (a)
(1997)]; organize along sectoral lines or (b) represent any Qualified Sectors:
Rules on Apportionment of Legislative Districts: “marginalized or underrepresented” sector; (1) Labor
RA 6735 – “An Act Providing for a System of Initiative and (a) Apportionment of legislative districts must be by law (2) Peasant
Referendum and Appropriating Funds Therefore” – valid which could be a: (3) Political parties may participate in the party-list system (3) Fisherfolk
for laws, ordinances, and resolutions, but NOT (i) General Apportionment Law; or provided: (a) they register under the party-list system; (4) Urban Poor
amendments to the Constitution [Santiago, supra] (ii) Special Law (i.e. creation of new provinces) (b) they do not field candidates in legislative district (5) Indigenous Cultural Com-munities
Note: The power to apportion legislative districts is elections. (6) Elderly
HOUSES OF CONGRESS textually committed to Congress by the Constitution. (i) A party that participates in the legislative district (7) Handicapped
COMPOSITION, QUALIFICATIONS AND TERM OF OFFICE Thus, it cannot be validly delegated to the ARMM elections may still participate in the party-list (8) Women
Senate House of Representatives Regional Assembly [Sema v. COMELEC (2008)].Under through a sectoral wing. (9) Youth
(art. VI, sec. 2-4) (art. VI, sec. 5-8) the Constitution and the Local Gov. Code, (ii) The sectoral wing can be part of the political party’s (10)Veterans
Composition apportionment and reapportionment do not require a coalition, but the former must be registered (11) Overseas Workers
plebiscite. [Bagabuyo v. COMELEC (2008)] independently in the party-list system. (12) Professionals
24 senators elected at Not more than 250 (b) Proportional representation based on number of
large members, unless otherwise inhabitants (4) Sectoral parties or orgs may either be (a) “marginalized Query: Are political parties allowed to participate in the
provided by law, consisting (i) Each citywith a population of at least 250,000shall have or underrepresented” (e.g. labor, peasant, fisherfolk); party-list system?
of: at least 1 representative. or (b) “lacking in well-defined political constituencies”
(1) District Repre-sentatives (ii) Each province, irrespective of the number of (e.g. professionals, women, elderly, youth) Political parties are allowed by the constitution to
(2) Party-List Representa- inhabitants, shall have at least 1 representative. participate in the party-list system provided that they
tives (c) Each legislative district shall comprise, as far as (5) The nominees of sectoral parties or orgs, of either type, represent the interests of the marginalized and
Qualifications practicable, contiguous, compact, and adjacent must (a) belong to their respective sectors, or (b) have a underrepresented. The following conditions must be
territory. (N.B. Anti-gerrymandering provision) track record of advocacy for their respective sectors. complied:
(1) Natural-born citizen (1) Natural-born citizens
(d) Re-apportionment by Congress within 3 years after the (1) Must represent marginalized and under-represented
(2) At least 35 years old on (2) At least 25 years old on
return of each census. Majority of the members of a sectoral party, of either sectors;
the day of the election the day of the election
type, must belong to the sector they represent. (2) Major political parties must comply with this statutory
(3) Able to read and write (3) Able to read and write
Party-List Representatives –shall constitute 20% of the policy;
(4) A registered voter (4) Registered voter in the
total number of representatives, elected through a party- (6) National, regional, or sectoral parties or orgs shall not (3) Must be subject to the express constitutional
(5) Resident of the district he seeks to
list system of registered national, regional, and sectoral be disqualified if some of their nominees are prohibition against religious sects;
Philippines for at least 2 represent
parties or organizations disqualified, provided they have at least one (1) (4) The party must not be disqualified under RA 7941;
years immediately (5) A resident of the said
Sectoral Representatives - For 3 consecutive terms from 2 nominee who remains qualified. (5) The party must not be an adjunct or entity or project
preceding the day of the district for at least 1 year
February 1987, ½ of the partylist seats shall be allotted to funded by the government;
election immediately preceding the
sectoral representativesto be chosen by appointment or For computation of allocation of party-list seats, see Election (6) The party and its nominees must comply with the
day of the election
election, as may be provided by law. Until a law is passed, Law portion of the reviewer or BANAT v. COMELEC, G.R. requirements of the law;
they are appointed by the President from a list of nominees No. 179271, April 21, 2009. (7) The nominee must also represent a marginalized or
Term of Office by the respective sectors. [Art. XVIII, Sec. 7] under-represented sector;
6 years 3 years N.B. The following have been either modified or repealed by (8) The nominee must be able to contribute to the
Qualifications of Representatives: Atong Paglaum, but were good law as of the cut-off date for formulation and enactment of appropriate legislation
Term Limits (1) Natural-born citizens the 2013 Bar. that will benefit the nation. [Ang Bagong Bayani-OFW
(2) At least 25 years old on the day of the election Labor Party v. COMELEC (2000)].
2 consecutive terms 3 consecutive terms (3) Able to read and write See R.A. 7941, An Act Providing For The Election Of Party-
(4) Registered voter in the district he seeks to represent List Representatives Through The Party-List System, And Four inviolable constitutional and statutory parameters in the
Senate (5) A resident of the said district for at least 1 year Appropriating Funds Therefor party-list system:
[Art. VI, Sec. 2-4] immediately preceding the day of the election. (1) 20% Allocation – the combined number of all party-list
Composition: 24 senators elected at large Parties, organizations, and coalitions must obtain at least congressmen shall not exceed 20% of the total
th
Term of Office: 3 years, commencing at noon on the 30 2% of all votes cast to obtain a party-list seat. membership of the House of Representatives.
Qualifications: day of June next following their election. (2) 2% threshold – only those parties garnering a
(1) Natural-born citizen Those garnering more than 2% are entitled to additional minimum of 2% of the total votes cast for the party-list
(2) At least 35 years old on the day of the election seats in proportion to their total number of votes, but may system are qualified to have a seat in the House.
(3) Able to read and write not have more than 3 seats.
PAGE 11 PAGE 12
(3) Three seat limit – each qualified party, regardless of The provision refers to an Incompatible Office. Forfeiture of They shall notify the House concerned of a potential suspension of
the number of votes it actually obtained is entitled to a the seat in Congress shall be automatic upon the conflict of interest that may arise from the filing of a writ of
maximum of three seats (1 qualifying and 2 additional member’s assumption of such office deemed proposed legislation of which they are authors. [Art. Habeas
seats). incompatible. [Adaza v. Pacana (1985)]. VI, Sec. 12] Corpus
(4) Proportional representation – the additional seats (2) May not be appointed to any office created or the Confirm Majority (Silent) Art. VII,
which a qualified party is entitled to shall be computed emoluments thereof were increased during the term (3) The records and books of accounts of the Congress amnesty sec. 19,
“in proportion to their total number of votes”. [Veterans for which he was elected. [Art. VI, Sec. 13] shall be preserved and be open to the public in grant par. 2
Federation v. COMELEC (2000)]. The provision refers to a Forbidden Office. He cannot validly accordance with law, such books shall be audited by Submit Majority (Silent) Art. XVII,
take the office even if he is willing to give up his seat. the Commission on Audit which shall publish question of sec. 3
LEGISLATIVE PRIVILEGES, INHIBITIONS AND (3) Cannot personally appear as counsel before any court, annually an itemized list of amounts paid to and Const. Prevailing
DISQUALIFICATIONS electoral tribunal, quasi-judicial and administrative expenses incurred for each Member. [Art. VI, Sec. 20] Convention view: by
PRIVILEGES bodies during his term of office. [Art. VI, Sec. 14] Call for 2/3 default, Art. XVII,
Salaries (4) Shall not be financially interested, directly or indirectly, in QUORUM AND VOTING MAJORITIES Const. houses vote sec. 3
The salaries of Senators and Representatives shall be any contract with, or franchise or special privilege QUORUM Convention separately
determined by law. granted by the government during his term of office. Majority of each House shall constitute a quorum. Propose 3/4 (because Art. XVII,
[Art. VI, Sec. 14] amendments Congress is sec. 1(1)
No increase in said compensation shall take effect until (5) Shall not intervene in any matter before any office of the A smaller number may adjourn from day to day and may as Const. bicameral)
after the expiration of the full term of all the Members of government when it is for his pecuniary benefit or compel the attendance of absent members. Assembly
the Senate and the House of Representatives approving where he may be called upon to act on account of his
such increase. [Art. VI, Sec. 10]. office. [Art. VI, Sec. 14] In computing a quorum, members who are outside the (2) Other Special Cases
country, thus outside of each House’s coercive jurisdiction,
Freedom from Arrest Appearance as counsel: Certain salient circumstances are not included. Vote Required (out of all
A Senator or Member of the House of Representatives militate against the intervention of Assemblyman Action Basis
members)
shall, in all offenses punishable by not more than six years Fernandez in the SEC Case. He had acquired a mere “Majority” refers to the number of members within the Determine 2/3 of both Houses, voting Art. VII,
imprisonment, be privileged from arrest while the P200.00 worth of stock in IPI, representing ten shares out “jurisdiction” of the Congress (those it can order arrested for President’s separately sec. 11, par.
Congress is in session. [Sec. 11, Art VI]. of 262,843 outstanding shares. He acquired them after the the purpose of questioning). In this case, one Senator was disability 5
contested election of Directors, after the quo warranto suit out of the Philippines which is not within the “jurisdiction” Declaring a 2/3 (of both Houses, in joint Art. VI,
Preventive suspension is not a penalty. Order of suspension had been filed before SEC, and one day before the of the Senate, so that the working majority was 23 State of War session), each House voting sec. 23(1)
under R.A. 3019 (Anti-Graft and Corrupt Practices Act) is scheduled hearing of the case before the SEC. Senators. separately
distinct from the power of Congress to discipline its own
members, and did not exclude members of Congress from Before he moved to intervene, he had signified his There is a difference between a majority of "all members of
its operation. [Defensor-Santiago v. Sandiganbayan (2001)] intention to appear as counsel for respondent, which was the House" and a majority of "the House", the latter DISCIPLINE OF MEMBERS
objected to by petitioners. Realizing, perhaps, the validity requiring less number than the first. Therefore, an absolute Each house may punish its members for disorderly
In People v. Jalosjos (2000), the SC denied the request of of the objection, he decided, instead, to "intervene" on the majority (12) of all members of the Senate less one (23) behavior, and with the concurrence of 2/3 of ALL its
Cong. Jalosjos that he be allowed to attend legislative ground of legal interest in the matter under litigation. constitutes constitutional majority of the Senate for the members:
sessions. He denial was premised on the following: (a) purpose of the quorum. [Avelino v. Cuenco (1949)] (1) Suspension (shall not exceed 60 days)
membership in Congress does not exempt an accused Under those facts and circumstances that there has been (2) Expulsion
from statutes and rules which apply to validly incarcerated an indirect "appearance as counsel before ... an VOTING MAJORITIES
persons; (b) one rationale behind confinement is public administrative body" and that is a circumvention of the Doctrine of Shifting Majority– For each House of Congress Other disciplinary measures:
self-defense; (c) it would amount to creation of a privileged Constitutional prohibition. to pass a bill, only the votes of the majority of those (1) deletion of unparliamentary remarks from the record
class, without justification in reason; and (d) he was present in the session, there being a quorum, is required. (2) fine
provided with an office in the New Bilibid Prison. The "intervention" was an afterthought to enable him to (3) imprisonment
appear actively in the proceedings in some other capacity. Exceptions to Doctrine of Shifting Majority: (4) censure
Speech and Debate Clause [Puyat v De Guzman, (1982)] (1) Votes where requirement is based on “ALL THE
No Member shall be questioned nor be held liable in any MEMBERS OF CONGRESS” – requirement is based on The suspension contemplated in the Constitution is
other place for any speech or debate in the Congress or in DUTY TO DISCLOSE the entire composition of a House or Congress (in its different from the suspension prescribed in the Anti-Graft
any committee thereof. (1) SALN: A public officer or employee shall, upon entirety), regardless of the number of Members present and Corrupt Practices Act (RA 3019). The former is punitive
assumption of office and as often as may be required or absent in nature while the latter is preventive. [Defensor-Santiago
To come under the guarantee the speech or debate" must by law, submit a declaration under oath of his assets, v. Sandiganbayan (1995)].
be one made "in Congress or in any committee thereof." liabilities, and net worth. Vote
Publication of an allegedly libelous letter is not covered by Required Houses ELECTORAL TRIBUNALS AND THE COMMISSION ON
Action Basis
the privilege [Jimenez v. Cabangbang (1966)] Cases wherein declaration shall be disclosed to the public (out of all voting APPOINTMENTS
in the manner provided by law: members) ELECTORAL TRIBUNALS
Each House of the Congress can discipline its members for (a) President Override 2/3 Separately Art. VI, sec. [Art. VI, Sec. 17]
disorderly conduct or behavior. (b) Vice-President presidential 27(1) (1) Senate Electoral Tribunal (SET)
(c) the Members of the Cabinet veto (2) House Electoral Tribunal (HRET)
What constitutes disorderly behavior is entirely up to (d) the Congress Grant of tax Majority (Silent) Art. VI, sec.
Congress to define. (e) the Supreme Court exemptions 27(4) N.B. There is a Presidential Electoral Tribunal (PET), but it
(f) the Constitutional Commissions and other Elect Majority Separately Art. VII, is governed by different provisions.
The immunity, although absolute in its protection of the constitutional offices President in sec. 4, par.
member of Congress against suits for libel, does not shield (g) officers of the armed forces with general or flag case of tie 5 Composition
the member against the disciplinary authority of the rank [Art. XI, Sec. 17] Confirm Majority Separately Art. VII, (1) 3 Supreme Court justices, designated by CJ
Congress. [Osmeña v. Pendatun (1960)] appointment sec. 9 Senior Justice in the Electoral Tribunal shall be its
(2) All Members of the Senate and the House of of VP Chairman
DISQUALIFICATIONS Representatives shall, upon assumption of office, Revoke or Majority Jointly Art. VII, (2) 6 members of the Senate or House, as the case may be,
(1) May not hold any other office or employment in the make a full disclosure of their financial and business extend (a) sec. 18 chosen on the basis of proportional representation
government during his term without forfeiting his seat. interests. Martial Law from parties;
[Art. VI, Sec. 13] or (b) (3) The ET shall be constituted within 30 days after the
PAGE 13 PAGE 14
Senate and the House shall have been organized with the tripartite scheme of government, it is to all intents and to the majority party in the Senate to disobey or disregard NON-LEGISLATIVE POWERS (SCOPE)
the election of the President and the Speaker. purposes, when acting within the limits of its authority, an the rule on proportional representation. (1) power to canvass the presidential elections;
(4) Members chosen enjoy security of tenure and cannot be independent organ; while composed of a majority of (2) declare the existence of war;
removed by mere change of party affiliation. [Bondoc v. members of the legislature it is a body separate from and By requiring a proportional representation in the (3) give concurrence to treaties and amnesties;
Pineda (1991)]. independent of the legislature. [Bondoc v. Pineda (1991)] Commission on Appointments, sec. 18 in effect works as a (4) propose constitutional amendments;
check on the majority party in the Senate and helps to (5) impeachment;
Valid grounds/just cause for termination of membership to Powers maintain the balance of power. No party can claim more
the tribunal: As constitutional creations invested with necessary power, than what it is entitled to under such rule. [Guingona v. SPECIFIC POWERS
(1) Expiration of Congressional term of office; the Electoral Tribunals are, in the exercise of their Gonzales (1993)] (1) Constituent power
(2) Death or permanent disability; functions independent organs — independent of Congress (2) Legislative Inquiries
(3) Resignation form political party which one represents in and the Supreme Court. The power granted to HRET by Meetings (3) Appropriation
the tribunal; the Constitution is intended to be as complete and (1) CA shall meet only while Congress is in session. (4) Taxation
(4) Removal from office for other valid reasons. unimpaired as if it had remained originally in the (2) Meetings are held either (a) at the call of the Chairman (5) Concurrence in treaties and international agreements
legislature [Co v. HRET (1991) citing Angara vs. Electoral or (b) by a majority of all its members. (6) War powers and delegations powers
Note: Disloyalty to party and breach of party discipline are Commission (1936)].
not valid grounds for the expulsion of a member of the Note: Since the Commission on Appointments is also an LEGISLATIVE
tribunal. [Bondoc, supra] Judicial Review of Decisions of Electoral Tribunals independent constitutional body, its rules of procedure are Legislative Inquiries and the Oversight Functions
With the Supreme Courtonly insofar as the decision or also outside the scope of congressional powers as well as (Art VI, Sec. 21)
Nature of Function resolution was rendered: that of the judiciary.
Jurisdiction: sole judge of all contests relating to the (1) without or in excess of jurisdiction, or Requisitesof Legislative Inquiries:
election, returns, and qualifications of their respective (2) with grave abuse of discretion tantamount to denial of Jurisdiction (1) Must be in aid of legislation
members. due process. (1) CA shall confirm the appointments by the President (2) In accordance with duly published rules of procedure
with respect to the following positions: (3) Right of persons appearing in or affected by such
When does it acquire jurisdiction: ET has jurisdiction only COMMISSION ON APPOINTMENTS (CA) (a) Heads of Executive departments (except if it is the inquiries shall be respected
when there is an election contest, and only after the (Art. VI, Sec. 18) Vice-President who is appointed to a cabinet
proclamation of a candidate. [See Lazatin v. HRET (1988)]. position); Comparison between Legislative Inquiries and Question
Composition (b) Ambassadors, other public ministers or consuls; Hour [See also Senate v. Ermita (2006)]
Election Contest- one where a defeated candidate (1) Senate President as ex-officio chairman (shall not vote (c) Officers of the AFP from the rank of Colonel or Legislative Inquiries Question Hour
challenges the qualification and claims for himself the seat except in case of a tie) Naval Captain;
of a proclaimed winner. (2) 12 Senators (d) Other officers whose appointments are vested in Constitutional Provision
(3) 12 Members of the HOR him by the Constitution (e.g. members of Art. VI, Sec. 21 Art. VI, Sec. 22
In the absence of election contest, and before constitutional commissions); [Sarmiento v. Mison
proclamation, jurisdiction remains with COMELEC. [See The CA shall be constituted within 30 days after the (1987)] Topic
Lazatin, supra] Senate and the House of Representative shall have been (2) Congress cannot by law require that the appointment
organized with the election of the President and the of a person to an office created by such law shall be In aid of legislation On any matter pertaining
Supreme Court has jurisdiction over the Electoral Speaker. subject to CA confirmation. to the subject’s
Commission for the purpose of determining the character, Appointments extended by the President to the above- department
scope and extent of the constitutional grant to the The CA shall act on all appointments within 30 session mentioned positions while Congress is not in session (ad- Persons Subjected
Electoral Commission as "the sole judge of all contests days from their submission to Congress. interim appointments) shall only be effective:
Any person upon subpoena Heads of departments
relating to the election, returns and qualifications of the (1) Until disapproval by the Commission on Appointments;
only
members of the National Assembly." [Angara v. Electoral The CA shall rule by a majority vote of all its members. OR
Commission (1936)] (2) Until the next adjournment of Congress. Appearance of Exec. Officials
It is NOT mandatory to elect 12 Senators to the Appearance of executive Appearance of executive
Note: Constitution mandates that the HRET “shall be the Commission; what the Constitution requires that there POWERS OF CONGRESS officials generally mandatory officials via request
sole judge of all contests relating to the election, returns must be at least a majority of the entire membership. INHERENT POWERS
and qualifications” of its members. By employing the word [Guingona v. Gonzales (1993)]. These are inherent powers of the State which are reposed, The mere filing of a criminal or an administrative
“sole,” the Constitution is emphatic that the jurisdiction of under the Constitution, in Congress. complaint before a court or quasi-judicial body should not
the HRET in the adjudication of election contests involving The power to approve or disapprove appointments is (1) Police Power automatically bar the conduct of legislative inquiry.
its members is exclusive and exhaustive. Its exercise of conferred on the CA as a body and not on the individual (a) Make, ordain, and establish all manner of wholesome [Standard Chartered Bank v. Senate Committee on Banks
power is intended to be its own — full, complete and members. [Pacete v. Secretary (1971)] and reasonable laws, statutes and ordinances as they (2007)]
unimpaired. [Duenas Jr. v. HRET (2009)] shall judge for the good and welfare of the
Rule on Proportional Representation – The 12 Senators and constituents. Additional limitation: Executive Privilege (refer to discussion
Independence of the Electoral Tribunals 12 Representatives are elected on the basis of proportional (b) Includes maintenanc of peace and order, protection of on executive privilege / presidential privilege on p. 20)
Since the ET’s are independent constitutional bodies, representation from the political parties and party-list life, liberty and property and the promotion of general
independent even of the respective House, neither organizations. welfare Categories of congressional oversight functions
Congress nor the Courts may interfere with procedural (2) Power of Taxation (1) Scrutiny: Passive inquiry, the primary purpose of which
matters relating to the functions of the ET’s. [Co vs HRET, HOR has authority to change its representation in the (3) Power of Eminent Domain is to determine economy and efficiency of the operation
(1991)] Commission on Appointments to reflect at any time the (4) Contempt power of government activities. In the exercise of legislative
changes that may transpire in the political alignments of scrutiny, Congress may request information and report
The HRET was created to function as a nonpartisan court its membership. It is understood that such changes in LEGISLATIVE POWERS from the other branches of government. It can give
although two-thirds of its members are politicians. membership must be permanent and do not include the (1) powers of appropriation, recommendations or pass resolutions for consideration
temporary alliances or factional divisions not involving (2) taxation of the agency involved.
To be able to exercise exclusive jurisdiction, the House severance of political loyalties or formal disaffiliation and (3) expropriation (2) Congressional investigation: More intense digging of
Electoral Tribunal must be independent. Its jurisdiction to permanent shifts of allegiance from one political party to (4) authority to make, frame, enact, amend, and repeal facts, compared to scrutiny. Power of investigation
hear and decide congressional election contests is not to another. [Daza v. Singson (1989)] laws recognized by art. VI, sec. 21.
be shared by it with the Legislature nor with the courts. (5) ancillary powers (e.g. conduct inquiry and punish for (3) Legislative supervision (Legislative Veto): Most
"The Electoral Commission is a body separate from and The provision of Section 18 on proportional representation is contempt [See Arnault v. Nazareno (1950)] encompassing form. Connotes a continuing and
independent of the legislature and though not a power in mandatory in character and does not leave any discretion informed awareness on the part of a congressional
PAGE 15 PAGE 16
committee regarding executive operations in a given its members 3 days before the passage of the bill. (art. appropriations. However, the following may, BY LAW, (a) Classificationfor the purpose of taxation is not
administrative area. Allows Congress to scrutinize the VI, sec. 26[2]) be authorized to AUGMENT any item in the general prohibited per se, BUT it must comply with the Test of
exercise of delegated law-making authority, and appropriations law for their respective offices FROM Valid Classification [see Ormoc Sugar Central v. Ormoc
permits Congress to retain part of that delegated Exception: President certifies to the necessity of its SAVINGS in other items of their respective City (1968), on equal protection and local taxes]
authority. Through this, Congress exercises supervision immediate enactment to meet a public calamity or appropriations:
over the executive agencies. emergency (a) President Test of Valid Classification
(b) Senate President (1) Based on substantial distinctions which make real
N.B. Legislative supervision is NOT allowed under the Presidential certification dispenses with the requirement (1) (c) Speaker of the HOR differences
Constitution. [Abakada Guro Partylist v. Purisima (2008)] printing requirement and (2) readings on separate days (d) Chief Justice of the Supreme Court (2) Germane to the purpose of law
See also discussion in Separation of Powers, above. requirement[Tolentino v. Secretary of Finance (1995)] (e) Chairs of Constitutional Commissions (3) Applies to present and future conditions substantially
identical to those of the present
Bicameral Conference Committee Substantive Limitations Guidelines for disbursement of discretionary funds (4) Applies equally to those who belong to the same class
Ways of passing bills: Circumscribe both the exercise of the power itself and the appropriated for particular officials:
(1) Jointly: in a joint session, supra allowable subject of legislation (1) For public purposes Progressive
(2) Separately: each house takes up bill on its own; the (2) To be supported by appropriate vouchers The rate increases as the tax base increases
houses, in turn, can pass the bill: Express limitations: (3) Subject to such guidelines as may be prescribed by law
(a) Simultaneously: houses take up a bill at the same time (1) On general powers - Bill of Rights [Art. III] Tax burden is based on the taxpayers’ capacity to pay
(b) Sequentially: bill originates from one house and, upon (2) On taxation [Secs. 28 and 29(3), Art. VII] If Congress fails to pass the general appropriations bill by the
proper passage, is transmitted to the other house for (3) On appropriation [Secs. 25 and 29(1) and (2), Art VI] end of any fiscal year: Suited to the social conditions of the people
the latter’s own passage. In case of conflict between (4) On appellate jurisdiction of the SC [Sec. 30, Art. VI] (1) The general appropriations bill for the previous year is
the two houses’ versions, a bicameral conference (5) No law granting title of royalty or nobility shall be deemed reenacted Reflects aim of the Convention that legislature following
committee is organized. passed [Sec. 31, Art. VI] (2) It shall remain in force and effect until the general social justice command should use taxation as an
appropriations bill is passed by Congress. instrument for more equitable distribution of wealth
Bicameral Conference Committee (BCC): Implied Limitations:
(1) Composed of equal number of members from the (1) No power to pass irrepealable law For Special Appropriations Bills Progressive taxation is a directive to Congress and is not a
Senate and the HOR (2) Non-encroachment on powers of other departments (1) Shall specify the purpose for which it is intended judicially enforceable right [Tolentino v. Secretary of Finance,
(2) Makes recommendations to houses on how to (3) Non-delegation of powers (2) Shall be supported by funds supra]
reconcileconflicting provisions/versions (i) actually available as certified by the National Treasurer;
(3) BCC members are usually granted blanket authority to LIMITATIONS ON REVENUE, APPROPRIATIONS AND TARIFF or Constitutional Tax Exemptions:
negotiate/reconcile the bills. MEASURES (ii) to be raised by corresponding revenue proposal therein (1) Religious, charitable, educational institutions and their
(4) At the end of the process, the BCC comes up with a properties
Conference Committee Report, which is then submitted Appropriations Limitation on Use of Public Funds [Art. VI, Sec. 29] (2) All revenues and assets of non-stock, non-profit
to the respective chambers for approval. Upon General Limitations: (1) No money shall be paid out of the National Treasury educational institutions are exempt from taxes and
approval, the bill may be engrossed. (A) Appropriations must be for a public purpose. except in pursuance of an appropriation made by law. duties PROVIDED that such revenues and assets are
(B) Cannot appropriate public funds or property, directly or (2) However, this rule does not prohibit continuing actually, directly and exclusively used for educational
The Bicam reportneed not pass through three readings. indirectly, in favor of appropriations, e.g. for debt servicing, for the reason purposes [Art. XIV, Sec. 4(3)]
The Bicam may also include entirely new provisions and (1) Any sect, church, denomination, or sectarian institution that this rule does not require yearly or annual (3) Grants, endowments, donations or contributions used
substitutions. [See Tolentino v. Sec. of Finance (1994), Phil. or system of religion or appropriation. actually, directly and exclusively for educational
Judges Association v. Prado (1993)] (2) Any priest, preacher, minister, or other religious teacher purposes shall be exempt from tax, subject to
or dignitary as such. Four phases of Government’s budgeting process: conditions prescribed by law [Art. XIV, sec. 4(4)]
Enrolled bill doctrine –The signing of a bill by the Speaker Exception: if the priest etc. is assigned to: (1) Budget preparation
of the House and the President of the Senate and the (a) the Armed Forces; (2) Legislative authorization Special Funds
certification by the secretaries of both Houses of Congress (b) any penal institution; (3) Budget execution (1) Money collected on a tax levied for a special purpose
that it was passed are conclusive of its due enactment. (c) government orphanage; (4) Budget accountability shall be treated as a special fund and paid out for such
(d) leprosarium purpose only.
Note: While Tolentino v. Sec. of Finance does NOT hold that (C) Government is not prohibited from appropriating Taxation [Art. VI, Sec. 28] (2) Once the special purpose is fulfilled or abandoned, any
the enrolled bill embodies a conclusive presumption, i.e. money for a valid secular purpose, even if it incidentally Nature of provision balance shall be transferred to the general funds of the
the rule is not absolute, “where there is no evidence to the benefits a religion, e.g. appropriations for a national Sec. 28 is a listing of the limits on the inherent and Government
contrary, the Court will respect the certification of the police force is valid even if the police also protects the otherwise unlimited power
presiding officers of both Houses that a bill has been duly safety of clergymen. Also, the temporary use of public Presidential Veto and Congressional Override
passed.” [Arroyo v. De Venecia (1997)] property for religious purposes is valid, as long as the Purposes of taxation Submission to the President; President’s Veto power [Sec 27,
property is available for all religions. (1) Pay debts and provide for the common defense and Art VI]
Limitations on Legislative Power general warfare; Every bill, in order to become a law, must be presented to
Formal/Procedural Limitations Specific Limitations (2) Raise revenue; and signed by the President.
Prescribes manner of passing bills andform they should For General Appropriations Bills (3) Instrument of national and social policy;
take. (1) Congress may not increase the appropriations (4) Instrument for extermination of undesirable acts and If the President does not approve of the bill, he shall veto
(a) Rider clause:every bill passed by the Congress shall recommended by the President for the operation of the enterprises; the same and return it with his objections to the house
embrace only one subject which shall be expressed in Government as specified in the budget. (5) Tool for regulation; from which it originated. The House shall enter the
the title. [Art. VI, Sec. 26(1)] (2) Form, content and manner of preparation of the budget (6) Imposition of tariffs designed to encourage and protect objections in the journal and proceed to reconsider it.
The title is not required to be an index of the contents shall be prescribed by law. locally produced goods against competition for
of the bill. It is sufficient compliance if the title (3) No provision or enactment shall be embraced in the imports. The President must communicate his decision to veto
expresses: (1) the general subject and (2) all the general appropriations bill unless it relates specifically within 30 days from the date of receipt thereof. Otherwise,
provisions of the statute are germane to that subject. to some particular appropriation therein. Limitations the bill shall become a law as if he signed it.(“Lapsed into
[Tio v. Videogram Regulatory Commission (1987)] (4) Procedure in approving appropriations FOR THE (1)Public purpose- Power to tax should be exercised only law”)
(b) No bill passed by either house shall become law unless CONGRESS shall strictly follow the procedure for for a public purpose.
it has passed 3 readings on separate days. [Art. VI, Sec. approving appropriations for other departments and (2) Uniform and equitable. To override the veto, at least 2/3 of ALL the members of
26(2)] agencies. (a) Operates with the same force and effect in every place eachhouse must agree to pass the bill. In such case, the
(c) Printed copies in its final form have been distributed to (5) No law shall be passed authorizing any transfer of where the subject of it is found veto is overridden and becomes a law without need of
PAGE 17 PAGE 18
presidential approval. COMMITTEE REPORT by proper committee (i.e. HOR

Committee on Justice), which either favorably or Executive Department Salary
Determined by law. Shall not be decreased during tenure.
General Rule:Partial veto is invalid; all-or-nothing unfavorably resolves the complaint No increase shall take effect until after the expiration of
THE PRESIDENT the term of the incumbent during which such increase was
Exceptions: QUALIFICATIONS: approved.
(1) Veto of particular items in an appropriation, revenue, or (1) Natural-born citizen of the Philippines;
tariff bill; Above resolution AFFIRMED (if favorable) or (2) A registered voter; Presidential Immunity
(2) Doctrine of Inappropriate Provisions (See below) OVERRIDDEN (if unfavorable) by vote of 1/3 of all the (3) Able to read and write; The President as such cannot be sued, enjoying as he does
members of the HOR (4) At least forty years of age on the day of the election; immunity from suit
Item veto and
The President may veto particular items in an (5) A resident of the Philippines for at least 10 years But the validity of his acts can be tested by an action
appropriation, revenue or tariff bill.The whole item (and not Verified complaint or resolution [Sec. 3(4)] immediately preceding such election. (art. VII, sec. 2) against other executive officials. [Carillo vs. Marcos (1981)]
just a portion) must be vetoed. [Bengzon v. Drilon (1992)] FILED by 1/3 of all the members of the HOR; trial by
Senate forthwith proceeds ELECTION: The privilege may be invoked ONLY by the President.—
Item - in a bill, refers to the particulars, the details, the (1) Regular Election – Second Monday of Monday Immunity from suit pertains to the President by virtue of
distinct and severable parts; an indivisible sum of money Notes on Initiation: [See Gutierrez v. HOR Committee on (2) National Board of Canvassers (President and Vice- the office and may be invoked only by the holder of the
dedicated to a stated purpose; in itself, a specific Justice (February 15, 2011 and March 8, 2011)] President) – Congress office; not by any other person in the President's behalf.The
appropriation of money, not some general provision of law, (a) Returns shall be transmitted to Congress, directed President may waive the protection afforded by the
which happens to be in an appropriation bill. Basic limitation: No impachment proceeding shallbe to the Senate President privilege and submit to the court's jurisdiction. [Soliven v.
initiated against the same official more than once within a (b) Joint public session – not later than 30 days after Makasiar (1988); Beltran v. Makasiar (1988)]. BUT
The president cannot veto unavoidable obligations, i.e. period of one year (CONST., art. XI, sec. 2[5]) election date; returns to be opened in the presence presidential decisions may be questioned before the courts
already vested by another law (e.g. payment of pensions, of the Senate and HOR in joint session where there is grave abuse of discretion or that the
see Bengzon, supra). Initiation means filing coupled with referral to the President acted without or in excess of jurisdiction.[Gloria v.
Committee on Justice. Jurisprudence on Canvassing: Court of Appeals (2000)]
This veto will not affect items to which he does not object. Congress may validly delegate the initial determination of
Court cannot make a determination of what constitutes an the authenticity and due execution of the certificates of Immunity co-extensive with tenure and covers only official
Veto of a Rider impeachable offense; it is a purely political question [citing canvass to a Joint Congressional Committee, composed of duties.After tenure, the Chief Executive cannot invoke
A rider is a provision which does not relate to a particular Francisco v. House of Representatives (2003)] members of both houses. [Lopez v. Senate (2004)] immunity from suit for civil damages arising out of acts
appropriation stated in the bill. done by him while he was President which were not
On motion to inhibit: Impeachment is a political exercise. Even after Congress has adjourned its regular session, it performed in the exercise of official duties. [Estrada v.
Since it is an invalid provision under art. VI, sec. 25(2), the The Court cannot apply (to Congressmen) the stringent may continue to perform this constitutional duty of Desierto (2001)]
President may veto it as an item. stands it asks of justices and judges when it comes to canvassing the presidential and vice-presidential election
inhibition from hearing cases. results without need of any call for a special session by the Cannot be invoked by a non-sitting president.This
The executive's veto power does not carry with it the power President. xxx Only when a board of canvassers has presidential privilege of immunity cannot be invoked by a
to strike out conditions or restrictions. If the veto is Constitutional requirement that HOR shall promulgate its completed its functions is it rendered functus officio. non-sitting president even for acts committed during his or
unconstitutional, it follows that the same produced no rules on impeachment (see CONST., Art. XI, Sec. 3[8]) is [Pimentel, Jr. v. Joint Committee of Congress (2004)]. her tenure. Courts look with disfavor upon the presidential
effectwhatsoever, and the restriction imposed by the different from the publication requirement in Tañada v. privilege of immunity, especially when it impedes the
appropriation bill, therefore, remains. [Bolinao Electronics Tuvera. (In the Gutierrez case, promulgation was found to If the COMELEC is proscribed from conducting an official search for truth or impairs the vindication of a right. ([Saez
Corp v. Valencia (1964)] be sufficient.) canvass of the votes cast for the President and Vice- vs. Macapagal-Arroyo (2012)], on an Amparo petition.)
President, it is, with more reason, prohibited from making
Doctrine of Inappropriate Provisions The SENATE shall have the sole power to try and decide all an “unofficial” canvass of said votes. [Brillantes v. Exception: Suit not arising from official conduct. [See
A provision that is constitutionally inappropriate for an cases of impeachment. (sec. 3[6]) COMELEC (2004)] Estrada v. Desierto, supra]
appropriation bill may be singled out for veto even if it is
not an appropriation or revenue item. [Gonzales vs By virtue of the expanded judicial review (art. VIII, sec. 1[2]), The Supreme Court as Presidential Electoral Tribunal: The Presidential Privilege
Macaraig, (1990)] the Court’s power of judicial review extends over justiciable Supreme Court, sitting en banc, shall be the sole judge of The power of the government to withhold information from
issues arising in impeachment proceedngs. [Francisco v. all contests relating to the election, returns and the public, the courts, and the Congress. [Schwart] It is "the
NON-LEGISLATIVE HOR (2003)] qualifications of the President or Vice-President, and may right of the President and high-level executive branch
Informing Function promulgate its rules for the purpose. officers to withhold information from Congress, the courts,
Via legislative inquiries: Conduct of legislative inquiries is BUT the question of WON Senate Impeachment Rules were and ultimately the public." [Rozell]
intended to benefit not only Congress but the citizenry, followed is a political question. [Corona v. Senate (2012)] Term of Office: 6 years, which shall begin at noon on the
th
who are equally concerned with the proceedings. [Sabio v. 30 day of June next following the day of the election and N.B. Case law uses the term presidential privilege to refer to
Gordon (2006)] Other non-legislative powers shall end at noon of the same day 6 years thereafter. [Art. either (1) immunity from suit (i.e. immunity from judicial
(1) power to canvass the presidential elections; VII, Sec. 4] processes, see Neri v. Senate, infra; accord Saez v.
Impeachment [CONST., Art. XI] (2) declare the existence of war; Macapagal-Arroyo, supra; discussed in the previous
The HOR shall have the exclusive power to initiateall cases (3) give concurrence to treaties and amnesties; PRESIDENT not eligible for re-election. section) or (2) executive privilege [see Akbayan v. Aquino
of impeachment. [sec. 3(1)] (4) propose constitutional amendments; (2008), discussed here].
(5) implied powers such as the power to punish contempt Note: Noperson who has succeeded as President and has
Two modes of initiation in legislative investigations. served for more than 4 years shall be qualified for election 2 Kinds of Executive Privilege in Neri v. Senate (2008) - (1)
to the same office for any length of time. [Art. VII, Sec. 4] Presidential Communications Privilege (President):
Regular Procedure: [Sec. 3(2)(3)] communications are presumptively privileged; prexy must
FILING by (a) any member of the HOR or (b) any citizen PRIVILEGES, INHIBITIONS AND DISQUALIFICATIONS be given freedom to explore alternatives in policy-making.
upon endorsement by a member of the HOR; followed by PRIVILEGES (2) Deliberative Process Privilege (Executive Officials): refer to
REFERRAL to the proper HOR committee materials that comprise part of a process by which
President governmental decisions and policies are formulated. This
Official residence includes diplomatic processes. [See Akbayan v. Aquino
The President shall have an official residence. (2008)]
Varieties of Executive Privilege (US):— (1) State secrets
PAGE 19 PAGE 20
privilege - invoked by U.S. Presidents, beginning with unavailability of the information elsewhere by an so no objection can be validly raised based on art. VII, (a) Call Out Power - armed forces to suppress lawless
Washington, on the ground that the information is of such appropriate investigating authority. [Neri v. Senate, supra. sec. 13. violence;
nature that its disclosure would subvert crucial military or See Akbayan v. Aquino (2008) for application of this (2) The President can assume ex officio positions. e.g. The (b) Suspension of Writ of Habeas Corpus- only (1) in
diplomatic objectives. (2) Informer’s privilege - the privilege principle.] President is the Chairman of NEDA. (art. XII, sec. 9) times of rebellion or invasion AND (2) when
of the Government not to disclose the identity of persons required by public safety
who furnish information of violations of law to officers VICE-PRESIDENT Vice-President (c) Martial Law – N.B. does not suspend Constitution
charged with the enforcement of that law. (3) Generic Qualifications, election and term of office and removal are “xxx The Vice-President may be appointed as member of (7) Diplomatic Powers - including Power to Enter into
privilege for internal deliberations - has been said to attach same as the President, except that no Vice-President shall the Cabinet. Such appointment requires no confirmation” Treaties
to intragovernmental documents reflecting advisory serve for more than 2 successive terms. [Art. VII, Sec. 3] (8) Residual Power - to protect the general welfare of
opinions, recommendations and deliberations comprising people; founded on duty of President as steward of the
part of a process by which governmental decisions and The Vice-President may be appointed as member of the Cabinet people; includes powers unrelated to execution of any
policies are formulated. [Senate v. Ermita (2004)] Cabinet; such requires no confirmation by the Commission provision of law (See Marcos v. Manglapus)
(1) The Secretary of Justice shall be an ex-officio member of
of Appointments. the Judicial and Bar Council. (art. VIII, sec. 8[1]) (9) Other Powers
Scope: This jurisdiction recognizes the common law (2) Unless otherwise allowed by law or by the primary (a) Power to Pardon - reprieve, commute, pardon, remit
holding that there is a "governmental privilege against PROHIBITIONS fines and forfeitures after final judgment [Art. VII,
functions of his position, appointive officials shall not
public disclosure with respect to state secrets regarding Prohibited Acts hold any other office or employment in the Sec. 19(1)]
military, diplomatic and other national security matters." (1) Shall not receive any other emoluments from the (b) Power to Grant Amnesty - with concurrence of
Government or any subdivision, agency or
Closed-door Cabinet meetings are also a recognized government or any other source. majority of all members of Congress
instrumentality thereof, including government- owned
limitation on the right to information. (2) Unless otherwise provided in the constitution, shall not or controlled corporations or their subsidiaries. (art. IX- (c) Borrowing Power - contract or guarantee foreign
hold any other office or employment. loans with concurrence of Monetary Board [Art. VII,
B, sec. 7)
Note: Executive privilege is properly invoked in relation to (a) The prohibition does not include posts occupied by (3) Art. VII, sec. 13 talks of "unless otherwise provided by Sec. 20]
specific categories of information and not to categories of executive officials without additional compensation in the Constitution." In the case of Cabinet members, this (d) Budgetary Power -submit to congress budget of
persons—it attaches to the information and not the person. an ex-officio capacity, as provided by law oras required bills and expenditures [Art. VII, Sec. 22]
refers to art. IX-B, sec. 7, par. 2.
Only the President (and the Executive Secretary, by order by the primary functions of the said official’s office. (4) Thus, the Constitution allows a Cabinet member to (e) Informing Power – address Congress during
of the President) can invoke the privilege. (Senate v. Ermita, (b) The ex-officio position being actually (i.e. merely opening of session, or at any other time [Art. VII,
hold another office provided either:
supra). additional duty) and in legal contemplation part of the Sec. 23]
(5) such is necessitated by the primary functions of his
principal office, it follows that the official concerned position (e.g. Secretary of Trade and Industry as
Synthesis of Jurisprudential doctrines has no right to receive additional compensation for his POWER OF APPOINTMENT
Chairman of NDC and Secretary of Agrarian Reform as
The following are the equisites for invoking presidential services in said position. [National Amnesty Chairman of the Land Bank) In General
privilege:—(1) Formal claim of privilege: For the privilege to Commission v. COA (2004] (6) such is allowed by law The President shall nominate and, with the consent of the
apply there must be a formal claim of the privilege. Only (3) Shall not directly or indirectly practice any other Commission on Appointments, appoint the heads of the
the President or the Executive Secretary(by authority of the profession, participate in any business, or be financially POWERS executive departments, ambassadors, other public
President) can invoke the privilege; and (2) Specificity interested in any contract with; or in any franchise or ministers and consuls, or officers of the armed forces from
EXECUTIVE AND ADMINISTRATIVE POWERS IN GENERAL
requirement:A formal and proper claim of executive special privilege granted by the government or any the rank of colonel or naval captain, and other officers
privilege requires a specific designation and description of subdivision, agency, or instrumentality thereof, Executive power whose appointments are vested in him in this constitution.
the documents within its scope as well as precise and including government-owned or controlled He shall also appoint all other officers of the Government
The power to enforce, implement, and administer laws.The
certain reasons for preserving confidentiality. Without this corporations or their subsidiaries. president shall ensure that the laws be faithfully whose appointments are not otherwise provided for by law,
specificity, it is impossible for a court to analyze the claim (4) Strictly avoid conflict of interest in the conduct of their executed.[Art. VII, Sec. 17] and those whom he may be authorized by law to appoint.
short of disclosure of the very thing sought to be protected. office The Congress may, by law, vest the appointment of other
[Senate v. Ermita, supra] (5) May not appoint spouse or relatives by consanguinity or One Executive: This power is exercised by the President.[Art. officers lower in rank in the President alone, in the courts,
affinity within the fourth civil degree as members of or in the heads of departments, agencies, commissions or
VII, Sec. 1]
Once properly invoked, a presumption arises that it is Constitutional Commissions, or the Office of the boards. [Art. VII, Sec. 16]
privileged. If what is involved is the presumptive privilege of Ombudsman, or as Secretaries, Under Secretaries, As administrative head of the government, the President is
presidential communications when invoked by the Chairmen, or heads of bureaus or offices, including Definition: the selection, by the authority vested with the
vested with the power to execute, administer and carry out
President on a matter clearly within the domain of the government-owned or controlled corporation and their laws into practical operation. [National Electrification power, of an individual who is to exercise the functions of a
Executive, the said presumption dictates that the same be subsidiaries. Commission vs. CA (1997)] given office.
recognized and be given preference or priority, in the
absence of proof of a compelling or critical need for Who are prohibited? Presidential Powers (Summary) Appointment is distinguished from:
disclosure by the one assailing such presumption. (Neri v. (1) President (1) Designation – imposition of additional duties, usually by
(1) Executive Power - power to enforce and administer laws;
Senate, G.R. No. 180843, March 25, 2008) (2) Vice-President, law, on a person already in the public service.
(2) Power of Control - nullify, modify judgments of
(3) themembers of the Cabinet, and their deputies or subordinates (See Art. VII, Sec. 17); undo or redo actions (2) Commission – written evidence of the appointment.
The following are the requisites for validity of claimneeded to assistants
of subordinates; and lay down rules for the
be complied with in order for the claim to executive performance of subordinates’ duties; Classification of Power of Appointment:
privilege to be valid. These are: — (1) Quintessential and The stricter prohibition applied to the President and his (3) Power of Supervision - oversight function; see to it that There are 4 groups of officers whom the President may
non-delegable presidential power- power subject of the official family under art. VII, sec. 13, as compared to the appoint:
rules, which they did not make, are followed;
legislative inquiry must be expressly granted by the prohibition applicable to appointive officials in general (4) Power of Appointment - legislative can create office, but (1) Heads of the Executive Department, ambassadors,
Constitution to the President, e.g commander-in-chief, under art. IX-B, sec. 7, par. 2, which is proof of the intent of other public ministers and consuls, officers of the
only executive can fill; Congress cannot circumvent this
appointing, pardoning, and diplomatic powers; (2) the 1987 Constitution to treat them as a class by itself and armed forces from the rank of colonel or naval captain
by setting very narrow qualifications, such that only
Operational Proximity Test: it must be authored, solicited, to impose upon said class stricter prohibitions.[Civil one person is qualified to hold office [See Flores v. and other officers whose appointments are vested in
and received by a close advisor of the President or the Liberties Union v. Executive Secretary (1991)] him;
Drilon (1993)]
President himself. The judicial test is that an advisor must (5) Power over Legislation (2) All other officers of the government whose
be in “operational proximity” with the President (i.e. Exceptions to rule prohibiting executive officials from (a) Veto Power appointments are not otherwise provided by law;
officials who stand proximate to the President, not only by holding additional positions: (3) Those whom the President may be authorized to
(b) Power to Declare Emergency- declaration only;
reason of their function, but also by reason of their exercise of power is vested in Congress appoint;
positions in the Executive’s organizational structure); (3) President (4) Officers lower in rank whose appointments Congress
(c) Integrative Power - powers shared with legislative
Noadequate need:The privilege may be overcome by a (1) The President can assume a Cabinet post, (because the may by law vest in the President alone.
(e.g. appointments requiring confirmation, rule-
showing of adequate need, such that the information departments are mere extensions of his personality, making); legislation during times of emergency
sought “likely contains important evidence,” and by the according to the Doctrine of Qualified Political Agency,
(6) Commander-in-Chief Powers [Art. VII, Sec. 18]
PAGE 21 PAGE 22
Note: Heads of bureaus were deliberately removed from [Art. VII, Sec. 3(2)] Acting/Temporary appointment whose appointments are expressly vested by the
the provision of appointments requiring confirmation and (2) Those whose appointments are not otherwise provided Can be withdrawn or revoked at the pleasure of the Constitution itself in the President:
th
were included in the 4 group and hence, their by law. appointing power. The appointee does not enjoy security of (1) Heads of the executive departments
appointments no longer need confirmation. [Sarmiento v. (3) Those whom he may be authorized by law to appoint. tenure. (2) Ambassadors, other public ministers and consuls
Mison (1987)] (4) Those other officers lower in rank whose appointment is (3) Officers of the Armed Forces of the Philippines with the
vested by law in the President (alone).The phraseology Limitation: President constitutionally prohibited from rank of colonel or naval captain (because these are
Steps in the appointing process: is muddled. making such appointments to the Constitutional officers of a sizeable command enough to stage a
Nomination by the President Commissions (in order to preserve the latter’s coup)
Sarmiento v Mison (1987): independence). (4) Other officers whose appointments are vested in the
Const. Text: "The Congress may, by law, vest in the President by the Constitution:
appointment of other officers lower in rank in the President No need for CA confirmation even if Congress is in (a) Chairman and Commissioners of the Constitutional
Confirmation by the Commission on Appointments alone". This meant that until a law is passed giving such session.Also,Congress cannot impose on the president the Commissions (art. IX)
appointing power to the President alone, then such obligation to appoint an incumbent Undersecretary as [the (b) Regular members of the Judicial and Bar Council (art.
appointment has to be confirmed. President’s] temporary alter ego, i.e. Acting Secretary. VII, sec. 8[2])
Held:The inclusion of the word "alone" was an oversight. [Pimentel v. Ermita (2005)] (c) Sectoral Congressional reps.(art. XVIII, sec 7) (N.B. no
Issuance of the Commission Thus, the Constitution should read "The Congress may, by longer in force)
law, vest the appointment of other officers lower in rank in Ad Interim and Acting Appointments, Distinguished
the President." Ad Interim (Recess) Acting Midnight Appointments
General Rule: Two months immediately before the next
Acceptance by the appointee Effective upon acceptance presidential elections (2nd Monday of March), and up to
Limitations on appointing power of the President
(1) Art. VII, sec. 13, par. 2 - The spouse and relatives by Extended only when May be extended even if the end of his "term" (June 30), a President (or Acting
Notes: Congress is in recess Congress is in session President) shall not make appointments. (art. VII, sec. 15)
consanguinity or affinity within the 4th civil degree of
In the case of ad interim appointments, steps 1, 3 and 4
the President shall not, during his "tenure", be Submitted to the CA for Not submitted to the CA
precedes step 2. Exception:Temporary appointments to executive positions,
appointed as: confirmation for confirmation
when continued vacancies will: (1) prejudice public service;
(a) Members of the Constitutional Commissions; Permanent appointments Way of temporary filling up
An appointment is deemed complete only upon or (2) endanger public safety.
(b) Member of the Office of Ombudsman; vacancies
acceptance. [Lacson v. Romero (1949)].
(c) Secretaries;
Limited to Executive Department- The prohibition against
(d) Undersecretaries; Note:The mere filing of a motion for reconsideration of the
Appointment is essentially a discretionary power, the only midnight appointment applies only to positions in the
(e) Chairmen or heads of bureaus or offices, including confirmation of an appointment cannot have the effect of
condition being that the appointee, if issued a permanent executive department. [De Castro v. JBC (2010)]
government-owned or controlled corporations and recalling or setting aside said appointment. The
appointment, should possess the minimum qualification In re: Valenzuela [A.M. No. 98-5-01-SC, November 9, 1998],
their subsidiaries. Constitution is clear – there must either be a rejection by
requirements, including the Civil Service eligibility which extended the prohibition for midnight appointments
(2) Recess (Ad Interim) appointments:The President shall the Commission on Appointments or non-action on its part
prescribed by law for the position. This discretion also to the judiciary, effectively overruled.
have the power to make appointments during the for the confirmation to be recalled.
includes the determination of the nature or character of
recess of the Congress, whether voluntary or
the appointment. Limited to Caretaker Capacity - While "midnight
compulsory, but such appointments shall be effective Temporary Designations
appointments" (i.e. made by outgoing President near the
only until disapproval by the Commission on The President may designate an officer already in the govt.
When confirmation is not required: end of his term) are not illegal, they should be made in the
Appointments or until the next adjournment of the service or any other competent person to perform the
(1) When the President appoints other government officers capacity of a "caretaker," doubly careful and prudent in
Congress. (art. VII, sec. 16[2]) functions of any office in the executive branch,
whose appointments are not otherwise provided for by making the selection, so as not to defeat the policies of the
appointment to which is vested in him by law, when:
law; incoming administration. Hence,the issuance of 350
Interim or Recess Appointments (1) The officer regularly appointed to the office is unable to
(2) Those officers whom he may be authorized by law to appointments in one night and the planned induction of
Regular and recess (ad interim) appointments perform his duties by reason of illness, absence or any
appoint(e.g. Chairman and Members of the almost all of them a few hours before the inauguration of
2 Kinds of Appointments Requiring Confirmation: — (1) other cause; or
Commission on Human Rights); the new President may be regarded as abuse of
Regular: if the CA (Congress) is in session; and (2) Ad (2) There exists a vacancy;
(3) When Congresscreates inferior offices but omits to presidential prerogatives. [Aytona v. Castillo (1962)]
Interim: during the recess of Congress (because the In no case shall a temporary designation exceed one (1)
provide for appointment thereto, or provides in an BUT the Aytona ruling does not declare all midnight
CAshall meet only while Congress is in session [Art. VI, Sec. year. [Admin Code of 1987, Book III Sec. 17]
unconstitutional manner for such appointments(See appointments as invalid, and that the ad interim
19]
Sarmiento v. Mison) appointment of the petitioner chief of police here, whose
Limitations on the appointing power of the ACTING
(4) Appointment of the Vice-President as member of the qualification and regularity were otherwise not disputed, is
Regular appointment PRESIDENT
Cabinet (art. VII, sec. 3) thus valid. [Quimsing v. Tajanglangit (1964)]
(1) Made by the President while Congress is in session (1) Appointments extended by an Acting President shall
(5) Appointments upon recommendation of the Judicial
(2) Takes effect only after confirmation by the Commission remain effective unless revoked by the elected
and Bar Council – see below Applies only to President- Ban does not extend to
on Appointments (CA) President within ninety days from his assumption or re-
(6) Appointments solely by the President– see below appointments made by local elective officials. There is no
(3) Once approved, continues until the end of the term of assumption of office. [Art. VII, Sec. 14]
the appointee. law that prohibits local elective officials from making
(2) Midnight appointments ban:President/Acting President
Appointments Upon Recommendation of the Judicial and appointments during the last days of his or her tenure. (De
shall not make appointments two months immediately
Bar Council Rama v. CA (2001)]
Ad-interim appointment before the next presidential elections and up to the end
Do not require confirmation by the Commission on
(1) Made by the President while Congress is not in session of his term
Appointments. Power of Removal
(2) Takes effect immediately, BUTceases to be valid (1) if Exception: Temporary appointments to executive positions
(1) Members of the Supreme Court and all other courts[Art. General Principle -The power of removal may be implied
disapproved by the CA or (2) upon the next when continued vacancies therein will prejudice public
VII, Sec. 9] from the power of appointment.
adjournment of Congress. [Art. VII, Sec. 16, par. 2] service or endanger public safety. [Art. VII, Sec. 15]
For lower courts, appointment shall be issued within 90
(3) Ad interim appointments are permanent
days from submission of the list Exception:However, the President cannot remove officials
appointments.Ad Interim appointment to the Commission on Appointments Confirmation
(2) Ombudsman and his 5 deputies (for Luzon, Visayas, appointed by him where the Constitution prescribes certain
Constitutional Commissions (e.g. COMELEC) are From the rulings in Sarmiento III v. Mison (1987), Bautista v.
Mindanao, general and military)[Art. XI, Sec. 9] methods for separation of such officers from public service,
permanent as it takes effect immediately and can no Salonga (1989), and Deles v. Constitutional Commission
All vacancies shall be filled within 3 months after they e.g. Chairmen and Commissioners of Constitutional
longer be withdrawn by the President once the (1989), these doctrines are deducible:
occur. Commissioners who can be removed only by
appointee has qualified into office. The fact that it is
impeachment, or judges who are subject to the disciplinary
subject to the confirmation of the CA does not alter its Confirmation by the Commission on Appointments is
Appointments solely by the President [Art. VII, sec. 16] authority of the Supreme Court.
permanent character. [Matibag v. Benipayo (2002)] required only for presidential appointees as mentioned in
(1) Those vested by the Constitution on the President alone
the first sentence of art. VII, sec. 16, including those officers
(e.g. appointment of Vice-President to the Cabinet)
PAGE 23 PAGE 24
Career Civil Service - members of the career civil service of Supervision Control her Chief Executive and Commander-in-Chief (a) The effect therefore is only to extend the periods during
the Civil Service who are appointed by the President may powers. These are purely executive powers, vested on the which he can be detained without a warrant. When the
be directly disciplined by him [Villaluz v. Zaldivar (1965)] then the former may take President by Sections 1 and 18, Article VII, as opposed to privilege is suspended, the period is extended to 72
such action or steps as the delegated legislative powers contemplated by Section hours.
Serve at the pleasure of the president -Cabinet members prescribed by law to make 23 (2), Article VI. (Sanlakas v. Executive Secretary [2004]) (b) What happens if he is not judicially charged nor
and such officers whose continuity in office depends upon them perform these duties. released after 72 hours? The public officer becomes
the pleasure of the president may be replaced at any time, Exercise of Emergency Powers liable under RPC Art. 125 for "delay in the delivery of
but legally speaking, their separation is effected not by This does not include the Background: Presidential Proclamation 1017 (Declaring a detained persons."
removal but by expiration of their term. power to overrule their State of National Emergency) is different from the law in (3) The right to bail shall not be impaired even when the
acts, if these acts are within Sanlakas as this proclamation was woven out of the privilege of the writ of habeas corpus is suspended.
POWER OF CONTROL AND SUPERVISION their discretion. “calling out” and “take care” powers of the President (art. III, sec. 13)
joined with the “temporary takeover” provision under Art.
Control of Executive Departments [Art. VII, Sec. 17] MILITARY POWERS XII, section 17. PP1017 purports to grant the President, Proclaim Martial Law
Control Commander-in-chief powers [Art. VII, Sec. 18] without authority or delegation from Congress, to take over The Requisites in proclaiming Martial Law are:
Is the power of an officer to alter or modify or nullify or to set (1) He may call out such armed forces to prevent or or direct the operation of any privately-owned public utility (1) There must be an invasion or rebellion, and
aside what a subordinate has done in the performance of suppress lawless violence, invasion or rebellion. or business affected with public interest. (2) Public safety requires the proclamation of martial law
his duties and to substitute one's own judgment to that of (2) He may suspend the privilege of the writ of habeas cor- all over the Philippines or any part thereof.
a subordinate. (Mondano v. Silvosa [1955]) pus, or While the President could validly declare the existence of a
(3) He may proclaim martial law over the entire Philippines state of national emergency even in the absence of a The following cannot be done [Art. VII, Sec. 18]:
Doctrine of Qualified Political Agency(Alter Ego Principle) or any part thereof. Congressional enactment, the exercise of the emergency (1) Suspend the operation of the Constitution.
All the different executive and administrative organizations powers, such as the taking over of privately-owned public (2) Supplant the functioning of the civil courts and the
are mere adjuncts of the Executive Department. This is an The President shall be the Commander-in-chief of all utility or business affected with public interest, requires a legislative assemblies.
adjunct of the Doctrine of Single Executive. armed forces of the Philippines delegation from Congress which is the repository of (3) Confer jurisdiction upon military courts and agencies
The ability of the President to require a military official to emergency powers. (David v. Arroyo [2006]) over civilians, where civil courts are able to function.
The heads of the various executive departments are secure prior consent before appearing before Congress "Open Court" doctrine. —Civilians cannot be tried by
assistants and agents of the Chief Executive. [Villena v. Sec. pertains to a wholly different and independent specie of Suspend the privilege of the writ of habeas corpus military courts if the civil courts are open and
of Interior (1939)] presidential authority—the commander-in-chief powers of "Writ of habeas corpus" functioning.If the civil courts are not functioning, then
the President. By tradition and jurisprudence, the Is an order from the court commanding a detaining officer civilians can be tried by the military courts. Martial law
The exceptions are. — (1) in cases wherein the Chief commander-in-chief powers of the President are not to inform the court usually contemplates a case where the courts are
Executive is required by the Constitution or by the law to encumbered by the same degree of restriction as that (1) if he has the person in custody; and already closed and the civil institutions have already
act in person or (2) the exigencies of the situation demand which may attach to executive privilege or executive (2) his basis in detaining that person crumbled, i.e. a "theater of war." If the courts are still
that he act personally, the multifarious executive and control.Outside explicit constitutional limitations, the open, the President can just suspend the privilege and
administrative functions of the Chief Executive are commander-in-chief clause vests on the President, as "Privilege of the writ" achieve the same effect.
performed by and through the executive depts commander-in-chief, absolute authority over the persons Is that portion of the writ requiring the detaining officer to (4) Automatically suspend the privilege of the writ of
and actions of the members of the armed forces. Such show cause why he should not be tested. Note that it is the habeas corpus.
In the regular course of business, acts of exec. authority includes the ability of the President to restrict the privilege that is suspended, not the writ itself. The President must suspend the privilege expressly.
depts.,unless disapproved or reprobated by the Chief travel, movement and speech of military officers, activities
Executive, presumptively acts of the Chief Executive. [Free which may otherwise be sanctioned under civilian law. The requisites for the suspension are: The Role of Congress (See art. VII, sec. 18, par. 1,2)
Telephone Workers Union v. Minister of Labor and [Gudani v. Senga (2006)]. (1) There must be an invasion or rebellion, and (1) Congress may revoke the proclamation of martial law or
Employment (1981)] (2) The public safety requires the suspension. suspension of the privilege of the writ of habeas corpus
Graduated Powers – Art. VII, sec. 18 grants the President, before the lapse of 60 days from the date of
Power to Abolish Offices as Commander-in-Chief, a “sequence” of “graduated Duration: Not to exceed 60 days unless extended by suspension or proclamation.
Generally, power to abolish a public office is legislative. power[s].” From the most to the least benign, these are: Congress. (2) Upon such proclamation or suspension, Congress shall
BUT, as far as bureaus, offices, or agencies of the executive the calling out power, the power to suspend the privilege convene at once. If it is not in session, it shall convene
dept. are concerned, power of control may justify him of the writ of habeas corpus, and the power to declare Effects of the suspension of the privilege: in accordance with its rules without need of a call
toinactivate functions of a particular office. (See Buklod ng martial law. In the exercise of the latter two powers, the (1) The suspension of the privilege of the writ applies only within 24 hours following the proclamation or
Kawaning EIIB v. Zamora (2001), where the President Constitution requires the concurrence of two conditions, to persons "judicially charged" for rebellion or offenses suspension.
effectively abolished the Economic Intelligence Bureau by namely, an actual invasion or rebellion, and that public inherent in or directly connected with invasion (art. VII, (3) Within 48 hours from the proclamation or the
“deactivating” it, transferring its functions to other agencies.) safety requires the exercise of such power. However, as we sec. 18[5]). suspension, the President shall submit a report, in
observed in Integrated Bar of the Philippines v. Zamora, (a) Such persons suspected of the above crimes can be person or in writing, to the Congress (meeting in joint
General Supervision over local government units and the “[t]hese conditions are not required in the exercise of the arrested and detained without a warrant of arrest. session of the action he has taken).
autonomous regions calling out power. The only criterion is that ‘whenever it (b) The suspension of the privilege does not make the arrest (4) The Congress shall then vote jointly, by an absolute
becomes necessary,’ the President may call the armed without warrant legal. But the military is, in effect, majority. It has two options:
The President shall exercise general supervision over local forces ‘to prevent or suppress lawless violence, invasion or
governments.[Art. X, Sec. 4] enabled to make the arrest anyway since, with the (a) To revoke such proclamation or suspension.
rebellion.’ [Sanlakas v. Executive Secretary (2004)]. suspension of the privilege, there is no remedy When it so revoked, the President cannot set
available against such unlawful arrest (arbitrary aside (or veto) the revocation as he normally would
The President shall exercise general supervision over Call out the AFP to prevent lawless violence detention). do in the case of bills.
autonomous regions to ensure that laws are faithfully This is merely a police measure meant to quell disorder. As (c) The arrest without warrant is justified by the emergency (b) To extend it beyond the 60-day period of its validity.
executed. [Art. X, Sec. 16] such, the Constitution does not regulate its exercise situation and the difficulty in applying for a warrant
radically. considering the time and the number of persons to be Congress can only so extend the proclamation or
Supervision and Control, Distinguished arrested. suspension upon the initiative of the President.
State of Rebellion (d) The crime for which he is arrested must be one related
Supervision Control
While the Court may examine whether the power was to rebellion or invasion. As to others, the suspension of The period need not be 60 days; it could be more, as Con-
Overseeing or the power or Power of an officer to alter, exercised within constitutional limits or in a manner the privilege does not apply. gress would determine, based on the persistence of the
authority of the officer to modify, nullify or set aside constituting grave abuse of discretion, none of the (2) During the suspension of the privilege of the writ, any emergency.
see that subordinate what a subordinate officer petitioners here have, by way of proof, supported their person thus arrested or detained shall be judicially
officers perform their had done and to substitute assertion that the President acted without factual basis. charged within 3 days, or otherwise he shall be
duties, and if the latter fail the judgment of the former The President, in declaring a state of rebellion and in calling released. (art. VII, sec. 18[6])
or neglect to fulfill them, for that of the latter. out the armed forces, was merely exercising a wedding of
PAGE 25 PAGE 26
Note: If Congress fails to act before the measure expires, it There are 4 ways, then, for the proclamation or suspension to the punishment the law inflicts for the crime he has Application of Pardoning Powers to Admin. Cases
can no longer extend it until the President again re- be lifted: (P-C-S-O) committed. It is a remission of guilt, a forgiveness of (1) If the President can grant reprieves, commutations and
declares the measure. (1) Lifting by the President himself the offense. [Vera, supra] pardons, and remit fines and forfeitures in criminal
(2) Revocation by Congress cases, with much more reason can she grant executive
Congress cannot "validate" the proclamation or (3) Nullification by the Supreme Court Plenary or partial. —(1) Plenary - extinguishes all the clemency in administrative cases, which are clearly less
suspension, because it is already valid. (see Carpio, (4) Operation of law after 60 days penalties imposed upon the offender, including accessory serious than criminal offenses.
dissenting, in Fortun v. Macapagal-Arroyo, infra) disabilities. (2) Partial – does not extinguish all penalties (2) However, the power of the President to grant executive
Cf. RA 7055 (1991) "An Act Strengthening Civilian imposed clemency in administrative cases refers only to
If Congress extends the measure, but before the period of Supremacy over the Military by Returning to the Civil Courts administrative cases in the Executive branch and not in
extension lapses the requirements for the proclamation or the Jurisdiction over Certain Offenses involving Members of Absolute or conditional. —(1) Conditional - the offender has the Judicial or Legislative branches of the govt. [Llamas
suspension no longer exist, Congress can lift the extension, the Armed Forces of the Philippines, other Persons Subject to the right to reject the same since he may feel that the v. Executive Secretary (1991)]
since the power to confer implies the power to take back. Military Law, and the Members of the Philippine National condition imposed is more onerous than the penalty
Police, Repealing for the Purpose Certain Presidential sought to be remitted. (2) Absolute pardon - pardonee has Removal of administrative penalties
The Role of the Supreme Court(See Art. VII, Sec. 18, par. 3) Decrees" no option at all and must accept it whether he likes it or Removal of Administrative Penalties or Disabilities - In
(1) The Supreme Court may review, in an appropriate not. In this sense, an absolute pardon is similar to meritorious cases and upon recommendation of the (Civil
proceeding filed by any citizen, the sufficiency of the RA 7055 effectively placed upon the civil courts the commutation, w/c is also not subject to acceptance by the Service) Commission, the President may commute or
factual basis of: jurisdiction over certain offenses involving members of the offender. remove administrative penalties or disabilities imposed
(a) the proclamation of martial law or the suspension AFP and other members subject to military law. upon officers or employees in disciplinary cases, subject to
of the privilege of the writ, or Limitations on PARDON.—(1) Cannot be granted on such terms and conditions as he may impose in the
(b) the extension thereof. It must promulgate its RA 7055 provides that when these individuals commit impeachment cases.(art. VII, sec. 19).(2) Cannot be granted interest of the service. [Sec. 53, Chapter 7, Subtitle A, Title I,
decision thereon within 30 days from its filing. crimes or offenses penalized under the RPC, other special in cases of violation of election laws without the favorable Book V, Administrative Code of 1987 ]
(c) Note: Calling-out power is purely discretionary on penal laws, or local government ordinances, regardless of recommendation of the COMELEC. (art. IX-C, sec. 5).(3)
the President; the Constitution does not explicitly whether civilians are co-accused, victims, or offended Can be granted only after conviction by final judgment Who may avail of amnesty?
provide for a judicial review of its factual basis.[IBP v. parties which may be natural or juridical persons, they (People v. Salle, 250 SCRA 581)(4) Cannot absolve the (Asked 5 times in the Bar; answers from case law)
Zamora (2001)] shall be tried by the proper civil court, exceptwhen the convict of civil liability.(5) Cannot be granted to cases of
offense, as determined before arraignment by the civil legislative contempt or civil contempt.(6) Cannot restore Amnesty Proclamation No. 76 applies even to
(2) The jurisdiction of the SC may be invoked in a proper court, is service-connected in which case it shall be tried by public offices forfeited, even if pardon restores the Hukbalahaps already undergoing sentence upon the date
case. court-martial. eligibility for said offices. [Monsanto v. Factoran (1989)] of its promulgation. The majority of the Court believes that
by its context and pervading spirit the proclamation
Although the Constitution reserves to the Supreme The assertion of military authority over civilians cannot rest Pardon Amnesty extends to all members of the Hukbalahap. [Tolentino v.
Court the power to review the sufficiency of the factual on the President's power as Commander in Chief or on any Catoy (1948)]
basis of the proclamation or suspension in a proper Infractions of peace of the Addressed to Political
theory of martial law. As long as civil courts remain open state Offenses
suit, it is implicit that the Court must allow Congress to and are regularly functioning, military tribunals cannot try The SC agreed with the Sandiganbayan that in fact the
exercise its own review powers, which is automatic Granted to individuals To classes of persons
and exercise jurisdiction over civilians for offenses petitioners were expressly disqualified from amnesty. The
rather than initiated. Only when Congressdefaults in its committed by them and which are properly cognizable by Exercised solely by the Requires concurrence of acts for which they were convicted were ordinary crimes
express duty to defend the Constitution through such civil courts. To hold otherwise is a violation of the right to executive Congress without any political complexion and consisting only of
review shouldthe Supreme Court step in as its final due process. [Olaguer v. Military Commission No. 34 (1987)] Private act which must be Public act which the courts diversion of public funds to private profit. The amnesty
rampart. The constitutional validity of thePresident’s pleaded and proved could take judicial notice proclamation covered only acts in the furtherance of
proclamation of martial law or suspension of the writ of resistance to duly constituted authorities of the Republic
PARDONING POWER Looks forward and relieves Looks backward and puts
habeas corpus isfirst a political question in the hands of Nature of Pardoning Power and applies only to members of the MNLF, or other anti-
the pardonee of the into oblivion the offense
Congress before it becomes a justiciable one in the government groups. [Macagaan v. People (1987)]
Power to reprieve, commute, pardon, remit fines and consequences of the itself.
hands of the Court.
forfeitures after final judgment [Art. VII, Sec. 19(1)] offense
Extended after final May be extended at any DIPLOMATIC POWER
If the Congress procrastinates or altogether fails to Scope of Diplomatic Power-The President, being the head
Forms of executive clemencies judgment stage
fulfill its duty respecting the proclamation or (1) Reprieves - a temporary relief from or postponement of of state, is regarded as the sole organ and authority in
suspension within the short time expected of it, then execution of criminal penalty or sentence or a stay of external relations and is the country’s sole representative
(5) Remit fines and forfeitures, after conviction by final
the Court can step in, hear the petitions challenging with foreign nations. As the chief architect of foreign
execution. (BLACK’S LAW DICTIONARY). It is the judgment
the President’s action, and ascertain if it has a factual withholding of a sentence for an interval of time, a policy, the President acts as the country’s mouthpiece with
basis. [Fortun v. Macapagal-Arroyo (2012)] respect to international affairs.
postponement of execution, a temporary suspension of Exceptions:
execution. [People vs. Vera (1937)] (a) In cases of impeachment, and
(3) Petition for habeas corpus (2) Commutations - Reduction of sentence. [Black’s Law The President is vested with the authority:
(b) As otherwise provided in this Constitution
(a) When a person is arrested without a warrant for (1) to deal with foreign states and governments;
Dictionary]. It is a remission of a part of the For election offenses- No pardon, amnesty, parole or
complicity in the rebellion or invasion, he or punishment; a substitution of a less penalty for the one (2) extend or withhold recognition;
suspension of sentence for violation of election laws, rules,
someone else in his behalf has the standing to originally imposed. (Vera, supra) (3) maintain diplomatic relations;
and regulations shall be granted by the President without
question the validity of the proclamation or (4) enter into treaties; and
(3) Amnesty - a sovereign act of oblivion for past acts, the favorable recommendation by the Commission on
suspension. granted by government generally to a class of persons (5) transact the business of foreign relations. [Pimentel v.
Elections. [Art. IX, sec. 5]
(b) Before the SC can decide on the legality of his Executive Secretary (2005)]
who have been guilty usually of political offenses and
detention, it must first pass upon the validity of the
who are subject to trial but have not yet been con- Probation - disposition where a defendant after conviction
proclamation or suspension. victed, and often conditioned upon their return to Treaty-making power
and sentence is released subject to (1) conditions imposed
obedience and duty within a prescribed time. (BLACK’S; by the court and (2) supervision of a probation officer.(PD No treaty or international agreement shall be valid and
(4) Limit on Calling out Power. —Test of Arbitrariness: The Brown v. Walker, 161 US 602). effective unless concurred in by at least two-thirds of all
No. 968, sec. 3[a])
question is not whether the President or Congress Requires concurrence of majority of all members of the members of the Senate. [Art. VII, sec. 21]
acted correctly, but whether he acted arbitrarily in that
Congress (art. VII, sec. 19) Parole- suspension of the sentence of a convict granted by
the action had no basis in fact. [IBP v. Zamora, (2000)]. Treaty - as defined by the Vienna Convention on the Law of
a Parole Board after serving the minimum term of the
Amounts to a determination of whether or not there Treaties, “an international instrument concluded between
(4) Pardons - Permanent cancellation of sentence. indeterminate sentence penalty, without granting a
was grave abuse of discretion amounting to ack or States in written form and governed by international law,
[BLACK’S] It is an act of grace proceeding from the pardon, prescribing the terms upon which the sentence
excess of jurisdiction. power entrusted with the execution of the laws, which whether embodied in a single instrument or in two or more
shall be suspended. (REYES)
exempts the individual on whom it is bestowed, from related instruments, and whatever its particular
PAGE 27 PAGE 28
designation.” [Bayan v. Executive Secretary (2000)] and undemocratic. [Qua Chee Gan v. Deportation Board Prepare and Submit the Budget (2) According to Cases
(1963)] The President shall submit to Congress within thirty days (a) The fact that Congress is able to meet in session
Other terms for a treaty: act, protocol, agreement, from the opening of every regular session, as the basis of uninterruptedly and adjourn of its own will proves
compromis d’ arbitrage, concordat, convention, declaration, 2 ways of deporting an undesirable alien. —(1) by order of the the general appropriations bill, a budget of expenditures that the emergency no longer exists to justify the
exchange of notes, pact, statute, charter and modus President after due investigation, pursuant to sec. 69 of the and sources of financing, including receipts from existing delegation. (See Araneta v Dinglasan (1949), on
vivendi. Revised Administrative Code; (2) by the Commissioner of and proposed revenue measures. [Art. VII, Sec. 22] Congress’ grant of emergency powers under C.A.
Immigration under section 37 of the immigration Law [Qua 671; Court held that C.A. 671, being temporary,
Note:It is the President who RATIFIES a treaty (not the Chee Gan v. Deportation Board, supra] The budget is the plan indicating: need not be expressly repealed by a law)
Senate), the Senate merely CONCURES. [Bayan v. (b) This rule or the termination of the grant of
(1) expenditures of the government,
Executive Secretary, supra] Scope of the power emergency powers is based on decided cases, which
(2) sources of financing, and
(1) The Deportation Board can entertain deportation based (3) receipts from revenue-raising measures. in turn became art. VII, sec. 15 of the 1973
The President cannot be compelled to submit a treaty to on grounds not specified in sec. 37 of the Immigration Constitution.
the Senate for concurrence; she has the sole power to Law. The Board has jurisdiction to investigate the alien Thebudget is the upper limit of the appropriations bill to be (c) The specific power to continue in force laws and
submit it to the Senate and/or to ratify it. [Bayan Muna v. even if he had not been convicted yet. passed by Congress. Through the budget, therefore, the appropriations which would lapse or otherwise
Romulo (2011)] (2) The President’s power to deport aliens and to become inoperative is a limitation on the general
President reveals the priorities of the government.
investigate them subject to deportation are provided in power to exercise such other powers as the
Executive Agreements the Revised Administrative Code. executive may deem necessary to enable the
Fixing of tariff rates [Sec 28, Art VI]
(1) Entered into by the President (3) The State has inherent power to deport undesirable government to fulfill its responsibilities and to
The Congress may, by law, authorize the President to fix—(1)
(2) Need no concurrence aliens. This power is exercised by the President. within specified limits, and (2) subject to such limitations maintain and enforce its authority. [Rodriguez v
(3) Distinguished from treaties- International agreements (4) There is no legal orconstitutional provision defining the Gella (1953)]
and restrictions as it may impose: (a) tariff rates, (b) import
involving political issues or changes in national policy power to deport aliens because the intention of the law and export quotas, (c) tonnage and wharfage dues; (d)
and those involving international agreements of is to grant the Chief Executive the full discretion to other duties or imposts within the framework of the Inconsistency between the Constitution and the cases:
permanent character usually take the form of determine whether an alien’s residence in the country (BARLONGAY)
national development program of the Government.
TREATIES. But the international agreements involving is so undesirable as to affect the security, welfare or (1) The Constitution (See art. VI, sec. 23[2]) states that the
adjustments in detail carrying out well-established interest of the state. emergency powers shall cease upon the next
Rationale for delegation: highly technical nature of
national policies and traditions and those involving a (5) The Chief Executive is the sole and exclusive judge of adjournment of Congress unless sooner withdrawn by
international commerce, and the need to constantly and
more or less temporary character usually take the form the existence of facts which would warrant the with relative ease adapt the rates to prevailing commercial resolution of Congress
of EXECUTIVE AGREEMENTS. [Commissioner of deportation of aliens. [Go Tek v. Deportation Board (2) Cases tell us that the emergency powers shall cease
standards.
Customs vs. Eastern Sea Trading (1961)] (1977)] upon resumption of session.
(4) Executive agreements may be entered into with other DELEGATED POWERS
(3) Reconciling the two: it would not be enough for
states and are effective even without the concurrence POWERS RELATIVE TO APPROPRIATION MEASURES Congress to just resume session in order that the
Principle: ThePresident, under martial rule or in a
of the Senate. From the point of view of international revolutionary government, may exercise delegated emergency powers shall cease. It has to pass a
law, there is no difference between treaties and Contracting and guaranteeing foreign loans resolution withdrawing such emergency powers,
legislative powers. (See CONST., art. VI, sec. 23[2]) Congress
executive agreements in their binding effect upon Requisites for contracting and guaranteeing foreign loans: otherwise such powers shall cease upon the next
may delegate legislative powers to the president in times
states concerned as long as the negotiating (1) With the concurrence of the monetary board [Art. VII, of war or in other national emergency. (BERNAS) adjournment of Congress.
functionaries have remained within their powers. The Sec. 20]
distinction between an executive agreement and a treaty (2) subject to limitations as may be provided by law [Art. Emergency powers VETO POWER
is purely a constitutional one and has no international XII, Sec. 2] In times of war or other national emergency, the Congress, General rule: all bills must be approved by the President
legal significance. [USAFFE Veterans Assn. v. Treasurer (3) information on foreign loans obtained or guaranteed before they become law
may, by law, authorize the President, for a limited period,
(1959)] shall be made available to the public [Art. XII, Sec. 2] and subject to such restrictions as it may prescribe, to
Exceptions:
exercise powers necessary and proper to carry out a
Two Classes of Executive Agreements. —(1) Agreements Cf. Republic Act 4860 (1) The veto of the President is overridden by 2/3 vote of all
declared national policy. Unless sooner withdrawn by
made purely as executive acts affecting external relations An Act Authorizing The President Of The Philippines To resolution of the Congress, such powers shall cease upon the Members of the House where it originated;
and independent of or without legislative authorization, Obtain Such Foreign Loans And Credits, Or To Incur Such (2) The bill lapsed into law because the inaction of the
the next adjournment thereof. [Art. VI, Sec. 23]
which may be termed as presidential agreements; and (2) Foreign Indebtedness, As May Be Necessary To Finance President; and
Agreements entered into in pursuance of acts of Congress, Approved Economic Development Purposes Or Projects, Different from the Commander-in-Chief clause: (3) The bill passed is the special law to elect the President
or Congressional-Executive Agreements. And To Guarantee, In Behalf Of The Republic Of The and Vice-President.
(1) When the President acts under the Commander-in-
Philippines, Foreign Loans Obtained Or Bonds Issued By Chief clause, he acts under a constitutional grant of
Although the President may, under the American Corporations Owned Or Controlled By The Government Of This gives the President an actual hand in legislation.
military power, which may include the law-making
constitutional system enter into executive agreements The Philippines For Economic Development Purposes However, his course of action is only to approve it or veto it
power.
without previous legislative authority, he may not, by Including Those Incurred For Purposes Of Re-Lending To (2) When the President acts under the emergency power, as a whole.(see Legislative Power of Congress)
executive agreement, enter into a transaction which is The Private Sector, Appropriating The Necessary Funds
he acts under a Congressional delegation of law-
prohibited by statutes enacted prior thereto. He may not Therefore, And For Other Purposes (Approved, September making power. It is true that the Constitution provides a mechanism for
defeat legislative enactments that have acquired the 8, 1966.) overriding a veto [Art. VI, Sec. 27(1)]). Said remedy, however,
status of lawby indirectly repealing the same through an is available only when the presidential veto is based on
Meaning of “power necessary and proper” - Power to issue
executive agreement providing for the performance of the Role of Congress:The President does not need prior rules and regulations policy or political considerations but not when the veto is
very act prohibited by said laws. [Gonzales v Hechanova approval by the Congress claimed to be ultra vires. In the latter case, it becomes the
(1963)] (1) Because the Constitution places the power to check the duty of the Court to draw the dividing line where the
This power is:
Once the Senate performs the power to concur with President’s power on the Monetary Board; (1) for a limited period, and exercise of executive power ends and the bounds of
treaties or exercise its prerogative within the boundaries (2) BUT Congress may provide guidelines and have them legislative jurisdiction begin. [PHILCONSA v Enriquez
(2) subject to such restrictions as Congress may provide.
prescribed by the Constitution, the concurrence cannot be enforced through the Monetary Board (1994)]
viewed as an abuse of power, much less a grave abuse of When Emergency Powers cease
discretion. [Bayan v. Executive Secretary, supra, on the EXECUTIVE PRIVILEGE
(1) According to the text of the Constitution - The power
constitutionality of the Visiting Forces Agreement] ceases: See discussion under Presidential Privilege.
(a) upon being withdrawn by resolution of the
Deportation of undesirable aliens RESIDUAL POWERS
Congress; or
The President may deport only according to grounds (b) if Congress fails to adopt such resolution, upon the General doctrine:The President has unstated residual
enumerated by law, otherwise it would be unreasonable powers, which are implied from the grant of executive power
next (voluntary) adjournment of Congress.
PAGE 29 PAGE 30
necessary for her to comply with her Constitutional duties,

such as to safeguard and protect the general welfare. It
only by two standards: (1) there must be a factual basis for
the impairment of the Marcoses’ right to return (as Judicial Department (3) Symbolic
includes powers unrelated to the execution of any distinguished from their right to travel, which is a ESSENTIAL REQUISITES FOR JUDICIAL REVIEW
provision of law. [See Marcos v. Manglapus (1988)] constitutional right); and (2) the impairment must not be CONCEPTS Actual case or controversy
In Marcos v. Manglapus, supra, the Court held that then- arbitrary. JUDICIAL POWER [SECTION 1, ARTICLE VIII] This means that there must be a genuine conflict of legal
President Corazon Aquino had the power to prevent the N.B. The decision was pro hac vice. Judicial power includes the duty of the courts of justice to: rights and interests which can be resolved through judicial
Marcoses from returning to the Philippines on account of (1) settle actual controversies involving rights which are determination. [John Hay v. Lim, (2003)]
the volatile national security situation. This was limited legally demandable and enforceable, and
(2) to determine whether or not there has been a grave This precludes the courts from entertaining the following:
RULES ON SUCCESSION abuse of discretion amounting to lack or excess of (1) Request for an advisory opinion [Guingona vs. CA,
PRESIDENT jurisdiction on the part of any branch or instrumentality (1998)]
Death or permanent disability of the Vice-President-elect shall become of the Government. (2) Cases that are or have become moot and academic,i.e.
President-elect President cease to present a justiciable controversy due to
President-elect fails to qualify Vice-President-elect shall act as The second clause effectively limits the doctrine of supervening events [David v. Macapagal-Arroyo
President until the President-elect “political question.” (2006)].
shall have qualified
President shall not have been chosen Vice-President-elect shall act as Vested in: Supreme Court and in such lower courts as may Locus standi
President until a President shall be established by law. Standing NOT the same as “real party in interest”
Vacancy have been chosen and qualified.
at the No President and Vice-President Senate President or, incase of his In the event of inability of the SP JUDICIAL REVIEW A proper party is one who has sustained or is in imminent
Beginning chosen nor shall have qualified, or inability, Speaker of the House of and Speaker, Congress shall, by Judicial Power Judicial Review danger of sustaining a direct injury as a result of the act
of the both shall have died or become Representatives, shall act as law, provide for the manner in complained of [IBP v. Zamora (2000)]. The alleged injury
term permanently disabled President until a President or a which one who is to act as Where vested must also be capable of being redressed by a favorable
Vice-President shall have been President shall be selected until a Supreme Court Supreme Court judgment (Tolentino v. COMELEC [2004]).
chosen and qualified. President or Vice-President shall Lower courts Lower courts
have qualified. (1) Requires partial consideration of the merits of the case
Definition in view of its constitutional and public policy
Death, permanent disability, removal Vice-President shall become
from office, or resignation of the President Duty to settle actual Power of the courts to test underpinnings [Kilosbayan v. Morato, (1995)]
President controversies involving rights the validity of executive (2) May be brushed aside by the court as a mere procedural
Vacancy Death, permanent disability, Senate President or, in case of his Congress, by law, shall provide for which are legally and legislative acts in light technicality in view of transcendental importance of the
during removal from office, or resignation of inability, the Speaker of the House the manner in which one is to act demandable and of their conformity with issues involved [Kilosbayan v. Guingona (1994)]; [Tatad
the term President ANDVice-President of Representatives, shall act as as President in the event of inability enforceable, and to the Constitution [Angara v. DOE (1995)].
President until a President or Vice- of the SP and Speaker. determine whether or not v. Electoral Commission (3) Who are proper parties?
President shall be elected and there has been a grave (1936)] (a) Taxpayers, when public funds are involved
qualified. abuse of discretion [Tolentino v. Comelec (2004)]
When President transmits to the Such powers and duties shall be amounting to lack or excess (b) Government of the Philippines, when questioning
Senate President and the Speaker of discharged by the Vice-President as of jurisdiction on the part of the validity of its own laws [People v. Vera (1937)]
the House his written declaration Acting President, until the any branch or (c) Legislators, when the powers of Congress are being
that he is unable to discharge the President transmits to them a instrumentality of the impaired [PHILCONSA v. Enriquez, (1994)].
powers and duties of his office written declaration to the contrary Government (art. VIII, sec. 1, (d) Citizens, when the enforcement of a public right is
When a Majority of all the members The Vice-President shall par. 2) involved [Tañada v. Tuvera, (1985)].
of the Cabinet transmit to the immediately assume the powers
Senate President and the Speaker and duties of the office as Acting Special Rules on Standing (Requisites)
their written declaration that the President until the President Requisites for exercise Taxpayer (1) Appropriation; (2) disbursement
President is unable to discharge the transmits to the Senate President (1) Direct injury; (2) public right, OR art.
Jurisdiction – power to (1) Actual case or
powers and duties of his office and Speaker his written declaration VII, sec. 18 (on the sufficiency of the
decide and hear a case and controversy
that no inability exists. Citizen factual basis for martial law or
execute a decision thereof (2) Locus Standi
If after the President transmits his Congress determines by a 2/3 vote Congress shall convene, if not in suspension of the privilige of the write of
Temporary declaration of his ability to discharge of both houses, voting separately, session, within 48 hours. And if (3) Question raised at the
earliest opportunity Habeas Corpus)
disability his office, and a majority of that the President is unable to within 10 days from receipt of the
members of the Cabinet transmit discharge the powers and duties of last written declaration or, if not in (4)Lis mota of the case Voter Right of suffrage is involved
within 5 days to the Senate his office, the Vice-President shall session, within 12 days after it is Judicial Supremacy- When the judiciary mediates to (1) Authorized; (2) affects legislative
Legislator
President and Speaker their written act as President; otherwise, the required to assemble. allocate constitutional boundaries, it does not assert any prerogatives (a.k.a. derivative suit)
declaration that the President is President shall continue exercising superiority over the other departments; it does not in (1) Litigants must have injury-in-fact; (2)
unable to discharge the powers and the powers and duties of his office reality nullify or invalidate an act of the legislature, but Litigants must have close relation to the
duties of his office, Congress shall only asserts the solemn and sacred obligation assigned to third-party; and
decide the issue. Third-Party
it by the Constitution to determine conflicting claims of (3) There is an existing hindrance to the
Convening of Congress cannot be suspended nor the Standing
authority under the Constitution and to establish for the third party’s ability to protect its own
CONSTITUTIONAL DUTY OF CONGRESS IN CASE OF VACANCY IN THE special election postponed. xxx No special election shall be parties in an actual controversy the rights which that interest. [White Light v. City of Manila
OFFICES OF PRESIDENT AND VICE-PRESIDENT called if the vacancy occurs within 18 months before the instrument secures and guarantees to them. This is in (2009)]
rd
At 10 o’clock in the morning of the 3 day after the vacancy date of the next presidential election. truth all that is involved in what is termed "judicial
occurs, Congress shall convene without need of a call, and supremacy" which properly is the power of judicial review (1) Constitutional question must beraised at the earliest
within 7 days enact a law calling for a special election to VICE-PRESIDENT under the Constitution. [Angara v. Electoral Commission possible opportunity;
The President shall nominate a Vice-President from (1936)] The exceptions are: —(a) in criminal cases, at the discretion
elect a President and a Vice-President to be held not earlier among the members of the Senate and the House of of the court; (b) in civil cases, if necessary for the
than 45 nor more than 60 days from the time of such call. Representatives who shall assume office upon FUNCTIONS OF JUDICIAL REVIEW determination of the case itself; and (c) when the
The bill shall be deemed certified and shall become law confirmation by a majority vote of all the members of both (1) Checking jurisdiction of the court is involved
upon its approval on third reading by Congress. xxx the houses of Congress voting separately. [Art. VII, Sec. 9] (2) Legitimating
PAGE 31 PAGE 32
N.B. The reckoning point is the first competent court.The assumed jurisdiction whenever it found constitutionally- (7) The SC has exclusive power to discipline judges of lower But see Francisco v. House of Representatives (2001). At
question must be raised at the first court with judicial review imposed limits on the exercise of powers conferred upon courts. [Art. VIII, Sec. 11] the same time, the Court has the duty to determine
powers. Hence, the failure to raise the constitutional the Legislative and Executive branches [BERNAS]. The Ombudsman is duty bound to refer to the SC all whether or not there has been grave abuse of
question before the NLRC is not fatal to the case. [See cases against judges and court personnel, so SC can discretionby any instrumentality of government under
Serrano v. Gallant Maritime Services (2009] Political Question Justiciable Controversy determine first whether an administrative aspect is its expanded judicial review powers. (This allowed the
involved. The Ombudsman cannot bind the Court that SC to interfere in a traditionally purely political process,
(2) Lis Mota Alejandrino v. Quezon Avelino v. Cuenco, (1949): a case before it does or does not have administrative i.e. impeachment, when questions on compliance with
Decision on the constitutional question must be (1924): The legislature’s election of Senate implications. [Caoibes v. Ombudsman (2001)] Constitutional processes were involved.)
determinative of the case itself. exercise of disciplinary President was done (8) The members of the SC and all lower courts have
power over its member is without the required security of tenure, w/c cannot be undermined by a law Guidelines for determining whether a question is political or
The reason for this is the doctrine of separation of powers not to be interfered with by quorum reorganizing the judiciary. [Id.] not: [Baker v. Carr (369 US 186), as cited in Estrada v.
which requires that due respect be given to the co-equal the Court. (9) They shall not be designated to any agency performing Desierto (2001)]:
branches, and because of the grave consequences of a Vera v. Avelino, (1946): Tañada v. Cuenco, (1957): quasi-judicial or administrative functions. [Art. VIII, Sec. (1) There is a textually demonstrable constitutional
declaration of unconstitutionality. [De la Llana v. Alba inherent right of the The selection of the 12] commitment of the issue to a political department;
(1982)] legislature to determine members of the Senate Administrative functions are those thatinvolve (2) Lack of judicially discoverable and manageable
who shall be admitted to Electoral Tribunal is regulation of conduct of individuals or promulgation of standards for resolving it;
OPERATIVE FACT DOCTRINE its membership subject to constitutional rules to carry out legislative policy. Judges should (3) The impossibility of deciding without an initial policy
General Rule:The interpretation (or declaration) of limitations. render assistance to a provincial committee of justice determination of a kind clearly for non-judicial
unconstitutionality is retroactive in that it applies from the Severino v. Governor- Cunanan v. Tan, Jr., (1962): (which is under DOJ supervision) only when it is discretion;
law’s effectivity General (1910): Mandamus The Commission on reasonably incidental to their duties. [In Re Manzano (4) Impossibility of a court’s undertaking independent
and injunction could not lie Appointments is a (1988)] resolution without expressing lack of the respect due
Exception: to enforce or restrain a constitutional creation and (10) The salaries of judges may not be reduced during their coordinate branches of government;
OPERATIVE FACT DOCTRINE– Subsequent declaration of duty which is discretionary does not derive its power continuance in office. [Art. VIII, Sec. 10] (5) An unusual need for unquestioning adherence to a
unconstitutionality does not nullify all acts exercised in line (calling a special local from Congress. (11) The judiciary shall enjoy fiscal autonomy. [Art. VIII, Sec. political decision already made;
with [the law].The past cannot always be erased by a new election). 3] (6) Potentiality of embarrassment from multifarious
judicial declaration. [Municipality of Malabang v. Benito Manalang v. Quitoriano, Lansang v. Garcia(1971): Fiscal autonomy means freedom from outside control. pronouncements by various departments on one
(1969), citing Chicot County] (1954): President’s Suspension of the privilege As the Court explained in Bengzon v. Drilon: As question
appointing power is not to of the writ of habeas corpus envisioned in the Constitution, the fiscal autonomy
Effect of a Declaration of Unconstitutionality be interfered with by the is not a political question. enjoyed by the Judiciary, the Civil Service Commission APPOINTMENTS TO THE JUDICIARY
(1) Orthodox view - An unconstitutional act is not a law; it Court. and the Commission on Audit, the Commission on SYNTHESIS OF CONSTITUTIONAL AND STATUTORY QUALIFICATIONS
confers no rights; it imposes no duties; it affords no Javellana v. Executive Elections, and the Office of the Ombudsman SC and Collegiate MTC/ MCTC
Secretary(1973): WON the RTC Judge
protection; it creates no office; it is inoperative, as if it contemplates a guarantee of full flexibility to allocate Courts Justice Judge
had not been passed at all. 1973 Constitution had been and utilize their resources with the wisdom and dispatch Citizenship
(2) Modern view - Certain legal effects of the statute prior ratified in accordance with that their needs require. It recognizes the power and
to its declaration of unconstitutionality may be the 1935 Constitution is authority to levy, assess and collect fees, fix rates of Natural-born
Filipino citizen
recognized. justiciable. compensation not exceeding the highest rates Filipino
authorized by law for compensation and pay plans of Age
MOOT QUESTIONS HOWEVER, the people may the government and allocate and disburse such sums
be deemed to have cast At least 40 years old At least 35 At least 30
Ripeness of the controversy-The issue must be raised not as may be provided by law or prescribed by them in the
their favorable votes in the years old years old
too early that it is conjectural or anticipatory, nor too late course of the discharge of their functions. [In re:
that it becomes moot. belief that in doing so they Clarifying and Strengthening the Organizational Experience
did the part required of Structure and Set-up of the Philippine Judicial Academy, 15 years or more as a Has been engaged for at least 5
Exception - Courts will still rule if them by Article XV, hence, A.M. No. 01-1-04-SC] judge or a lower years in the practice of law* in the
(1) there is a grave violation of the Constitution; it may be said that in its (12) The SC alone may initiate rules of court. [Art. VIII, Sec. court or has been PHLor has held public office in
(2) the exceptional character of the situation and the political aspect, which is 5(5)] engaged in the the PHL requiring admission to
paramount public interest is involved; what counts most, after all, (13) Only the SC may order the temporary detail of practice of law in the the practice of law as an
(3) when constitutional issue raised requires formulation of said Article has been judges.[Art. VIII, Sec. 5(3)] PHL for the same indispensable requisite
controlling principles to guide the bench, the bar, and the substantially complied (14) The SC can appoint all officials and employees of the period
public; with, and, in effect, the judiciary.[Art. VIII, Sec. 5(6)]
1973 Constitution has been
Also, when the court feels called upon to exercise its constitutionally ratified. JUDICIAL RESTRAINT
symbolic function and provide future guidance The judiciary will not interfere with its co-equal branches Tenure
[Salonga v. Paño (1985)] SAFEGUARDS OF JUDICIAL INDEPENDENCE when: Hold office during good behavior until they reach the age
(1)The SC is a constitutional body. It cannot be abolished (1) There is no showing of grave abuse of discretion of 70 or
(4) the case is capable of repetition yet evading review. nor may its membership or the manner of its meetings (a) PPA v. Court of Appeals: If there is no showing of become incapacitated to discharge their duties
[Alunan III v. Mirasol, (1997); Sanlakas v. Executive be changed by mere legislation. [Art. VIII, Sec. 4] grave abuse of discretion on the part of a branch or Character
Secretary, (2004)] (2) The members of the judiciary are not subject to instrumentality of the government, the court will
confirmation by the CA. decline exercising its power of judicial review. Person of proven competence, integrity, probity and
POLITICAL QUESTION DOCTRINE (3) The members of the SC may not be removed except by (b) Chavez v. COMELEC: Judicial review shall involve independence
The term “political question” refers to: (1) matters to be impeachment. [Art. IX, Sec. 2] only those resulting to grave abuse of discretion by
exercised by the people in their primary political capacity; or (4) The SC may not be deprived of its minimum original virtue of an agency’s quasi-judicial powers, and not *“Practice of law” is not confined to litigation. It means any
(2) those specifically delegated to some other department or and appellate jurisdiction as prescribed in Art. X, Sec. 5 those arising from its administrative functions. activity in and out of court, which requires the application
particular office of the government, with discretionary of the Constitution. [Art. VIII, Sec. 2] of law, legal procedure, knowledge, training and
power to act. It is concerned with issues dependent upon (5) The appellate jurisdiction of the SC may not be (2) The issue is a political question. experience. [Cayetano v. Monsod (1991)]
the wisdom, not legality, of a particular measure. [Tañada increased by law without its advice and concurrence. Even when all requisites for justiciability have been
v. Cuenco (1957)] [Art. VI, Sec. 30; Fabian v. Desierto (1988)] met, judicial review will not be exercised when the issue CONSTITUTIONAL REQUIREMENTS (CANNOT BE REDUCED BY LAW)
(6) The SC has administrative supervision over all lower involves a political question. Supreme Court Justice
In recent years, the Court has set aside this doctrine and courts and their personnel. (art. VIII, sec. 6.) (1) Natural born citizens
(2) At least 40 years of age
PAGE 33 PAGE 34
(3) Enagaged in the practice of law or a judge of 15 years or (5) Presidential decrees speedy disposition of cases
more But the term of those initially appointed shall be staggered (6) Instructions (2) Uniform for all courts in the same grade
(4) Must be of proven competence, integrity, probity and in the following way so as to create continuity in the (7) Proclamations (3) Shall not diminish, increase or modify substantive rights
independence. council: (8) Ordinances
(1) IBP representative - 4 years (9) Other regulations ADMINISTRATIVE SUPERVISION OVER LOWER COURTS
Lower Collegiate Courts (2) Law professor - 3 years (B) Exercise of the power to Discipline judges of lower Administrative Powers of the Supreme Court
(1) Natural born citizens (3) Retired justice - 2 years courts, or order their dismissal [Art. VIII, Sec. 11] (1) Assign temporarily judges of lower courts to other
(2) Member of the Philippine Bar (4) Private sector - 1 year Discipline of judges can be done by a division, BUT En stations as public interest may require;
(3) Must be of proven competence, integrity, probity and Bancdecides cases for dismissal, disbarment, Shall not exceed 6 months without the consent of the
independence Primary function:Recommend appointees to the judiciary, suspension for more than 1 year, or fine of more than judge concerned
(4) Such additional requirements provided by law. May exercise such other functions and duties as the SC P10,000. [People v. Gacott (1995)] (2) Order a change of venue or place of trial to avoid a
may assign to it. [Art. VIII, Sec. 8(5)] (C) Cases or matters heard by a Division where the required miscarriage of justice;
Lower Courts number of votes to decide or resolve (the majority of (3) Appoint all officials and employees of the Judiciary in
(1) Filipino citizens (RULES OF THE JUDICIAL AND BAR COUNCIL, PROCEDURE OF APPOINTMENT those who took part in the deliberations on the issues accordance with the Civil Service Law;
Nov. 2000, Rule II) The JBC shall submit a list of three nominees for every in the case and voted thereon, and in no case less than (4) Supervision over all courts and the personnel thereof;
(2) Member of the Philippine Bar vacancy to the President. (art. VIII, sec. 9) 3 members) is not met [Art. VIII, Sec. 4(3)] (5) Discipline judges of lower courts, or order their
(3) Must be of proven competence, integrity, probity and (D) Modifying or reversing a doctrine or principle of law laid dismissal.
independence. down by the court in a decision rendered en banc or in
(4) Such additional requirements provided by law. division [Art. VIII, Sec. 4(3)] Grounds Removal from Office on Impeachment of Members
(E) Actions instituted by citizen to test the validity of a of the SC [Art. XI, sec. 2]
Any vacancy in the Supreme Court shall be filed within
Note: In the case of judges of the lower courts, the proclamation of Martial law or suspension of the (1) Culpable violation of the Constitution
ninety (90) days from the occurrence thereof. (art. VIII,
Congress may prescribe other qualifications. (art.VIII, sec. privilege of the writ [Art. VIII, Sec. 18] (2) Treason
sec. 4[1])
7[3]. (F) When sitting as Presidential Electoral Tribunal [Art. VIII, (3) Bribery
For lower courts, the President shall issue the
Sec. 4, par. 7] (4) Graft and corruption
appointment within ninety (90) days from the
JUDICIAL AND BAR COUNCIL (G) All Other cases which under the Rules of Court are re- (5) Other high crimes
submission by the JBC of such list. (art. VIII, sec. 9)
Composition quired to be heard by the SC en banc. [Art. VIII, Sec. (6) Betrayal of public trust
Ex-officio members (art. VIII, sec. 8[1]) 4(2)]
(1) Chief Justice as ex-officio Chairman ORIGINAL AND APPELLATE JURISDICTION
The prohibition against midnight appointments does not
(2) Secretary of Justice Requirement and Procedures in Divisions Original Jurisdiction [Art. VIII, sec. 5[1]]
apply to the judiciary. See De Castro v. JBC, (2010),
(3) One representative of Congress (A) Cases decided withthe concurrence of a majority of the (1) Cases affecting ambassadors, other public ministers
discussed above.
Members who actually took part in the deliberations and consuls
Regular members (art. VIII, sec. 8[1]) and voted (2) Petition for certiorari
DISQUALIFICATION FROM OTHER POSITIONS OR OFFICES
(4) Representative of the Integrated Bar (B) In no case without the concurrence of at least threeof (3) Petition for prohibition
(5) Professor of Law The Members of the Supreme Court and of other courts such Members (4) Petition for mandamus
(6) Retired member of the SC established by law shall not be designated to any agency (C) When required number is not obtained, the case shall (5) Petition for quo warranto
(7) Representative of private sector performing quasi-judicial or administrative functions. [Art. be decided en banc. (6) Petition for habeas corpus
VIII, Sec. 12] (1) Cases v. Matters. Only cases are referred to En Banc
Secretary ex-officio (art. VIII, sec. 8[3]) – Clerk of Court of for decision when required votes are not obtained. Original Jurisdiction [Art. VIII, Sec. 5(2)] –on appeal or
the SC, who shall keep a record of its proceedings; not a The SC and its members should not and cannot be (2) Cases are of first instance; mattersare those after certiorari (as the Rules of Court provide), SC may review,
member of the JBC. required to exercise any power or to perform any trust or to the first instance, e.g. MRs and post-decision revise, reverse, modify, or affirm final judgments and orders
assume any duty not pertaining to or connected w/ the motions. of lower courts in:
Appointment, Tenure, Salary of JBC Members administering of judicial functions. (Meralco v. Pasay (3) Failure to resolve a motion because of a tie does not (1) Cases involving the constitutionalityor validityofany
Ex-officio members - None apply since the position in the Transportation Co., [1932]) leave case undecided. MR is merely lost. [See treaty, international or executive agreement, law,
Council is good only while the person is the occupant of Fortrich v. Corona (1999)] presidential decree, proclamation, order, instruction,
the office. A judge in the CFI shall not be detailed with the ordinance, or regulation
Department of Justice to perform administrative functions The SC En Banc is not an appellate court vis-à-vis its (2) Cases involving the legality of any tax, impost,
Only ONE representative from Congress-Former practices of as this contravenes the doctrine of separation of powers. Divisions. The only constraint is that any doctrine or assessment, or toll, or any penalty imposed in relation
giving ½ vote or (more recently) 1 full vote each for the [Garcia vs Macaraig, (1972)] principle of law laid down by the Court, either rendered en thereto
Chairmen of the House and Senate Committees on Justice banc or in division, may be overturned or reversed only by (3) Cases in which the jurisdiction of any lower court is in
is invalid. THE SUPREME COURT the Court sitting en banc. [Firestone Ceramics v. CA, (2001)] issue
COMPOSITION OF THE SUPREME COURT (4) Criminal cases where the penalty imposed is reclusion
The framers intended the JBC to be composed of 7 (1) Chief Justice and 14 Associate Justices PROCEDURAL RULE MAKING perpetuaor higher.
members only. Intent is for each co-equal branch of gov’t to (2) May sit en banc or in divisions of three, five, or seven The Supreme Court shall have the following powers:xxx (5) Cases where only a question of law is involved.
have one rep. There is no dichotomybetween Senate and Members (5) Promulgate rules concerning the protection and
HOR when Congress interacts with other branches. But the (3) Vacancy shall be filled within 90 days from the enforcement of constitutional rights, pleading, practice, JUDICIAL PRIVILEGE
SC not in a positionto say who should sit. [Chavez v. JBC, occurrence thereof and procedure in all courts, the admission to the practice See SC Resolution dated February 14, 2012, “In Re:
(2012)] of law, the integrated bar, and legal assistance to the Production of Court Records and Documents and the
EN BANC AND DIVISION CASES under-privileged. [Art. VIII, Sec. 5] Attendance of Court officials and employees as witnesses
UPDATE (But outside the cut-off date): Court denied the En banc–casesdecided with the concurrence of a majority under the subpoenas of February 10, 2012 and the various
motion for reconsideration, and lifted the suspension of the of the Members who actually took part in the deliberations letters for the Impeachment Prosecution Panel dated
The 1987 Constitution took away the power of Congress to
dispositive portion in the July 17, 2012 decision ordering the and voted. January 19 and 25, 2012.”
repeal, alter, or supplement rules concerning pleading,
JBC to reconstitute itself. [Chavez v. JBC, supra, April 16, practice and procedure. The power to promulgate rules of
2013] Instances when the SC sits en banc: (c-dd-mm-po) Background: The Senate Impeachment Court (during the
pleading, practice and procedure is no longer shared by
(A) Those involving the Constitutionality, application, or Impeachment Trial of Chief Justice Corona), issued a
this Court with Congress, more so with the
Regular members [Art. VIII, Sec. 8(2)] - The regular operation of: (TOIL-PIPOO) supoena ad testificandum et duces tecum for certain
Executive. [Echegaray v. Secretary of Justice, (1991)]
members shall be appointed by the President with the (1) Treaty documents relating to the FASAP cases, the League of
consent of the Commission on Appointments. The term of (2) Orders Cities cases, and Gutierrez v. House Committee on Justice,
Limitations:
the regular members is 4 years. (3) International or executive agreement as well as the attendance of certain court officials. The
(1) Shall provide a simplified and inexpensive procedure for
(4) Law
PAGE 35 PAGE 36
Supreme Court refused, invoking judicial privilege. (3) Civil Service Commission [De los Santos v. Mallare (1950)]; OR one declared to be
The University of the Philippines, having an original so by the President of the Philippines upon the
Judicial Privilege INSTITUTIONAL INDEPENDENCE SAFEGUARDS charter, is clearly part of the CSC. [UP v. Regino (1993)] recommendation of the CSC [Salazar v. Mathay (1976)].
A form of deliberative process privilege; Court records which Because the three constitutional commissions perform (3) Highly technical – requires possession of technical skill
are pre-decisional and deliberative in nature are thus vital functions in the government, it is essential that their Composition: A Chairman and 2 Commissioners or training in supreme degree. [De los Santos v. Mallare,
protected and cannot be the subject of a subpoena integrity and independence be protected against outside supra]
influences and political pressures. Qualifications:
A document is predecisional if it precedes, in temporal (1) Natural-born citizens of the Philippines; Disqualifications:
sequence, the decision to which it relates. INSTITUTIONAL SAFEGUARDS: (2) At the time of their appointment, at least 35 years of (1) No candidate who has lost in any election shall within 1
(1) They are constitutionally created, hence may not be age; year after such election, be appointed to any office in
A material is deliberative on the other hand, if it reflects the abolished by statute. (3) With proven capacity for public administration; and the Government of any GOCC or in any of its
giveand-take of the consultative process. The key question (2) Each commission is vested with powers and functions (4) Must not have been candidates for any elective position subsidiaries. (art. IX-B, sec. 6)
is whether disclosure of the information would discourage which cannot be reduced by statute. in the election immediately preceding their (2) No elective official shall be eligible for appointment or
candid discussion within the agency. (3) Independent constitutional bodies. appointment. designation in any capacity to any public office or
(4) The Chairmen and members cannot be removed except position during his tenure. (art. IX-B, sec. 7[1])
Judicial Privilegeisan exception to the general rule of by impeachment. Classes of Service: (3) Unless otherwise allowed by law OR by the primary
transparency as regards access to court records. (5) Fixed term of office of 7 years. (A) Career Service – Characterized by entrance (a) based on functions of his position, no appointive official shall hold
(6) The Chairmen and members may not be appointed in merit and fitness to be determined, as far as any other office or employment in the Government or any
Court deliberationsare traditionally considered privileged an acting capacity. practicable, by competitive examinations, OR(b) based subdivision agency or instrumentality thereof including
communication. (7) The salaries of the Chairmen and members may not be on highly technical qualifications; with opportunity for GOCCs or their subsidiaries. (art. IX-B, sec. 7[2])
decreased during their tenure. advancement to higher career positionsand security of (4) No office or employee in the civil service shall engage
Summary of Rules (8) The Commissions enjoy fiscal autonomy. tenure. directly or indirectly, in any electioneering or partisan
The following are privileged documents or (9) Each Commission may promulgate its own procedural (1) Open career positions – where prior qualification in political activity. (art. IX-B, sec. 2[4])
communications, and are not subject to disclosure: rules, provided they do not diminish, increase or modify an appropriate examination is required.
(1) Court actions such as the result of the raffle of cases and substantive rights [though subject to disapproval by (2) Closed career positions – e.g. scientific or highly COMMISSION ON ELECTION
the actions taken by the Court on each case included in the Supreme Court]. technical in nature; Functions and Powers
the agenda of the Court’s session on acts done (10) The Commission may appoint their own officials and (3) Career Executive Service – e.g. undersecretaries, (1) Enforce all laws relating to the conduct of election,
material to pending cases, except where a party litigant employees in accordance with Civil Service Law. bureau directors plebiscite, initiative, referendum and recall.
requests information on the result of the raffle of the (4) Career Officers – other than those belonging to the
case, pursuant to Rule 7, Section 3 of the Internal Rules POWERS AND FUNCTIONS Career Executive Service who are appointed by the Initiative – the power of the people to propose
of the Supreme Court (IRSC); CIVIL SERVICE COMMISSION President, e.g. those in the foreign service amendments to the Constitution or to propose and enact
(2) Court deliberations or the deliberations of the Members The Civil Service Commission, as the central personnel (5) Positions in the AFP although governed by a legislation through an election called for that purpose.
in court sessions on cases and matters pending before agencyof the Government, shall establish a career different merit system There are 3 systems of initiative: Initiative on the
the Court; serviceand adopt measures to promote morale, efficiency, (6) Personnel of GOCCs with original charters Constitution, initiative on statutes, and initiative on local
(3) Court records which are “pre-decisional” and integrity, responsiveness, progressiveness, and courtesy in (7) Permanent laborers, whether skilled, semi-skilled or legislation [R.A. 6735, Sec. 2(a)].
“deliberative” in nature, in particular, documents and the civil service. It shall strengthen the merit and rewards unskilled.
other communications which are part of or related to system, integrate all human resources development (B) Non-career Service – characterized by entrance on Referendum – is the power of the electorate to approve or
the deliberative process, i.e., notes, drafts, research programsfor all levels and ranks, and institutionalize a bases other than those of the usual tests utilized for reject legislation through an election called for that
papers, internal discussions, internal memoranda, management climate conducive to public accountability. It the career service; tenure limited to a period specified by purpose. There are 2 classes: referendum on statutes or
records of internal deliberations, and similar papers. shall submit to the President and the Congress an annual law, or which is co-terminus with that of the appointing referendum on local laws. [R.A. 6735, Sec. 2(c)].
report on its personnel programs. [Art. IX—B, Sec. 3] authority or subject to his pleasure, or which is limited
Additional Rules: to the duration of a particular project for which purpose Recall – is the termination of official relationship of a local
(1) Confidential Information secured by justices, judges, Functions: the employment was made. elective official for loss of confidence prior to the expiration
court officials and employees in the course of their (1) In the exercise of its powers to implement R.A. 6850 (1) Elective officials, and their personal and confidential of his term through the will of the electorate.
official functions, mentioned in (2) and (3) above, are (granting civil service eligibility to employees under staff;
privileged even after their term of office. provisional or temporary status who have rendered (2) Department heads and officials of Cabinet rank who Plebiscite – is the submission of constitutional
(2) Records of cases that are still pending for decision are seven years of efficient service), the CSC enjoys a wide hold office at the pleasure of the President, and amendments or important legislative measures to the
privileged materials that cannot be disclosed, except latitude of discretion, and may not be compelled by their personal and confidential staff; people for ratification.
only for pleadings, orders and resolutions that have mandamus. [Torregoza v. Civil Service Commission (3) Chairmen and members of commissions and
been made available by the court to the general public. (1992)]. bureaus with fixed terms; (2) Recommend to the Congress effective measures to
(3) The principle of comity or inter-departmental courtesy (2) Under the Administrative Code of 1987, the Civil Service (4) Contractual personnel; minimize election spending, and to prevent and
demands that the highest officials of each department Commission has the power to hear and decide (5) Emergency and seasonal personnel. penalize all forms of election frauds, offenses,
be exempt from the compulsory processes of the other administrative cases instituted before it directly or on malpractices, and nuisance candidacies.
departments. appeal, including contested appointments. Appointments in the Civil Service
(4) These privileges belong to the Supreme Court as an (3) The Commission has original jurisdiction to hear and General Rule: Made only according to merit and fitness to (3) Submit to the President and the Congress, a
institution, not to any justice or judge in his or her decide a complaint for cheating in the Civil Service be determined, as far as practicable, by competitive comprehensive report on the conduct of each
individual capacity. Since the Court is higher than the examinations committed by government employees. examination. election, plebiscite, initiative, referendum, or recall.
individual justices or judges, no sitting or retired justice [Cruz v. CSC (2001)]
or judge, not even the Chief Justice, may claim (4) It is the intent of the Civil Service Law, in requiring the Exceptions: Power to declare failure of election – The COMELEC may
exception without the consent of the Court. establishment of a grievance procedure, that decisions (1) Policy determining – where the officer lays down exercise such power motu proprio or upon a verified
of lower level officials (in cases involving personnel principal or fundamental guidelines or rules; or petition, and the hearing of the case shall be summary in
actions) be appealed to the agency head, then to the formulates a method of action for government or any nature. There are only 3 instances where a failure of
Civil Service Commission. [Olanda v. Bugayong (2003)] of its subdivisions;e.g. department head. elections may be declared: (a) the election in any polling
Constitutional Commissions Scope of the Civil Service

(2) Primarily confidential – denoting not only confidence in
the aptitude of the appointee for the duties of the office
place has not been held on the date fixed on account of
force majeure, violence, terrorism, fraud, or other
Embraces all branches, subdivisions, instrumentalities and but primarily close intimacy which ensures freedom of analogous causes; (b) the election in any poling place had
(1) Commission on Election agencies of the Government, including GOCCs with original intercourse without embarrassment or freedom from been suspended before the hour fixed by law for the
(2) Commission on Audit charters. (Sec. 2(1), Art. IX-B). misgivings or betrayals on confidential matters of state closing of the voting on account of force majeure, violence,
PAGE 37 PAGE 38
fraud, or other analogous causes; and (c) after the voting The Commission on Elections may sit en banc or in two (2) At least 35 years of age agencies, or instrumentalities, including government-owned
and during the preparation and transmission of the divisions, and shall promulgate its rules of procedure in (3) CPAs with not less than 10 years of auditing experience and controlled corporations with original charters, and on a
election returns or in the custody or canvass thereof such order to expedite disposition of election cases, including ORmembers of the Philippine bar with at least 10 years post-audit basis:
election results in a failure to elect on account of force pre-proclamation controversies. All such election cases practice of law (a) constitutional bodies, commissions and officers that
majeure, violence, terrorism, fraud or other analogous shall be heard and decided in division, provided that have been granted fiscal autonomy under the
causes. [Sison v. COMELEC (1999)] motions for reconsideration of decisions shall be decided by Note: At no time shall all members belong to the same Constitution;
the Commission en banc. [Art. IX—C, Sec. 3] profession. (b) autonomous state colleges and universities;
(4) Decide administrative questions pertaining to election (c) other government-owned or controlled corporations and
except the right to vote(jurisdiction with the judiciary). Cases which must be heard by division PROHIBITED OFFICES AND INTERESTS their subsidiaries; and
(1) All election cases, including pre-proclamation contests No member of the Constitutional Commissions shall, (d) such non-governmental entities receiving subsidy or
(5) File petitions in court for inclusion or exclusion of originally cognizable by the Commission in the exercise during their tenure: equity, directly or indirectly, from or through the
voters. of its powers under Sec. 2(2), Art IX-C. (1) Hold any other office or employment. This is similar to the government, which are required by law or the granting
(2) Jurisdiction over a petition to cancel a certificate of prohibition against executive officers. It applies to both institution to submit to such audit as a condition of
(6) Investigate and prosecute cases of violations of election candidacy. public and private offices and employment. subsidy or equity. [Phil. Society for the Prevention of
laws. (3) Even cases appealed from the RTC or MTC have to be (2) Engage in the practice of any profession. Cruelty of Animals v. COA (2007)]
heard and decided in division before they may be heard (3) Engage in the active management or control of any
The COMELEC has exclusive jurisdiction to investigate and en banc. businesswhich in any way may be affected by the The Boy Scouts of the Philippines (BSP) is a public
prosecute cases for violations of election laws. [De Jesus v. functions of his office. corporation and its funds are subject to the COA’s audit
People (1983)] If the COMELEC exercises its quasi-judicial functions then (4) Be financially interested, directly or indirectly, in any jurisdiction. [Boy Scouts of the Philippines v. COA (2011)]
the case must be heard through a division. contract with, or in any franchise or privilege granted
Thus, the trial court was in error when it dismissed an by, the Government, its subdivisions, agencies or REVIEW OF FINAL ORDERS, RESOLUTIONS, AND
information filed by the Election Supervisor because the If the COMELEC exercises its administrative functions then instrumentalities, including GOCCs or their DECISIONS
latter failed to comply with the order of the Court to secure it must act en banc. [Bautista v. COMELEC, 414 (2003)]. subsidiaries. QUASI-JUDICIAL FUNCTIONS
the concurrence of the Prosecutor. [People v. Inting (1990)] Each Commission shall decide by a majority vote of all its
However, the COMELEC may validly delegatethis power to Composition: A Chairman and 6 Commissioners. JURISDICTION Members, any case or matter brought before it within sixty
the Provincial Fiscal. [People v. Judge Basilia (1989)] The well-settled rule is that jurisdiction is conferred only by days from the date of its submission for decision or
Qualifications: the Constitution or by law [Orosa, Jr. v. Court of Appeals resolution. A case or matter is deemed submitted for
(7) Recommend pardon, amnesty, parole or suspension of (1) Must be natural-born citizens; (1991)] decision or resolution upon the filing of the last pleading,
sentence of election law violators. (2) At least 35 years of age; brief, or memorandum required by the rules of the
(3) Holders of a college degree; CIVIL SERVICE COMMISSION Commission or by the Commission itself. Unless otherwise
(8) Deputize law enforcement agencies and (4) Have not been candidates in the immediately preceding The CSC has been granted by the Constitution and the provided by this Constitution or by law, any decision, order,
instrumentalities of the Government for the exclusive election; Administrative Code jurisdiction over all civil service or ruling of each Commission may be brought to the
purpose of ensuring free, orderly, honest, peaceful, and (5) Majority, including the Chairman, must be members of positions in the government service, whether career or Supreme Court on certiorari by the aggrieved party within
credible elections. the Philippine Bar who have been engaged in the non-career. The specific jurisdiction, as spelled out in the thirty days from receipt of a copy thereof. [Art. IX-A, Sec. 7]
practice of law for at least 10 years. [Art. IX-C, Sec. 1] CSC Revised Uniform Rules on Administrative Cases in the
(9) Recommend to the President the removal of any officer Civil Service, did not depart from the general jurisdiction
Decisions
or employee it has deputized for violation or disregard COMMISSION ON AUDIT granted to it by law. [Civil Service Commission vs. Sojor Each Commission shall decide by a majority vote of all its
of, or disobedience to its directive. Powers and Functions (2008); see CSC Resolution No. 991936 detailing the members(NOT only those who participated in the
(A) Examine, audit, and settle accounts pertaining to disciplinary and non-disciplinaryjurisdiction]
deliberations) any case or matter brought before it within
(10) Registration of political parties, organizations and government funds or property: its revenue, receipts, 60 days from the date of its submission for decision or
coalitions and accreditation of citizens’ arms. expenditures, and uses Appellate Jurisdiction
resolution. [Art. IX-A, Sec. 7]
The appellate power of the CSC will only apply when the
(11) Regulation of public utilities and media of information. Post-audit basis: subject of the administrative cases filed against erring Any decision, order or ruling of each Commission may be
The law limits the right of free speech and of access to (1) Constitutional bodies, commissions and offices; employees is in connection with the duties and functions of
brought to the SC on certiorari by the aggrieved party
mass media of the candidates themselves. The (2) Autonomous state colleges and universities; their office, and not in cases where the acts of complainant within 30 days from receipt of the copy thereof.
limitation however, bears a clear and reasonable (3) GOCCs with no original charters and their arose from cheating in the civil service examinations.[Cruz
connection with the objective set out in the subsidiaries; v. CSC (2001)]
Certiorari jurisdiction of the Supreme Court:
Constitution. For it is precisely in the unlimited (4) Non-governmental entities receiving subsidy or Limited to decisions rendered in actions or proceedings
purchase of print space and radio and television time equity, directly or indirectly, from or through the COMMISSION ON ELECTIONS
taken cognizance of by the Commissions in the exercise of
that the resources of the financially affluent candidates Government, which are required by law or the The Constitution vested upon the COMELEC judicial
their quasi-judicial powers.
are likely to make a crucial difference. The purpose is to granting institution to submit such audit as a powers to decide all contests relating to elective local
ensure "equal opportunity, time, and space, and the right condition of subsidy or equity. officials as therein provided. [Garcia v. De Jesus (1992)]
The Court exercises extraordinary jurisdiction, thus, the
to reply," as well as uniform and reasonable rates of proceeding is limited only to issues involving grave abuse
charges for the use of such media facilities, in (B) Exclusive Authority to Exclusive: all contests relating to the elections, returns and of discretion resulting in lack or excess of jurisdiction, and
connection with "public information campaigns and (1) Define the scope of its audit and examination; quslifications of all elective regional, provincial, and city
does not ordinarily empower the Court to review the
forums among candidates." [National Press Club v. (2) Establish techniques and methods required ; officials. factual findings of the Commission. [Aratuc v. COMELEC,
COMELEC (1992)] (3) Promulgate accounting and auditing rules and (1999)]
regulations. Appellate: all contests involving elected municipal
Note: This power may be exercised only over the media, not officialsdecided by trial courts of general jurisdiction, or Synthesis on the Rules of Modes of Review
over practitioners of media. Thus, a COMELEC resolution Note: Art. IX-D, sec. 3.No law shall be passed exempting involving elective barangay officials decided by a court of
(1) Decisions, order or ruling of the Commissions in the
prohibiting radio and TV commentators and newspaper any entity of the Government or its subsidiaries in any limited jurisdiction. [Garcia, id.] exercise of their quasi-judicial functions may be
columnists from commenting on the issues involved in the guise whatever, or any investment of public funds, from the reviewed by the Supreme Court.
forthcoming plebiscite for the ratification of the organic jurisdiction of the Commission on Audit. COMMISSION ON AUDIT
(2) The mode of review is a petition for certiorari under Rule
law establishing the CAR was held invalid. [Sanidad v. The Commission on Audit shall have the power, authority, 64 (not Rule 65).
COMELEC (1990)] Composition: A Chairman and 2 Commissioners and duty to examine, audit, and settle all accounts
(3) Exception: The Rules of Civil Procedure, however,
pertaining to the revenue and receipts of, and expenditures
provides for a different legal route in the case of the
(12) Decide election cases Qualifications: or uses of funds and property, owned or held in trust by, or Civil Service Commission. In the case of CSC, Rule 43
(1) Natural born Filipino citizens pertaining to the Government, or any of its subdivisions,
PAGE 39 PAGE 40
will be applied, and the case will be brought to the (3) Those whose mothers are citizens of the Philippines
Court of Appeals. and, upon reaching the age of majority, elect Philippine Special Qualifications [C.A. 473, Sec. 3] – ANY will result to Judgment directing the issuance of a certificate of
citizenship; reduction of 10-year period to 5 years naturalization is a mere grant of a political privilege and
ADMINISTRATIVE (4) Those who are naturalized in accordance with law. [Art. (1) Having honorably held office under the Government of that neither estoppel nor res judicata may be invoked to bar
Each Commission shall appoint its own officials in IV, Sec. 1] the Philippines or under that of any of the provinces, the State from initiating an action for the cancellation or
accordance with law [Art. IX-A, Sec. 4] cities, municipalities, or political subdivisions thereof; nullification of the certificate of naturalization thus issued.
The following persons were citizens of the Philippines on (2) Established a new industry or introduced a useful [Yao Mun Tek v. Republic (1971)]
Each Commission En Banc may promulgate its own rules May 14, 1935 – the date of the adoption of the 1935 invention in the Philippines;
concerning pleadings and practices before it [Art. IX-A, Constitution: (3) Married to a Filipino woman; DUAL CITIZENSHIP AND DUAL ALLEGIANCE
Sec.6] (1) Persons born in the Philippine Islands who resided (4) Engaged as a teacher in the Philippines in a public or DUAL CITIZENSHIP
therein on April 11, 1899 and were Spanish subjects on recognized private school not established for the Allows a person who acquires foreign citizenship to
But these rules shall not diminish, increase or modify that date, unless they had lost their Philippine exclusive instruction of children of persons of a simultaneously enjoy the rights he previously held as a
substantive rights citizenship on or before May 14, 1935. particular nationality or race, in any of the branches of Filipino citizen.
(2) Natives of the Spanish Peninsula who resided in the education or industry for a period of 2 years or more;
Each Commission shall perform such other functions as Philippines on April 11, 1899, and who did not declare (5) Born in the Philippines. DUAL ALLEGIANCE
may be provided by law[Art. IX-A, Sec. 8] their intention of preserving their Spanish nationality (1) Aliens who are naturalized as Filipinos but remain loyal
between that date and October 11, 1900, unless they Disqualifications [C.A. 473, Sec. 4] to their country of origin
had lost their Philippine citizenship on or before May (1) Persons opposed to organized government or affiliated (2) Public officers who, while serving the government, seek
14, 1935. with groups who uphold and teach doctrines opposing citizenship in another country
Citizenship (3) Naturalized citizens of Spain who resided in the

Philippines on April 11, 1899, and did not declare their
all organized governments;
(2) Persons defending or teaching the necessity or “Dual citizens” are disqualified from running for any
intention to preserve their Spanish nationality within propriety of violence, personal assault, or assassination elective local position. (LOCAL GOVERNMENT CODE, sec. 40[d]);
WHO ARE FILIPINO CITIZENS? the prescribed period (up to October 11, 1900). for the success of their ideas; this should be read as referring to “dual allegiance” (see
Who are citizens? (Asked 25 times in the Bar; CONST., art. IV, (4) Children born of (1), (2) and (3) subsequent to April 11, (3) Polygamists or believers in polygamy; below)
Sec. 1) 1899, unless they lost their Philippine citizenship on or (4) Persons convicted of crimes involving moral turpitude;
(A) Citizens of the Philippines at the time of the adoption before May 14, 1935. (5) Persons suffering from mental alienation or incurable Once a candidate files his candidacy, he is deemed to have
of this Constitution; (5) Persons who became naturalized citizens of the contagious diseases; renounced his foreign citizenship in case of dual
(B) Those whose fathers or mothers are citizens of the Philippines in accordance of naturalization law since its (6) Persons who during the period of their stay, have not citizenship. [Mercado v. Manzano (1999)]
Philippines; enactment on March 26, 1920. mingled socially with the Filipinos, or who have not
(C) Those who elected to be citizens. This is available only evinced a sincere desire to learn and embrace the Clearly, in including sec. 5 in Article IV on citizenship, the
to: MODES OF ACQUIRING CITIZENSHIP customs, traditions, and ideals of the Filipinos; concern of the Constitutional Commission was not with
(1) those born before January 17, 1973; Generally, two modes of acquiring citizenship: (7) Citizens or subjects of nations with whom the dual citizens per se but with naturalized citizens who
(2) to Filipino mothers; AND (A) By Birth Philippines is at war maintain their allegiance to their countries of origin even
(3) elect Philippine citizenship upon reaching the age (1) Jus Soli - “right of soil;” person’s nationality is based on (8) Citizens or subjects of a foreign country other than the after their naturalization. Hence, the phrase “dual
of majority place of birth; formerly effective in the Philippines, see United States, whose laws do not grant Filipinos the citizenship” in R.A. No. 7160, sec. 40(d) and in R.A. No.
(D) Those naturalized in accordance with law. [Roa v. Collector of Customs (1912)] right to become naturalized citizens or subject thereof; 7854, sec. 20 must be understood as referring to “dual
(2) Jus Sanguinis – “right of blood;” person’s nationality allegiance.”
ARTICLE IV, Section 1 (3), 1987 Constitution is also follows that of his natural parents. The Philippines DENATURALIZATION
applicable to those who are born to Filipino mothers and currently adheres to this principle. Process by which grant of citizenship is revoked. Consequently, persons with mere dual citizenship do not
elected Philippine citizenship before February 2, 1987. This (B) By Naturalization fall under this disqualification. For candidates with dual
is to correct the anomalous situation where one born of a Grounds [C.A. 473, Sec. 18]– upon the proper motion of the citizenship, it should suffice if, upon the filing of their
Filipino father and an alien mother was automatically NATURALIZATION AND DENATURALIZATION Sol. Gen. or the provincial fiscal, naturalization may be certificates of candidacy, they elect Philippine citizenship
granted the status of a natural-born citizen, while one born NATURALIZATION cancelled when to terminate their status as persons with dual citizenship
of a Filipino mother and an alien father would still have to Process by which a foreigner is adopted by the country and (1) Naturalization certificate was fraudulently or illegally considering that their condition is the unavoidable
elect Philippine citizenship. [Co v. House Electoral Tribunal clothed with the privileges of a native-born citizen. The obtained [See Po Soon Tek v. Republic (1974)] consequence of conflicting laws of different states.
(1991)] applicant must prove that he has all of the qualifications (2) If, within the five years next following the issuance, he
and none of the disqualifications for citizenship. shall return to his native country or to some foreign LOSS AND REACQUISITION OF FILIPINO CITIZENSHIP
Who were the citizens of the Philippines at the time of the country and establish his permanent residence there GROUNDS FOR LOSS OF CITIZENSHIP
adoption of the 1987 Constitution? Qualifications [C.A. 473, Sec. 2] Remaining for more than one year in his native country (1) Naturalization in a foreign country [C.A. 63, sec.1(1)];
To answer this question, we have to go back to 1973 (1) Not less than twenty-one years of age on the day of the or the country of his former nationality, or two years in (2) Express renunciation or expatriation [Sec.1(2), CA 63];
Constitution. hearing of the petition; any other foreign country, shall be considered as prima (3) Taking an oath of allegiance to another country upon
(2) Resided in the Philippines for a continuous period of 10 facie evidence of his intention of taking up his reaching the age of majority;
Citizens under the 1973 Constitution years or more; permanent residence in the same; (4) Accepting a commission and serving in the armed
(1) Those who are citizens of the Philippines at the time of (3) Of good moral character; believes in the principles (3) Petition was made on an invalid declaration of forces of another country, unless there is an offensive/
the adoption of this Constitution; underlying the Philippine Constitution; conducted intention; defensive pact with the country, or it maintains armed
(2) Those whose fathers or mothers are citizens of the himself in a proper and irreproachable manner during (4) Minor children of the person naturalized failed to forces in RP with RP’s consent;
Philippines; the entire period of his residence towards the graduate from the schools mentioned in sec. 2, through (5) Denaturalization;
(3) Those who elect Philippine citizenship pursuant to the government and community the fault of their parents, either by neglecting to support (6) Being found by final judgment to be a deserter of the
provisions of the Constitution of 1935; and (4) Must own real estate in the Philippines worth P5,000 them or by transferring them to another school or AFP;
(4) Those who are naturalized in accordance with law. or more OR must have lucrative trade, profession, or schools. (7) Marriage by a Filipino woman to an alien, if by the laws
[CONST. (1973), Art. III, Sec. 1(1)] lawful occupation; (5) If he has allowed himself to be used as a dummy in of her husband’s country, she becomes a citizen
(5) Able to speak or write English or Spanish or anyone of violation of the Constitutional or legal provision thereof.
Citizens under the 1935 Constitution the principal languages; requiring Philippine citizenship as a requisite for the
(1) Those who are citizens at the time of the adoption of (6) Enrolled his minor children of school age in any of the exercise, use or enjoyment of a right, franchise or Expatriation is a constitutional right. No one can be
this Constitution; recognized schools where Philippine history, privilege. compelled to remain a Filipino if he does not want to. [Go
(2) Those born in the Philippine Islands of foreign parents government and civics are taught or prescribed as part Gullian v. Government]
who, before the adoption of this Constitution, had been of the school curriculum, during the entire period of the Naturalization is never final and may be revoked if one
elected to public office in the Philippine Islands; residence in the Philippines required of him; commits acts of moral turpitude. [Republic v. Guy (1982)] Exception: A Filipino may not divest himself of Philippine
PAGE 41 PAGE 42
citizenship in any manner while the Republic of the

Philippines is at war with any country. [C.A. 63, sec. 1(3)]
to all attendant liabilities and responsibilities under
existing laws of the Philippines and the following National Economy & 100% Filipino 60-40 70-30
renewable for
Loss of Philippine citizenship cannot be
conditions:
(1) Those intending to exercise their right of suffrage must Patrimony another
years.
25
presumed.Considering the fact that admittedly, Osmeña meet the requirements under Sec. 1, Art. V of the
was both a Filipino and an American, the mere fact that he Constitution, RA 9189, otherwise known as "The GOALS Practice of Areas of Investment
has a certificate stating that he is an American does not Overseas Absentee Voting Act of 2003" and other (1) More equitable distribution of opportunities, income professions, save in as Congress may
mean that he is not still a Filipino, since there has been NO existing laws; and wealth cases provided by prescribe
EXPRESS renunciation of his Philippine citizenship. [Aznar (2) Those seeking elective public office in the Philippines (2) Sustained increase in amount of goods and services law [Art. XII, Sec. (percentage can be
v. COMELEC (1995)] shall meet the qualifications for holding such public produced by the nation for the benefit of the people 14[2]] higher)
office as required by the Constitution and existing laws (3) Expanding production as the key to raising the quality [Art. XII, Sec. 10]
HOW MAY CITIZENSHIP BE REACQUIRED? and, at the time of the filing of the certificate of of life for all, especially the underprivileged. Small-scale Operation of public
(1) Naturalization[C.A. 63 and C.A. 473] candidacy, make a personal and sworn renunciation of utilization of utility (Art. XII, Sec.
Now an abbreviated process, no need to wait for 3 years (1 any and all foreign citizenship before any public officer REGALIAN DOCTRINE natural resources, 11)
year for declaration of intent, and 2 years for the judgment authorized to administer an oath; as may be provided (a) Cannot be for
All lands of the public domain, waters, minerals, coal,
to become executory) (3) Those appointed to any public office shall subscribe by law [Art. XII, Sec. longer period
petroleum, and other mineral oils, all forces of potential
and swear to an oath of allegiance to the Republic of 2[3]] than 50 years
energy, fisheries, forests or timber, wildlife, flora and fauna,
Requirements: the Philippines and its duly constituted authorities (b) Executive and
and other natural resources are owned by the State. With
(1) be 21 years of age prior to their assumption of office: provided, that they managing
the exception of agricultural lands, all other natural
(2) be a resident for 6 months renounce their oath of allegiance to the country where officers must be
resources shall not be alienated. [Art. XII, Sec. 2]
(3) have good moral character they took that oath; Filipino
(4) have no disqualification (4) Those intending to practice their profession in the REGALIAN DOCTRINE [JURA REGALIA]
Philippines shall apply with the proper authority for a A public utility is a business or service engaged in regularly
The King had title to all the land in the Philippines except supplying the public with some commodity or service of
(2) Repatriation license or permit to engage in such practice; and so far as it saw fit to permit private titles to be acquired.
Repatriation results in the recovery of the original (5) That right to vote or be elected or appointed to any public consequence. A joint venture falls within the
[Cariño v. Insular Government (1909)]. In present context, purview of an “association” pursuant to Sec. 11, Art. XII and
nationality. Therefore, if he is a natural-born citizen before public office in the Philippines cannot be exercised by,
ownership of all lands of the public domain is vested in the must comply with the 60%-40% Filipino-foreign
he lost his citizenship, he will be restored to his former or extended to, those who: State.
status as a natural-born Filipino. [Bengson III v. HRET (a) are candidates for or are occupying any public office in capitalization requirement. [JG Summit Holdings v. CA
(2001)] the country of which they are naturalized citizens; (2001)]
The classification of public lands is an exclusive prerogative
and/or of the Executive Department through the Office of the
Mere filing of certificate of candidacy is not a sufficient act (b) are in active service as commissioned or non- What “capital” is covered- The 60% requirement applies to
President. [Republic v. Register of Deeds of Quezon (1994)] both the voting control and the beneficial ownership of the
of repatriation.Repatriation requires an express and commissioned officers in the armed forces of the
equivocal act. [Frivaldo v. COMELEC (1989)] country which they are naturalized citizens. public utility. Therefore, it shall apply uniformly, separately,
Doctrine of Native Title and across the board to all classes of shares, regardless of
Ownership over native land is already vested on natives nomenclature or category, comprising the capital of the
In the absence of any official action or approval by proper NATURAL-BORN CITIZENS AND PUBLIC OFFICE even if they do not have formal titles [Cariño v. Insular
authorities, a mere application for repatriation does not, NATURAL-BORN
corporation. (e.g. 60% of common stock, 60% of preferred
Government (1909)] voting stock, and 60% of preferred non-voting stock.)
and cannot, amount to an automatic reacquisition of the (1) Citizens of the Philippines from birth without having to
applicant’s Philippine citizenship. [Labo v. COMELEC perform any act to acquire or perfect their Philippine [Gamboa v. Teves (2012)]
NATIONALIST AND CITIZENSHIP REQUIREMENT
(1989)] citizenship; and PROVISIONS Interpretation in line with Constitution’s intent to ensure a
(2) Thosewho elect Philippine citizenship in accordance with CITIZENSHIP REQUIREMENTS
(3) Legislative Act [Art. IV, Sec. 1(3)] “self-reliant and independent national economy effectively-
Both a mode of acquiring and reacquiring citizenship 100% Filipino 60-40 70-30 controlled by Filipinos.” [See Gamboa v. Teves (2011)]
The term "natural-born citizens," is defined to include Marine Wealth [Art. Natural Resources Advertising
RA 9225 (CITIZENSHIP RETENTION AND RE-ACQUISITION ACT OF "those who are citizens of the Philippines from birth XII, sec. 2[2]] [Art. XII, Sec. 2[1]] Industry In the original decision, only the voting stockwere subject to
2003) without having to perform any act to acquire or perfect [Art. XVI, the 60% requirement. [Id.]
Sec. 3. Retention of Philippine Citizenship. — Any provision their Philippine citizenship." [Tecson v. COMELEC (2004)] (Co-production, Sec. 11]
Joint venture, There is some controversy in the interpretation of the
of law to the contrary notwithstanding, natural-
WHO MUST BE NATURAL-BORN? Production sharing resolution on the motion for reconsideration. (a) There is
born citizens of the Philippines who have lost their
(1) President [Art. VII, Sec. 2] agreements) the question of whether the grandfather ruleshould be
Philippine citizenship by reason of their
(2) Vice-President [Art. VII, Sec. 3] applied. (b)The dispositive merely denied the MRs, but did
naturalization as citizens of a foreign country are
(3) Members of Congress [Sec. 3 and 6, Art. VI] Agreements shall not reiterate the newer interpretation.
hereby deemed to have re-acquired Philippine
citizenship upon taking the following oath of (4) Justices of SC and lower collegiate courts [Sec. 7(1), Art. not exceed a period
VIII] of 25 years In any case, the released SEC guidelines comply with the
allegiance to the Republic: xxx
(5) Ombudsman and his deputies [Sec. 8, Art. XI] renewable for strictest interpretation of Gamboa v. Teves.
Natural-born citizens of the Philippines who, after the (6) Members of Constitutional Commissions another 25 years.
FILIPINO FIRST
effectivity of this Act, become citizens of a foreign country (7) CSC [Art. IX-B, Sec. 1(1)] Agricultural lands Educational
shall retain their Philippine citizenship upon taking the (8) COMELEC [Art. IX-C, Sec.1] [Art. XII, Sec. 3] Institutions [Art. In the grant of rights, privileges, and concessions covering
aforesaid oath. (9) COA [Art. IX-D, Sec. 1(1)] (a) Lease: < 500 XIV, Sec. 4[2]] the national economy and patrimony, the State shall give
(10) Members of the central monetary authority [Art. XII, ha. preference to qualified Filipinos.
Sec. 4 Derivative Citizenship. — The unmarried child, Sec. 20] (b) Purchase,
whether legitimate, illegitimate or adopted, below (11) Members of the Commission on Human Rights [Art. homestead or The State shall regulate and exercise authority over foreign
eighteen (18) years of age, of those who re-acquire XIII, Sec. 17(2)] grant: < 12 ha. investments within its national jurisdiction and in
Philippine citizenship upon effectivity of this Act shall be The Constitutional provision(i.e. “whose fathers are (c) Private accordance with its national goals and priorities. [Art. XII,
deemed citizens of the Philippines. citizens”)does not distinguish between “legitimate” or corporations Sec. 10]
“illegitimate” paternity. Civil Code provisions on illegitimacy may lease not
Sec. 5. Civil and Political Rights and Liabilities. — Those govern private and personal relations, not one’s political more than The term “patrimony” pertains to heritage, and given the
who retain or re-acquire Philippine citizenship under this status. [Tecson v. COMELEC, supra, on the petition for 1,000 ha. for history of the Manila Hotel, it has become a part of our
Act shall enjoy full civil and political rights and be subject disqualification against presidential candidate FPJ] 25 years, national economy and patrimony. Thus, the Filipino First
PAGE 43 PAGE 44
policy provision of the Constitution is applicable. Such FTAA SERVICE CONTRACT without the need of a franchise. But in operating an air HOWEVER, land sold to an alien which was later
provision is per se enforceable, and requires no further (1987 Const.) (1973 Const.) transport business, franchise is required. transferred to a Filipino citizen OR when the alien later
guidelines or implementing rules or laws for its operation. productive enterprise, becomes a Filipino citizen can no longer be recovered by
[Manila Prince Hotel v. GSIS, (1990)] operations of the exploration ACQUISITION, OWNERSHIP AND TRANSFER OF PUBLIC the vendor, because there is no longer any public policy
and exploitation of the AND PRIVATE LANDS involved. [Republic v. IAC (1989)]
The State shall promote the preferential use of Filipino resources or the disposition of Lands of the Public Domain are classified into:
labor, domestic materials and locally produced goods, and marketing or resources (1) Agricultural Lands PRACTICE OF PROFESSIONS
adopt measures that help make them competitive. [Art. XII, (2) Forest or Timber Lands The practice of all profession in the Philippines shall be
Sec. 12] Service Contracts not prohibited. Even supposing FTAAs are (3) Mineral Lands limited to Filipino citizens, save in the case prescribed by
service contracts, the latter are not prohibited under the (4) National Park [Art. XII, Sec. 3] law. [Art. XII, Sec. 14]
EXPLORATION, DEVELOPMENT AND UTILIZATION OF Constitution. [Justification: A verba legis interpretation
does not support an intended prohibition. The members of Note: The classification of public lands is a function of the
NATURAL RESOURCES ORGANIZATION AND REGULATION OF
the CONCOM used the terms “service contracts” and executive branch, specifically the Director of the Land CORPORATIONS, PRIVATE AND PUBLIC
The President may enter into agreements with foreign- “financial and technical assistance” interchangeably.] [La Management Bureau (formerly Director of Lands). The
owned corporations involving eithertechnical or financial STEWARDSHIP CONCEPT
Bugal-B’laan Tribal Assn. v. Ramos, (Dec. 2004)] decision of the Director, when approved by the Secretary of
assistance for large-scale exploration, development, and the DENR, as to questions of fact, is conclusive upon the The use of property bears a social function, and all
utilization of minerals, petroleum, and other mineral oils The following are valid: courts. [Republic v. Imperial (1999)]. economic agents shall contribute to the common good.
according to the general terms and conditions provided by (1) Financial and Technical Assistance Agreements
law, based on real contributions to the economic growth (FTAA)– not a prohibited agreement in the Alienable lands of the public domain shall be limited to Individuals and private groups, including corporations,
and general welfare of the country. In such agreements, contemplation of the Constitution agricultural lands. [Art. XII, Sec. 3] cooperatives, and similar collective organizations, shall
the State shall promote the development and use of local (2) Philippine Mining Law (RA 7942) have the right to own, establish, and operate economic
scientific and technical resources. [Art. XII, Sec. 2, par. 4] (3) Its Implementing Rules and Regulations, insofar as To prove that the land subject of an application for enterprises, subject to the duty of the State to promote
they relate to financial and technical agreements [La registration is alienable, an applicant must conclusively distributive justice and to intervene when the common
The State, being the owner of the natural resources, is Bugal-B’laan Tribal Assn. v. Ramos (Dec. 2004)] establish the existence of a positive act of the government good so demands. [Art. XII, Sec. 6]
accorded the primary power and responsibility in the such as a presidential proclamation or an executive order
exploration, development and utilization thereof. As such it The Constitutionshould be construed to grant the or a legislative act or statute. [Republic v. Candymaker, Inc. The State shall apply the principles of agrarian reform or
may undertake these activities through four modes: President and Congress sufficient discretion and (2006)] stewardship, whenever applicable in accordance with law,
(1) The State may directly undertake such activities; reasonable leeway to enable them to attract foreign
(2) The State may enter into co-production, joint venture or investments and expertise, as well as to secure for our Foreshore land is that part of the land which is between the in the disposition or utilization of other natural resources,
production-sharing agreements with Filipino citizens or people and our posterity the blessings of prosperity and high and low water, and left dry by the flux and reflux of including lands of the public domain under lease or
qualified corporations; peace. the tides. It is part of the alienable land of the public concession suitable to agriculture, subject to prior rights,
(3) Congress may, by law, allow small-scale utilization of It is not unconstitutional to allow a wide degree of domain and may be disposed of only by lease and not homestead rights of small settlers, and the rights of
natural resources by Filipino citizens; or discretion to the Chief Executive, given the nature and otherwise. [Republic v. Imperial, supra] indigenous communities to their ancestral lands. [Art. XIII,
(4) For the large-scale exploration, development and complexity of such agreements, the humongous amounts Sec. 6]
utilization of minerals, petroleum and other mineral of capital and financing required for large-scale mining Private corporations or associations may not hold such
oils, the President may enter into agreements with operations, the complicated technology needed, and the alienable lands of public domain except by lease, for a MONOPOLIES, RESTRAINT OF TRADE AND UNFAIR
foreign-owned corporations involving technical or intricacies of international trade, coupled with the State’s period not exceeding 25 years, and not to exceed 1000 COMPETITION
financial assistance. [La Bugal-B’Laan Tribal Assn. v. need to maintain flexibility in its dealings, in order to hectares in area. MONOPOLIES
Ramos, [Jan. 2004)] preserve and enhance our country’s competitiveness in
world markets. [La Bugal-B’laan Tribal Assn. v. Ramos, id.] Citizens of the Philippines may lease not more than 500 The State shall regulate or prohibit monopolies when the
FTAA SERVICE CONTRACT ha., or acquire not more than 12 hectares thereof by public interest so requires. No combinations in restraint of
(1987 Const.) (1973 Const.) FRANCHISES, AUTHORITY AND CERTIFICATES FOR purchase, homestead, or grant. [Art. XII, Sec. 3] trade or unfair competition shall be allowed. [Art. XII, Sec.
PUBLIC UTILITIES 19]
Parties
Franchise, certificate or any other form of authorization for PRIVATE LANDS
Only the President (in A Filipino citizen, corporation the operation of public utilities – ONLY to citizens of the General Rule: No private lands shall be transferred or Although the Constitution enshrines free enterprise as a
behalf of the State), and or association with a “foreign Philippines, or corporations at least 60% of whose capital conveyed except to individuals, corporations, or policy, it nevertheless reserves to the Government the
only with corporations person or entity” is Filipino-owned. [Art. VII, Sec. 11] associations qualified to acquire or hold lands of the public power to intervene whenever necessary for the promotion
domain. [Art. XII, Sec. 7] of the general welfare. [Philippine Coconut Dessicators v.
NATURE OF THE FRANCHISE: PCA (1998)]
Size of Activities (1) It is a privilege not a right Exceptions:
(2) Shall NOT be exclusive; (1) Hereditary succession (art. XII, sec. 7) Monopolies are not per se prohibited by the Constitution
Only large-scale Contractor provides all but may be permitted to exist to aid the government in
exploration, necessary services and (3) Shall NOT be for a period of more than 50 years; (2) A natural-born citizen of the Philippines who has lost
(3) Shall be subject to amendment, alteration or repeal by his Philippine citizenship may be a transferee of private carrying on an enterprise or to aid in the performance of
development and technology and the requisite various services and functions in the interest of the public.
utilization financing, performs the Congress. [Id.] lands, subject to limitations provided by law. (art. XII,
sec. 8) Nonetheless, a determination must first be made as to
exploration work obligations, whether public interest requires a monopoly. As
and assumes all exploration Jurisprudence:
(1) Congress does not have the exclusive power to issue Consequence of sale to non-citizens: monopolies are subject to abuses that can inflict severe
risks prejudice to the public, they are subject to a higher level of
franchises. Administrative bodies (i.e. LTFRB, Energy Any sale or transfer in violation of the prohibition is null
Natural Resources Covered Regulatory Board) may be empowered by law to do so. and void. [Ong Ching Po. v. CA (1994)]. When a disqualified State regulation than an ordinary business undertaking.
Minerals, petroleum and Virtually the entire range of [Albano v. Reyes (1989)] foreigner later sells it to a qualified owner (e.g. Filipino [Agan, Jr. v. PIATCO (2003)]
other mineral oils the country’s natural (2) What constitutes a public utility is not the ownership citizen), the defect is cured. The qualified buyer owns the
resources but the use to the public. The Constitution requires a land. [See Halili v. CA (1998)] CENTRAL MONETARY AUTHORITY [ART. XII, SEC. 20]
franchise for the operation of public utilities. However, Functions:
Scope of Agreements (1) Provide policy directions in the areas of money,banking,
it does not require a franchise before one can own the Can a former owner file an action to recover the property?
Involving either financial Contractor provides financial facilities needed to operate a public utility so long as it Yes. The Court in Philippine Banking Corp. v. Lui She, (1967) and credit;
or technical assistance or technical resources, does not operate them to serve the public. [Tatad v. abandoned the application of the principle of in pari delicto. (2) Supervise the operations of banks;
undertakes the exploitation or Garcia (1995)] E.g. X Company may own an airline Thus, the action will lie. (3) Exercise such regulatory powers as may be provided by
production of a given resource, law over the operations of finance companies and other
or directly manages the institutions performing similar functions
PAGE 45 PAGE 46
Qualifications of the Governors:

COMMISSION ON HUMAN RIGHTS
(1) There is hereby created an independent office called the
Education, Science, HIGHEST BUDGETARY PRIORITY TO EDUCATION
The State shall assign the highest budgetary priority to
(1) Natural-born Filipino;
(2) Known probity, integrity and patriotism;
Commission on Human Rights.
(2) The Commission shall be composed of a Chairman and
Technology, Arts, Culture and education and ensure that teaching will attract and retain
its rightful share of the best available talents through
(3) Majority shall come from the private sector
Subject to such other qualifications and disabilities as may
four Members who must be natural-born citizens of the
Philippines and a majority of whom shall be members
Sports adequate remuneration and other means of job
satisfaction and fulfillment. [Art. XIV, Sec. 5 (5)]
be provided by law of the Bar. The term of office and other qualifications
and disabilities of the Members of the Commission RIGHT TO EDUCATION PROVISIONS [ART. XIV] Allocation of larger share to debt service vis-à-vis
Until the Congress otherwise provides, the Central Bank of shall be provided by law. Sec. 1. The State shall protect and promote the right of all education is not unconstitutional. –The DECS already has
the Philippines operating under existing laws, shall (3) Until this Commission is constituted, the existing citizens to quality education at all levels, and shall take the highest budgetary allocation among all department
function as the central monetary authority. Currently, the Presidential Committee on Human Rights shall appropriate steps to make such education accessible to all. budgets. Congress can exercise its judgment and power to
central monetary authority is the Bangko Sentral ng continue to exercise its present functions and powers. appropriate enough funds to reasonably service debt. Art.
Pilipinas. (4) The approved annual appropriations of the Commission XIV, Sec. 5(5) is directive. [Guingona v. Carague (1991)]
Sec. 2. The State shall:
shall be automatically and regularly released. [Art. XIII, (1) Establish, maintain, and support a complete, adequate,
Sec. 17]
and integrated system of education relevant to the
needs of the people and society;
Social Justice & Human The Commission on Human Rights shall have the (2) Establish and maintain, a system of free public
following powers and functions: education in the elementary and high school levels.
Rights (1) Investigate, on its own or on complaint by any party, all Without limiting the natural rights of parents to rear
forms of human rights violations involving civil and their children, elementary education is compulsory for
CONCEPT OF SOCIAL JUSTICE political rights; all children of school age;
1987 CONSTITUTION (2) Adopt its operational guidelines and rules of procedure, (3) Establish and maintain a system of scholarship grants,
and cite for contempt for violations thereof in student loan programs, subsidies, and other incentives
The State shall promote social justice in all phases of
accordance with the Rules of Court; which shall be available to deserving students in both
national development. [Art. II, Sec. 10]
(3) Provide appropriate legal measures for the protection of public and private schools, especially to the under-
human rights of all persons within the Philippines, as privileged;
The Congress shall give highest priority to the enactment well as Filipinos residing abroad, and provide for (4) Encourage non-formal, informal, and indigenous
of measures that protect and enhance the right of all the preventive measures and legal aid services to the learning systems, as well as self-learning, independent,
people to human dignity, reduce social, economic, and under-privileged whose human rights have been and out-of-school study programs particularly those
political inequalities, and remove cultural inequities by violated or need protection; that respond to community needs; and
equitably diffusing wealth and political power for the (4) Exercise visitorial powers over jails, prisons, or detention (5) Provide adult citizens, the disabled, and out-of-school
common good. facilities; youth with training in civics, vocational efficiency, and
(5) Establish a continuing program of research, education, other skills.
To this end, the State shall regulate the acquisition, and information to enhance respect for the primacy of
ownership, use, and disposition of property and its human rights; ACADEMIC FREEDOM
increments. [Art. XIII, Sec. 1] (6) Recommend to Congress effective measures to promote Academic freedom shall be enjoyed in all institutions of
human rights and to provide for compensation to
higher learning. [Art. XIV, Sec. 5 (2)]
victims of violations of human rights, or their families;
The promotion of social justice shall include the (7) Monitor the Philippine Government's compliance with
FOUR ESSENTIAL FREEDOMS OF A UNIVERSITY
international treaty obligations on human rights;
commitment to create economic opportunities based on (1) Who may teach
freedom of initiative and self-reliance. [Art. XIII, Sec. 2] (8) Grant immunity from prosecution to any person whose
testimony or whose possession of documents or other (2) What may be taught
evidence is necessary or convenient to determine the (3) How it shall teach
Social justice is "neither communism, nor despotism, nor truth in any investigation conducted by it or under its (4) Who may be admitted to study [Garcia v. Faculty
atomism, nor anarchy," but the humanization of laws and authority; Admission Committee (1975) citing J. Frankfurter,
the equalization of social and economic forces by the State (9) Request the assistance of any department, bureau, concurring in Sweezy v. New Hampshire, 354 US 232
so that justice in its rational and objectively secular office, or agency in the performance of its functions; (1937)]
conception may at least be approximated. Social justice (10) Appoint its officers and employees in accordance with
means the promotion of the welfare of all the people, the law; and Institutional academic freedom includes the right of the
adoption by the Government of measures calculated to (11) Perform such other duties and functions as may be school or college to decide for itself, its aims and objectives,
insure economic stability of all the competent elements of provided by law. [Art. XIII, Sec. 18] and how best to attain them free from outside coercion or
society, through the maintenance of a proper economic interference save possibly when the overriding public
and social equilibrium in the interrelations of the members interest calls for some restraint.
of the community, constitutionally, through the adoption As should at once be observed, only the first of the
of measures legally justifiable, or extra-constitutionally, enumerated powers and functions bears any resemblance Academic freedom encompasses the independence of an
to adjudication or adjudgment. The Constitution clearly
through the exercise of powers underlying the existence of academic institution to determine for itself (1) who may
all governments on the time-honored principle of salus and categorically grants to the Commission the power to teach, (2) what may be taught, (3) how it shall teach, and
investigate all forms of human rights violations involving civil
populi est suprema lex. Social justice, therefore, must be (4) who may be admitted to study.
and political rights. But it cannot try and decide cases (or
founded on the recognition of the necessity of
interdependence among divers and diverse units of a hear and determine causes) as courts of justice, or even The right to discipline the student likewise finds basis in
quasi-judicial bodies do. To investigate is not to adjudicate
society and of the protection that should be equally and the freedom "what to teach." Indeed, while it is
evenly extended to all groups as a combined force in our or adjudge. Whether in the popular or the technical sense, categorically stated under the Education Act of 1982 that
social and economic life, consistent with the fundamental these terms have well understood and quite distinct students have a right "to freely choose their field of study,
meanings. [Cariño v. CHR (1991)]
and paramount objective of the state of promoting the subject to existing curricula and to continue their course
health, comfort, and quiet of all persons, and of bringing therein up to graduation," such right is subject to the
about "the greatest good to the greatest number." established academic and disciplinary standards laid down
[Calalang v. Williams (1940)] by the academic institution. [DLSU Inc., v. CA (2007)]
PAGE 47 PAGE 48
Fundamental Powers of the The legislative determination “as to what is a proper
State exercise of its police powers is not final or conclusive, but is

subject to the supervision of the court.”[US v. Toribio (1910)
citing Mr. Justice Brown in his opinion in the case of Lawton
CONCEPT, APPLICATION AND LIMITS v. Steele (152 U.S., 133, 136)]
POLICE POWER The SC upheld the validity of Administrative Orders which

Definition converted existing mine leases and other mining
It is the inherent and plenary power of the state which agreements into production-sharing agreements within
enables it to prohibit all that is hurtful to the comfort, one year from effectivity. The subject sought to be
safety and welfare of society. [Ermita-Malate Hotel and governed by the AOs are germane to the object and
Motel Operators Association, Inc. v. Mayor of Manila (1967)] purpose of E.O. 279 and that mining leases or agreements
granted by the State are subject to alterations through a
Scope and Limitations reasonable exercise of police power of the State. [Miners
General Coverage Association of the Philippines v. Factoran (1995)]
"The police power of the State," one court has said, "is a
power coextensive with self-protection, and is not inaptly Illustrations on the Exercise of Police Power
termed the 'law of overruling necessity.' [Rubi v. Provincial General Welfare v. Property rights. – RA 9257, the Expanded
Board (1919)] Senior Citizens Act of 2003, is a legitimate exercise of
police power. Administrative Order No. 177 issued by the
…the state, in order to promote the general welfare, may Department of Health, providing that the 20% discount
interfere with personal liberty, with property, and with privilege of senior citizens shall not be limited to the
business and occupations. Persons may be subjected to all purchase of unbranded generic medicine but shall extend
kinds of restraints and burdens, in order to secure the to both prescription and non-prescription medicine,
general comfort health and prosperity of the state and to whether branded or generic, is valid. [Carlos Superdrug
this fundamental aim of our Government, the rights of the Corporation v. DSWC et al. (2007)]
individual are subordinated. [Ortigas and Co., Limited
Partnership v. Feati Bank and Trust Co. (1979)] National Security v. Property Rights. – Police power and
national security: SC upheld the constitutionality of RA 1180
...has been properly characterized as the most essential, (An Act to Regulate the Retail Business) which sought to
insistent and the least limitable of powers, [Ermita-Malate nationalize the retail trade business by prohibiting aliens in
Hotel and Motel Operators Assoc. v. Mayor of Manila (1967) general from engaging directly or indirectly in the retail
Cf. Ichong v. Hernandez, (1957)] extending as it does "to all trade.
the great public needs."[Noble State Bank v. Haskell, 219
U.S. 412] “The disputed law was enacted to remedy a real actual
threat and danger to national economy posed by alien
Police Power cannot be bargained away through treaty or dominance and control of the retail business; the
contract. [Ichong v. Hernandez (1957)] enactment clearly falls within the scope of the police
power of the State, thru which and by which it protects its
Taxation may be used as an implement of police power own personality and insures its security and future.”
[Lutz v. Araneta (1955); Tiu v. Videogram Regulatory Board [Ichong v. Hernandez (1957)]
(1987); Gaston v. Republic Planters Bank (1988); Osmena v.
Orbos (1993)] Scope of the police power: Since the Courts cannot foresee
the needs and demands of public interest and welfare,
Eminent domain may be used as an implement to attain they cannot delimit beforehand the extent or scope of the
the police objective [Association of Small Landowners v. police power by which and through which the state seeks
Secretary of Agrarian Reform (1989)] to attain or achieve public interest and welfare.
Police power prevails over contracts. [PNB v. Office of the Public Safety. – Agustin questions President Marcos’ Letter
President (1996)] of Instruction No. 229 compelling owners of motor vehicles
to install specific early warning devices to reduce road
Specific Coverage accidents.
(1) Public Health
(2) Public Morals Police power, public safety: The Court identified police
(3) Public Safety power as a dynamic agency, suitably vague and far from
(4) Public Welfare precisely defined, rooted in the conception that men in
organizing the state and imposing upon its government
Test of Reasonability limitations to safeguard constitutional rights did not
(1) Lawful subject intend to enable an individual citizen or a group of citizens
(2) Lawful means to obstruct unreasonably the enactment of such salutary
(3) Least restrictions of individual right measures calculated to communal peace, safety, good
order, and welfare. According to the Court, a heavy burden
The limit to police power is reasonability. The Court looks lies in the hands of the petitioner who questions the state’s
at the test of reasonability to decide whether it encroaches police power if it was clearly intended to promote public
on the right of an individual. So long as legitimate means safety. [Agustin v. Edu, (1979)]
can reasonably lead to create that end, it is reasonable.
[Morfe v. Mutuc (1968)]
PAGE 49
PAGE 50
Public Morals v. Property rights and Right to privacy. – otherwise, the State’s power to legislate for the public REQUISITES FOR VALID EXERCISE
Ermita Malate Hotel and Motel Operations Assoc. assails In Didipio Earth Savers Multipurpose Association (DESAMA) welfare might be seriously curtailed
the constitutionality of Ordinance No. 4760. The mantle of v. Gozun (2006), examples were (a) trespass without actual (4) Taxes should be uniform and equitable [Sec. 28(1), Art. POLICE POWER
protection associated with the due process guaranty does eviction; (b) material impairment of the value; (c) VI] Tests for Validity of Exercise of Police Power
not cover petitioners. This particular manifestation of a prevention of the ordinary uses (e.g. easement). (1) Lawful Subject: Interest of the general public (as
police power measure being specifically aimed to Judicial review for unconscionable and unjust tax amounting distinguished from a particular class required exercise).
safeguard public morals is immune from such imputation But anything taken by virtue of police power is not to confiscation of property This means that the activity or property sought to be
of nullity resting purely on conjecture and unsupported by compensable (e.g. abatement of a nuisance), as usually The legislature has discretion to determine the nature, regulated affects the general welfare. [Taxicab
anything of substance There is no question that the property condemned under police power is noxious object, extent, coverage, and situs of taxation. But where a Operators v. Board of Transportation (1982)]
challenged ordinance was precisely enacted to minimize [DESAMA v. Gozun (2006)] tax measure becomes so unconscionable and unjust as to (2) Lawful Means: Means employed are reasonably
certain practices hurtful to public morals. [Ermita-Malate amount to confiscation of property, courts will not hesitate necessary for the accomplishment of the purpose, and
Motel and Motel Operators Assn. v. City Mayor of Manila Examples from Jurisprudence: to strike it down, for despite all its plenitude, the power to are not unduly oppressive. [Tablarin v. Gutierrez (1987)]
(1967)] (1) The imposition of an aerial easement of right-of-way tax cannot override constitutional prescriptions. [Tan v. del (3) Least Restrictions of Individual Rights: It must also be
was held to be taking. The exercise of the power of Rosario (1994)] evident that no other alternative for the
The case of White Light v. City of Manila dealt with the eminent domain does not always result in the taking or accomplishment of the purpose less intrusive of private
ordinance that prohibits two practices: the wash-up rate appropriation of title to the expropriated property; it Specific Limitations rights can work. [White Light Corporation, et al v. City of
admission and renting out a room more than twice per may also result in the imposition of a burden upon the (1) Uniformity of taxation Manila (2009)]
day. owner of the condemned property, without loss of title General Rule: simply geographical uniformity, meaning it
or possession. [NPC v. Gutierrez (1991)] operates with the same force and effect in every place EMINENT DOMAIN
This case churned out three standards for judicial review: (2) May include trespass without actual eviction of the where the subject of it is found Requisites
the strict scrutiny test for laws dealing with freedom of the owner, material impairment of the value of the (1) Private property
mind and curtailment of political process and the rational property or prevention of the ordinary uses for which Exception: Rule does not prohibit classification for (2) Genuine necessity - inherent/presumed in legislation,
basis standard of review for economic legislation. A third the property was intended. [Ayala de Roxas v. City of purposes of taxation, provided the ff requisites are met: but when the power is delegated (e.g. local
standard was created known as the immediate scrutiny for Manila (1907)] (SNAGAE) government units), necessity must be proven.
evaluating standards based on gender and legitimacy. (3) A municipal ordinance prohibiting a building which (a) standards used are Substantial and Not Arbitrary (3) For public use - Court has adopted a broad definition of
would impair the view of the plaza from the highway (b) if the classification is Germane to achieve the legislative “public use,” following the U.S. trend
The SC applied strict scrutiny because the ordinance was likewise considered taking. [People v. Fajardo purpose (4) Payment of just compensation
restricts patrons’ right to liberty. Legitimate sexual (1958)] (c) if that classification Applies to both present and future (5) Due process [Manapat v. CA (2007)]
behavior, which is constitutionally protected, will be unduly conditions, other circumstances being equal
curtailed by the ordinance. Apart from the right to privacy, When the State exercises the power of eminent domain in (d) applies Equally to members of the same class. [Pepsi TAXATION
the ordinance also proscribes other legitimate activities the implementation of its agrarian reform program, the Cola v. City of Butuan (1968)]. Equal protection clause: taxes should be uniform (persons
most of which are grounded on the convenience of having constitutional provision which governs is Section 4, Article or things belonging to the same class shall be taxed at the
a place to stay during the short intervals between travels. XIII of the Constitution. Notably, this provision also (2) Tax Exemptions same rate) and equitable (taxes should be apportioned
[White Light Corporation, et al v. City of Manila (2009)] imposes upon the State the obligation of paying the No law granting any tax exemption shall be passed among the people according to their ability to pay)
landowner compensation for the land taken, even if it is for without the concurrence of a majority of all the
Limitations when police power is delegated: when police the government’s agrarian reform purposes. [Land Bank of Members of Congress [Sec. 28 (4), Art. VI] Progressive system of taxation: The rate increases as the
power is delegated the Philippines v. Honeycomb Farms Corporation (2012)] tax base increases, with basis as social justice.
(1) Express grant by law [e.g. Secs. 16, 391, 447, 458 and A corollary power but must be for a public purpose, Taxation as an instrument for a more equitable distribution
468, R.A. 7160, for LGUs] TAXATION uniform and equitable and in conformity with the equal of wealth
(2) Limited within its territorial jurisdiction [for local Definition and Scope protection clause
government units] It is the enforced proportional contributions from persons Delegated tax legislation: Congress may delegate law-
(3) Must not be contrary to law. and property, levied by the State by virtue of its Tax exemptions are granted gratuitously and may be making authority when the Constitution itself specifically
sovereignty, for the support of the government and for all revoked at will, except when it was granted for valuable authorizes it.
EMINENT DOMAIN public needs. consideration
Definition and Scope It is as broad as the purpose for which it is given. SIMILARITIES AND DIFFERENCES
The power of eminent domain is the inherent right of the May either be constitutional or statutory. SIMILARITIES (NACHURA)
State to condemn private property to public use upon Purpose: (1) Inherent in the State (Exercised even without need of
payment of just compensation. It is also known as the (1) To raise revenue If statutory, it has to have been passed by majority of all the express constitutional grant)
power of expropriation. (2) Tool for regulation members of Congress [Sec. 28 (4), Art. VI] (2) Necessary and indispensable (State cannot be effective
(3) Protection/power to keep alive without them)
It is well settled that eminent domain is an inherent power Constitutional exemptions [sec. 28(3), Art. VI] (3) Method by which state interferes with private property
of the state that need not be granted even by the Tax for special purpose [Sec. 29 (3), Art. VI]: Treated as a Requisite: Exclusive Use (4) Presuppose equivalent compensation
fundamental law. Sec. 9, Art. III merely imposes a limit on special fund and paid out for such purpose only; when (a) Educational institutions (both profit and non-profit used (5) Exercised primarily by the legislature
the government’s exercise of this power. [Republic v Tagle purpose is fulfilled, the balance, if any shall be transferred actually, directly and exclusively for educational
(1998)]. to the general funds of the Government. [See: Osmena v. purposes): Benefits redound to students, but only DIFFERENCES
Orbos (1993)] applied to property taxes and not excise taxes Police Power Eminent Domain Taxation
Who may exercise the power? (b) Charitable institutions: Religious and charitable
Congress and, by delegation, the President, administrative Scope and Limitation institutions give considerable assistance to the State in Compensation
bodies, local government units, and even private General Limitations the improvement of the morality of the people and the None Just None
enterprises performing public services may exercise the (1) Power to tax exists for the general welfare; should be care of the indigent and the handicapped (The altruistic compensation (The protection
power of eminent domain. exercised only for a public purpose (c) Religious property:Charitable Institutions, churches, and feeling that one (Full and fair given and public
(2) Might be justified as for public purpose even if the parsonages or convents appurtenant thereto, mosques, has contributed equivalent of the improvements
Application immediate beneficiaries are private individuals non-profit cemeteries, and all lands, buildings and to the public property taken) instituted by the
When is there taking in the constitutional case? (3) Tax should not be confiscatory: If a tax measure is so improvements, actually, directly and exclusively used good required. State because of
When the owner is deprived of his proprietary rights there unconscionable as to amount to confiscation of for religious, charitable or educational purposes [NACHURA]) these taxes
is taking of private property. It may include (1) diminution property, the Court will invalidate it. But invalidating a [NACHURA])
in value; (2) prevention of ordinary use; (3) deprivation of tax measure must be exercised with utmost caution,
beneficial use.
PAGE 51 PAGE 52
Police Power Eminent Domain Taxation License Fee Tax which the courts have the right to inquire into. [City of (1) Civil rights– rights that belong to an individual by virtue
Manila v. Chinese Community of Manila (1919)] of his citizenship in a state or community (e.g. rights to
Use of Property property, marriage, freedom to contract, equal
Not Appropriated for Use taxing power When a statute or charter or by general law has conferred protection, etc.)
Object the right of eminent domain upon a private entity. [Tenorio (2) Political rights– rights that pertain to an individual’s
appropriated for public use as an implement
public use for the Paid for the privilege of Persons or property v. Manila Railroad Co (1912)] citizenship vis-à-vis the management of the
attainment of a doing something and may government (e.g. right of suffrage, right to petition
legitimate police be revoked when public As Exercised By Congress As Exercised By Delegates government for redress, right to hold public office, etc.)
objective—to interest so requires (3) Social and economic rights – rights which are intended
regulate a Effect of Non-Payment Extent of Power to insure the well-being and economic security of the
business or trade Pervasive and all- Can only be as broad as individual
Business becomes illegal Business or activity does (4) Rights of the accused – civil rights intended for the
Objective not become illegal encompassing the enabling law and the
conferring authorities want protection of a person accused of any crime
Property taken Earn revenue for it to be
for public use; it the government DELEGATION BASES AND PURPOSE
is not necessarily Question of Necessity Bases:
noxious POLICE POWER Political question Justiciable question. RTC (1) Importance accorded to the dignity andworth of the
Legislature has to determine whether individual.
Coverage Police power is lodged primarily in the national legislature. there is a genuine necessity (2) Protection against arbitrary actions of government and
Liberty and Property rights Property rights for its exercise, as well as other members of society
Property only only Executive what the property’s value
By virtue of a valid delegation of legislative power, it may is. Purpose:
POLICE POWER V. EMINENT DOMAIN also be exercised by the president, administrative bodies, (1) To preserve democratic ideals
Primary Purpse: Police Power- for general comfort, health and lawmaking bodies of LGUs. [Sec. 16, R.A. 7160] If not justiciable, there’s (2) To safeguard fundamental rights
and prosperity; Eminent Domain- for public use grant of special authority (3) To promote the happiness of an individual
...this power is limited only by the Acts of Congress and for special purpose
Note:In the exercise of police power, the deprivation of the those fundamentals principleswhich lie at the foundation of The Bill of Rights is designed to preserve the ideals of liberty,
use of the property may be total, but it will not constitute all republican forms of government. An Act of the equality and security "against the assaults of opportunism,
compensable taking if nobody else acquires use of the Legislature which is obviously and undoubtedly foreign to Re: Private Property
the expediency of the passing hour, the erosion of small
property or any interest therein. [Dipidio Earth-Savers any of the purposes of the police power and interferes with Delegate cannot encroachments, and the scorn and derision of those who
Multipurpose Association v. Gozun (2006)] the ordinary enjoyment of property would, without doubt, expropriate private have no patience with general principles." (Justice
be held to be invalid.[Churchill and Tait v. Rafferty (1915)] property already devoted Cardozo, Nature of Judicial Process, 90-93; Tanada and
Parties Exercising the Power: Police Power- only by the to public use Fernando, Constitution of the Philippines, 1952 ed., 71.)
government; Eminent Domain- may be exercised by Rep. Act No. 7924 does not grant the MMDA with police [Philippine Blooming Mills Employees Organization v.
private entities power, let alone legislative power, and all its functions are TAXATION Philippine Blooming Mills Co., Inc. (1973)]
administrative in nature. [MMDA v. Bel-Air Village (1) legislature (primarily)
POLICE POWER V.TAXATION Association (2000)] (2) local legislative bodies [Sec. 5, Art. X] In the pithy language of Mr. Justice Robert Jackson, the
Primary Purpose: Police Power- to regulate; Taxation (3) President (to a limited extent, when granted delegated purpose of the Bill of Rights is to withdraw "certain
Power- to raise revenue BUT it is not precluded—and in fact is duty-bound—to subjects from the vicissitudes of political controversy, to
tariff powers under Sec. 28 (2) Art. VI
confiscate and suspend or revoke drivers' licenses in the place them beyond the reach of majorities and officials,
Note: if regulation is the primary purpose, the fact that exercise of its mandate of transport and traffic and to establish them as legal principles to be applied by
revenue is incidentally raised does not make the imposition management, as well as the administration and the courts. One's rights to life, liberty and property, to free
a tax. [Gerochi v. Department of Energy (2007)] implementation of all traffic enforcement operations, speech, or free press, freedom of worship and assembly,
Basis: Police Power- self-preservation and self-protection;

traffic engineering services and traffic education programs.
[MMDA v. Garin (2005); Sec. 3(b), Rep. Act No. 7924]
Private Acts and the Bill of and other fundamental rights may not be submitted to a
vote; they depend on the outcome of no elections." [West
Taxation Power: Life Blood Theory
EMINENT DOMAIN
Rights Virginia State Board of Education v. Barnette, 319 U.S. 624,
638]
LICENSE FEE [PP] V. TAX The general power to exercise the right of eminent domain
must not be confused with the right to exercise it in IN GENERAL
License Fee Tax It is a declaration and enumeration of a person's ACCOUNTABILITY
a particular case. Sec. 2, Art. III shall apply only against law officials or
Basis fundamental civil and political rights. It also
imposessafeguards against violations by the government, people working as agents of government concerned about
Police Power: to regulate Taxation Power: to raise The power of the legislature to confer, upon municipal being able to procure evidence. [People v. Marti (1991)]
corporations and other entities within the State, general by individuals, or by groups of individuals.
revenue
authority to exercise the right of eminent domain cannot be Sec. 3 of Art. XIII of the Constitution requires the State to
Limitation questioned by the courts, but that general authority of “The Bill of Rights governs the relationship between the
individual and the state. Its concern is not the relation give full protection to labor. We cannot be faithful to this
Amount is limited to: (a) Rate or amount to be municipalities or entities must not be confused with the duty if we give no protection to labor when the violator of
right to exercise it in particular instances. between individuals, between a private individual and
cost of permit and (b) collected is unlimited its rights happens to be private parties like private
other individuals. What the Bill of Rights does is to declare
reasonable police provided not confiscatory employers. A private person does not have a better right
The moment the municipal corporation or entity attempts some forbidden zones in the private sphere inaccessible to
regulation than the government to violate an employee's right to due
to exercise the authority conferred, it must comply with the any power holder.” (Sponsorship Speech of Commissioner
Bernas, Record of the Constitutional Commission, Vol. 1, p. process. To be sure, violation of the particular right of
Exception: when the license conditions accompanying the authority. The necessity for employees to security of tenure comes almost always from
conferring the authority upon a municipal corporation to 674; July 17, 1986; Emphasis supplied) [People v. Marti
fee is imposed on a non- their private employers. [Serrano v. NLRC (2000)]
exercise the right of eminent domain is admittedly within (1991)]
useful occupation, such as
the practice of hygienic and the power of the legislature.
It is generally self-executing.
aesthetic massage in
Physical Therapy But whether or not the municipal corporation or entity is
exercising the right in a particular case under the Article III contains the chief protection for human rights but
Organization v. Municipal
conditions imposed by the general authority is a question the body of the Constitution guarantees other rights as
Board of Manila (1957)
well.
PAGE 53 PAGE 54
(2) Tribunal must consider the evidence presented.
Due Process NOTED EXCEPTIONS TO DUE PROCESS

(1) The conclusive presumption, bars the admission of
Substantive due process is an aspect of due process which
serves as a restriction on the law-makingand rule-
(3) Decision rendered must have support.
(4) Evidence which supports the finding or conclusion is
contrary evidence as long as such presumption is makingpower of the government. substantial (such relevant evidence as a reasonable
No person shall be deprived of life, liberty or property based on human experience or there is a rational mind accept as adequate to support a conclusion).
without due process of law, nor shall any person be denied connection between the fact proved and the fact The law itself, not merely the procedures by which the law (5) The decision must be rendered on the evidence
the equal protection of the laws. [Art. III, Sec. 1] ultimately presumed therefrom. would be enforced, should be fair, reasonable, and just. presented at the hearing, or at least contained in the
(2) There are instances when the need for expeditious record and disclosed to the parties affected.
action will justify omission of these requisites, as in the It guarantees against the arbitrary power even when (6) The tribunal or any of its judges, must act on its or his
The Congress shall give highest priority to the enactment summary abatement of a nuisance per se, like a mad exercised according to proper forms and procedure. own independent consideration of the law and facts of
of measures that protect and enhance the right of all the dog on the loose, which may be killed on sight because the controversy, and not simply accept the views of a
people to human dignity, reduce social, economic, and of the immediate danger it poses to the safety and lives REQUISITES subordinate in arriving at a decision.
political inequalities and remove cultural inequities by of the people. (7) The tribunal should, in all controversial questions,
equitably diffusing wealth and political power for the (3) Pornographic materials, contaminated meat and Procedural Due Process render its decision in such a manner that the parties to
common good. narcotic drugs areinherently pernicious and may be In Civil Proceedings the proceeding can know the various issues involved,
summarily destroyed. Requisites: and the reasons for the decision rendered. [AngTibay v.
To this end, the State shall regulate the acquisition, (4) The passport of a person sought for a criminal offense (1) An impartial court of tribunal clothed with judicial CIR (1940)]
ownership, use, and disposition of property and its may be cancelled without hearing, to compel his return power to hear and determine the matter before it.
increments. [Art. XIII, Sec. 1] to the country he has fled. In Criminal Proceedings
(5) Filthy restaurants may be summarily padlocked in the (2) Jurisdiction must be lawfully acquired over the person See Rights of the Accused, Topic 1 Criminal Due Process
IN GENERAL interest of the public health and bawdy houses to of the defendant and over the property subject matter In the conduct of the criminal proceedings, it cannot be
Due process of lawsimply states that “[i]t is part of the protect the public morals. [Ynot v. IAC (1987)] of the proceeding [Banco Español v. Palanca (1918)] said that the State has been denied due process unless
sporting idea of fair play to hear "the other side" before an there is an indication that the special prosecutor
opinion is formed or a decision is made by those who sit in In such instances, previous judicial hearing may be omitted Note: Notice is an essential element of due process, deliberately and willfully failed to present available
judgment.” [Ynot v. IAC (1987)] without violation of due process in view of: 1) the nature of otherwise the Court will not acquire jurisdiction and its evidence or that other evidence could be secured. [People
the property involved; or 2) the urgency of the need to judgment will not bind the defendant. of the Philippines, v. Hon. Sandiganbayan (Fourth Division),
It covers any governmental action which constitutes a protect the general welfare from a clear and present et al., (2012)].
deprivation of some person's life, liberty, or property. danger. To be meaningful, it must be both as to time and place.
Service of summons is not only required to give the In Academic Disciplinary Proceedings
DEFINITION RELATIVITY OF DUE PROCESS court jurisdiction over the person of the defendant but Requisites :
“A law which hears before it condemns, which proceeds The concept of due process is flexible for not all situations also to afford the latter the opportunity to be heard on (1) The students must be informed in writing of the nature
upon inquiry and renders judgment only after trial” calling for procedural safeguards call for the same kind of the claim made against him. Thus, compliance with the and cause of any accusation against them;
[Darthmouth College v. Woodward, 4 Wheaton 518] procedure. [Secretary of Justice v. Lantion (2000)] rules regarding the service of summons is as much an (2) They shall have the right to answer the charges against
Life includes the right of an individual to his body in its issue of due process as of jurisdiction. [Sarmiento v. them, with the assistance of counsel, if desired;
completeness, free from dismemberment, and extends to Consideration of what procedures due process may require Raon (2002)] (3) They shall be informed of the evidence against them;
the use of God-given faculties which make life enjoyable under any given set of circumstances must begin with a (4) They shall have the right to adduce evidence in their
[Justice Malcolm, Philippine Constitutional Law, pp. 320- determination of the precise nature of the government (3) The defendant must be given an opportunity to be own behalf;
321; See Buck v. Bell, 274 US 200] function involved as well as of the private interest that has heard (5) The evidence must be duly considered by the
been affected by governmental action.” [Cafeteria & investigating committee or official designated by the
Liberty “includes the right to exist and the right to be free Restaurant Workers Union v. McElroy (1961]. Due process is satisfied as long as the party is accorded school authorities to hear and decide the case [Non v.
from arbitrary personal restraint or servitude.xxx (It) the opportunity to be heard. If it is not availed of, it is Judge Dames (1990)]
includes the right of the citizen to be free to use his To say that the concept of due process is flexible does not deemed waived or forfeited without violating the
faculties in all lawful ways xxx” [Rubi v. Provincial Board of mean that judges are at large to apply it to any and all constitutional guarantee. [Bautista v. Court of Appeals Substantive Due Process
Mindoro (1919)] relationships. Its flexibility is in its scope once it has been (2004)] Laws which interfere with life, liberty or property satisfy
determined that some process is due; it is a recognition substantive due process when there is:
Property is anything that can come under the right of that not all situations calling for procedural safeguards The SC reiterated that the right to appeal is not a (1) Lawful object i.e. the interests of the public in general
ownership and be the subject of contract. It represents call for the same kind of procedure. [Morrissey v. Brewer natural right nor part of due process; it is merely a (as distinguished from those of a particular class)
more than the things a person owns; it includes the right to (1972)] statutory privilege, and may be exercised only in the require the intervention of the State, and
secure, use and dispose of them. [Torraco v. Thompson, manner and in accordance with the provisions of law. (2) Lawful means i.e. means employed are reasonably
263 US 197] PROCEDURAL AND SUBSTANTIVE DUE PROCESS [Alba v. Nitorreda (1996)] necessary for the accomplishment of the purpose and
not unduly oppressive on individuals. [US v. Toribio
SCOPE AND LIMITATIONS SCOPE (4) Judgment must be rendered upon lawful hearing and (1910)]
Universal in application to all persons without regard to Procedural Due Process must clearly explain its factual and legal bases... [Sec.
any difference in race, color or nationality. Procedural due process is that aspect of due process which 14, Art. VIII; Banco Español-Filipino v. Palanca (1918)] Publication of laws is part of substantive due process.
serves as a restriction on actions of judicial and quasi- [Tañada v. Tuvera (1986)]
Artificial persons are covered by the protection but only judicial agencies of the government. It refers to the method Note: The allowance or denial of motions for extension
insofar as their property is concerned [Smith Bell and Co. v. or manner by which a law is enforced. rests principally on the sound discretion of the court to Governmental functions are classified into:
Natividad (1919)] which it is addressed, but such discretion must be (1) Constituent constitute the very bonds of society and are
Concerns with government action on established process exercised wisely and prudently, with a view to compulsory in nature (i.e. public order, administration
The guarantee extends to aliens and includes the means of when it makes intrusion into the private sphere substantial justice. Poverty is recognized as a sufficient of justice and foreign relations)
livelihood. [Villegas v. Hiu Chiong (1978)] ground for extending existing period for filing. The right (2) Ministrant undertaken only by way of advancing the
Substantive Due Process to appeal is part of due process of law. [Reyes v. CA general interests of society, and are merely optional on
MINIMUM REQUIREMENTS Substantive due process, asks whether the government has (1977)] the part of the State (i.e. public education, public
Due process of law guarantees: an adequate reason for taking away a person’s life, liberty, or charity and regulations of trade and industry)
(1) Noticeand property. [City of Manila v. Laguio (2005)] In Administrative Proceedings [Concurring Opinion of Justice Fernando in ACCFA v.
(2) Opportunity to be heard The Ang Tibay Rules: CUGCO (1969)]
(3) To persons who would be affected by the order or act In other words, substantive due process looks to whether (1) Right to a hearing to present own case and submit
contemplated. there is a sufficient justification for the government’s action. evidence in support thereof.
PAGE 55 PAGE 56
CONSTITUTIONAL AND STATUTORY DUE PROCESS JUDICIAL STANDARDS OF REVIEW Equal Protection of the State. The rights and interests of the state in
these things are not simply political but also
CONSTITUTIONAL DUE PROCESS [AGABON V. NLRC (2004)] “RATIONAL BASIS TEST” proprietary in nature; and so the citizens may lawfully
Basis: Constitution There is an evil at hand for correction and the particular CONCEPT be given preference over aliens in their use or
Requirements: Procedural and Substantive legislative measure was a rational way tocorrect it. DEFINITION enjoyment.
Purpose. —(1) protects individual against government; and [Williamson v. Lee Optical (1955)] Equal protection requires that all persons or things
(2) assures him of his rights in criminal, civil and similarly situated should be treated alike, both as to rights The Court upheld the Retail Trade Nationalization Law
administrative proceedings This test is applicable for economic legislations. [White conferred and responsibilities imposed. despite the objection that it violated the EP clause,
Effect of breach: gov’t action void Light Corporation v. City of Manila (2009)] because there exists real and actual, positive and
Similar subjects, in other words, should not be treated fundamental differences between an alien and a national.
STATUTORY DUE PROCESS “STRICT SCRUTINY TEST” differently, so as to give undue favor to some and unjustly [Ichong v. Hernandez (1957)]
Basis: Labor Code This test is triggered when a fundamental constitutional discriminate against others.
Requirements. —procedural(the manner of dismissal) right is limited by a law, (i.e. freedom of the mind and FILIPINO FEMALE DOMESTICS WORKING ABROAD
and substantive (valid and authorized causes of curtailment of political process). The guarantee means that no person or class of persons They are a class by themselves because of the special risks
employment termination); and (2) notice and hearing shall be denied the same protection of laws which is to which their class was exposed. [Phil Association of
Purpose: protects employees from being unjustly This requires the government to show an overriding or enjoyed by other persons or other classes in like Service Exporters v. Drilon (1988)]
terminated without just cause after notice and hearing. compelling government interest so great that it justifies the circumstances. [City of Manila v. Laguio (2005) citing
Effect of breach: does not void action but court limitation of fundamental constitutional rights (the courts Ichong v. Hernandez (1957)] LAND-BASED V. SEA-BASED FILIPINO OVERSEAS WORKERS
provides for other remedies make the decision of whether or notthe purpose of the law There is dissimilarity as to work environment, safety,
makes the classification necessary). Scope danger to life and limb, and accessibility to social, civil and
There are three reasons why violation by the employer of Natural and juridical persons (the equal protection clause spiritual activities. [Conference of Maritime Manning
the notice requirement cannot be considered a denial of INTERMEDIATE SCRUTINY TEST extends to artificial persons but only insofar as their Agencies v. POEA (1995)]
due process resulting in the nullity of the employee's A third standard, denominated as heightened or property is concerned.)
dismissal or layoff: immediate scrutiny, was later adopted by the U.S. (1) A corporation as an artificial person is protected under QUALIFICATION FOR ELECTIVE OFFICE
(1) The Due Process Clause of the Constitution is a Supreme Court for evaluating classifications based on the Bill of Rights against denial of due process, and it Disqualification from running in the same elective office
limitation on governmental powers. It does not apply gender and legitimacy. Immediate scrutiny was adopted by enjoys the equal protection of the law. [Smith, Bell and from which he retired of a retired elective
to the exercise of private power, such as the the U.S. Supreme Court in Craig. While the test may have Co., v. Natividad (1919)] provincial/municipal official who has received payment of
termination of employment under the Labor Code. first been articulated in equal protection analysis, it has in (2) A corporation is also protected against unreasonable retirement benefits and who shall have been 65 y.o. at the
(2) Notice and hearing are required under the Due Process the United States since been applied in all substantive due searches and seizures. [Stonehill v. Diokno (1967)] commencement of the term of office to which he seeks to
Clause before the power of organized society are process cases as well. [White Light Corporation v. City of (3) It can only be proceeded against by due process of law, be elected is valid. [Dumlao v. Comelec (1980)]
brought to bear upon the individual. This is obviously Manila (2009] and is protected against unlawful discrimination.
not the case of termination of employment under Art. [Bache and Co. v. Ruiz (1971)] ELECTION OFFICIALS V. OTHER MUNICIPAL OFFICIALS
283. VOID-FOR-VAGUENESS DOCTRINE RA 8189 (Voters’ Registration Act) prohibits election
(3) The employer cannot really be expected to be entirely VOID FOR VAGUENESS REQUISITES FOR VALID CLASSIFICATION officers from holding office in a particular city or
an impartial judge of his own cause. [Serrano v. NLRC An act is vague when it lacks comprehensible standards (1) It must rest on substantial distinctions which make real municipality for more than four (4) years. The classification
(2000)] that men of common intelligence must necessarily guess differences; is germane to the law since the risk sought to be
at its common meaning and differ as to its application. (2) It must be germane to the purpose of the law; addressedis cheating during elections. [De Guzman v.
HIERARCHY OF RIGHTS (3) It must not be limited to existing conditions only. COMELEC (2000)]
When the Bill of Rights also protects property rights, the The statute is repugnant to the Constitution in 2 respects: An ordinance was declared void because it taxes only
primacy of human rights over property rights is recognized. (1) It violates due process for failure to accord persons, centrifugal sugar produced and exported by the Ormoc OFFICE OF THE OMBUDSMAN
Because these freedoms are “delicate and vulnerable, as especially the parties targeted by it, fair notice of what Sugar Company and none other, such that if a new Allowing the Ombudsman to start an investigation based
well as supremely precious in our society” and the “threat conduct to avoid, sugar central is established in Ormoc, it would not be on an anonymous letter does not violate EP clause. The
of sanctions may deter their exercise almost as potently as (2) It leaves law enforcers an unbridled discretion in subject to the ordinance. [Ormoc Sugar Co. v. Treasurer Office of the Ombudsman is different from other
the actual application of sanctions,” they “need breathing carrying out its provisions. of Ormoc City (1968)] investigatory and prosecutory agencies of government
space to survive,” permitting government regulation only (4) Apply equally to all members of the same class [People because those subject to its jurisdiction are public officials
“with narrow specificity.” [Philippine Blooming Mills It is subject to the same principles governing overbreadth v. Cayat (1939)] who, through official pressure and influence, can quash,
Employees Organization v. Philippine Blooming Mills Co., Inc doctrine. For one, it is also an analytical tool for testing "on delay or dismiss investigations against them. [Almonte v.
(1973)] their faces" statutes in free speech cases. Like overbreadth, EXAMPLES OF VALID CLASSIFICATION Vasquez (1995)]
it is said that a litigant may challenge a statute on its face All classifications made by law are generally presumed to
If the liberty involved were freedom of the mind or the only if it is vague in all its possible applications. be valid unless shown otherwise by petitioner. [Lacson v. PRINT V. BROADCAST MEDIA
person, the standard for the validity of governmental acts Executive Secretary (1999)] There are substantial distinctions between the two to
is much more rigorous and exacting, but where the liberty A facial review of PP 1017 on the ground of vagueness is warrant their different treatment under BP 881
curtailed affects at the most rights of property, the unwarranted. Petitioners did not even attempt to show ALIENS [Telecommunications and Broadcast Attorneys of the Phil v.
permissible scope of regulatory measure is wider. [Ermita- that PP 1017 is vague in all its application. They also failed General Rule: The general rule is that a legislative act may COMELEC (1998)]
Malate Hotel and Motel Operators Association, Inc. v. City to establish that men of common intelligence cannot not validly classify the citizens of the State on the basis of
Mayor of Manila (1967)] understand the meaning and application of PP 1017. [David their origin, race or parentage. STANDARDS FOR JUDICIAL REVIEW
v. Arroyo (2006)] Serrano v. Gallant Maritime introduced a modification in
Under the present provision, understood in the light of Exceptions: equal protection jurisprudence by using the three-level
established jurisprudence on the position of property in the VOID FOR VAGUENESS DOCTRINE (1) In times of great and imminent danger, such as a review used in due process cases. In effect, the level of
hierarchy of constitutional values, property stands a good An accused is denied the right to be informed of the threatened invasion or war, such a classification is review when it comes to equal protection challenges may
chance of serving and enhancing the life and liberty of all. charge against him and to DUE PROCESS where the permitted by the Constitution when the facts so warrant follow the following format:
Running through various provisions of the Constitution are statute itself is couched in such INDEFINITE LANGUAGE (e.g. discriminatory legislation against Japanese (1) Whether the State was justified in making a
various provisions to protect property—but always with the that it is not possible for men of ordinary intelligence to citizens during WWII). classification at all. (three-level scrutiny)
explicit or implicit reminder that property has a social determine therefrom what acts/omissions are punished. (2) The political rights of aliens do not enjoy the same (a) Rational basis test – the classification should bear a
dimension and that the right to property is weighted with a [People v. Nazario (1988)] protection as that of citizens. reasonable relation to the government’s purpose
social obligation. [Bernas] (3) Statutes may validly limit to citizens exclusively the
enjoyment of rights or privileges connected with the
public domain, the public works, or the natural resources
PAGE 57 PAGE 58
Notes:
Important when there is no plausible difference Searches and Seizures thereof [People v. Dichoso (1993)]. The doctrine was
reiterated in People v. Salanguit(2001).
PLACE TO BE SEARCHED
The search warrant issued to search petitioner’s compound
between the disadvantaged class and those not for unlicensed firearms was held invalid for failing to
disadvantaged. CONCEPT REQUISITES describe the place with particularity, considering that the
The right of the people to be secure in their persons, (1) Existence of probable cause compound was made up of 200 buildings, 15 plants, 84
Also important when the government attaches a houses, papers, and effects against unreasonable searches staff houses, 1 airstrip etc spread out over 155 hectares.
morally irrelevant and negative significance to a and seizures of whatever nature and for any purpose shall Warrant of Arrest [PICOP v. Asuncion (1999)]
difference between the advantaged and the be inviolable, and no search warrant or warrant of arrest Such facts and circumstances antecedent to the
disadvantaged. shall issue except upon probable cause to be determined issuance of the warrant that in themselves are DESCRIPTION OF PLACE/ THINGS
personally by the judge after examination under oath or sufficient to induce a cautious man to rely on them and The description of the property to be seized need not be
(b) Strict scrutiny test – in which a legislative affirmation of the complainant and the witnesses he may act in pursuance thereof. [People v. Syjuco (1937); technically accurate or precise. Its nature will vary
classification which impermissibly interferes with produce, and particularly describing the place to be searched Alvarez v. CFI (1937)] according to whether the identity of the property is a
the exercise of a fundamental right or operates to and the persons or things to be seized. [Art. III, Sec. 2] matter of concern. The description is required to be specific
the peculiar disadvantage of a suspect class is Search Warrant only in so far as the circumstances will allow. [Kho v. Judge
presumed unconstitutional. The burden is upon Such facts and circumstances which would lead a Makalintal (1999)]
NATURE
the government to prove that the classification is Personal reasonably discreet and prudent man to believe that
necessary to achieve a compelling state interest an offense has been committed and that the objects A search warrant may be said to particularly describe the
It may be invoked only by the person entitled to it.
and that it is the least restrictive means to protect sought in connection with the offense are in the place things to be seized when the description therein is as
[Stonehill v. Diokno (1967)]
such interest. It is applied when the classification sought to be searched. [Burgos v. Chief of Staff (1984)] specific as the circumstances will ordinarily allow. [People
has a “suspect basis”. v. Rubio (1932)] or when the description expresses a
It may be waived expressly or impliedly only by the person
whose right is invaded, not by one who is not duly (2) Determination of probable cause personally by the conclusion of fact, not of law, by which the warrant officer
Suspect classes – A classification that violates a authorized to effect such waiver. [People v. Damaso (1992)] judge. may be guided in making the search and seizure; or when
fundamental right, or prejudices a person accorded the tings described are limited to those which bear direct
special protection by the Constitution (Serrano v. Directed Against the Government and Its Agencies (State (3) After personal examination under oath or affirmation of relation to the offense for which the warrant is being
Gallant). May therefore include a classification the complainant and the witnesses he may produce. issued. [Bache and Co. v. Ruiz (1971)]
Action Requirement)
based on income. How it is done: In the form of searching questions and
The right cannot be set up against acts committed by
private individuals.The right applies as a restraint directed answers, in writing and under oath [Rule 126, Sec. 6, DESCRIPTION OF PERSONS SEARCHED
(Compare to the US definition: classes subject to ROC] Search warrant is valid despite the mistake in the name of
only against the government and its agencies tasked with
such a history of purposeful unequal treatment or the enforcement of the law. The protection cannot extend the persons to be searched. The authorities conducted
relegated to such a position of political to acts committed by private individuals so as to bring (a) Mere affidavits of the complainant and his surveillance and test-buy ops before obtaining the search
powerlessness as to command extraordinary witnesses are thus not sufficient. warrantand subsequently implementing it. They had
them within the ambit of alleged unlawful intrusion by the
protection from the majoritarian political process. government. [People v. Marti (1991); See also Yrasuegui v. personal knowledge of the identity of the persons and the
Income classification will not trigger strict scrutiny.) (b) The examining Judge has to take depositions in place to be searched, although they did not specifically
Philippine Airlines (2008)]
writing of the complainant and the witnesses he know the names of the accused. [People v. Tiu Won Chua
(c) Intermediate scrutiny test – Court accepts the What constitutes a reasonable or unreasonable search and may produce and attach them to the record. (2003)]
articulated purpose of the legislation but it closely
seizure in any particular case is purely a judicial question,
scrutinizes the relationship between the determinable from a consideration of the circumstances (c) Such written deposition is necessary in order that A John Doe search warrant is valid. There is nothing to
classification and the purpose based on a spectrum involved. [Valmonte v. De Villa (1989)] the Judge may be able to properly determine the prevent issue and service of warrant against a party whose
of standards, by gauging the extent to which existence or non-existence of the probable cause, name is unknown. [People v. Veloso (1925)]
constitutionally guaranteed rights depend upon the Objections to the warrant of arrest must be made before to hold liable for perjury the person giving it if it will
affected individual interest. In which the be found later that his declarations are false GENERAL WARRANT
the accused enters his plea. [People v. Codilla (1993); People
government must show that the challenged One that:
v. Robles (2000)]
classification serves an important state interest and (d) It is axiomatic that the examination must be (1) Does not describe with particularity the things subject
that the classification is at least substantially related probing and exhaustive, not merely routine or proof the search and seizure; and
SCOPE
to serving that interest. Applicable to certain sensitive Natural Persons forma, if the claimed probable cause is to be (2) Where probable cause has not been properly
but not suspect classes; certain important but not It protects all persons including aliens [Qua Chee Gan v. established. established. It is a void warrant. [Nolasco v. Paño
fundamental interest. (1985)]
Deportation Board (1963)]
(e) The examining magistrate must not simply rehash
(2) Whether the classification was valid. (4-pronged test of the contents of the affidavit but must make his own Exception to General Warrants: General descriptions will
Artificial Persons
valid classification in People v. Cayat) inquiry on the intent and justification of the not invalidate the entire warrant if other items have been
Artificial persons are protected to a limited extent. [Bache
and Co. Inc v. Ruiz (1971)] The opening of their account application. [Roan v. Gonzales (1984)] particularly described. [Uy v. BIR (2000)]
Alternative thought: BERNAS (and Prof. De Vera) opines that
books is not protected, by virtue of police and taxing
in Serrano v. Gallant Maritime, the Court seems to imply powers of the State. (4) On the basis of their personal knowledge of the facts Conduct of the Search [Sec. 7, Rule 126, ROC]
that the Test of Valid Classification is to be applied they are testifying to. (1) In the presence of a lawful occupant thereof or any
underthe Rational Basis standard. Note that in Serrano, member of his family, OR
WARRANT REQUIREMENT
where the Court applied Strict Scrutiny, the Test of Valid PURPOSE
(5) The warrant must describe particularly the place to be (2) If occupant or members of the family are absent, in the
Classification was mentioned but not applied. Note searched and the persons or things to be seized. presence of 2 witnesses of
(1)Search Warrant- to gain evidence to convict
however that the Serrano levels of scrutiny have not been (a) sufficient age
(2) Warrant of Arrest- to acquire jurisdiction
reapplied as of this writing. This issue has not yet been Requirement is primarily meant to enable the law (b) discretion
clarified. enforcers serving the warrant to —(1) readily identify the (c) residing in the same locality
Must refer to one specific offense. [Asian Surety v. Herrera,
(1973); Castro v. Pabalan (1976)] properties to be seized and thus prevent them from seizing (3) Force may be used in entering a dwelling if justified by
the wrong items; and (2) leave said peace officers with no Rule 126 ROC.
discretion regarding the articles to be seized and thus
The Dangerous Drugs Act of 1972 is a special law that deals
specifically with dangerous drugs which are subsumed into prevent unreasonable searches and seizures. [People v. Tee Failure to comply with Sec. 7 Rule 126 invalidates the
(2003)] search. [People v. Gesmundo (1993)]
“prohibited” and “regulated” drugs, and defines and
penalizes categories of offenses which are closely related
or which belong to the same class or species; thus, one
search warrant may be validly issued for several violations
PAGE 59 PAGE 60
FORCIBLE ENTRY JUSTIFIED prevention of crime and the apprehension of criminals. Test: WON a reasonably prudent man in the circumstances search. On the other hand, when the vehicle is stopped
Occupants of the house refused to open the door despite [Nolasco v. Pano (1985)] would be warranted in the belief that his safety of that of and subjected to an extensive search, it would be
the fact that the searching party knocked several times, others was in danger [Terry v. Ohio, 392 U.S.(1968)]. constitutionally permissible only If the officers conducting
and the agents saw suspicious movements of the people Test for validity the search had reasonable or probable cause to believe,
inside the house. [People v. Salanguit (2001)] (1) Item to be searched was within the arrester’s custody; The police officer should properly introduce himself and before the search, that either the motorist is a law offender
(2) Search was contemporaneous with the arrest make initial inquiries, approach and restrain a person who or they will find the instrumentality or evidence pertaining
UNLAWFUL SEARCH manifests unusual and suspicious conduct, in order to to a crime in the vehicle to be searched[Caballes v. Court of
Police officers arrived at appellant’s residence and “side- Under the Rules of Court, a person charged with an check the latter’s outer clothing for possibly concealed Appeals (2002); People v. Libnao (2003)].
swiped” (sinagi) appellant’s car (which was parked outside) offense may be searched for dangerous weapons or weapons. The apprehending police officer must have a
to gain entry into the house. Appellant’s son, who is the anything which may be used as proof of the commission of genuine reason, in accordance with the police officer’s PROPERTIES SUBJECT TO SEIZURE
only one present in the house, opened the door and was the offense. As an incident of an arrest, the premises where experience and the surrounding conditions, to warrant the General Rule: Only the articles particularly described in the
immediately handcuffed to a chair after being informed the arrest was made can also be searched without search belief that the person to be held has weapons or contraband warrant may be seized.
that they are policemen with a warrant to search the warrant. [Nolasco v. Cruz Paño (1985)] concealed about him [People v. Sy Chua (2003)]. (1) Property subject of an offense
premises. [People v. Benny Go (2003)] (2) Stolen or embezzled property and other proceeds or
In this Motion for Partial Reconsideration of the 1985 VALID EXPRESS WAIVER MADE VOLUNTARILY AND INTELLIGENTLY fruits of an offense
WARRANTLESS SEARCHES decision, the petitioners submit that a warrantless search Requisites: (3) Used or intended to be used as a means of committing
GENERAL RULE FOR WARRANTLESS SEARCHES: PROBABLE CAUSE can be justified only if it is an incident to a lawful arrest and (1) Must appear that right exists; an offense [Sec. 2 Rule 126, ROC]
REQUIRED that since Aguilar was not lawfully arrested, a search (2) Person involved had actual/ constructive knowledge of
“The essential requisite of probable cause must still be without warrant could not be made. [Nolasco v. Paño on the existence of such right; Where the warrant authorized only the seizure of shabu,
satisfied before a warrantless search and seizure can be M.R. (1987)] (3) Said person had an actual interest to relinquish the and not marijuana, the seizure of the latter was held
lawfully conducted.” In these cases, probable cause right; unlawful. [People v. Salanguit (2001)]
(warrantless searches) must be “based on reasonable An “arrest being incipiently illegal, it logically follows that (4) Waiver is limited only to the arrest;
ground of suspicion or belief that a crime has been the subsequent search was similarly illegal.” [People v. (5) Waiver does not extend to search made as an incident It is not necessary that the property to be searched or
committed or is about to be committed.” [People v. Aruta Aruta, supra] thereto, or to any subsequent seizure of evidence found seized should be owned by the person against whom the
(1998)] in the search. [People v. Peralta (2004)] warrant is issued; it is sufficient that the property is within
SEARCH OF MOVING VEHICLES his control or possession [Burgos v. Chief of Staff (1984)].
N.B. In Aruta, the standards for probable cause are different Securing a search warrant is not practicable since the It was ruled that the right to be secure from unreasonable
from those required for the issuance of warrants. Aruta vehicle can be quickly moved out of the locality or search may be waived. Waiver may be express or implied. COMPARISON OF PROCEDURES IN OBTAINING SEARCH WARRANTS
implies that the reasonableness of a warrantless search is jurisdiction in which the warrant must be sought [Papa v. When one voluntarily submits to a search or consents to AND ARREST WARRANTS
determined by the (1) information received and used as a Mago (1968)] have it made of his person / premises, he is precluded from When warrant of arrest may issue – (a) By the Regional Trial
basis for the search, and (2) additional factors and later complaining [People v. Kagui Malasugui (1936)]. Court – Within ten (10) days from the filing of the
circumstances. The two, taken together, constitute the PLAIN VIEW DOCTRINE: THINGS SEIZED ARE WITHIN PLAIN VIEW OF complaint or information, the judge shall personally
probable cause which justifies warrantless searches and A SEARCHING PARTY It is the State that has the burden of proving, by clear and evaluate the resolution of the prosecutor and its
seizures. [Aruta, supra] Requisites: convincing evidence, that the necessary consent was supporting evidence. He may immediately dismiss the case
(1) Prior valid intrusion into a place; obtained and that it was voluntarily and freely given if the evidence on record clearly fails to establish probable
WARRANTLESS SEARCHES RECOGNIZED BY JURISPRUDENCE (2) Evidence: [Caballes v. Court of Appeals (2002)]. cause. If he finds probable cause, he shall issue a warrant
Quick Look [People v. Aruta, supra] (a) inadvertently discovered of arrest, or a commitment order if the accused has already
(1) Search incident to a lawful arrest (b) by police who had the right to be where they were; When accused checked in his luggage as passenger of a been arrested pursuant to a warrant issued by the judge
(2) Plain view doctrine (3) Evidence must be immediately apparent and plane, he agreed to the inspection of his luggage in who conducted the preliminary investigation or when the
(3) Search of a moving vehicle (4) Noticed without further search [People v. Musa; People accordance with customs laws and regulations, and thus complaint or information was filed pursuant to section 7 of
(4) Consented search v. Sarap (2003)] waived any objection to a warrantless search [People v. this Rule. In case of doubt on the existence of probable
(5) Customs search Gatward (1997)]. cause, the judge may order the prosecutor to present
(6) Stop and frisk An object is in “plain view” if the object itself is plainly additional evidence [Note: This is not found in the procedure
(7) Exigent and emergency circumstances exposed to sight. Where the seized object is inside a closed CUSTOMS SEARCH for a search warrant.] within five (5) days from notice and
(8) Visual search at checkpoints – not among those package, the object is not in plain view and, therefore, Searches of vessel and aircraft for violation of immigration the issue must be resolved by the court within thirty (30)
enumerated in People v. Aruta, but also recognized as cannot be seized without a warrant. However, if the and smuggling laws [Papa v. Mago (1968)]. days from the filing of the complaint of information. [Rule
an exception to the warrant requirement by Aniag v. package proclaims its contents, whether by its distinctive 112, Sec. 6]
COMELEC (1994) and Valmonte v. De Villa (1989, 1990) configuration, its transparency, or if its contents are EXIGENT AND EMERGENCY CIRCUMSTANCES
obvious to an observer, then the content are in plain view, The raid and seizure of firearms and ammunition at the
SEARCH INCIDENT TO A LAWFUL ARREST and may be seized. [Caballes v. Court of Appeals (2002)] height of the 1989 coup-de-etat, was held valid, Requisites for issuing search warrant – A search warrant
considering the exigent and emergency situation. The shall not issue except upon probable cause in connection
Search incident to lawful arrest - A person lawfully arrested
If the package is such that it contains prohibited articles, military operatives had reasonable ground to believe that a with one specific offense to be determined personally by
may be searched for dangerous weapons or anything
then the article is deemed in plain view. [People v. crime was being committed, and they had no opportunity the judge after examination under oath or affirmation of
which may be used as proof of the commission of an the complainant and the witness he may produce, and
offense, without a search warrant. [Sec. 12, Rule 126, Rules Nuevasm (2007)] to apply for a search warrant from the courts because the
latter were closed. Under such urgency and exigency, a particularly describing the place to be searched and the
of Court]
STOP AND FRISK SEARCHES search warrant could be validly dispersed with [People v. de things to be seized which may be anywhere in the
There should be a genuine reason to “stop-and-frisk in the Gracia (1994)]. Philippines. [Rule 126, Sec. 4]
The provision is declaratory in the sense that it is confined
light of the police officer’s experience and surrounding
to the search, without a search warrant, of a person who WARRANTLESS ARRESTS
had been arrested. conditions to warrant a belief that the person detained has VISUAL SEARCH AT CHECKPOINTS
weapons concealed. [Malacat v. CA (1997), citing Terry v. “Stop and search” without a warrant at military or police REQUISITES FOR ISSUANCE OF A VALID ARREST WARRANT
Ohio] checkpoints, which has been declared not to be illegal per What the Constitution underscores is the exclusive and
It is also a general rule that, as an incident of an arrest, the
se so long as it is required by exigencies of public order and personal responsibility of the issuing judge to satisfy himself
place or premises where the arrest was made can also be
Police officer has a right to stop a citizen on street and pat conducted in a way least intrusive to motorists [Valmonte v. of the existence of probable cause.
searched without a search warrant. In this case, the extent
and reasonableness of the search must be decided on its him for a weapon in the interest of protecting himself from de Villa (1989)].
the person with whom he was dealing was not armed. In satisfying himself of the existence of probable cause for
own facts and circumstances. the issuance of a warrant of arrest, the judge is notrequired
For a mere routine inspection, the search is normally
Scope: Outer clothing for concealed weapon, etc. permissible when it is limited to a mere visual search, to personally examine the complainant and his witnesses.
What must be considered is the balancing of the
where the occupants are not subjected to physical or body
individual’s right to privacy and the public’s interest in the Following established doctrine and procedure, he shall:
PAGE 61 PAGE 62
(1)Personally evaluate the report and the supporting of facts or circumstances that the person to be arrested Exceptions: otherwise would be to opt for a government of men, and
documents submitted by the fiscal regarding the has committed it; (1) In cases of deportation of illegal and undesirable aliens, not of laws.
existence of probable cause and, on the basis thereof, whom the Presidentor the Commissioner of
issue a warrant of arrest; or Requisites: Immigration may order arrested, following a final order Public order and safety is defined as the security of human
(2)If he finds no probable cause, he may disregard the (1) Offense had JUST been committed; of deportation,for the purpose of deportation. [Salazar lives, liberty and property against the activities of invaders,
fiscal's report and require the submission of supporting (2) Person making the arrest has probable cause to believe v. Achacoso (1990)] insurrectionist and rebels. [1971 Constitutional Convention,
affidavits of witnesses to aid him in arriving at a based on personal knowledge. (2) Warrant of arrest may be issued by administrative Session of November 25, 1972]
conclusion as to the existence of probable cause. authorities only for the purpose of carrying out a final
[Beltran v. Makasiar (1988)] Note: There must be a large measure of immediacy finding of a violation of law and not for the sole FORMS OF CORRESPONDENCE COVERED
between the time the offense is committed and the time of purpose of investigation or prosecution. It may be (1) letters
Existence of Probable Cause: Such facts and circumstances the arrest. If there was an appreciable lapse of time issued only after the proceeding has taken place as (2) messages
which would lead a reasonably discreet and prudent man between arrest and commission of crime, warrant of arrest when there is already a final decision of the (3) telephone calls
to believe that an offense has been committed by the must be secured. [Nachura] administrative authorities. (4) telegrams, and the like [Bernas]
person sought to be arrested. [Webb v. De Leon (1995)]
Warrantless arrest of accused for selling marijuana 2 days DRUG, ALCOHOL AND BLOOD TESTS TESTS OF REASONABLE EXPECTATION OF PRIVACY:
Determination of probable cause personally by the judge after he escaped is invalid. [People v. Kimura (2004)] The Court held that Randomized Drug Testing (RDT) for (1) Whether by his conduct, an individual has exhibited an
as to warrant of arrest: students and employees does not violate the right to expectation of privacy;
(1) On the basis of the witnesses’ personal knowledge of the The warrantless arrest only 3 hours after the killing was privacy in the Constitution. Students do not have rational (2) Whether such expectation is one that society recognizes
facts they are testifying to. held valid since personal knowledge was established as to expectation of privacy since they are minors and the school as reasonable. [Ople v. Torres (1998)]
(2) The arrest warrant must describe particularly the person the fact of death and facts indicating that the accused is in loco parentis. Employees and students in universities,
to be seized. killed the victim. [People v. Gerente (1993)] on the other hand, voluntarily subject themselves to the N.B. The Court in KMU v. Director-General held that Ople v.
(a) By stating the name of the person to be arrested. intrusion because of their contractual relation to the Torres is not an authority on the right to privacy, essentially
(b) If not known, then a “John Doe warrant” may be issued, Personal Knowledge: Experience of an officer which gives company or university. on the ground that the privacy discussion in Ople is obiter
with some descriptio persona that will enable the officer the idea that there is probable cause that the person dictum. [See KMU v. Director-General (2006)] Nevertheless,
to identify the accused. caught is responsible. It has been ruled that “personal It is unconstitutional to subject candidates for public office the Ople testhas been reapplied by cases such as Sabio v.
knowledge of facts” in arrests without a warrant must be and criminals to RDT. The Constitution clearly provides the Gordon (2006) and is essentially the same as the test in
John Doe Warrant: Warrants issued against 50 John Does, based on probable cause, which means an actual belief or requirements for candidates, and adding RDT would Pollo v. Constantino-David, infra.
none of whom the witnesses could identify, were reasonable grounds of suspicion. [Cadua v. Court of amount to imposing an additional qualification. Criminals
considered as “general warrants” and thus void. Appeals (1999)] subjected to RDT would violate their right against self- A legitimate expectation of privacy requires. — (1) a
[Pangandaman v. Casar (1988)] incrimination. [SJS v. Dangerous Drugs Board (2008)] subjective expectation (i.e. demonstrated actual, personal
There is no personal knowledge when the commission of a expectation of privacy); and (2) an objective expectation
REQUISITES OF A VALID WARRANTLESS ARREST [RULE 113, SEC. 5, crime and identity of the accused were merely furnished by Privacy of Communications and Correspondence (i.e. an expectation that society would recognize). [Pollo v.
RULES ON CRIMINAL PROCEDURE] an informant, or when the location of the firearm was given (1) The privacy of communication and correspondence shall Constantino-David (2011)]
by the wife of the accused. It is not enough that there is be inviolable except upon lawful order of the court, or
(1) When in his presence, the person to be arrested has reasonable ground to believe that the person to be when public safety or order requires otherwise, as Other imports from Jurisprudence:
committed, is actually committing, or is attempting to arrested has committed a crime. That a crime has actually prescribed by law. Anti-Wire Tapping Act (RA 4200), clearly and
commit an offense; (in flagrante delicto) been committed is an essential precondition. [People v. (2) Any evidence obtained in violation of this or the unequivocably makes it illegal for any person, not
Burgos (1986)] preceding section shall be inadmissible for any authorized by all the parties to any private communication,
Rebellion is a continuing offense. Therefore a rebel may be purpose in any proceeding. [Art. III, Sec. 3] to secretly record such communications by means of a
arrested without a warrant at any time of the day or the (3) When the person to be arrested is a prisoner who has tape recorder. The law does not make any distinction.
night as he is deemed to be in the act of committing escaped from a penal establishment or place where he PRIVATE AND PUBLIC COMMUNICATIONS [Ramirez v. CA (1995)]
rebellion. [Umil v. Ramos (1991)] is serving final judgment or is temporarily confined REQUISITES OF EXISTENCE OF PRIVACY RIGHT
while his case is pending, or has escaped while being (1) Subjective: A person has exhibited an actual expectation An extension telephone is not among the devices
Though kidnapping with serious illegal detention is transferred from one confinement to another of privacy; and enumerated in Sec. 1 of RA 4200. There must be either a
deemed a continuing crime, it can be considered as such (2) Objective: The expectation be one that society is physical interruption through a wiretap or the deliberate
only when the deprivation of liberty is persistent and Additional Exceptions (Not in the Rules): prepared to recognize as reasonable. [Pollo v. installation of a device or arrangement in order to
continuing from one place to another. [Parulan v. Dir of (1) When the right is voluntarily waived (estoppel). Constantino- David (2011) citing the Concurring Opinion overhear, intercept, or record the spoken words. The
Prisons (1968)] (2) Violent insanity. of Justice Harlan in Katz v. US (1967)] telephone extension in this case was not installed for that
purpose. It just happened to be there for ordinary office
Hot Pursuit: The arrest of the accused inside his house Appellant is estopped from questioning the illegality of the INTRUSION, WHEN ALLOWED use. [Ganaan v. IAC (1986)]
following hot pursuit of the person who committed the arrest when he voluntarily submitted himself to the (1) By lawful order of the court
offense in flagrante was held valid. [People v. De Lara jurisdiction of the court by entering a plea of not guilty and E.O. 424 (s. 2005), adopting a unified multi-purpose ID
(1994)] by participating in the trial. [People v. Salvatierra (1997)] Probable cause in Sec. 2, Art. III should be followed for system for government, does not violate the right to
the court to allow intrusion. Particularity of description privacy because it (1) narrowly limits the data that can be
Buy-Bust: A buy-bust operation is a valid in flagrante Failure to raise the question of admissibility during the trial is needed for written correspondence, but if the intrusion collected, recorded, and released compared to existing ID
arrest. The subsequent search of the person arrested and is waiver of the right to assert inadmissibility on appeal. is done through wire-taps and the like, there is no need systems, and (2) provides safeguards to protect the
the premises within his immediate control is valid as an [Manalili v. CA (1997)] to describe the content. However, identity of the person confidentiality of the data collected. [KMU v. Director-
incident to a lawful arrest. [People v. Hindoy (2001)] or persons whose communication is to be intercepted, General (2006)]
Scope of Waiver: Waiver is limited to the illegal arrest. It does and the offense or offenses sought to be prevented, and
Exception to buy-bust: Instead of arresting the suspect not extend to the search made as an incident thereto, or the period of the authorization given can be specified. An intrusion into the privacy of workplaces is valid if it
after the sale in a buy-bust op, the officer returned to the the subsequent seizure of evidence allegedly found during conforms to the standard of reasonableness. Under this
police headquarters and filed his report. It was only in the the search [People v. Peralta (2004]] (2) When public safety or public order requires otherwise, standard, both inception and scope of intrusion must be
evening that he, without warrant, arrested the suspect at as may be provided by law. reasonable.
his house where dried marijuana leaves were found and ADMINISTRATIVE ARRESTS (1) Justified at inception: if there are reasonable grounds
seized. This is unlawful arrest. [People v. Rodrigueza (1992)] General Rule: Only the judge has the power to issue a Intrusion has to be based upon a non-judicial government for suspecting that it will turn up evidence that the
warrant after the proper procedure has been duly taken. official’s assessment that public safety and order demands employee is guilty of work-related misconduct.
(2) When an offense has just been committed and he has such intrusion, limited to the provisions of law. To hold
probable cause to believe based on personal knowledge
PAGE 63 PAGE 64
(2) Scope of intrusion is reasonable: if measures used in Query Habeas Data an unprotected speech. [NUWHRAIN-APL-IUF Dusit (4) Near v. Minnesota, (1931):
the search are reasonable related to the search’s Hotel Nikko Chapter v. CA (2008)] (a) When a nation is at war, many things that might be
objectives, and it is not highly intrusive. [Pollo, supra] over the place where the data or (3) Movies said in time of peace are such a hindrance to its
information is gathered, effort that their utterance will not be endured so
Right may be invoked against the wife who went to the collected or stored, at the option Scope of Protected Freedoms long as men fight and that no court could regard
clinic of her husband and there took documents consisting of the petitioner. Any and all modes of protection are embraced in the them as protected by any constitutional right
of private communications between her husband and his (2) Supreme Court, Court of Appeals, guaranty. It is reinforced by Sec. 18(1), Art. 3. (b) Actual obstruction to the government’s recruiting
alleged paramour. [Zulueta v. Court of Appeals, 253 SCRA Sandiganbayan when the action service or the publication of the sailing dates of
699(1996)] concerns public data files of PRIOR RESTRAINT (CENSORSHIP) transports or the number and location of troops
government offices. Concept (c) Obscene publications
N.B. While Zulueta seems to be an exception to the State How much is No docket and other lawful fees shall Censorship conditions the exercise of freedom of expression (d) Incitements to acts of violence and the overthrow
Action Requirement, Zulueta’s application of the the docket or be required from an indigent petitioner. upon the prior approval of the government. by force of orderly government
exclusionary rulehas only been cited once but to a state filing fees for The petition of the indigent shall be
action.] the petition? docketed and acted upon immediately, The censor serves therefore as the political, moral, social SUBSEQUENT PUNISHMENT
without prejudice to subsequent and artistic arbiter for the people, usually applying only his Concept:
See also: R.A. No. 10173, Data Privacy Act (2012) submission of proof of indigency not own subjective standards in determining what is good and Freedom of speech includes freedom after speech. Without
later than 15 days from the filing of the what isnot. this assurance, the citizen would hesitate to speak for fear
WRIT OF HABEAS DATA petition. he might be provoking the vengeance of the officials he
Instead of Yes. It can be done when the General rules: has criticized (chilling effect).
Query Habeas Data
having the respondent invokes the defense that the (1) Any system of prior restraints of expression comes to
What is the writ (1) Remedy hearing in open release of the data or information in the Court bearing a heavy presumption against its If criticism is not to be conditioned on the government’s
of habeas data? (2) Available to any person court, can it be question shall compromise national constitutionality, giving the government a heavy burden consent, then neither should it be subject to the
(3) Whose right to life, liberty, and done in security or state secrets, or when the to show justification for the imposition of such government’s subsequent chastisement.
security chambers? data or information cannot be divulged restraint. [New York v. United States (1971)]
(4) has been violated or is threatened to the public due to its nature or (2)There need not be total suppression. Even restriction of Examples of Valid Subsequent Restraints:
with violation privileged character. circulation constitutes censorship. [Grosjean v. (1) Libel. Every defamatory imputation is presumed to be
(5) By an unlawful act or omission American Press Co., 297 US 233] malicious. [Alonzo v. CA (1995)]
(6) of a public official or employee, or of The right to informational privacy, as a specific component
a private individual or entity of the right to privacy, may yield to an overriding legitimate Examples of Unconstitutional Prior Restraint Exceptions:
(7) Engaged in the gathering, collecting state interest. [Gamboa v. P/Ssupt. Marlou C. Chan (2012)] (1) COMELEC prohibition against radio commentators or (a) private communication in the performance of any
or storing of data or information newspaper columnists from commenting on the issues legal, moral or social duty
regarding the person, family, home involved in a scheduled plebiscite [Sanidad v. (b) fair and true report of any judicial, legislative or
and correspondence of the COMELEC (1990)] other official proceedings
aggrieved party.
What rule The Rule on the Writ of Habeas Data Freedom of Expression (2) Arbitrary closure of a radio station [Eastern
Broadcasting v. Dans (1985)]; or even when there is a (2) Obscenity. The determination of what is obscene is a
governs (A.M. No. 08-1-16-SC), which was legal justification, such as lack of mayor’s permit judicial function. [Pita v. CA (1989)]
petitions for approved by the SC on 22 January CONCEPT AND SCOPE [Newsounds Broadcasting Network Inc. v. Dy (2009)]
and the 2008. That Rule shall not diminish, BASIS (3) COMELEC resolution prohibiting the posting of decals (3) Contempt for criticism/publications tending to impede,
issuance of a increase or modify substantive rights. No law shall be passed abridging the freedom of speech, and stickers in mobile units like cars and other moving obstruct, embarrass or influence the courts in
writ of habeas of expression, or of the press, or the right of the people vehicles [Adiong v. COMELEC (1992)] administering justice in a pending suit or proceeding
data? peaceably to assemble and petition the government for (4) Search, padlocking and sealing of the offices of (sub judice) [People v. Alarcon (1939)]
What is the redress of grievances. [Art. III, Sec. 4] newspaper publishers (We Forum) by military
SC’s basis in [Constitution, Art. VIII, Sec. 5[5]]. authorities [Burgos v. Chief of Staff, supra] (4) Imputation of irregularities in the judiciary must strike a
issuing the (5) An announcement of a public figure to prohibit the balance between the right to free press and the
Rule? No person shall be detained solely by reason of his political
media to issue a specific kind of statement [Chavez v. reputation of judges. A reporter is prohibited from
When does the The Rule takes effect on 2 February beliefs and aspirations. [Art. III, Sec. 18(1)]
Gonzales (2006)] recklessly disregarding a private reputation without any
Rule take 2008, following its publication in three bona fide effort to ascertain the truth thereof [In Re:
effect? (3) newspapers of general circulation. All are indispensable to the “uninhibited, robust and wide- Examples of Constitutional Prior Restraint: Emil Jurado (1995)]
Who may file a (1) The aggrieved party. open debate in the free marketplace of ideas.” [Abrams v. (1) Law which prohibits, except during the prescribed
petition for the (2) However, in cases of extralegal US (1919)] election period, the making of speeches, (5) Right of students to free speech in school premises
issuance of a killings and enforced announcements or commentaries for or against the must not infringe on the school’s right to discipline its
writ of habeas disappearances, the petition may While indeed, the news item subject of the present case election of any candidate for office [Gonzales v. students [Miriam College Foundation v. CA (2000)]
data? be filed by might have ruffled the sensitivities of plaintiff, this Court COMELEC (1969)]
(a) Any member of the immediate however believes that the alleged defamatory articles fall Exceptions:
family of the aggrieved party, within the purview of a qualifiedly privileged matter, and (2) Prohibition on any person making use of the media to (1) Fair comment on matters of public interest. Fair
namely: the spouse, children that therefore, it cannot be presumed to be malicious. The sell or to give free of charge print space or air time for comment is that which is true or, if false, expresses
and parents; or onus of proving malice is accordingly shifted to the campaign or other political purposes except to the the real opinion of the author based upon
(b) Any ascendant, descendant or plaintiff, that is, that he must prove that the defendants COMELEC. reasonable degree of care and on reasonable
collateral relative of the were actuated by ill-will in what they caused to be printed Ratio: police power of State to regulate media for grounds.
aggrieved party within the and published, with a design to carelessly or wantonly purpose of ensuring equal opportunity, time and space (2) Criticism of official conduct is given the widest
fourth civil degree of injure the plaintiff. [U.S. v. Bustos (1909)] for political campaigns. [National Press Club v. latitude. [US v. Bustos (1918)]
consanguinity or affinity, in COMELEC (1992); Osmena v. COMELEC (1998)]
default of those mentioned in Components CONTENT-BASED AND CONTENT-NEUTRAL
the preceding paragraph. Speech, expression, and press include: (3) Movie censorship: the power of the MTCRB can be REGULATIONS
(1) Written or spoken words (recorded or not) exercised only for purposes of reasonable classification, CONTENT-BASED RESTRICTIONS
Where can the (1) Regional Trial Court (2) Symbolic speech (e.g. wearing armbands as symbol of not censorship. [NACHURA citing Gonzalez v. Katigbak The regulation is based on the subject matter of the
petition be (a) where the petitioner or protest) (1985) and Ayer v. Judge Capulong (1988)] utterance or speech.
filed? respondent resides, Violation of the Hotel’s Grooming Standards by labor
(b) or that which has jurisdiction union members constitutes illegal strike and therefore
PAGE 65 PAGE 66
privacy to disseminate public info does not extend to a parade may pass or the meeting may be held. [Primicias v. association, or group of persons concerned, be declared as
Freedom of Expression and National Security fictional representation of a person, no matter how public Fugoso (1948)] a terrorist and outlawed organization, association, or
Where a fictitious suicide photo and letter were published a figure he/she may be. [Lagunzad v. Soto (1979)] group of persons by the said Regional Trial Court. [Sec. 17,
in newspapers of general circulation expressing Absent any clear and present danger of a substantive evil, Human Security Act]
disappointments of the Roxas administration and Freedom of speech and expression includes freedom peaceable assembly in public places like streets or parks
instructinga fictitious wife to teach their children to burn tofilm and producemotion pictures and to exhibit them. cannot be denied. [J.B.L. Reyes v. Bagatsing (1983)] The right to associate is not absolute. [People v. Ferrer
pictures of the President,SCheld that such act constitutes The fact that such film production is a commercial activity (1972)]
inciting to sedition. is not a disqualification for availing of freedom of speech The Calibrated Pre-emptive Response (CPR), insofar as it
and expression. would purport to differ from or be in lieu of maximum The right to self-organization shall not be denied to
It suggests or incites rebellious conspiracies or riots and tolerance, is NULL and VOID.
government employees. [Art. IX-B, Sec. 2(5)]
tends to stir up the people against the constituted The right to privacy cannot be invoked to resist publication
authorities, or to provoke violence from opposition groups and dissemination of matter of public interest.The CPR serves no valid purpose if it means the same thing as
who may seek to silence the writer, which is the sum and intrusion is no more than necessary to keep the film a maximum tolerance (Sec. 3 [c] of B.P. 880), and is illegal if The right of the people, including those employed in the
substance of the offense under consideration. [Espuelas v. truthful historical account. Enrile is a public figure because it means something else. Accordingly, what is to be public and private sectors, to form unions, associations, or
People (1951)] of his participation as a principal actor in the culminating followed is and should be that mandated by the law itself, societies for purposes not contrary to law shall not be
events of the EDSA revolution. [Ayer Productions v. namely, maximum tolerance. abridged. [Art. III, Sec. 8]
Freedom of Expression and Libel Capulong (1988)]
National community standard as basis of what is defamatory B.P. 880 not unconstitutional It shall guarantee the rights of all workers to self-
Not belonging to a royal house does not constitute libel. In Freedom of Expression and the Administration of Justice B.P. No. 880 is not an absolute ban of public assemblies organization, collective bargaining and negotiations, and
a community like ours which is both republican and Due to the delay in the disposition of his original case, but a restriction that simply regulates the time, place and peaceful concerted activities, including the right to strike in
egalitarian, such an ascription, whether correct or not, Cabansag asked for help from the President through a manner of the assemblies. The law is not vague or accordance with law. They shall be entitled to security of
cannot be defamatory. It is to the standards of the national letter addressed to the Presidential Complaints and overbroad. There is, likewise, no prior restraint, since the tenure, humane conditions of work, and a living wage.
community, not to those of the region that a court must Actions Commission (PCAC). He was charged for contempt content of the speech is not relevant to the regulation. A They shall also participate in policy and decision-making
refer especially where a newspaper is national in reach and because such complaint should have been raised to the fair and impartial reading of B.P. No. 880 thus readily processes affecting their rights and benefits as may be
coverage. [Bulletin Publishing v. Noel (1988)] Secretary of Justice or SC instead. shows that it refers to all kinds of public assemblies that provided by law. [Art. XIII, Sec. 3(2), par. 2]
would use public places.
Report of official conduct is privileged and covered by press SC ruled that for his act to be contemptuous, the danger
FACIAL CHALLENGES AND THE OVERBREADTH
freedom must cause a serious imminent threat to the Freedom Parks
DOCTRINE
Where the defamation is alleged to have been directed at a administration of justice. Itcannot be inferred that such act B.P. 880 provides that every city and municipality must set
group/class, it is essential that the statement must be so has "a dangerous tendency" to belittle the court or aside a freedom park within six months from the law’s
General Rule: A party can question the validity of a statute
sweeping or all-embracing as to apply to every individual undermine the administration of justice for the writer effectivity in 1985. Section 15 of the law provides for an
only if, as applied to him, it is unconstitutional.
in that group or class, or sufficiently specific so that each merely exercised his constitutional right to petition the alternative forum through the creation of freedom parks
individual in the class or group can prove that the government for redress of a legitimate grievance. where no prior permit is needed for peaceful assembly and
Exception: Facial Challenges
defamatory statement specifically pointed to him, so that [Cabansag v. Fernandez (1957)] petition at any time. Without such alternative forum, to
he can bring the action separately, if need be. [Newsweek v. deny the permit would in effect be to deny the right to
FACIAL CHALLENGES
IAC (1986)] Freedom of Expression and Obscenity peaceably assemble.
A facial challenge is allowed to be made to a vague
statute and to one which is overbroad because of possible
As the size of these groups increases, the chances for Determination Permit Application
“chilling effect” upon protected speech. The theory is that
members of such groups to recover damages on tortious Community standard There is a need to address the situation adverted to by
“[w]hen statutes regulate or proscribe speech and no
libel become elusive. This principle is said to embrace two Pictures depicting native inhabitants in their native dresses petitioners where mayors do not act on applications for a
readily apparent construction suggests itself as a vehicle
important public policies: as they appear and live in their native homelands are not permit and when the police demand a permit and the
for rehabilitating the statutes in a single prosecution, the
(1) Where the group referred to is large, the courts presume obscene or indecent. The pictures in question merely rallyists could not produce one, the rally is immediately
transcendent value to all society of constitutionally
that no reasonable reader would take the statements depict persons as they actually live, without attempted dispersed.
protected expression is deemed to justify allowing attacks
as so literally applying to each individual member; and presentation of persons in unusual postures or dress. The
on overly broad statutes with no requirement that the
(2) The limitation on liability would satisfactorily safeguard aggregate judgment of the Philippine community, the In such a situation, as a necessary consequence and part of
person making the attack demonstrate that his own
freedom of speech and expression, as well as of the moral sense of all the people in the Philippines, would not maximum tolerance, rallyists who can show the police an
conduct could not be regulated by a statute drawn with
press, effecting a sound compromise between the be shocked by photographs of this type. [People v. application duly filed on a given date can, after two (2)
narrow specificity.”
conflicting fundamental interests involved in libel Kottinger (1923)] days from said date, rally in accordance with their
cases. [MVRS v. Islamic Da’Wah Council of the Phil application without the need to show a permit, the grant of
The possible harm to society in permitting some
(2003)] A hula-hula dance portraying a life of a widow who lost her the permit being then presumed under the law, and it will
unprotected speech to go unpunished is outweighed by
guerrilla husband cannot be considered protected speech be the burden of the authorities to show that there has
the possibility that the protected speech of others may be
Actual Malice Standard for Public Officials and Matters of if the audience, about a hundred customers, were howling been a denial of the application, in which case the rally
deterred and perceived grievances left to fester because of
Public Interest and shouting, “sigue muna, sigue nakakalibog” (go ahead may be peacefully dispersed following the procedure of
possible inhibitory effects of overly broad statutes.
Even if the defamatory statement is false, no liability can first, go ahead, it is erotic), during the performance. [People maximum tolerance prescribed by the law. [Bayan v.
attach if it relates to official conduct, unless the public v. Aparici (1955)] Ermita (2006)]
This rationale does not apply to penal statutes. Criminal
official concerned proves that the statement was made
statutes have general in terrorem effect resulting from
with actual malice— that is, with knowledge that it was CONTENT-NEUTRAL RESTRICTIONS Freedom of Association and Self-Organization
their very existence, and, if facial challenge is allowed for
false or with reckless disregard of whether it was false or Regulations on the incidents of speech— time, place and Proscription of Terrorist Organizations, Association, or Group this reason alone, the State may well be prevented from
not. [Vasquez v. CA (1999) citing New York Times v. Sullivan manner. of Persons. – Any organization, association, or group of enacting laws against socially harmful conduct. In the area
(1964)] persons organized for the purpose of engaging in of criminal law, the law cannot take chances as in the area
Freedom of Assembly terrorism, or which, although not organized for that of free speech.[Concurring Opinion of Justice Mendoza in
SC ADMINISTRATIVE CIRCULAR NO. 08-2008 The right to freedom of speech and to peaceably assemble, purpose, actually uses the acts to terrorize mentioned in Estrada v. Sandiganbayan (2001)]
Implements a rule of preference for the imposition of fine and petition the government for redress of grievances are this Act or to sow and create a condition of widespread and
only rather than imprisonment in libel suits. fundamental personal rights of the people guaranteed by extraordinary fear and panic among the populace in order OVERBREADTH DOCTRINE
the constitutions of democratic countries. City or town to coerce the government to give in to an unlawful demand A governmental purpose may not be achieved by means
Freedom of Expression and the Right to Privacy mayors are not conferred the power to refuse to grant the shall, upon application of the Department of Justice before which sweep unnecessarily broadly and thereby invade the
Being a public figure does not automatically destroy in toto permit, but only the discretion in issuing the permit to a competent Regional Trial Court, with due notice and area of protected freedoms.
a person’s right to privacy. The right to invade a person’s determine or specify the streets or public placeswhere the opportunity to be heard given to the organization,
PAGE 67 PAGE 68
A plain reading of PP 1017 shows that it is not primarily necessary to avoid the danger." In this case, an attempt to The Court pronounced that the freedom of broadcast contract with these TV stations and radio stations at its
directed to speech, rather it covers a spectrum of conduct. overthrow the Government by force is a sufficient evil for media is lesser in scope than the press because of their own expense. [UNIDO v. COMELEC (1981)]
It is a call upon the AFP to prevent or suppress all forms of Congress to prevent. It is the existence of the conspiracy pervasive presence in the lives of people and because of
lawless violence. Facial challenge on the ground of which creates the danger. [Dennis v. US (1951)] their accessibility to children. The television camera is a powerful weapon which
overbreadth is a very strong medicine. Petitioners did not intentionally or inadvertently can destroy an accused and
show that there is no instance when PP1017 may be valid. MILLER TEST (CCA-SL) MOVIE CENSORSHIP his case in the eyes of the public.
[David vs. Arroyo (2006)] To determine obscenity: When MTRCB rated the movie, “Kapit sa Patalim” as fit
(1) Whether the average person, applying Contemporary “For Adults Only”, SC ruled that there was no grave abuse Considering the prejudice it poses to the defendant’s right
TESTS Community standards would find that the work, taken of discretion. to due process as well as to the fair and orderly
DANGEROUS TENDENCY TEST as a whole, Appeals to prurient interest administration of justice, and considering further that the
If the words uttered create a dangerous tendency of an evil (2) Whether the work depicts or describes in a patently Censorship is allowable only under the clearest proof of a freedom of the press and the right of the people to
which the State has the right to prevent, then such words offensive way, sexual conduct Specifically defined by clear and present danger of a substantive evil to public information may be served and satisfied by less distracting,
are punishable. [Cabansag v. Fernandez (1957)] the applicable state law safety, morals, health or any other legitimate public degrading and prejudicial means, live radio and television
(3) Whether the work, taken as a whole, Lacks serious, interest: coverage of the court proceedings shall not be allowed. No
It is sufficient if the natural tendency and the probable literary, artistic, political, or scientific value [Miller v. CA (1) There should be no doubt what is feared may be traced video shots or photographs shall be permitted during the
effect of the utterance were to bring about the substantive (1973) also applied in Fernando v. CA (2006)] to the expression complained of. trial proper.Video footages of court hearings for news
evil that the legislative body seeks to prevent. [People v. (2) Also, there must be reasonable apprehension about its purposes shall be limited and restricted. [Secretary of
Perez(1956)] O’ BRIEN TEST (C-GUN) imminence. It does not suffice that the danger is only Justice v. Sandiganbayan (2001)]
To determine whether Content- Based or Content- probable. [Gonzales v. Kalaw-Katigbak (1985)]
CLEAR AND PRESENT DANGER TEST Neutral: RADIO CENSORSHIP
The question in every case is whether the words used are (1) If it is within the Constitutional power of the Limited intrusion into a person’s privacy is permissible The SC does not uphold claim that Far Eastern had no
used in such circumstances and are of such a nature as to Government when that person is a public figure and the information right to require the submission of the manuscript. It is the
create a clear and present danger that they will bring (2) If it furthers an important or substantial Government sought to be published is of a public character. duty of Far Eastern to require the submission of a
about the substantive evils that Congress has a right to interest manuscript as a requirement in broadcasting speeches.
prevent. It is a question of proximity and degree. [Schenck (3) If the Government interest is Unrelated to the What is protected is the right to be free from unwarranted Besides, laws provide for such actions:
v. United States (1919)] suppression of free expression publicity, from the wrongful publicizing of the private
(4) If the incidental restriction is No greater than is affairs of an individual which are outside the realm of Act 8130. Franchise for Far Eastern; radio to be open to the
This rule requires that “the danger created must not only essential to the furtherance of that interest public concern. [Ayer Productions v. Capulong, supra] general public but subject to regulations
be clear and present but also traceable to the ideas
expressed”. [Gonzales v. COMELEC (1969)] COMELEC banned the publication of surveys 15 and 7 days TELEVISION CENSORSHIP Comm. Act 98. Sec. of Interior and/or the Radio Board is
prior to election concerning national and local candidates, P.D. 1986 gave MTRCB the power to screen, review and empowered to censor what is considered “neither moral,
Note: This test has been adopted by the Philippine SC lock, respectively. The SC held that this regulation is content- examine all television programs. educational or entertaining, and prejudicial to public
stock and barrel and is the test most applied to cases re: based because applying the 3rd prong of the O-Brien Test, interest.” The Board can forfeit the license of a
freedom of expression. it actually suppresses a whole class of expression, while By the clear terms of the law, the Board has the power to broadcasting station.
allowing the expression of opinion concerning the same “approve, delete, or prohibit the exhibition and/or
BALANCING OF INTEREST TEST subject matter by other opinion takers. The prohibition television broadcasts of television programs. The law also Sec. of the Interior, Dept. Order 13. Requires submission of
When a particular conduct is regulated in the interest of may be for a limited time, but the curtailment of the right directs the Board to apply contemporary Filipino culture daily reports to Sec. of Interior/Radio Board re: programs
public order, and the regulation results in an indirect, of expression is direct, absolute, and substantial. [SWS v. values as standard to determine those which are before airing. For speeches, a manuscript or short gist
conditional and partial abridgement of speech, the duty of COMELEC (2001)] objectionable for being immoral, indecent, contrary to law must be submitted. [Santiago v. Far Eastern Broadcasting
the courts is to determine which of the two conflicting and/or good customs injurious to the prestige of the (1941)]
interests demands greater protection. [American STATE REGULATION OF DIFFERENT TYPES OF MASS Republic of the Philippines and its people, or with a
Communications Assoc. v. Douds, 339 US 282] MEDIA dangerous tendency to encourage the commission of a Strict rules have also been allowed for radio because of its
violence or of a wrong or a crime. pervasive quality and because of the interest in the
(1) The ownership and management of mass media shall
The test is applied when two legitimate values not protection of children. [FCC v. Pacifica Foundation (1978)]
be limited to citizens of the Philippines, or to corporations,
involving national security crimes compete.[Gonzales v. The law gives the Board the power to screen, review and
cooperatives or associations, wholly-owned and managed
COMELEC (1969)] examine ALL “television programs” whether religious, COMMERCIAL SPEECH
by such citizens. public affairs, news documentary, etc. (Ubilex non Commercial speech is unprotected speech. Commercial
DIRECT INCITEMENT TEST distinguit nec distinguere de bemos-when the law does not advertising in the U.S. has been accorded First
The Congress shall regulate or prohibit monopolies in
The constitutional guarantees of free speech and free make any exception, courts may not except something Amendment protection but not in the same level of
press do not permit a State to forbid or proscribe advocacy commercial mass media when the public interest so therefrom). [Iglesia ni Cristo v. CA (1996)] protection given to political speech. One case set down the
requires. No combinations in restraint of trade or unfair
of the use of force or of law violation except where such requirements for protection of commercial speech:
competition therein shall be allowed.
advocacy is directed to inciting or producing imminent Also, notwithstanding the fact that freedom of religion has (1) speech must not be false, misleading or proposing an
lawless action and is likely to incite or produce such action. been accorded a preferred status, Iglesiani Cristo’s illegal activity;
(2) The advertising industry is impressed with public
[Brandenburg v. Ohio (395 U.S. 444)] program is still not exempt from MTRCB’s power to review. (2) government interest sought to be served by regulation
interest, and shall be regulated by law for the protection of Freedom of expression and of the press has not been must be substantial;
consumers and the promotion of the general welfare.
Political discussion even among those opposed to the declared of preferred status. [MTRCB v. ABS-CBN (2005)] (3) the regulation must advance government interest; and
present administration is within the protective clause of (4) the regulation must not be overbroad. [Bernas]
freedom of speech and expression. The same cannot be Only Filipino citizens or corporations or associations at On the program of Dating Daan, Soriano made crude
least seventy per centum of the capital of which is owned
construed as subversive activities per se or as evidence of remarks like “lihitimong anak ng demonyo, sinungaling, PRIVATE V. GOVERNMENT SPEECH
by such citizens shall be allowed to engage in the
membership in a subversive organization. [Salonga v. Cruz etc.” MTRCB preventively suspended him and his show. Parliamentary immunity guarantees the members the
advertising industry.
Paño(1986)] SC held that the State has a compelling interest to protect freedom of expression without fear of being made
the minds of the children who are exposed to such responsible in criminal or civil actions before courts or
GRAVE-BUT-IMPROBABLE DANGER TEST
The participation of foreign investors in the governing body materials. [Soriano v. Laguardia (2009)] forum outside of Congress. But this does not protect them
of entities in such industry shall be limited to their
To determine the clear and present danger of the from responsibility from the legislative body. The members
proportionate share in the capital thereof, and all the
utterances bringing about the evil which that legislature The SC could not compel TV stations and radio stations, may nevertheless be questioned in Congress itself.
has the power to punish, "In each case [courts] must ask executive and managing officers of such entities must be being indispensable parties, to give UNIDO free air time as
citizens of the Philippines. [Art. XVI, Sec. 11(1)]
whether the gravity of the 'evil,' discounted by its they were not impleaded in this case. UNIDO must seek a For unparliamentary conduct, members of the Congress
improbability, justifies such invasion of free speech as is have been, or could be censured, committed to prison,
PAGE 69 PAGE 70
even expelled by the votes of their colleagues. [Osmeña v. charitable, or educational purposes shall be exempt from CONSCIENTIOUS OBJECTOR
Pendatun (1960)] taxation. [Art. VI, Sec. 28 (3)] Ground for exemption from compulsory military service;
LAWS AND ACTS JUSTIFIED UNDER FREE EXERCISE CLAUSE expanded version provides exemption even to those who
HECKLER’S VETO (2) Operation of sectarian schools (1) Exemption from flag salute in school [Ebralinag vs. object war based on non-religious beliefs i.e. non-theist
An attempt to limit unpopular speech. For example, an Educational institutions, other than those established by Division Superintendent of Schools of Cebu (1993)]
unpopular group wants to hold a rally and asks for a religious groups and mission boards, shall be owned solely (2) Freedom to propagate religious doctrines Criteria:
permit. The government isnot allowed to refuse the permit The power to tax the exercise of the privilege is the (1) There must be belief in God or a parallel belief
by citizens of the Philippines or corporations or
based upon the beliefs of the applicants. But the associations at least sixty per centum of the capital of power to control or suppress its enjoyment [American occupying a central place in the believer’s life
government can deny the permit, reasoning that it isnot Bible Society vs. City of Manila (1957)] (2) Religion must involve a moral code transcending
which is owned by such citizens… [Art. XIV, Sec. 4(2)]
because the government disapproves of the group's (3) Exemption from union shop individual belief; cannot be purely subjective
message, it is just afraid that so many people will be Congress acted merely to relieve persons of the burden (3) Demonstrable sincerity in belief must be shown, but
outraged that there might be violent protests. Under the (3) Religious instruction in public schools imposed by union security agreements. court cannot inquire into its truth or reasonableness
Free Speech Clause of Sec. 4 Art. III, the government may At the option expressed in writing by the parents or (4) Non-disqualification of religious leaders from local [United States v. Seeger, 380 U.S. 163 (1965)]
not silence speech based on the reaction (or anticipated guardians, religion shall be allowed to be taught to their government office [Pamil v. Teleron (1978)] (4) There must be some associational ties. [Estrada v.
reaction) of a hostile audience, unless there is a "clear and children or wards in public elementary and high schools Escritor (2003)]
present danger" of grave and imminent harm, which isnot within the regular class hours by instructors designated or Dean Pangalangan: There should be no distinction
easy to prove. approved by the religious authorities of the religion to between ordinary believer and the Pope; if the former can
which the children or wards belong, without additional hold office, why not the latter.
cost to the Government. [Art. XIV, Sec. 3(3)]
(5) Working hours from 7:30am to 3:30pm without break Liberty of Abode and
Freedom of Religion The government promotes the full growth of the faculties
of every child. For this purpose, the government will
during Ramadan [Re: Request of Muslim Employees in
the Different Courts of Iligan City (2005)] Freedom of Movement
establish, whenever possible:
No law shall be made respecting an establishment of (1) Schools in every barrio, municipality and city where (6) Exemption from administrative charge on immorality The liberty of abode and of changing the same within the
religion; or prohibiting the free exercise thereof. The free optional religious instruction shall be taught as part of Cohabiting with a married man with church sanction limits prescribed by law shall not be impaired except upon
exercise and enjoyment of religious profession and the curriculum at the option of the parent or guardian. evidenced by a document of “Declaration of Pledging lawful order of the court. Neither shall the right to travel be
worship, without discrimination or preference, shall forever xxx [Art. 359, Civil Code] Faithfulness” [Estrada v. Escritor (2003)] impaired except in the interest of national security, public
be allowed. No religious test shall be required for the safety or public health, as may be provided by law. [Art. III,
exercise of civil or political rights. [Art. III, Sec. 5] BENEVOLENT NEUTRALITY DOCTRINE Sec. 6]
(4) Public aid to religion
Gives room for accommodating religion, holding that the
No public money or property shall be appropriated, wall is instead meant to protect the church from the state.
NON-ESTABLISHMENT CLAUSE applied, paid, or employed, directly or indirectly, for the "Liberty" as understood in democracies, is not license; it is
CONCEPT
It allows interaction between the church and state, but is "Liberty regulated by law."
use, benefit, or support of any sect, church, denomination, strict re: state action, which would threaten the integrity of
The clause prohibits excessive government entanglement sectarian institution, or system of religion, or of any priest, religious commitment.
with, endorsement or disapproval of religion [Victoriano v. preacher, minister, other religious teacher, or dignitary as LIMITATIONS
Elizalde Rope Workers Union (1974); Lynch v. Donnelly, 465 such, except when such priest, preacher, minister, or WHO MAY IMPAIR AND WHEN RIGHTS MAY BE CURTAILED
The breach in the wall between church and state is
US 668 (1984) O'Connor, J., concurring); Allegheny County v. dignitary is assigned to the armed forces, or to any penal Liberty of abode
Greater Pittsburg ACLU (1989)] allowed in order to uphold religious liberty, which is the Who: courts (lawful order)
institution, or government orphanage or leprosarium.[Art. VI, integral purpose of the religion clauses. The purpose of
Sec. 29(2)] When:within limits prescribed by law
accommodation is to remove the burden on a person’s
BASIS
Rooted in the separation of Church and State [Sec. 2(5), exercise of his religion. The executive of a municipality does not have the right to
Jurisprudence
Art. IX-C; Sec. 5(2), Sec. 29(2) Art. VI, 1987 Consti] force citizens of the Philippine Islands to change their
Religious activities with secular purpose/character.— Although morality contemplated in laws is secular,
domicile from one locality to another. [Villavicencio vs.
Postage stamps depicting Philippines as the site of a benevolent neutrality could allow for accommodation of
ACTS NOT PERMITTED BY NON-ESTABLISHMENT CLAUSE Lukban (1919)]
significant religious event – promotes Philippine tourism morality based on religion, provided it does not offend
(1) Prayer and Bible-reading in public schools [Engel v.
[Aglipay vs. Ruiz, (1937)] compelling state interests. [Estrada v. Escritor (2003)]
Vitale (1967); Abington School District v. Schemp (1963)] Right to travel
(2) Financial subsidy for parochial schools[Lemon vs. Who: courts (lawful order) or by the appropriate executive
Government sponsorship of town fiestas. – has secular TESTS
Kurtzman (1971)] officer.
character [Garces vs. Estenzo (1981)] CLEAR AND PRESENT DANGER
(3) Religious displays in public spaces: Display of granite
Used for religious speech
monument of 10 commandments in front of a When: in the interest of national security (Human Security
Book lending program for students in parochial schools. –
courthouse is unconstitutional for being unmistakably Act), public safety or public health (quarantine)
benefit to parents and students [Board of Education vs. In orderto justify restraint the court must determine
non-secular. [Glassroth vs. Moore, 335 F.3d 1282 (11th
Allen, 392 U.S. 236] whether the expression presets a clear and present danger
Cir. 2003)] Relocation of Manguinaes, a nomadic people, is a proper
(4) Mandatory religious subjects or prohibition of secular ofany substantive evil, which the state has a right restraint to their liberty. It is for their advancement in
Display of crèche in a secular setting – depicts origins of toprevent. [American Bible Society v City of Manila (1957)
subjects (evolution) in schools [Epperson vs. Arkansas civilization and so that material prosperity may be assured.
the holiday [Lynch vs. Donnely (1984)] citing Tañada and Fernando on the Constitution of the
(1968)] [Rubi vs. Provincial Board (1919)]
(5) Mandatory bible reading in school (a form of preference Philippines, Vol. 1, 4th ed., p. 297]
Financial support for secular academic facilities(i.e library
for belief over non-belief) [School District vs. Schempp Restraint on right to travel of accused on bail is allowed to
and science center) in parochial schools – has secular use BENEVOLENT NEUTRALITY-COMPELLING STATE INTEREST
(1963)] avoid the possibility of losing jurisdiction if accused travels
[Tilton vs. Richardson (403 U.S. 672)] Under the Benevolent Neutrality doctrine, this is the proper
(6) Word “God” in the Pledge of Allegiance: religious vs abroad. [Manotok vs. CA (1986)]
test where conduct arising from religious belief is involved.
atheist students [Newdow vs. US (2003)]
Exemption from zoning requirements to accommodate (1) Has the gov’t action created a burden on the free RIGHT TO TRAVEL
unique architectural features of religious buildings i.e exercise? Court must look into sincerity (but not truth)
ACTS PERMITTED BY THE ESTABLISHMENT CLAUSE WATCH LIST ORDER
Mormon’s tall pointed steeple [Martin vs. Corporation of the of belief.
Constitutionally created Issued against accused in criminal cases (irrespective of
Presiding Bishop (434 Mass. 141)] (2) Is there a compelling state interest to justify the
(1) Tax exemption nationality in RTC or below), any person with pending case
infringement?
Charitable institutions, churches and personages or in DOJ
FREE EXERCISE CLAUSE (3) Are the means to achieve the legitimate state objective
convents appurtenant thereto, mosques, non-profit DUAL ASPECT the least intrusive? [Escritor, supra]
cemeteries, and all lands, buildings, and improvements, (1) Freedom to believe - absolute
actually, directly, and exclusively used for religious, (2) Freedom to act on one’s belief – subject to regulation
PAGE 71 PAGE 72
HOLD-DEPARTURE ORDER Policy Of Full Public Right To Info On Matters this moment, the public’s right to information attaches,
Issued against accused in criminal cases (irrespective of Disclosure Of Public Concern PUBLICATION OF LAWS AND REGULATIONS and any citizen can assail the non-proprietary information
nationality in courts below RTC), aliens (defendant, Art. Ii, Sec. 28 Art. Iii, Sec. 7 General: Full publication is a condition for law’s effectivity. leading to such definite prop. [Chavez v. PEA, supra]
respondent, witness in pending civil or labor case), any What is asserted
person motu proprio by Sec of Justice or request of heads Scope: All statutes [includes those of local application and The limitations recognized to the right of information are:
of dept’s, ConComm, Congress, or SC DUTY TO DISCLOSE of the RIGHT TO ACCESS INFO. private laws], presidential decreesand executive orders by
gov’t, pursuant to the policy See below for documents (1) National security matter including state secrets
President acting under power either directly conferred by regarding military and diplomatic matters, inter-
Both orders are issued by Secretary of Justice [Department of full public disclosure specifically under scope the Constitution or validly delegated by the legislature, government exchanges prior to the conclusion of
Circular no. 41, June 7, 2010]. and administrative rules and regulations for implanting treaties and executive agreements.
existing laws, charter of a city, circulars by Monetary Board (2) Trade secrets and banking transactions
RETURN TO ONE’S COUNTRY Internal regulations and letter of instructions concerning (3) Criminal Matters
Right to return to one's country, a distinct right under Notes guidelines for subordinates and not the public are not (4) Other confidential matters. [Neri v. Senate (2008) citing
international law, is independent from although related to included Chavez v. President Commission on Good Government]
Public Concern: no exact
the right to travel.
definition and
Effectivity: Fifteen days after publication unless a different
adjudicated by the courts DIPLOMATIC NEGOTIATIONS
The President has the power (residual/implied) to impair effectivity date is fixed by the legislature [Tañada v. Tuvera Diplomatic secrets (Diplomatic Negotiations Privilege):
on a case-by-case basis;
the right to return when such return poses threats to the (1986)] Secrecy of negotiations with foreign countries is not
but examples abound in
government. [Marcos v. Manglapus (1989)] violative of the right to information. Diplomacy has a
jurisprudence (e.g. peace
ACCESS TO COURT RECORDS confidential nature. While the full text [of the JPEPA] may
negotiations, board
exams, PCGG SECTION 1. Court personnel shall not disclose to any not be kept perpetually confidential, it is in line with the
compromise agreements, unauthorized person any confidential information acquired public interest that the offers exchanged during
Right to Information civil service matters) by them while employed in the judiciary, whether such
information came from authorized or unauthorized
negotiations continue to be privileged information.
Furthermore, the information sought includes docs
SCOPE OF RIGHT TO ACCESS INFORMATION sources. produced and communicated by a party external to the
Subject to reasonable conditions prescribed by law, the Essence: matters of public concern PHL gov’t. However, such privilege is merely presumptive,
State adopts and implements a policy of full public (1) Official records Confidential information means information not yet made and will not apply to all cases. [Akbayan v. Aquino (2008)]
disclosure of all its transactions involving public interest. Includes the names of nominees of party-lists because a matter of public record relating to pending cases, as well
[Art. II, Sec. 28] ultimately, the individual members and not the party as information not yet made public concerning the work of COURT HEARINGS
list itself will sit in Congress [Bantay Republic v. any justice or judge relating to pending cases, including Right of accused over right to public information:
COMELEC (2007)] notes, drafts, research papers, internal discussions, With the possibility of losing not only the precious liberty
The right of the people to information on matters of public
(2) Documents pertaining to official acts internal memoranda, records of internal deliberations and but also the very life of an accused, it behooves all to make
concern shall be recognized. Access to official records, and similar papers.
to documents and papers pertaining to official acts, Includes negotiations leading to the consummation of absolutely certain that an accused receives a verdict solely
the transaction. Otherwise, the people can never on the basis of a just and dispassionate judgment, a verdict
transactions, or decisions, as well as to government The notes, drafts, research papers, internal discussions,
exercise the right if no contract is consummated, or if that would come only after the presentation of credible
research data used as basis for policy development, shall internal memoranda, records of internal deliberations and
be afforded the citizen, subject to such limitations as may one is consummated, it may be too late for the public evidence testified to by unbiased witnesses unswayed by
to expose its defects. Limited to definite propositions, similar papers that a justice or judge uses in preparing a any kind of pressure, whether open or subtle, in
be provided by law. [Art. III, Sec. 7] decision, resolution or order shall remain confidential even
see below. [Chavez v. PEA and Amari (2002)] proceedings that are devoid of histrionics that might
(3) Gov’t research data used as basis for policy after the decision, resolution or order is made public. detract from its basic aim to ferret veritable facts free from
The State shall provide the policy environment for the full development [Canon II Confidentiality Code of Conduct for Court improper influence, and decreed by a judge with an
development of Filipino capability and the emergence of Personnel (AM No. 03-06-13-SC)] unprejudiced mind unbridled by running emotions or
communication structures suitable to the needs and LIMITATIONS passions. [Re: Request for Live Radio-TV Coverage of the
aspirations of the nation and the balanced flow of Restrictions to the right to information may be: Decisions are matters of public concern and interest. Trial in the Sandiganbayan of the Plunder Cases against
information into, out of, and across the country, in (1) Based on kinds of information former President Joseph Ejercito Estrada, Secretary of Justice
accordance with a policy that respects the freedom of Pleadings and other documents filed by parties to a case Hernando Perez v. Joseph Ejercito Estrada, A.M. No. 00-1-4-
speech and of the press. [Art. XVI, Sec. 10] Exempted information: need not be matters of public concern or interest. They are 03-SC, June 29, 2001]
(a) Privileged information rooted in separation of powers filed for the purpose of establishing the basis upon which
POLICY OF FULL PUBLIC DISCLOSURE V. RIGHT TO (b) Information of military and diplomatic secrets the court may issue an order or a judgment affecting their
INFORMATION (c) Information affecting national security rights and interest.
[See IDEALS v. PSALM (2012)]
Policy Of Full Public Right To Info On Matters
(d) Information on investigations of crimes by law
enforcers before prosecution [Chavez v. PEA and Access to court records may be permitted at the discretion Right to Association
Disclosure Of Public Concern Amari, supra] and subject to the supervisory and protective powers of the
Art. Ii, Sec. 28 Art. Iii, Sec. 7 (e) Offers exchanged during diplomatic negotiations court, after considering the actual use or purpose for which The right of the people, including those employed in the
Matter [Akbayan v. Aquino (2008)] the request for access is based and the obvious prejudice public and private sectors, to form unions, association, or
to any of the parties.[Hilado, et al v. Judge (2006)] societies for purposes not contrary to law shall not be
All transactions involving Matters of public concern (2) Based on access: abridged. [Art. III., Sec. 8]
public interest; (a) opportunity to inspect and copy records at his RIGHT TO INFORMATION RELATIVE TO
Broad scope, embraces any expense. [Chavez v. PEA and Amari, supra] GOVERNMENT CONTRACT NEGOTIATIONS
matter contained in official (b) not the right to compel custodians of official records The constitutional right to information includes official The right to self-organization shall not be denied to
communications and public to prepare lists, summaries and the like. [Valmonte information on on-going negotiations before a final government employees. [Art. IX—B, Sec. 2(5)]
documents of the gov’t v. Belmonte (1989)] contract. The information, however, must constitute
agency (3) Based on reasonable regulation for the convenience of definite propositions by the government, and should not xxx. It shall guarantee the rights of all workers to self-
Demand to Access and for order in the office that has custody of the cover recognized exceptions. [Chavez v. Philippine Estate organization, collective bargaining and negotiations, and
documents.[Baldoza v. Dimaano (1976)] Authority (2002)] peaceful concerted activities, including the right to strike in
Demand or request
required to gain access Discretion does not carry with it the authority to accordance with law. They shall be entitled to security of
prohibit access, inspection, examination, or Definite propositions: While evaluation of bids or proposals tenure, humane conditions of work, and a living wage.
(IDEALS)
copying.[Lantaco v. Llamas (1981)] is on-going, there are no “official acts, transactions, or They shall also participate in policy and decision-making
(4) Based on Availability decisions.” However, once the committee makes an official processes affecting their rights and benefits as may be
Right available only to citizens recommendation, there arises a definite proposition. From provided by law. [Art. XIII, Sec. 3]
PAGE 73 PAGE 74
expropriated per current tax declaration. [Biglang-Awa v. (4) Property must be devoted to public use or otherwise
Origin: Malolos Constitution COMMUNIST AND SIMILAR ORGANIZATIONS Judge Bacalla (2000); Bardillon v. Barangay Masili of informally appropriated or injuriously affected
The basic guidelines for prosecution under the Anti- Calamba, Laguna (2003)] (5) Utilization of the property must be in such a way as to
Interpretation of “for purposes not contrary to law”: same Subversion Act, are the following elements for the crime to oust the owner and deprive him of beneficial enjoyment
as clear and present danger rule, only such may justify be established: SCOPE AND LIMITATIONS of the property. [Republic v. Castellvi (1974)]
abridgement to the right to form association or society. (1) In case of subversive organizations other than the CPP: All Private Property capable of ownership may be
[Gonzales v. COMELEC (1969)] (a) that the purpose of the organization is to overthrow the expropriated, except money and choses in action. Even DUE PROCESS
present Government of the Philippines and to establish services may be subject to eminent domain. [Republic v. Hearing or procedure for determination of propriety of the
Scope: The right is recognized as belonging to people in this country a totalitarian regime under the PLDT (1969)] expropriation or the reasonableness of the compensation
whether employed or unemployed, and whether employed domination of a foreign power; must be provided. [Belen v. CA (1991)]
in the government or in the private sector. Includes the right (b) that the accused joined such organization; and Exercise of right to eminent domain is strictly construed
to unionize (c) that he did so knowingly, willfully and by overt acts; and against the State or its agent because such right is EXPANSIVE CONCEPT OF “PUBLIC USE”
(2) In the case of the CPP: necessarily in derogation of private rights. [Jesus is Lord The idea that "public use" means "use by the public" has
The State does not infringe on the fundamental right to (a) that the CPP continues to pursue the objectives which Christian School Foundation v. Municipality of Pasig (2005)] been discarded. At present, whatever may be beneficially
form lawful associations when it leaves to citizens the led Congress in 1957 to declare it to be an organized employed for the general welfare satisfies the requirement
power and liberty to affiliate or not affiliate with labor conspiracy for the overthrow of the Government by NECESSITY of public use. [Heirs of Juancho Ardona vs. Reyes (1983)]
unions. [Victoriano v. Elizalde (1974)] illegal means for the purpose of placing the country The foundation of the right to exercise eminent domain is
under the control of a foreign power; genuine necessity and that necessity must be of public That only a few benefits from the expropriation does not
Every group has a right to join the democratic process, (b) that the accused joined the CPP; and character. Government may not capriciously or arbitrarily diminish its public-use character, inasmuch as pubic use
association itself being an act of expression of the (c) that he did so willfully, knowingly and by overt acts. choose which private property should be expropriated. now includes the broader notion of indirect public benefit or
member’s belief, even if the group offends the sensibilities [People v. Ferrer (1972)] [Lagcao v. Judge Labra (2004)] advantage [Filstream International vs. CA (1998)]
of the majority. Any restriction to such requires a
compelling state interest to be proven by the State. [Ang INTEGRATED BAR OF THE PHILIPPINES Congress - political question Private bus firms, taxicab fleets, roadside restaurants, and
Ladlad LGBT Party v. COMELEC (2010)] Compulsory membership of a lawyer in the integrated bar other private businesses using public streets and highways
of the Philippines does not violate the constitutional Delegate do not diminish in the least bit the public character of
The freedom of association presupposes a freedom not to guarantee. [In Re: Edillon (1978)] (a) Grant of special authority for special purpose- political expropriations for roads and streets. The lease of store
associate. An organization may remove a member if: question spaces in underpasses of streets built on expropriated land
(1) It is engaged in some form of expression, whether public (b) Grant of general authority- justiciable question [City of does not make the taking for a private purpose. Airports
or private Manila v. Chinese Community of Manila (1919)] and piers catering exclusively to private airlines and
(2) The forced inclusion of a member would significantly
affect the organization’s ability to advocate public or Eminent Domain When the power is exercised by the legislature, the
shipping companies are still for public use. The
expropriation of private land for slum clearance and urban
private viewpoints [Boy Scouts of America v. Dale question of necessity is generally a political question. development is for a public purpose even if the developed
(2000)] CONCEPT [Municipality of Meycauyan, Bulacan v. Intermediate area is later sold to private homeowners, commercial firms,
It is the right of the government to take private property Appellate Court (1988)] entertainment and service companies, and other private
Does not include the right to compel others to form an with just compensation. concerns. [Heirs of Ardona vs. Reyes (1983)]
association. But there may be situations in which, by The RTC has the power to inquire into the legality of the
entering into a contract, one may also be agreeing to join GENERALLY exercise of the right of eminent domain and to determine JUST COMPENSATION
an association. [Bernas] (1) Taking of Private Property whether there is a genuine necessity for it. [Bardillon v. It is the just and complete equivalent of the loss which the
(2) for Public Use, Barangay Masili of Calamba, Laguna (2003)] owner of the thing expropriated has to suffer by reason of
If a land buyer who buys a lot with an annotated lien that (3) with Just Compensation, and the expropriation.
the lot owner becomes an automatic member of a (4) Due Process. PRIVATE PROPERTY
homeowners’ association thereby voluntarily joins the Private property already devoted to public use cannot be Full and fair equivalent of the property taken; it is the fair
association. [Bel-Air Village Association v. Diokno (1989)] SPECIFICALLY (LGUs, Sec. 19, Local Government Code) expropriated by a delegate of legislature acting under a market value of the property. [Province of Tayabas vs. Perez
(1) Ordinance by a local legislature council is enacted general grant of authority. [City of Manila v. Chinese (1938)]
Note: Right to association and right to unionize of authorizing local chief executive to exercise eminent Community (1919)]
government employees do not include the right to strike. domain, DETERMINATION
[SSS Employees Association v. CA (1989)] (2) For public use, purpose or welfare or for the benefit of Generally, all private property capable of ownership may Basis:
the poor and of the landless, be expropriated, except money and chooses in action. Fair Market Value
LABOR UNIONISM (3) Payment of just compensation, [Republic v. PLDT (1969)] Price fixed by a buyer desirous but not compelled to buy
LEGAL PERSONALITY AS PRE-CONDITION FOR EFFECTIVE (4) Valid and definite offer has been previously made to and a seller willing but not compelled to sell.
ASSOCIATION ACTION owner of the property sought to be expropriated but A chose in action is a proprietary right in personam, such as
The right to form associations does not necessarily include such offer was not accepted [Municipality of Parañaque debts owned by another person, a share in a joint-stock Must includeconsequential damages (damages to other
the right to be given legal personality. However, if the law vs. VM Realty (1998)] company, or a claim for damages in tort; it is the right to interest of the owner attributable to the expropriation) and
itself should make possession of legal personality a pre- bring an action to recover a debt, money or thing [Black’s deduct consequential benefits (increase of value of other
condition for effective associational action, involved would WHO HAS JURISDICTION? Regional Trial Court Law Dictionary] interests attributable to new use of the former property).
be not just the right to have legal personality but also the While the value of the property to be expropriated is
right to be an association. [Philippine Association of Free estimated in monetary terms – for the court is duty bound TAKING However, where only a portion of the property is taken, the
Labor Unions v. Secretary of Labor (1969)] to determine the amount of just compensation to be paid The exercise of the power of eminent does not always owner is entitled only to the market value of the portion
for the property – it is merely incidental to the result in the taking or appropriation of title to the actually taken and the consequential damage to the
ELIGIBILITY TO JOIN, ASSIST OR FORM UNION EXPRESSLY DENIED BY expropriation suit [Barangay San Roque, Talisay, Cebu v. expropriated property; it may only result in the imposition remaining part.
LAW Heirs of Francisco Pastor (2000); Bardillion v. Barangay of a burden upon the owner of the condemned property,
The right of association of managerial employees is denied Masili of Calamba, Laguna (2003)] without loss of title or possession. [National Power Who Determines
because of Article 245 of the Labor Code which provides Corporation v. Gutierrez (1991)] Determination of just compensation is a judicial function.
that managerial employees are not eligible to join, assist or The issuance of a writ of possession becomes ministerial [National Power Corporation vs. Sps. Florimon V. Lleto, et al.,
form any labor organization. This is because Art III Sec 8 is upon the (1) filing of a complaint for expropriation Requisites for a valid taking: (2012)]
subject to the condition that its exercise is for the purposes sufficient in form and substance, and (2) upon deposit (1) The expropriator must enter a private property
not contrary to law. [United Pepsi-Cola Supervisory Union made by the government of the amount equivalent to 15% (2) Entry must be for more than a momentary period
(UPSU) v. Laguesma (1998)] of the fair market value of the property sought to be (3) Entry must be under warrant or color of legal authority
PAGE 75 PAGE 76
Presidential Decrees merely serve as guide/factors for the beneficiary. [Sta. Rosa Realty & Development Corp. v. Court (2) Affects rights of parties with reference to each other, and three thousand (P3,000.00) pesos a month if residing
courts in determining just compensation [EPZA vs. Dulay, of Appeals (2001)] and not with respect to non-parties. [Philippine Rural outside Metro Manila, and (b) who do not own real
148 SCRA 305] Electric Cooperatives Association v. Secretary, DILG property with an assessed value of more than fifty
Private property shall not be taken for public use without (2003)] thousand (P50,000.00) pesos shall be exempt from the
Findings of court appointed commissioners regarding the just compensation. [Art. III, Sec. 9] payment of legal fees.
determination of just compensation are not binding to CONTEMPORARY APPLICATION OF THE CONTRACT
courts [Republic v. Santos (1986); Republic (MECS) v. IAC CLAUSE The legal fees shall be a lien on any judgment rendered in
(1990)] The State may, in the interest of national welfare or WHEN NON-IMPAIRMENT CLAUSE PREVAILS: the case favorably to the indigent litigant, unless the court
defense, establish and operate vital industries and, upon (1) against power of taxation otherwise provides.
The court may substitute its own estimate of the value of payment of just compensation, transfer to public (2) regulation on loans
the property only for valid reasons: (a) the commissioners ownership utilities and other private enterprises to be To be entitled to the exemption herein provided, the
have applied illegal principles to the evidence submitted to operated by the government. [Art. XII, Sec. 18] New regulations on loans making redemption of property litigant shall execute an affidavit that he and his
them; (b) they have disregarded a clear preponderance of sold on foreclosure stricter are not allowed to apply immediate family do not earn a gross income
evidence; or (c) where the amount allowed is either grossly The State shall, by law, undertake an agrarian reform retroactively. [Co v. Philippine National Bank (1982)] abovementioned, nor they own any real property with the
inadequate or excessive. [National Power Corporation v. De program founded on the right of farmers and regular assessed value aforementioned, supported by an affidavit
la Cruz (2007)] farmworkers who are landless, to own directly or collectively WHEN NON-IMPAIRMENT CLAUSE YIELDS: of a disinterested person attesting to the truth of the
the lands they till or, in the case of other farmworkers, to (1) Invalid exercise of police power i.e zoning regulation litigant's affidavit.
When determined receive a just share of the fruits thereof. [Presley v. Bel-Air Village Association (1991)], premature
General: At the time of the filing of the case campaign ban [Chavez v. COMELEC (2004)], liquidation Any falsity in the affidavit of a litigant or disinterested
To this end, the State shall encourage and undertake the of a chartered bank [Philippine Veterans Bank person shall be sufficient cause to strike out the pleading
Exception: If the value of the property increased because of just distribution of all agricultural lands, subject to such Employees Union v. Philippine Veterans Bank (1990)] of that party, without prejudice to whatever criminal
the use to which the expropriator has put it, the value is priorities and reasonable retention limits as the Congress (2) Statute that exempts a party from any one class of liability may have been incurred. [Rule 141, Sec. 18, Rules of
that of the time of the taking. [NAPOCOR v. CA (1996)] may prescribe, taking into account ecological, taxes Court]
developmental, or equity considerations, and subject to the (3) Against freedom of religion [Victoriano v. Elizalde Rope
Legal interest: 6%, time when payment is due to actual payment of just compensation. Workers (1974)] Indigent party. — A party may be authorized to litigate his
payment (4) Judicial or quasi-judicial order action, claim or defense as an indigent if the court, upon an
In determining retention limits, the State shall respect the ex parte application and hearing, is satisfied that the party
EFFECT OF DELAY right of small landowners. The State shall further provide The non-impairment clause is a limit on legislative power, is one who has no money or property sufficient and
Just compensation means not only the correct amount to incentives for voluntary land-sharing. [Art. XIII, Sec. 4] and not of judicial or quasi-judicial power. The approval of available for food, shelter and basic necessities for himself
be paid to the owner of the land but also payment within a the Rehabilitation Plan by the Securities and Exchange and his family.
reasonable time from its taking [Eslaban v. De Onorio Commission is an exercise of adjudicatory power by an
(2001)] The State shall, by law, and for the common good, administrative agency and thus the non-impairment Such authority shall include an exemption from payment
undertake, in cooperation with the private sector, a clause does not apply. Neither does it impair the power to of docket and other lawful fees, and of transcripts of
General rule on delay of payment: continuing program of urban land reform and housing contract. [BPI v. SEC (2007)] stenographic notes which the court may order to be
For non-payement, the remedy is the demand of payment which will make available at affordable cost, decent housing
furnished him. The amount of the docket and other lawful
of the fair market value of the property and not the and basic services to under-privileged and homeless citizens Note:Timber licenses, permits, and license agreements are fees which the indigent was exempted from paying shall
recovery of possession of the expropriated lots. [Republic of in urban centers and resettlement areas. the principal instruments by which the State regulates the be a lien on any judgment rendered in the case favorable
the Philippines v. Court of Appeals (2002); Reyes v. National utilization and disposition of forest resources to the end to the indigent, unless the court otherwise provides.
Housing Authority (2003)] It shall also promote adequate employment opportunities that public welfare is promoted. They are not deemed
to such citizens. In the implementation of such program contracts within the purview of the due process of law
the State shall respect the rights of small property owners. Any adverse party may contest the grant of such authority
Exception: clause. [Oposa v. Factoran (1993)]
[Art. XIII, Sec. 9] at any time before judgment is rendered by the trial court.
When the government fails to pay just compensation
If the court should determine after hearing that the party
within five years from the finality of the judgment in the LIMITATIONS declared as an indigent is in fact a person with sufficient
expropriation proceedings, the owners concerned shall The National assembly may authorize, upon payment of It is ingrained in jurisprudence that the constitutional
income or property, the proper docket and other lawful
have the right to recover possession of their property. just compensation, the expropriation of private lands to be prohibition does not prohibit every change in existing laws. fees shall be assessed and collected by the clerk of court.
[Republic of the Philippines v. Vicente Lim (2005)] subdivided into small lots and conveyed at cost to To fall within the prohibition, the change must not only If the payment is not made within the time fixed by the
deserving citizens. [Art. XIV, Sec. 13] impair the obligation of the existing contract, but the
court, execution shall issue or the payment thereof,
ABANDONMENT OF INTENDED USE AND RIGHT OF impairment must be substantial. Moreover, the law must without prejudice to such other sanctions as the court may
REPURCHASE effect a change in the rights of the parties with reference to
impose. [Rule 3, Sec. 21, Rules of Court]
If the expropriator (government) does not use the property each other, and not with respect to non-parties. [Philippine
for a public purpose, the property reverts to the owner in fee Rural Electric Cooperatives Association v. Secretary, DILG
simple. [Heirs of Moreno vs. Mactan-Cebu International Contracts Clause (2003)] RA NO. 9999
FREE LEGAL ASSISTANCE ACT OF 2010
Airport (2005)]
Legal services- any activity which requires the application of
No law impairing the obligation of contracts shall be law, legal procedure, knowledge, training and experiences
MISCELLANEOUS APPLICATION
passed. [Art. III, Sec. 10] which shall include, among others, legal advice and
“TAKING” UNDER SOCIAL JUSTICE CLAUSE
Agrarian Reform (Art. XIII, Sec. 4):This provision is an
APPLICATION OF THE CONTRACT CLAUSE
Legal Assistance and Free counsel, and the preparation of instruments and contracts,
including appearance before the administrative and quasi-
exercise of the police power of the State through eminent
domain (Association of Small Landowners vs. Secretary of Impairment is anything that diminishes the efficacy of the
contract. [Clements v. Nolting (1922)]
Access to Courts judicial offices, bodies and tribunals handling cases in
court, and other similar services as may be defined by the
Agrarian Reform) as it is a means to regulate private
property. Supreme Court.
REQUISITES:
Free access to the courts and quasi-judicial bodies and
(1) Substantial impairment adequate legal assistance shall not be denied to any
Retention limits prescribed by the Comprehensive person by reason of poverty. [Art. III, Sec. 11] Section 4. Requirements for Availment. - For purposes of
Agrarian Reform Law is also form of taking under the (a) change the terms of legal contract either in time or availing of the benefits and services as envisioned in this
power of eminent domain. The taking contemplated is not mode of performance Act, a lawyer or professional partnership shall secure a
a mere limitation on the use of the land, but the surrender (b) impose new conditions SEC. 18. Indigent litigants exempt from payment of legal certification from the Public Attorney's Office (PAO), the
of the title to and physical possession of the excess and all (c) dispenses with expressed conditions fees.—Indigent litigants (a) whose gross income and that of Department of Justice (DOJ) or accredited association of
beneficial rights accruing to the owner in favor of the (d) authorizes for its satisfaction something different from their immediate family do not exceed four thousand the Supreme Court indicating that the said legal services
that provided in the terms (P4,000.00) pesos a month if residing in Metro Manila, to be provided are within the services defined by the
PAGE 77 PAGE 78
Supreme Court, and that the agencies cannot provide the (1) He has a right to remain silent; plain information which may appear innocent or innocuous
legal services to be provided by the private counsel. (2) That any statement he makes may be used as evidence at the time, from said suspect [Gamboa v. Cruz (1988)] Not competent counsel: lawyer signing only as witness
against him; and [People v. Ordono (June 2000)], mayor of town where
For purpose of determining the number of hours actually (3) That he has a right to the presence of an attorney, POLICE LINE-UPS accused is detained [People v. Velarde (2002)]
provided by the lawyer and/or professional firm in the either retained or appointed. When petitioner was identified by the complainant at the
provision of legal services, the association and/or police line-up, he had not been held yet to answer for a Failure to ask for a lawyer does not constitute a waiver.
organization duly accredited by the Supreme Court shall RA 7438, RIGHTS OF PERSONS UNDER CUSTODIAL criminal offense. The police line-up is not a part of the
issue the necessary certification that said legal services INVESTIGATION custodial inquest, hence, he was not yet entitled to counsel. No effective waiver of the right to counsel during
were actually undertaken. Section 1. Statement of Policy. - It is the policy of the Senate interrogation can be recognized unless specifically made
to value the dignity of every human being and guarantee Thus, it was held that when the process had not yet shifted after the warnings have been given.
Section 5. Incentives to Lawyers. - For purposes of this Act, full respect for human rights from the investigatory to the accusatory as when police
a lawyer or professional partnerships rendering actual free investigation does not elicit a confession the accused may Request for assistance of counsel before any interrogation
legal services, as defined by the Supreme Court, shall be Section 2. Rights of Persons Arrested, Detained or Under not yet avail of the services of his lawyer. [Escobedo v. Illinois cannot be ignored/denied by authorities. Not only right to
entitled to an allowable deduction from the gross income, Custodial Investigation; Duties of Public Officers. – of the United States Federal Supreme Court (1964)] consult with an attorney but right to be given a lawyer to
the amount that could have been collected for the actual free Any public officer or employee, or anyone acting under his represent him if he’s indigent
legal services rendered or up to ten percent (10%) of the gross order or his place, who arrests, detains or investigates any However, given the clear constitutional intent in the 1987
income derived from the actual performance of the legal person for the commission of an offense: Constitution, the moment there is a move or even an urge RIGHTS TO VISITATION AND CONFERENCE
profession, whichever is lower: Provided, That the actual (1) shall inform the latter, in a language known to and of said investigators to elicit admissions or confessions or Sec. 2. Rights of Persons Arrested, Detained or Under
free legal services herein contemplated shall be exclusive understood by him, even plain information which may appear innocent or Custodial Investigation; Duties of Public Officers. – (f) Any
of the minimumsixty (60)-hour mandatory legal aid services (2) of his rights to remain silentand innocuous at the time, from said suspect, he should then person arrested or detained or under custodial
rendered to indigent litigants as required under the Rule (3) to have competent and independent counsel, and there be assisted by counsel, unless he waives the investigation shall be allowed visits by or conferences with:
on Mandatory Legal Aid Services for Practicing Lawyers, preferably of his own choice, right, but the waiver shall be made in writing and in the (1) any member of his immediate family, or
under BAR Matter No. 2012, issued by the Supreme Court. (4) who shall at all times be allowed to confer privately presence of counsel. [Gamboa vs. Cruz (1988)] (2) any medical doctor;
with the person arrested, detained or under custodial (3) priest or religious ministerchosen by him; or
Note: The significance of having an explicit “free access” investigation. REQUISITES (4) by his counsel; or
provisions in the Constitution may be gathered from the (5) If such person cannot afford the services of his own Essence: Effective communication by the investigator of (5) by any national non-governmental organization duly
rocky road which “free access” seems to have traveled in counsel, he must be provided with a competent and rights of accused [People v. Agustin (1995)] accredited by the Commission on Human Rights or
American jurisprudence. The American constitution does independent counsel by the investigating officer. (6) by any international non-governmental organization
not have an explicit free access provision and, hence, its RIGHT TO REMAIN SILENT duly accredited by the Office of the President.
free access doctrine has been developed as implicit from AVAILABILITY The warning is needed simply to make the person under (7) The person's "immediate family" shall include his or her
both the equal protection clause and the due process custodial investigation aware of the existence of the right; spouse, fiance or fiancee, parent or child, brother or
(1) When the person is already under custodial
clause. [Bernas] investigation sister, grandparent or grandchild, uncle or aunt,
This warning is the threshold requirement for an intelligent nephew or niece, and guardian or ward.
(2) Custodial investigation involves any questioning
decision as to its exercise.
initiated by law enforcement
(3) During “critical pre-trial stages” in the criminal process WAIVER
More importantly, such a warning is an absolute pre-
Rights of Suspects CUSTODIAL INVESTIGATION
requisite in overcoming the inherent pressures of the
What can be waived
The right to remain silent and the right to counsel
Involves any questioning initiated by law enforcement interrogation atmosphere.
(1) Any person under investigation for the commission of an What cannot be waived
offense shall have the right to be informed of his right When the investigation is no longer a general inquiry unto Further, the warning will show the individual that his The right to be given the MIRANDA warnings.
interrogators are prepared to recognize his privilege
to remain silent and to have competent and an unsolved crime but has begun to focus on a particular
should he choose to exercise it.
independent counsel preferably of his own choice. If suspect, as when the suspect has been taken into police RULE ON WAIVER
the person cannot afford the services of counsel, he custody and the police carries out a process of (1) Must be in writing
RIGHT AGAINST SELF-INCRIMINATION UNDER ART. III, SEC. 12
must be provided with one. These rights cannot be interrogation that lends itself to eliciting incriminating (2) Made in the presence of counsel [Art. III, Sec. 12]
waived except in writing and in the presence of statements. [People vs. Mara (1994)] The warning of the right to remain silent must be
counsel. accompanied by the explanation that anything said can
and will be used against the individual in court. RA 7438, RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION
(2) No torture, force, violence, threat, intimidation, or any Includes issuing an invitation to a person under
other means which vitiate the free will shall be used investigationin connection with an offense he is suspected Section 2. Rights of Persons Arrested, Detained or Under
This warning is needed in order to make him aware not Custodial Investigation; Duties of Public Officers. –
against him. Secret detention places, solitary, to have committed. [Sec. 2, RA 7438]
only of the privilege to remain silent, but also of the (e) Any waiver by a person arrested or detained under the
incommunicado, or other similar forms of detention are
prohibited. CRITICAL PRE-TRIAL STAGE
consequences of forgoing it. provisions of Article 125 of the Revised Penal Code, or
(3) Any confession or admission obtained in violation of Any critical confrontation by the prosecution at pretrial under custodial investigation, shall be in writing and
this or Section 17 hereof shall be inadmissible in proceedingswhere the results might well determine his RIGHT TO COUNSEL signed by such person in the presence of his counsel;
evidence against him. fate andwhere the absence of counsel might derogate Rights of Persons Arrested, Detained or Under Custodial otherwise the waiver shall be null and void and of no
(4) The law shall provide for penal and civil sanctions for from his right to a fair trial. [U.S. vs. Wade (1967)] Investigation; Duties of Public Officers. – effect.
violations of this section as well as compensation to the (a) Any person arrested detained or under custodial
rehabilitation of victims of torture or similar practices, SHOW - UP AND POLICE LINE-UP investigation shall at all times be assisted by counsel; BURDEN OF PROVING VOLUNTARINESS OF WAIVER [PEOPLE V.
and their families. [Art. III, Sec. 12] General: No right to counsel otherwise the waiver shall be null and void and of no JARA, 1986]
effect. [RA 7438, Rights of Persons under Custodial Presumption against the waiver
In Miranda v. Arizona: The Federal Supreme Court made it Out-of-court identification like a “show up” (accused is Investigation; Section 2.] Burden of proof: prosecution
clear that what is prohibited is the "incommunicado brought face to face with the witness for identification), or prosecution must prove with strongly convincing evidence to
interrogation of individuals in a police dominated “police line-up” (suspect is identified by witness from a Essence: when a counsel is engaged by anyone acting on the satisfaction of this Court that indeed the accused:
atmosphere, resulting in self- incriminating statements group of persons gathered for that purpose) behalf of the person under investigation, or appointed by (1) Willingly and voluntarily submitted his confession and
without full warnings of constitutional rights.” the court upon petition by said person or by someone on (2) Knowingly and deliberately manifested that he was not
Exception: Right to counsel if accusatory his behalf. [People v. Espiritu (1999)] interested in having a lawyer assist him during the
MIRANDA RIGHTS taking of that confession.
The person under custodial investigation must be warned The moment there is a move or even an urge of said Competent and independent counsel preferably of the
that: investigators to elicit admissions or confessions or even suspects own choice
PAGE 79 PAGE 80
(2) In extradition proceedings. The accused cannot present evidence before the
Rights of the Accused (h) To have speedy, impartial and public trial. Extradition courts do not
render judgments of conviction
prosecution does so, even if the accused pleads guilty. It
violates the presumption of innocence. [Alejandro vs.
(i) To appeal in all cases allowed and in the manner or acquittal so it does not Pepito (1980)]
prescribed by law. [Rule 115, Rights of the Accused, matter WON the crimes the
(1) No person shall be held to answer for a criminal offense
Rules of Court] accused is being extradited for The presumption of regularity (in official duties) cannot by
without due process of law.
is punishable by reclusion itself prevail over the presumption of innocence of the
(2) In all criminal prosecutions, the accused shall be
CRIMINAL DUE PROCESS perpetua[US Gov’t. v. Judge accused. But where it is not the sole basis for conviction,
presumed innocent until the contrary is proved, and
Requisites [People vs. Vera (1937)] Puruganan and Mark Jimenez the presumption of regularity of performance of official
shall enjoy the right to be heard by himself and
(1) Accused is heard by a court of competent jurisdiction; (2002)] functions may prevail over the constitutional presumption
counsel, to be informed of the nature and cause of the
(2) Accused is proceeded against under the orderly process of innocence. [People vs. Acuram (2000)]
accusation against him, to have a speedy, impartial,
and public trial, to meet the witnesses face to face, and of law; WHEN AVAILABLE
(3) Accused is given notice and opportunity to be heard; General rule:From the very moment of arrest (which may be Equipoise Rule
to have compulsory process to secure the attendance
(4) Judgment rendered is within the authority of a before or after the filing of formal charges in court) up to Where the evidence adduced by the parties is evenly
of witnesses and the production of evidence in his
constitutional law. [Mejia vs. Pamaran (1988)] the time of conviction by final judgment (which means balanced, the constitutional presumption of innocence
behalf. However, after arraignment, trial may proceed
after appeal). should tilt the balance in favor of the accused. [Corpuz vs.
notwithstanding the absence of the accused: Provided,
BAIL People (1991)]
that he has been duly notified and his failure to appear
All persons, except those charged with offenses No charge need be filed formally before one can file for
is unjustifiable. [Art. III, Sec. 14]
punishable by reclusion perpetua when the evidence of bail, so long as one is under arrest. [Heras Teehankee v. In order that circumstantial evidence may warrant
Rovica (1945)] conviction, the following requisites must concur:
guilt is strong, shall, before conviction, be bailable by
sufficient sureties, or be released on recognizance as may (1) There is more than one circumstance
Section 1. Rights of accused at trial. – In all criminal Arraignment of the accused is not essential to the approval (2) The facts from which the inferences are derived are
be provided by law. The right to bail shall not be impaired
prosecutions, the accused shall be entitled to the following of the bail bond. When bail is authorized, it should be proven
even when the privilege of the writ of habeas corpus is
rights: granted before arraignment. Otherwise the accused may (3) The combination of all the circumstances is such as to
suspended. Excessive bail shall not be required. [Art. III,
(a) To be presumed innocent until the contrary is proved be precluded from filing a motion to quash. Also, the court produce conviction beyond reasonable doubt. [People
Sec. 13]
beyond reasonable doubt. will be assured of the presence of the accused at the v. Bato (1998)]
(b) To be informed of the nature and cause of the arraignment precisely by grating bail and ordering his
accusation against him. Bail is the security given for the release of a person in presence at any stage of the proceeding. [Lavides v. CA RIGHT TO BE HEARD
(c) To be present and defend in person and by counsel at custody of the law, furnished by him or a bondsman, (2000)] Any person under investigation for the commission of an
every stage of the proceedings, from arraignment to conditioned upon his appearance before any court as may offense shall have the right to be informed of his right to
promulgation of the judgment. The accused may, be required. [Rule 114, Sec. 1, ROC] Exceptions: remain silent and to have competent and independent
however, waive his presence at the trial pursuant to the (1) When charged with an offense punishable by reclusion counsel preferably of his own choice. If the person cannot
stipulations set forth in his bail, unless his presence is Basis of right: Presumption of innocence perpetua. afford the services of counsel, he must be provided with
specifically ordered by the court for purposes of (2) Traditionally, the right to bail is not available to the one. These rights cannot be waived except in writing and in
identification. WHO MAY AVAIL military, as an exception to the bill of rights. [People v. the presence of counsel. [Art. III, Sec. 12]
General: All persons under custody of the law Reyes (1992)]
The absence of the accused without justifiable cause at It means the accused is amply accorded legal assistance
the trial of which he had notice shall be considered a Exceptions: STANDARDS FOR FIXING BAIL extended by a counsel who commits himself to the cause
waiver of his right to be present thereat. (1) Those charged with capital offense when evidence of RULE 114. Sec. 9. Amount of bail; guidelines. – The judge of the defense and acts accordingly. It is an efficient and
guilt is strong who issued the warrant or granted the application shall fix truly decisive legal assistance, and not simply a
When an accused under custody escapes, he shall be Since the evidence (rebellion) in this case is hearsay, a reasonable amount of bail considering primarily, but not perfunctory representation. [People v. Bermas (1999)]
deemed to have waived his right to be present on all the evidence of guilt is not strong, bail is allowed. limited to, the following factors:
subsequent trial dates until custody over him is [Enrile v. Perez (En Banc Resolution, 2001)] (a) Financial liability of the accused to give bail; ASSISTANCE OF COUNSEL
regained. Upon motion, the accused may be allowed to (2) Military men [People v. Reyes (1992)] (b) Nature and circumstance of the offense;
defend himself in person when it sufficiently appears to RA 7438. Rights of Persons under Custodial Investigation.
Military men who participated in failed coup d’etat (c) Penalty for the offense charged;
the court that he can properly protect his rights without because of their threat to national security SEC. 2. Rights of Persons Arrested, Detained or Under
(d) Character and reputation of the accused; Custodial Investigation; Duties of Public Officers. – (a) Any
the assistance of counsel. [Comendador v. De Villa (1991)] (e) Age and health of the accused; person arrested detained or under custodial investigation
(f) Weight of the evidence against the accused; shall at all times be assisted by counsel;
(d) To testify as a witness in his own behalf but subject to BAIL AS A MATTER OF RIGHT VS. MATTER OF DISCRETION (g) Probability of the accused appearing at the trial;
cross-examination on matters covered by direct Matter of right Matter of Discretion (h) Forfeiture of other bail;
examination. His silence shall not in any manner Elements of the Right to Counsel
Bail is a matter of (1) In case the evidence of guilt is (i) The fact that the accused was a fugitive from justice (1) Court’s duty to inform the accused of right to counsel
prejudice him. when arrested; and
right in all cases not strong. In such a case, before being arraigned;
punishable by according to People v. San (j) Pendency of other cases where the accused is on bail. (2) It must ask him if he desires the services of counsel;
(e) To be exempt from being compelled to be a witness Excessive bail shall not be required.
against himself. reclusion perpetua. Diego (1966), the court's (3) If he does, and is unable to get one, the Court must
discretion to grant bail must be give him one; if the accused wishes to procure private
exercised in the light of a "Discretion is with the court called upon to rule on the counsel, the Court must give him time to obtain one.
(f) To confront and cross-examine the witnesses against
summary of the evidence question of bail. We must stress, however, that where (4) Where no lawyer is available, the Court may appoint
him at the trial. Either party may utilize as part of its
presented by the prosecution. conditions imposed upon a defendant seeking bail would any person resident of the province and of good repute
evidence the testimony of a witness who is deceased,
Thus, the order granting or amount to a refusal thereof and render nugatory the for probity and ability.
out of or cannot with due diligence be found in the
refusing bail must contain a constitutional right to bail, we will not hesitate to exercise
Philippines, unavailable, or otherwise unable to testify,
summary of the evidence for our supervisory powers to provide the required remedy. RIGHT TO BE INFORMED
given in another case or proceeding, judicial or
the prosecution followed by the [Dela Camara v. Enage (1971)] Procedural due process requires that the accused must be
administrative, involving the same parties and subject
matter, the adverse party having the opportunity to conclusion on whether or not informed why he is being prosecuted and what charge he
the evidence of guilt is strong PRESUMPTION OF INNOCENCE must meet. [Vera vs. People, supra]
cross-examine him.
(Note: it is not the existence of The requirement of proof beyond reasonable doubt is a
guilt itself which is concluded necessary corollary of the constitutional right to be Note: Description, not designation of offense, is controlling
(g) To have compulsory process issued to secure the
but the strength of the presumed innocent. [People vs. Dramavo (1971)]
attendance of witnesses and production of other
evidence in his behalf. probability that guilt exists).
PAGE 81 PAGE 82
RIGHT TO SPEEDY, IMPARTIAL AND PUBLIC TRIAL courts or legislative assemblies, nor authorize the
All persons shall have the right to a speedy disposition of Two-fold purpose: On a 7-5 Voting:Seven justices voted that petitioner may conferment of jurisdiction on military courts and agencies
their cases before all judicial, quasi-judicial, or (1) to afford the accused an opportunity to test the waive his right to be present at all stages of the over civilians where civil courts are able to function, nor
administrative bodies. [Art. III, Sec. 16] testimony of witnesses by cross-examination proceedings while five voted that this waiver is qualified, he automatically suspend the privilege of the writ.
(2) to allow the judge to observe the deportment of cannot waive when he is to be identified. The suspension of the privilege of the writ shall apply only to
witnesses. [Go, et al. v. The People of the Philippines persons judicially charged for rebellion or offenses inherent
Civilian authority is, at all times, supreme over the military. and Highdone Company, Ltd., et al., (2012)] Trial in Absentia in or directly connected with invasion. [Art. VII, Sec. 18]
xxx [Art. III, Sec. 3] As a general rule, subject to certain exceptions, any
Inadmissibility for lack of right to confrontation: constitutional or statutory right may be waived if such AVAILABILITY
Sec. 17. Act not a bar to provision on speedy trial in the (1) Testimony of a witness who has not submitted himself waiver is not against public policy. (1) A prime specification of an application for a writ of
Constitution – No provision of law on speedy trial and no to cross examination habeas corpus is involuntary restraint of liberty.
rule implementing the same shall be interpreted as a bar (2) Affidavits of witnesses who are not presented during Considering Art IV, Sec 19, 1973 Constitution (trial of a (2) Voluntary restraint of liberty i.e right of parents to
to any charge of denial of the right to speedy trial the trial, hence not subjected to cross examination– capital offense may proceed even in the absence of the regain custody of minor child even if the child is in the
guaranteed by Section 14(2), Article III, of the 1987 hearsay, [Cariago v. Court of Appeals (2001)] accused) and the absence of any law specifically requiring custody of a third person of her own free will [Sombong
Constitution. [RA 8493] his presence at all stages of his trial, there appears, no v. CA (1990)]
Rule on Examination of a Child Witness [AM No. 004-07- logical reason why petitioner, although he is charged with (3) Illegal arrest with supervening event when restraint of
IMPARTIAL TRIAL: A civilian cannot be tried by a military SC] a capital offense, should be precluded from waiving his liberty is already by virtue of the complaint or
court so long as the civil courts are open and operating, The judge may exclude any person, including the accused, right to be present in the proceedings for the perpetuation information [Velasco vs. CA (1995)]
even during Martial Law. [Olaguer vs. Military Commission whose presence or conduct causes fear to the child. of testimony, since this right was conferred upon him for (a) The issuance of a judicial process preventing the
(1987)] his protection and benefit. [Aquino vs. Military Commission discharge of the detained person.
COMPULSORY PROCESS (1975)] (b) Another is the filing of a complaint or information for
Dismissal based on the denial of the right to speedy trial (1) Right to Secure Attendance of Witness the offense for which the accused is detained. [Section
amounts to an acquittal. [Acevedo vs. Sarmiento (2) Right to Production of Other Evidence 4 of Rule 102]
(1970)] (4) Where a sentence imposes punishment in excess of the
Note: RA 8493 provides: a 30-day arraignment within the

Subpoena is a process directed to a person requiring him to
attend and to testify at the hearing or trial of an action or Writ of Habeas Corpus power of the court to impose, such sentence is void as
to the excess [Gumabon v. Director of Prisons (1971)]
filing of the information or from the date the accused at any investigation conducted under the laws of the
appeared before the court; trial shall commence 30 days Philippines, or for the taking of his deposition. [Caamic v. The privilege of the writ of habeas corpus shall not be RESTRAINT OF LIBERTY
from the arraignment, as fixed by the court. The entire trial Galapon (1994)] suspended except in cases of invasion or rebellion when Not only physical restraint, any restraint on freedom of
period shall not exceed 180 days, except as otherwise the public safety requires it. [Art. III, Sec. 15] action is sufficient i.e (1) curtailed freedom of movement by
authorized by the SC Chief Justice. Before a subpoena ducestecum may issue, the court must the condition that he must get approval of respondents for
first be satisfied that the following requisites are present: any travel outside Metro Manila, (2) abridged liberty of
(1) The books, documents or other things requested must The President shall be the Commander-in-Chief of all abode because prior approval of respondent is required in
AVAILABILITY
appear prima facie relevant to the issue subject of the armed forces of the Philippines and whenever it becomes case petitioner wants to change place of residence, (3)
(1) When proceeding is attended by vexatious, capricious necessary, he may call out such armed forces to prevent or
and oppressive delays controversy (test of relevancy), and abridged freedom of speech due to prohibition from taking
(2) Such books must be reasonably described by the suppress lawless violence, invasion or rebellion. any interviews inimical to national security, and (4)
(2) When unjustified postponements of the trial are asked
for and secured parties to be readily identified (test of definiteness). petitioner is required to report regularly to respondents or
[Roco v. Contreras (2005)] In case of invasion or rebellion, when the public safety their reps. [Moncupa v. Enrile (1986)]
(3) When without cause or justifiable motive, a long period requires it, he may, for a period not exceeding sixty days,
of time is allowed to elapse without the party having suspend the privilege of the writ of habeas corpus or place
his case tried. [dela Rosa v. Court of Appeals (1996); Tai TRIALS IN ABSENTIA Note: Even if the party to whom the writ is addressed has
WHEN CAN TRIAL IN ABSENTIA BE DONE the Philippines or any part thereof under martial law. illegally parted with the custody of a person before the
Lim v. Court of Appeals (1999)] Within forty-eight hours from the proclamation of martial
3 requisites: application for the writ is no reason why the writ should not
(1) Accused failed to appear for trial despite postponement law or the suspension of the privilege of the writ of habeas issue. [Villavicencio v. Lukban (1919)]
Unreasonable delay weighed by following factors: corpus, the President shall submit a report in person or in
(1) Length of delay and notice
(2) Failure to appear is unjustified writing to the Congress. Test for valid suspension of the privilege of the writ:
(2) Reason for delay
(3) Assertion/failure to assert right by the accused (3) After arraignment arbitrariness, not correctness
The Congress, voting jointly, by a vote of at least a majority
Failure to assert means waiver of privilege. of all its Members in regular or special session, may revoke
(4) Prejudice caused by the delay [Roquero v. The If not then the right of the accused to be informed of the Conditions for valid suspension:
nature and cause of accusation against him will be such proclamation or suspension, which revocation shall (1) Presence of invasion, insurrection or rebellion
Chancellor of UP Manila (2010)] not be set aside by the President.
impaired for lack of arraignment [Borja vs. Mendoza (1977)] (2) Public safety requires it [Lansang v. Garcia (1971)]
RA 8493 is a means of enforcing the right of the accused Upon the initiative of the President, the Congress may, in
to a speedy trial. The spirit of the law is that the accused Consequences: Waiver of right to cross examine and
present evidence [Gimenez vs. Nazareno (1988)] the same manner, extend such proclamation or
must go on record in the attitude of demanding a trial or suspension for a period to be determined by the Congress,
resisting delay [Uy v. Hon. Adriano (2006)]
WHEN PRESENCE OF THE ACCUSED IS A DUTY if the invasion or rebellion shall persist and public safety
requires it.
Writ of Amparo, Habeas Data
(1) Arraignment and Plea
When right not available:right to speedy trial cannot be
invoked where to sustain the same would result in a clear (2) During Trial, for identification
The Congress, if not in session, shall, within twenty-four
and Kalikasan
denial of due process to the prosecution. [Uy v. Hon. (3) Promulgation of Sentence
Exception: Light offense —> can be via counsel hours following such proclamation or suspension, convene WRIT OF AMPARO
Adriano (2006)] in accordance with its rules without need of a call. The petition for a writ of amparo is a remedy available to
Petitioner challenges the jurisdiction of military The Supreme Court may: 1) review, 2) in an appropriate any person whose right to life, liberty and security is
Rationale of right to speedy trial: proceeding; 3) filed by any citizen, 4) the sufficiency of the
(1) To prevent oppressive pre-trail incarceration, commissions to try him (for murder, illegal possession of violated or threatened with violation by an unlawful act or
firearms and for violation of the Anti-Subversion Act) factual basis of the proclamation of martial law or the omission of a public official or employee, or of a private
(2) To minimize anxiety and concern of the accused, suspension of the privilege of the writ or the extension
(3) To limit the possibility that the defense will be arguing that he being a civilian, such trial during martial individual or entity. [Sec. 1, The Rule on the Writ of Amparo]
law deprives him of his right to due process. thereof, and 5) must promulgate its decision thereon
impaired. within thirty days from its filing. Basis
RIGHT OF CONFRONTATION An issue has been raised as to WON petitioner could waive The Supreme Court shall have the following powers: xxx
his right to be present during trial. A state of martial law does not suspend the operation of (5) Promulgate rules concerning the protection and
This is the basis of the right to cross-examination. the Constitution, nor supplant the functioning of the civil
PAGE 83 PAGE 84
enforcement of constitutional rights, xxx. Such rules shall Filing Enforceability Returnable FOREIGN LAWS
provide a simplified and inexpensive procedure for the WHO MAY FILE: The privilege which exists as to private papers, cannot be
speedy disposition of cases, shall be uniform for all courts (3) Any RTC of Natural or juridical persons, NGO or public interest groups maintained in relation to “records required by law to be
of the same grade, and shall not diminish, increase, or the place where in behalf of persons whose right is violated kept in order that there may be suitable information of
modify substantive rights. Xxx [Art. VIII, Sec. 5] the threat, act or transactions which are the appropriate subjects of
omission was WHO HAS JURISDICTION governmental regulation and the enforcement of
PETITION FOR WRIT committed or Supreme Court or Court of Appeals restrictions validly established. [Shapiro v. US (1948)]
Form any of its
The petition shall be signed and verified. [Sec. 5] elements DOCKET FEES: None In recent cases, the US Supreme Court has struck down
occurred certain registration requirements that presented real and
Contents WHEN IS WRIT ISSUED: appreciable risk of self-incrimination. These involved
The petition shall allege the following: Docket fees: None [Sec. 4] Within three (3) days from the date of filing of the petition, statues directed at inherently suspect groups in areas
(1) The personal circumstances of the petitioner if the petition is sufficient in form and substance permeated by criminal statutes, a circumstance which laid
(2) The name and personal circumstances of the Return the subjects open to real risk of self-incrimination. [Bernas]
respondent responsible for the threat, act or omission, Within 72 hours after service of the writ, the respondent RETURN OF RESPONDENT
or, if the name is unknown or uncertain, the respondent shall file a verified written return together with supporting Within a non-extendible period of ten (10) days after The great majority of persons who file income tax returns
may be described by an assumed appellation affidavits which shall, among other things, contain his service of the writ, the respondent shall file a verified do not incriminate themselves by disclosing their
(3) The right to life, liberty and security of the aggrieved defenses. A general denial is not allowed. [Sec. 9] return which shall contain all defenses; all defenses not occupation. [US v. Sullivan (1927)]
party violated or threatened with violation by an raised are deemed waived
unlawful act or omission of the respondent, and how Hearing APPLICATION
such threat or violation is committed with the Summary or court may call for a preliminary conference; HEARING General Rule: The privilege is available in any proceedings,
attendant circumstances detailed in supporting given same priority as petition for habeas corpus [Sec. 13] Preliminary conference; same prioprity as other writs [no even outside the court, for they may eventually lead to a
affidavits more than 60 days]; criminal prosecution.
(4) The investigation conducted, if any, specifying the Burden of proof
names, personal circumstances, and addresses of the Substantial evidence Reliefs EXPANDED APPLICATION:
investigating authority or individuals, as well as the Permanent cease and desist order, other reliefs (1) Administrative proceedings with penal aspect i.e
manner and conduct of the investigation, together with Defense: medical board investigation [Pascual v. Board of
any report Private individual – ordinary diligence; public official – Medical Examiners(1969)], forfeiture proceeding [Cabal
(5) The actions and recourses taken by the petitioner to extraordinary diligence, no presumption of regularity of v. Kapunan Jr. (1962)]
duties [Sec. 17]
determine the fate or whereabouts of the aggrieved
party and the identity of the person responsible for the Self-Incrimination Clause (2) Fact-Finding investigation by an ad hoc body [Galman
vs. Pamaran (1985)]
threat, act or omission The Manalo brothers were abducted, detained, and
(6) The relief prayed for. tortured repeatedly by the military. After their escape, they SCOPE AND COVERAGE EFFECT OF DENIAL OF PRIVILEGE
filed a petition for the privilege of the Writ of Amparo. The Exclusionary Rule under SEC. 17, ART. III in relation to SEC.
Supreme Court granted the petition and held that there No person shall be compelled to be a witness against
The petition may include a general prayer for other just himself. [Art. III, Sec. 17] 12: When the privilege against self-incrimination is violated
and equitable reliefs. [Sec. 5] was a continuing violation of the Manalos’ right to security. outside of court (e.g. police), then the testimony, as already
Where to file Only applies to compulsory testimonial, and doesn’t apply noted, is not admissible.
The petition may be filed on any day and at any time [Sec. As regards the relief granted, the Court held that the
production order under the Amparo rule is different from a to material objects [Villaflor vs. Summers (1920)]
3] Ousted of Jurisdiction: When the privilege is violated by the
search warrant and may be likened to the production of Court itself, that is, by the judge, the court is ousted of its
documents or things under Rule 27.1, ROC. [Secretary of It refers therefore to the use of the mental process and the
Filing Enforceability Returnable jurisdiction, all its proceedings, and even judgment are null
National Defense v. Manalo (2008)] communicative faculties, and not to a merely physical
and void. [Chavez vs. CA (1968)]
RTC of the place Before the activity.
where the threat, issuing court or WRIT OF HABEAS DATA (SEE PREVIOUS DISCUSSION) IMMUNITY STATUTES
act or omission judge The writ of habeas data is an independent and summary If the act is physical or mechanical, the accused can be
TRANSACTIONAL IMMUNITY
was committed remedy designed to protect the image, privacy, honor, compelled to allow or perform the act, and the result can
be used in evidence against him. The Commission on Human Rights shall have the
or any of its information, and freedom of information of an individual,
following powers and functions: xxx
elements and to provide a forum to enforce one’s right to the truth
EXAMPLES (8) Grant immunity from prosecution to any person whose
occurred and to informational privacy.
(1) Handwriting in connection with a prosecution for testimony or whose possession of documents or other
Sandiganbayan (1) Before the
falsification is not allowed, [Beltran v. Samson (1929); evidence is necessary or convenient to determine the
or any of its issuing court or There must be a nexus between right to privacy and right
Anywhere in the Bermudez vs. Castillo (1937)] truth in any investigation conducted by it or under its
justices any justice to life, liberty and security.
Philippines (2) Re-enactment of the crime by the accused is not authority; [Art. XIII, Sec. 18]
Court of Appeals thereof, OR
or any of its (2) Any RTC of RIGHT TO INFORMATIONAL PRIVACY V. LEGITIMATE STATE INTEREST allowed
justices the place where The determination of whether the privilege of the writ (3) The accused can be required to allow a sample of a USE AND FRUIT OF IMMUNITY
the threat, act or of habeas data, being an extraordinary remedy, may be substance taken from his body [U.S. vs. Tan The (1912)], “Use immunity” prohibits use of a witness’ compelled
omission was granted in this case entails a delicate balancing of the or be ordered to expel the morphine from his mouth testimony and its fruits in any manner in connection with
committed or alleged intrusion upon the private life of Gamboa and the [U.S. v. OngSio Hong (1917)] the criminal prosecution of the witness.
any of its relevant state interest involved. [Gamboa v. P/Ssupt. (4) Accused may be made to take off her garments and
elements Marlou C. Chan, et al., (2012)] shoes and be photographed [People v. Otadura (1950)]; “Transactional immunity” grants immunity to witness from
occurred compelled to show her body for physical investigation prosecution for an offense to which his compelled
SC or any of its (1) Before the WRIT OF KALIKASAN to see if she is pregnant by an adulterous relation testimony relates. [Galman vs. Pamaran (1985)]
justices issuing court or Remedy against violation or threat of violation of [Villaflor v. Summers (1920)]
any justice constitutional right to a balanced and healthful ecology by (5) Order to give a footprint sample to see if it matches the
thereof an unlawful act or omission of a public official or ones found in the scene of the crime is allowed [People
(2) Before the employee, or private individual or entity, involving v. Salas and People v. Sara]
Sandiganbayan environmental damage of such magnitude as to prejudice
Anywhere in the
or CA or any of the life, health or property of inhabitants in two or more
Philippines
their justices, OR cities or provinces
PAGE 85 PAGE 86
Involuntary Servitude and Excessive Fines and Cruel and For a death penalty bill to be valid, a positive manifestation
in the form of higher incidence of crime should first be
ordinance, conviction or acquittal under either shall
constitute a bar to another prosecution for the same act.
Political Prisoners Inhuman Punishments perceived and statistically proven following the suspension
of the death penalty [is not required in Sec. 19 (1)]. Neither
[Art. III, Sec. 21]
does the said provision require that the death penalty be TERMINATION OF JEOPARDY
(1) No person shall be detained solely by reason of his (1)Excessive fines shall not be imposed, nor cruel, resorted to as a last recourse when all other criminal (1) By acquittal
political beliefs and aspirations. degrading or inhuman punishment inflicted. Neither reforms have failed to abate criminality in society. [People (2) By final conviction
(2) No involuntary servitude in any form shall exist except shall death penalty be imposed, unless, for compelling v. Echegaray (1997)] (3) By dismissal without express consent of accused
as a punishment for a crime whereof the party shall reasons involving heinous crimes, the Congress (4) By “dismissal” on the merits
have been duly convicted. [Art. III, Sec. 18] hereafter provides for it. Any death penalty already Sec 19 (2) as worded, already embodies constitutional
imposed shall be reduced to reclusion perpetua. authorization for the Commission on Human Rights to take REQUISITES
(2) The employment of physical, psychological, or action in accordance with Art XIII Sec 18. There is a (1) Court of competent jurisdiction;
INVOLUNTARY SERVITUDE
Slavery and involuntary servitude, together with their degrading punishment against any prisoner or detainee command addressed to Congressed to pass whatever civil (2) A Complaint/Information sufficient in form and
corollary peonage, all denote “a condition of enforced, or the use of substandard or inadequate penal facilities or penal legislation might be required for the subject. substance to sustain a conviction;
under subhuman conditions shall be dealt with by law. [Bernas] (3) Arraignment and plea by the accused;
compulsory service of one to another.” [Hodges v. US
(1906) in Rubi v. Provincial Board of Mindoro (1919)] [Art. III, Sec. 19] (4) Conviction, acquittal, or dismissal of the case without
the express consent, of the accused. [Rule 117, Sec. 7;
A private person who contracts obligations of this sort In this case the Court took into account, in lowering the People vs. Obsania (1968)]
toward the Army cannot, by law that we know of, either
civil or military be compelled to fulfill them by
penalty to reclusion perpetua of the accused most of whom
were already death row convicts, the deplorable sub-
Non-Imprisonment for Debts WHEN SUBSEQUENT PROSECUTION IS BARRED
imprisonment and deportation from his place of residence, human conditions of the National Penitentiary where the (1) Same offense
we deem it wholly improper to sustain such means of crime was committed. [People vs. dela Cruz (1953)] No person shall be imprisoned for debt or non-payment (2) Attempt of the same offense
compulsion which are not justified either by law or by the of a poll tax. [Art. III, Sec. 20] (3) Frustration of the same offense
contract. [In Re Brooks (1901)] What is Prohibited: Cruel and unusual punishment. (4) Offense necessarily included in the 1st offense (All the
Unusual punishment is not prohibited especially if it makes SCOPE elements of the 2nd constitute some of the elements of
Domestic services are always to be remunerated, and no the penalty less severe. (1) Debt – any civil obligation arising from a contract. It the 1st offense)
agreement may subsist in law in which it is stipulated that includes even debts obtained through fraud since no (5) Offense that necessarily includes the 1st offense (All
any domestic service shall be absolutely gratuitous, unless What is a cruel punishment? distinction is made in the Constitution. [Ganaway v. the elements of the 1st constitute some of the elements
it be admitted that slavery may be established in this (1) Involves torture or lingering death [Legarda v. Valdez Quillen (1922)] of the 2nd offense)
country through a covenant entered into between (1902)] (2) Poll Tax – a specific sum levied upon any person
interested parties. [de los Reyes v. Alojado (1910)] (2) Not only severe, harsh or excessive but flagrantly and belonging to a certain class without regard to property EXCEPTIONS
plainly oppressive or occupation (e.g. community tax). (1) The graver offense developed due to "supervening
A former court stenographer may be compelled under pain (3) Wholly disproportionate to the nature of the offense as facts" arising from the same act or omission
of contempt to transcribe stenographic notes he had failed to shock the moral sense of the community [People v. A tax is not a debt since it is an obligation arising from law. constituting the former charged.
to attend to while in service. x xx such compulsion is not Estoista (1953)] Hence, its non-payment maybe validly punished with (2) The facts constituting the graver charge became
the condition of enforced compulsory service referred to by imprisonment. known or were discovered only after the filing of the
the Constitution. Note: The constitutional limit must be reckoned on the former complaint or information.
basis of the nature and mode of punishment measured in Santos refused to pay 16 pesos for Ramirez’s cedula as (3) The plea of guilty to the lesser offense was made
Fernando, J. concurring opinion: terms of physical pain payment for what Santos owed Ramirez. Thus, Ramirez without the consent of the fiscal and the offended
The matter could become tricky should a stenographer was convicted and imprisoned for estafa. Upon demand for party.
stubbornly refuse to obey and the court insist on keeping RA 9346 (JUNE 24, 2006): AN ACT PROHIBITING THE release, the Court held that the imprisonment was correct
him in jail. The detention could then become punitive and IMPOSITION OF DEATH PENALTY IN THE PHILIPPINES since it was for estafa and not involuntary servitude or WHEN DEFENSE OF DOUBLE JEOPARDY IS AVAILABLE
give rise to the issue of involuntary servitude. [Aclaracion v. Sec. 1. The imposition of the penalty of death is hereby imprisonment for debt. [Ramirez v. de Orozco (1916)] (1) Dismissal based on insufficiency of evidence;
Gatmaitan (1975)] prohibited. Accordingly, R.A. No. 8177, otherwise known as (2) Dismissal because of denial of right to speedy trial;
The obligation incurred by the debtor, as shown by the (3) Accused is discharged to be a state witness.
the Act Designating Death by Lethal Injection is hereby
POLITICAL PRISONERS repealed. R.A. No. 7659, otherwise known as the Death receipt, was to pay an ordinary contractual obligation.
If the petitioners are political prisoners subject to the civil Penalty Law, and all other laws, executive orders and Since the guardianship proceeding was civil in nature, the MOTIONS FOR RECONSIDERATION AND APPEALS
jurisdiction of ordinary courts of justice if they are to be Court did not allow enforcement of the civil obligation by The accused cannot be prosecuted a second time for the
decrees, insofar as they impose the death penalty are
prosecuted at all, the army has no jurisdiction, nor power, hereby repealed or amended accordingly. an order of imprisonment. [In re Tamboco (1917)] same offense and the prosecution cannot appeal a
nor authority, from all legal standpoints, to continue judgment of acquittal. [Kepner v. US (1904)]
holding them in restraint. They are entitled, as a matter of No person may be imprisoned for debt in virtue of a civil
The import of the grant of power to Congress to restore the Provided, that the judge considered the evidence, even if
fundamental right, to be immediately released, any proceeding. [Makapagal v. Santamaria (1930)]
death penalty requires: the appreciation of the evidence leading to the acquittal is
allegation as to whether the war was ended or not. (1) that Congress define or describe what is meant by
[Raquiza v. Bradford (1945)] A person may be imprisoned as a penalty for a crime erroneous, an appeal or motion for reconsideration by the
heinous crimes prosecution will not be allowed. [People v. Judge Velasco
arising from a contractual debt and imposed in a proper
(2) that Congress specify and penalize by death, only crimes (2000)]
Sec. 19 of CA No. 682 authorizes that the political criminal proceeding. Thus, the conversion of a criminal fine
that qualify as heinous in accordance with the definition
prisoners in question "may be released on bail, even prior into a prison term does not violate the provision because in
or description set in the death penalty bill and/or No error, however, flagrant, committed by the court
to the presentation of the corresponding information," and such a case, imprisonment is imposed for a monetary
designate crimes punishable by reclusion perpetua to against the state, can be reserved by it for decision by the
this may be done "existing provisions of law to the contrary obligation arising from a crime. [Ajeno v. Judge Insero
death in which latter case, death can only be imposed Supreme Court when the defendant has once been placed
notwithstanding." We must assume that the discretion (1976)]
upon the attendance of circumstances duly proven in in jeopardy and discharged even though the discharge was
granted must be construed in the sense that the same may court that characterize the crime to be heinous in
be exercised in cases wherein it was not heretofore granted the result of the error committed. [People v. Ang Cho (1945)
accordance with the definition or description set in the citing State v. Rook]
by law. And it is reasonable to assume that the discretion death penalty bill
granted is to the effect that the People's Court may
exercise jurisdiction to order the release on bail of political
(3) that Congress, in enacting this death penalty bill be
singularly motivated by “compelling reasons involving
Double Jeopardy A mere verbal dismissal is not final until written and
prisoners "even prior to the presentation of the signed by the judge. [Rivera, Jr. v. People (1990)]
heinous crimes.”
corresponding information." [Duran v. Abad Santos (1945)] No person shall be twice put in jeopardy of punishment for
the same offense. If an act is punished by a law and an
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UP COLLEGE OF LAW CONSTITUTIONAL LAW 2 BAR OPERATIONS COMMISSION UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION
When an accused appeals his conviction, he waives his The prohibition applies only to criminal legislation which
right to the plea of double jeopardy. If the accused had affects the substantial rights of the accused. [Phil. National
been prosecuted for a higher offense but was convicted for Bank v. Ruperto (1960)]
a lower offense, he has technically been acquitted of the
higher offense. His appeal would give the Court the right to It applies to criminal procedural law prejudicial to the
impose a penalty higher than that of the original conviction accused. [US v. Gomez (1908)]
imposed on him. [Trono v. US (1905)]
It is improper to apply the prohibition to an executive
Double jeopardy provides three related protections: proclamation suspending the privilege of the writ of
(1) Against a second prosecution for the same offense after habeas corpus. [Montenegro v. Castañeda (1952)]
acquittal;
(2) Against a second prosecution for the same offense after BILLS OF ATTAINDER
conviction; and A bill of attainder is a legislative act which inflicts
(3) Against multiple punishments for the same offense. punishment without judicial trial. If the punishment be less
[People v. Dela Torre (2002)] than death, the act is termed a bill of pains and penalties.
Within the meaning of the Constitution, bills of attainder
DISMISSAL WITH CONSENT OF ACCUSED include bills of pains and penalties. [Cummings v. Missouri
Provisional dismissal.—A case shall not be provisionally (1867)]
dismissed except with the express consent of the accused
and with notice to the offended party. [Rule 117, Sec. 8 (1)] It is a general safeguard against legislative exercise of the
judicial function, or trial by legislature. [US v. Brown (1965)]
When the case is dismissed other than on the merits, upon
motion of the accused personally, or through counsel, such
dismissal is regarded as “with express consent of the
accused”, who is therefore deemed to have waived the
right to plea double jeopardy.
Ex Post Facto and Bills Of

Attainder
No ex post facto law or bill of attainder shall be enacted.
[Art. III, Sec. 22]
RA 1700 which declared the Communist Party of the

Philippines a clear and present danger to Philippine
security, and thus prohibited membership in such
organization, was contended to be a bill of attainder.
Although the law mentions the CPP in particular, its
purpose is not to define a crime but only to lay a basis or to
justify the legislative determination that membership in
such organization is a crime because of the clear and
present danger to national security. [People v. Ferrer (1972)]
EX POST FACTO LAWS

(1) Makes an action done before the passing of the law and
which was innocent when done criminal, and punishes
such action.
(2) Aggravates a crime or makes it greater than when it
was committed.
(3) Changes the punishment and inflicts a greater
punishment than the law annexed to the crime when it
was committed.
(4) Alters the legal rules of evidence and receives less or
different testimony than the law required at the time of
the commission of the offense in order to convict the
defendant. [Mekin v. Wolfe (1903)]
(5) Assumes to regulate civil rights and remedies only but
in effect imposes a penalty or deprivation of a right
which when done was lawful.
(6) Deprives a person accused of a crime of some lawful
protection of a former conviction or acquittal, or a
proclamation of amnesty. [In re Kay Villegas Kami
(1970)]
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UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION UP COLLEGE OF LAW LAW ON PUBLIC OFFICERS BAR OPERATIONS COMMISSION
General Principles UNLESS for duties of an inferior or subordinate office

that created or authorized by the Legislature and
Public Office Contract
Legislature should Validly Delegate the Power to Create a
Public Office
which inferior or subordinate office is placed under the Or else, the office is invalid. The President’s authority to
Object
CONCEPT AND APPLICATION general control of a superior office or body "reorganize within one year the different executive
DEFINITION To carry out the sovereign as Obligations imposed only departments, bureaus and other instrumentalities of the
The right, authority and duty, created and conferred by Defined as unhindered performance – must have well as governmental upon the persons who Government" in order to promote efficiency in the public
law, by which, for a given period either fixed by law or permanence and continuity functions affecting even entered into the contract. service is limited in scope and cannot be extended to other
enduring at the pleasure of the creating power, an persons not bound by the matters not embraced therein. [UST v. Board of Tax
individual is invested with some portion of the sovereign Note: The elements of permanence and continuity are contract. Appeals (1953)]
functions of government, to be exercised by that individual dispensable.
for the benefit of the public. [Floyd R. Mechem quoted in Subject Matter METHODS OF ORGANIZING PUBLIC OFFICES
Fernandez v. Sto. Tomas (1995)] On the dispensability of the element of permanence: an A public office embraces the Limited duration and specific in Efficiency
example is the public office of the Board of Canvassers, Method Composition
idea of tenure, duration, its object. Its terms define and
Breakdown of the definition yet its duties are only for a limited period of time. continuity, and the duties limit the rights and obligations Single-head one head assisted Swifter decision
Nature: right, authority and duty connected therewith are of the parties, and neither may by subordinates and action but
Origin: created and conferred by law On the dispensability of the element of continuance: generally continuing and depart therefrom without the may sometimes be
Duration: by which for a given period – either: Mechem in one case states that the “the most permanent. consent of the other. hastily made
(1) fixed by law or important characteristic” in characterizing a position as
(2) enduring at the pleasure of the appointing power a public office is the DELEGATION to the individual of Scope Board System collegial body for Mature studies
some of the sovereign functions of government. formulating and deliberations
Duties that are generally Duties are very specific to the polices and but may be slow in
An individual is invested with some portion of the continuing and permanent. contract.
sovereign functions of the government (1) Here, the court held that Laurel, as chair of the implementing responding to
National Centennial Commission (NCC), is a public Where duties are defined programs issues and
Purpose: to be exercised by him for the benefit of the officer. The public office of NCC was delegated and problems
public. is performing executive functions: it enforces the The law Contract
conservation and promotion of the nation’s MODIFICATION AND ABOLITION OF PUBLIC OFFICE
PURPOSE historical and cultural heritage. PUBLIC OFFICE IS NOT PROPERTY. General Rule
(1) to effect the end for the government’s institution: A public office is not the property of the public officer The power to create an office includes the power to modify
common good; (2) Such delegated function is a policy embodied in the within the meaning of the due process clause of the non- or abolish it (i.e. Legislature generally has this power)
(2) NOT profit, honor, or private interest of any person, Constitution. It is inconsequential that Laurel was impairment of the obligation of contract clause of the
family or class of persons [63 Am Jur 2d 667] not compensated during his tenure. A salary is a Constitution. Exceptions
usual (but not necessary) criterion for determining (1) Where the Constitution prohibits such
the nature of a position. Also, the element of (1) It is a public trust/agency. Due process is violated only if modification/abolition;
Sec. 1. Public office is a public trust. Public officers and
continuance is not indispensable. [Laurel v. Desierto an office is considered property. However, a public (2) Where the Constitution gives the people the power to
employees must, at all times, be accountable to the
(2002)] office is not property within the constitutional modify or abolish the office [i.e. Recall]
people, serve them with utmost responsibility, integrity, guaranties of due process. It is a public trust or agency.
loyalty, and efficiency; act with patriotism and justice, and - as in the case of Ad Hoc Bodies or commissions
As public officers are mere agents and not rulers of the Abolishing an office also abolishes unexpired term. The
lead modest lives. [Philippine Constitution, Art. XI, Sec. 1]
PUBLIC OFFICE V. PUBLIC EMPLOYMENT people, no man has a proprietary or contractual right legislature’s abolition of an office (i.e. court) also abolishes
Public employment is broader than public office. All public to an office. [Cornejo v. Gabriel (1920)] the unexpired term. The legislative power to create a court
Public office is a responsibility, not a right. [Morfe v. Mutuc office is public employment, but not all public employment carries with it the power to abolish it. [Ocampo v. Sec. of
(1968)] is a public office. (2) It is personal. Public office being personal, the death of Justice (1955)]
a public officer terminates his right to occupy the
ELEMENTS contested office and extinguishes his counterclaim for
Public employment as a position lacks either one or more Is Abandonment equivalent to Abolition?
(1) Created by law or by authority of law of the foregoing elements of a public office. (Bernard v. damages. His widow and/or heirs cannot be When a public official voluntarily accepts an appointment
Public office must be created by: Humble [182 S.W. 2d. 24. Cited by De Leon, page 8-9]) substituted in the counterclaim suit. [Abeja v. Tañada to an office newly created by law -- which new office is
(a) Constitution - created by contract rather than by force of law (1994)] incompatible with the former -- he will be considered to
(b) National Legislation
have abandoned his former office.
(c) Municipal or other body’s legislation, via authority The most important characteristic which distinguishes an Exceptions (When public office is property):
conferred by the Legislature office from an employment is that: (1) In quo warranto proceedings relating to the question as Except when the public official is constrained to accept
to which of 2 persons is entitled to a public office because the non-acceptance of the new appointment
The first element defines the mode of creation of a (1) the creation and conferring of an office involves a (2) When the dispute concerns one ‘s constitutional right to would affect public interest. (no abandonment) [Zandueta
public office while the other elements illustrate its delegation to the individual of some of the sovereign security of tenure, public office is deemed analogous to v. De La Costa (1938)]
characteristics. functions of government, to be exercised by him for the property in a limited sense. [Lumiqued v. Exevea (1997)]
benefit of the public, and ESTOPPEL IN DENYING EXISTENCE OF OFFICE
(2) Possess a delegation of a portion of the sovereign CREATION OF PUBLIC OFFICE
powers of government, to be exercised for the benefit A person is estopped from denying that he has occupied a
(2) That the same portion of the sovereignty of the country, Modes of Creation of Public Office public office when he has acted as a public officer; more so
of the public either legislative, executive or judicial, attached, for the (1) by the Constitution when he has received public monies by virtue of such office.
time being, to be exercised for the public benefit. Unless (2) by statute / law [Mendenilla v. Onandia (1962)]
There are certain GOCCs which, though created by law, the powers so conferred are of this nature, the individual is (3) by a tribunal or body to which the power to create the
are not delegated with a portion of the sovereign not a public officer. [Laurel v. Desierto (2002)] office has been delegated
powers of the government (those that are purely PUBLIC OFFICER
proprietary in nature), and thus may not be considered DEFINITION
PUBLIC OFFICE V. CONTRACT How Public Office is Created
as a Public Office. General Rule: The creation of a public office is PRIMARILY a Sec. 2. “Public Officer” includes elective and appointive
Public Office Contract Legislative Function. officials and employees, permanent or temporary, whether
(3) Powers conferred and duties imposed must be defined, in the classified, unclassified or exempt service, receiving
directly or impliedly How Created compensation, even nominal, from the government [RA
Exceptions:
(1) where the offices are created by the Constitution; 3019]
Incident of sovereignty. Originates from will of
(4) Duties must be performed independently and without (2) where the Legislature validly delegates such power.
Sovereignty is omnipresent. contracting parties.
the control of a superior power other than the law,
PAGE 91 PAGE 92
A Person Cannot be Compelled to Accept a Public Office.

Sec. 2(14). “Officer” as distinguished from “clerk” or EXCEPTIONS APPOINTMENT
(1) When citizens are required, under conditions provided Nature of an Appointment – essentially discretionary
“employee” refers to a person whose duties, not being of a
clerical or manual nature, involves the exercise of by law, to render personal military or civil service (see powerand cannot be delegated; it must be performed by Modes and Kinds of
Sec. 4, Art. II, 1987 Const.); the officer upon whom it is vested according to his best
discretion in the performance of the functions of the
government. [Administrative Code] lights, the only condition being that the appointee should Appointment
(2) When a person who, having been elected by popular possess the qualifications required by law. If he does, then
election to a public office, refuses without legal motive the appointment cannot be faulted on the ground that CLASSIFICATION OF APPOINTMENTS
Art 203. Who are public officers—for the purpose of to be sworn in or to discharge the duties of said office. there are others better qualified who should have been (1) Permanent:
applying the provisions of this and the preceding titles of This is a felony. preferred [Luego v. CSC (1986)] The permanent appointee:
this book, any person who, by direct provision of the law, (a) must be qualified
popular election or appointment by competent authority, (3) Art. 234 Definition (b) must be eligible
shall take part in the performance of public functions in (c) is constitutionally guaranteed security of tenure
Art. 234. Refusal to discharge elective office- the penalty of Designation Appointment
the Government of the Philippine Islands, orshall perform Duration: until lawful termination.
arresto mayor or a fine not exceeding 1,000 pesos, or both,
in said Government or in any of its branches public duties Note: Conditional appointments are not permanent.
shall be imposed upon any person who, having been Definition
as an employee, agent or subordinate official of any rank or
elected by popular election to a public office, shall refuse
class, shall be deemed to be a public officer. [Revised Penal Imposition of additional Appointing authority selects (2) Temporary:
without legal motive to be sworn in or to discharge the
Code] duties upon existing office an individual who will (a) an acting appointment;
duties of said office.
occupy a certain public (b) cannot be validly confirmed by the Commission
Persons in authority and their agents [Art. 152, RPC] office on Appointments because confirmation
Public Officer’s Power is Delegated (not Presumed)
A PERSON IN AUTHORITY is any person, either an Extent of Powers presupposes a valid nomination or ad interim
A public official exercises power, not rights. The government
individual or a member of a governmental body, who is appointment
itself is merely an agency through which the will of the Limited Comprehensive
directly vested with jurisdiction. (c) has no personality to bring a quo warranto action
state is expressed and enforced. Its officers therefore are
(1) The barrio captains and barangay chairpersons are Security of Tenure? against the permanent appointee to the position
likewise agents entrusted with the responsibility of
included. (d) An unqualifiedperson cannot be appointed even
discharging its functions. As such, there is no presumption No Yes
(2) For RPC Articles 148 [Direct Assaults] and 151 in an acting capacity [Ignacio v. Banate, Jr. (1987)]
that they are empowered to act. There must be a
[Resistance and Disobedience], teachers, professors, Is prior/1st office abandoned when… (e) Has no fixed tenure of office - revocable at will:
DELEGATION of such authority, either express or implied. In
and persons charged with the supervision of public or just cause or valid investigation UNNECESSARY
the absence of a valid grant, they are devoid of power. nd
…a 2nd designated position …a 2 appointive position is
duly recognized private schools, colleges and if based only on loss of confidence;
[Villegas v. Subido (1971)] is assumed? assumed? Usually YES
universities are included. (i) an “acting” appointment is a temporary
NO appointment and revocable in character.
Note: The term public official is ordinarily used
An AGENT of a person in authority is charged with the [Marohombsar v. Alonto (1991)]
synonymously with public officer
maintenance of public order and the protection and Political. Appointment is generally a political question so (ii) A temporary appointee is like a designated
security of life and property. long as the appointee fulfills the minimum qualification officer – they:
They become such either by direct provision of law, by CLASSIFICATION OF PUBLIC OFFICES AND PUBLIC requirements prescribed by law. (1) occupy a position in an acting capacity and
election or by a competent authority’s appointment. OFFICERS
(2) do not enjoy security of tenure. [Sevilla v.
Creation Constitutional Vacancy for Validity. For the appointment to be valid, the CA (1992)]
Temporary performer of public functions Statutory position must be vacant [Castin v. Quimbo (1983)] (iii) Even a Career Service Officer unqualified for
A person performing public functions – even temporarily – is Public Body Served National the position is deemed temporarily-
a public official. Here, a laborer temporarily in charge of Local Nature of Power to Appoint. appointed. Thus he does not enjoy security of
issuing summons and subpoenas for traffic violations in a Department of government to Legislative The power to appoint is intrinsically an executive act tenure – he is terminable at will.
judge's sala was convicted for bribery under RPC 203. which their functions pertain Executive involving the exercise of discretion. [Concepcion v. Paredes (iv) A public officer who later accepts a
Judicial (1921)] temporary appointment terminates his
According to the Court, the law is comprehensive: “who, by Nature of functions Civil relationship with his former office.
direct provision of law, popular election or appointment by Military Must be unhindered and unlimited by Congress. Congress [Romualdez III v. CSC (1991)]
competent authority, shall take part in the performance of Exercise of Judgment or Discretionary cannot either appoint a public officer or impose upon the (v) Except: Fixed-Period Temporary Appointments
public functions in the Philippine Government, or shall Discretion Ministerial President the duty to appoint any particular person to an – may be revoked ONLY at the period’s
perform in said government or any of its branches, public Legality of Title to office De Jure office. The appointing power is the exclusive prerogative of expiration. Revocation before expiration must
duties as an employee, agent or subordinate official or any De Facto the President, upon which no limitations may be imposed by be for a valid cause.
rank or class [Maniego v. People (1951)] Compensation Lucrative Congress, EXCEPT those: (vi) Duration: until a permanent appointment is
Honorary (1) requiring the concurrence of the Commission on issued.
Money order-sorter and –filer. Appointments; and
A person sorting and filing money orders in the Auditor's (2) resulting from the exercise of the limited legislative STEPS IN APPOINTMENT PROCESS
Office of the Bureau of Posts is obviously doing a public power to prescribe the qualifications to a given FOR APPOINTMENTS REQUIRING CONFIRMATION
function or duty. Such person here was convicted for appointive office. [Manalang v. Quitoriano (1954)] Regular Appointments (NCIA)
infidelity in the custody of documents. [People v. Paloma
(1997)]
Modes of Acquiring Title to The President’s power to appoint under the Constitution
(1) President nominates.
(2) Commission on Appointments confirms.
Who are NOT Public Officers

Public Office should necessarily have a reasonable measure of freedom,
latitude, or discretion in choosing appointees. [Cuyegkeng
(3) Commission issues appointment.
(4) Appointee accepts.
(1) Special policemen salaried by a private entity and v. Cruz (1960)]
MODES OF COMMENCING OFFICIAL RELATION
patrolling only the premises of such private entity Ad-Interim Appointments (NIAC)
(1) Election Where only one can qualify for the posts in question, the
[Manila Terminal Co. v. CIR (1952)] (1) President nominates.
(2) Appointment President is precluded from exercising his discretion to
(2) Concession forest guards [Martha Lumber Mill v. (2) Commission issues appointment.
(3) Others: choose whom to appoint. Such supposed power of
Lagradante (1956)] (3) Appointee accepts.
(a) Succession by operation of law; appointment, sans the essential element of choice, is no
(3) Company cashier of a private corporation owned by the (4) Commission on Appointments confirms.
(b) Direct provision of law, e.g. ex-officio officers power at all and goes against the very nature of
government [Tanchoco v. GSIS (1962)]
appointment itself. [Flores v. Drilon (1993)] For Appointments Not Requiring Confirmation (AIA)
ELECTION
(1) Appointing authority appoints.
Selection or designation by popular vote
PAGE 93 PAGE 94
(2) Commission issues appointment. (e) Applicable to COMELEC Commissioners, being (4) Promotion of “next-in-rank” career officer is not must be possessed at the time of appointment or
(3) Appointee accepts. permanent appointments, do not violate the Mandatory. The appointing authority should be allowed election and continuously for as long as the official
Constitutional prohibition on temporary or acting the choice of men of his confidence, provided they are relationship continues
PRESIDENTIAL APPOINTEES appointments of COMELEC Commissioners. qualified and eligible.
WHO CAN BE NOMINATED AND APPOINTED ONLY WITH THE (2) ACT –refers to the act of entering into the performance
COMMISSION ON APPOINTMENTS’ CONSENT? [Art. VII, Sec. 16, (f) By-passed Appointee may be Reappointed. Commission (5) When abused, use Mandamus. of the functions of the office.
1987 Const.] on Appointments’ failure to confirm an ad interim Where the palpable excess of authority or abuse of
(1) Heads of the executive departments; appointment is NOT disapproval. An ad interim discretion in refusing to issue promotional Note: Failure to perform an act required by law could affect
(2) Ambassadors; appointee disapproved by the COA cannot be appointment would lead to manifest injustice, the officer’s title to the given office. Under BP 881, the
(3) Other public ministers and consuls; reappointed. But a by-passed appointee, or one whose mandamus will lie to compel the appointing authority office of any elected official who fails or refuses to take his
(4) Officers of the armed forces from the rank of colonel or appointment was not acted upon the merits by the to issue said appointments. [Gesolgon v. Lacson (1961)] oath of office within six months from his proclamation
naval captain; COA, may be appointed again by the President. shall be considered vacant unless said failure is for cause
(5) Other officers whose appointments are vested in him by (6) “Upon recommendation” is not Merely Advisory. or causes beyond his control.
the Constitution, including Constitutional (g) The grant to the President of the power to appoint OICs Sec. 9. Provincial/City Prosecution Offices. [par. 3] All
Commissioners [Art. IX-B, Sec. 1 (2) for CSC; Art. IX-C, in ARMM does not violate the Constitution – The provincial and city prosecutors and their assistants shall be (1) An oath of office is a qualifying requirement for a public
Sec. 1 (2) for COMELEC; Art. IX-D, Sec. 1 (2) for COA]. appointing power is embodied in Sec. 16, Art VII of the appointed by the President upon the recommendation of office. Only when the public officer has satisfied this
Constitution, which pertinently states that the the Secretary. prerequisite can his right to enter into the position be
WHO CAN THE PRESIDENT APPOINT WITHOUT CA’S APPROVAL? President shall appoint all other officers of the considered plenary and complete. Until then, he has
(1) All other officers of the government whose government whom the President may be authorized The phrase “upon recommendation of the Sec. of Justice” none at all, and for as long as he has not qualified, the
appointments are not otherwise provided for by law; by law to appoint. Since the President’s authority to holdover officer is the rightful occupant. [Lecaroz v.
should be interpreted to be a mere advice. It is persuasive
(2) Those whom he may be authorized by law to appoint; appoint OICs emanates from RA 10153, it falls under in character, BUT is not binding or obligatory upon the Sandiganbayan (1999)]
(3) Members of the Supreme Court; this group of officials that the President can appoint. person to whom it is made.
(4) Judges of lower courts; Thus, the assailed law rests on clear constitutional (2) Once proclaimed and duly sworn in office, a public
(5) Ombudsman and his deputies basis [Datu Michael Abas Kida v. Senate of the officer is entitled to assume office and to exercise the
EFFECTIVITY OF APPOINTMENT
Philippines (2011)] functions thereof. The pendency of an election protest
Immediately upon appointing authority’s issuance [Rule V,
Kinds of Presidential Appointments is not sufficient basis to enjoin him from assuming
Sec. 10, Omnibus Rules]
(1) Regular: made by the President while Congress is in DISCRETION OF APPOINTING OFFICIAL office or from discharging his functions. [Mendoza v.
session after the nomination is confirmed by the PRESUMED Laxina (2003)]
EFFECTS OF A COMPLETE, FINAL AND IRREVOCABLE
Commission of Appointments, and continues until the end Administrators of public officers, primarily the department
APPOINTMENT
of the term. heads should be entrusted with plenary, or at least POWER TO PRESCRIBE QUALIFICATIONS
General Rule
sufficient, discretion. Their position most favorably (1) Constitution – when the qualifications are prescribed by
An appointment, once made, is irrevocable and not subject
(2) Ad interim: made while Congress is not in session, determines who can best fulfill the functions of a vacated the constitution, they are generally exclusive, except
to reconsideration.
before confirmation by the Commission on Appointments; office. There should always be full recognition of the wide where the Constitution itself provides otherwise
(1) It vests a legal right. It cannot be taken away EXCEPT
immediately effective and ceases to be valid if disapproved or scope of a discretionary authority, UNLESS the law speaks (2) Congress - In the absence of constitutional inhibition,
for cause, and with previous notice and hearing (due
bypassed by the Commission on Appointments. This is a in the most mandatory and peremptory tone, considering Congress has the same right to provide
process).
permanent appointment and it being subject to all the circumstances. [Reyes v. Abeleda (1968)] disqualifications that it has to provide qualifications for
(2) It may be issued and deemed complete before
confirmation does not alter its permanent character. acquiring the needed assent, confirmation, or approval office. [De Leon, p. 23]
DISCRETIONARY ACT
of some other officer or body.
(a) Efficient. Recess appointment power keeps in Appointment is an essentially discretionary power. It must RESTRICTIONS on the Power of Congress to Prescribe
continuous operation the business of government be performed by the officer in whom it is vested, the only Qualifications:
Exceptions
when Congress is not in session. The individual chosen condition being that the appointee should possess the (1) Congress cannot exceed its constitutional powers;
(1) Appointment is an absolute nullity [Mitra v. Subido
may thus qualify and perform his function without loss qualifications required by law. [Lapinid v. CSC (1991)] (2) Congress cannot impose conditions of eligibility
(1967)];
of time. (1) Scope. The discretion of the appointing authority is not inconsistent with constitutional provisions;
(2) Appointee commits fraud [Mitra v. Subido, supra];
only in the choice of the person who is to be appointed (3) The qualification must be germane to the position
(3) Midnight appointments
(b) Duration. The appointment shall cease to be effective but also in the nature and characterof the appointment ("reasonable relation" rule);
General Rule: A President or Acting President shall not
upon rejection by the Commission on Appointments, or intended (i.e., whether the appointment is permanent (4) Where the Constitution establishes specific eligibility
appoint 2 months immediately before the next
if not acted upon, at the adjournment of the next or temporary). requirements for a particular constitutional office, the
presidential elections until his term ends. (Art. VII, Sec.
session, regular or special, of Congress. 15, 1987 Const.) constitutional criteria are exclusive, and Congress
(2) Inclusive Power. The appointing authority holds the cannot add to them except if the Constitution expressly
Exception: Temporary appointments to executive positions
(c) Permanent. It takes effect immediately and can no power and prerogative to fill a vacant position in the or impliedly gives the power to set qualifications.
when continued vacancies will prejudice public
longer be withdrawn by the President once the civil service. (5) Congress cannot prescribe qualifications so detailed as
service or will endanger public safety.
appointee has qualified into office. to practically amount to making a legislative
(3) The exercise of the power to transfer, reinstate, reemploy appointment: it is unconstitutional and therefore void
The fact that it is subject to confirmation by the or certify is widely used (need not state reason) for being a usurpation of executive power – examples:
Commission on Appointments does not alter its (a) Extensions of the terms of office of the incumbents;
permanent character. To hold that the Civil Service Law requires filling up any
vacancy by promotion, transfer, reinstatement,
Eligibility and Qualification (b) A proviso which limits the choices of the appointing
authority to only one eligible, e.g. the incumbent
The Constitution itself makes an ad interim appointment
permanent in character by making it effective until
reemployment, or certification IN THAT ORDER would be
tantamount to legislative appointment which is repugnant
Requirements Mayor of Olongapo City; [Flores v. Drilon (1993)]
(c) Designating an unqualified person. The People's
disapproved by the Commission on Appointments or until to the Constitution. What it does purport to say is that as far Court Act, which provided that the President could
as practicable the person next in rank should be promoted, DEFINITION
the next adjournment of Congress. [Matibay v. Benipayo designate Judges of First Instance, Judges-at-large
otherwise the vacancy may be filled by transfer, Eligibility: The state or quality of being legally fitted or
(2002)] of First Instance or Cadastral Judges to sit as
reinstatement, reemployment or certification, as the qualified to be chosen
substitute Justices of the Supreme Court in treason
(d) Not Acting. An ad interim appointment is appointing power sees fit, provided the appointee is cases without them necessarily having to possess
certified to be qualified and eligible. [Pineda v. Claudio Qualification: endowment/act which a person must do
distinguishable from an “acting” appointment which the required constitutional qualifications of a
(1969)] before he can occupy a public office. May be understood in
is merely temporary, good until another permanent regular Supreme Court Justice.; [Vargas v. Rilloraza
two senses:
appointment is issued. (1948)]
(1) ENDOWMENT –refers to the qualities or attributes
which make an individual eligible for public office. It
PAGE 95 PAGE 96
(d) Automatic transfer to a new office. A legislative ELIGIBILITY PRESUMED Notes: Exceptions
enactment abolishing a particular office and IN FAVOR of one who has been elected or appointed to (1) “Practice of Law” defined. Practice of law means any (a) Membership in the electoral tribunals of either the
providing for the automatic transfer of the public office. activity, in or out of court, which requires the application House of Representatives or Senate (Art. VI, Sec. 17,
incumbent officer to a new office created; of law, legal procedure, knowledge, training and 1987 Const.);
[Manalang v. Quitorano (1954)] The right to public office should be strictly construed experience. Generally, to practice law is to give notice (b) Party-list representation;
(e) Requiring inclusion in a list. A provision that against ineligibility. (De Leon, p. 26) or render any kind of service which requires the use in (c) Commission on Appointments;
impliedly prescribes inclusion in a list submitted by any degree of legal knowledge or skill. [Cayetano v. (d) Vacancies in the Sanggunian (Sec. 45, Local
the Executive Council of the Phil. Medical QUALIFICATIONS PRESCRIBED BY CONSTITUTION Monsod (1991)] Government Code)
Association as one of the qualifications for (1) For President [Sec. 2, Art. VI, Constitution] and Vice
appointment; and which confines the selection of President [Sec. 3, Art. VII, Constitution] (2) In the dissenting opinion of Justice Padilla in the case of (3) NO PROPERTY QUALIFICATIONS
the members of the Board of Medical Examiners to (a) Natural-born citizen Cayetano v. Monsod, citing Agpalo, he stated that Since sovereignty resides in the people, it is necessarily
the 12 persons included in the list; [Cuyegkeng v. (b) 40 years old on election day engaging in the practice of law presupposes the implied that the right to vote and to be voted should not
Cruz (1960)] (c) Philippine resident for at least 10 years immediately existence of lawyer-client relationship. Hence, where a be dependent upon a candidate’s wealth. Poor people
preceding election day lawyer undertakes an activity which requires should also be allowed to be elected to public office
TIME OF POSSESSION OF QUALIFICATIONS knowledge of law but involves no attorney-client because social justice presupposes equal opportunity for
(1) At the time specified by the Constitution or law. (2) For Senator [Sec. 3, Art. VI, Constitution] relationship, such as teaching law or writing law books both rich and poor. [Maguera v. Borra and Aurea v.
(a) Natural-born citizen or articles, he cannot be said to be engaged in the COMELEC (1965)]
(2) If time is unspecified, 2 views: (b) 35 years old on election day practice of his profession asa lawyer
(a) qualification during commencement of term or (c) able to read and write (4) CITIZENSHIP
induction into office– The word “eligible” as used in (d) registered voter (3) “Residency” defined. In election law, residence refers to (a) Aliens not eligible for public office.
constitutions and statutes, has reference to the (e) resident of the Philippines for not less than two domicile, i.e. the place where a party actually or (b) The purpose of the citizenship requirement is to
capacity not of being elected or appointed to office, years immediately preceding election day constructively has his permanent home, where he ensure that no alien, i.e., no person owing
but of holding office, and that, therefore, if qualified intends to return. To successfully effect a change of allegiance to another nation, shall govern our
at the time of commencement of the term or (3) For Congressmen [Sec. 6, Art. VI, Constitution] domicile, the candidate must prove an actual removal people and country or a unit of territory thereof.
induction into office, disqualification of the (a) Natural-born citizen or an actual change of domicile. [Aquino v. COMELEC [Frivaldo v. COMELEC (1996)]
candidate or appointee at the time of election or (b) 25 years old on election day (1995)]
appointment is immaterial; (c) able to read and write (5) EFFECT OF REMOVAL OF QUALIFICATIONS DURING THE TERM
(d) registered voter in district in which he shall be (4) Presumption in favor of domicile of origin. Domicile Termination from office
(b) qualification / eligibility during election or elected requires the twin elements of actual habitual residence
appointment – conditions of eligibility must exist at (e) resident thereof for not less than one year and animus manendi (intent to permanently remain). (6)EFFECT OF PARDON UPON THE DISQUALIFICATION TO HOLD
the time of the election or appointment, and that immediately preceding election day Domicile of origin is not easily lost; it is deemed to PUBLIC OFFICE (Asked in 1999)
their existence only at the time of the continue absent a clear and positive proof of a General Rule
commencement of the term of office or induction of (4) Supreme Court Justice successful change of domicile. [Marcos v. COMELEC Pardon will not restore the right to hold public office. (Art.
the candidate or appointee into office is not (a) Natural born citizen (1995)] 36, Revised Penal Code)
sufficient to qualify him to office. (b) at least 40 years old
(c) 15 years or more as a judge or engaged in law RELIGIOUS TEST OR QUALIFICATION IS NOT Exceptions
Reconciliation – If the provision refers to “holding of practice REQUIRED (1) When the pardon’s terms expressly restores such (Art.
office”, rather than to eligibility to office, in defining the (d) of proven competence, integrity, probity and Sec. 5. … No religious test shall be required for the exercise 36, RPC);
qualifications, the courts are inclined to hold that the independence (C.I.P.I.) of civil or political rights. [Philippine Constitution, Art. III] (2) When the reason for granting pardon is non-
qualifications are to be determined at the time of the commission of the imputed crime. [Garcia v. Chairman,
commencement of the term. (De Leon, 26-27) (5) Civil Service Commissioners [Sec. 1 [1], Art. IXB. QUALIFICATION STANDARDS AND REQUIREMENTS COA (1993)]
Constitution] UNDER THE CIVIL SERVICE LAW
(3) Qualificationis a continuing nature, and must exist (a) Natural-born citizen (1) QUALIFICATION STANDARDS
throughout the holding of the public office. Once the (b) 35 years old at time of appointment (a) It enumerates the minimum requirements for a
qualifications are lost, the public officer forfeits the (c) proven capacity for public administration
office. (d) not a candidate for any elective position in election
class of positions in terms of education, training
and experience, civil service eligibility, physical Disabilities and Inhibitions of
(a) No estoppel in ineligibility. Knowledge of ineligibility immediately preceding appointment
of a candidate and failure to question such
fitness, and other qualities required for successful
performance. [Sec. 22, Book V, Administrative Code] Public Officers
ineligibility before or during the election is not a bar (6) COMELEC Commissioners [Sec. 1[1], Art. IXC] (b) The Departments and Agencies are responsible for
to questioning such eligibility after such ineligible (a) Natural-born citizen continuously establishing, administering and DISQUALIFICATIONS TO HOLD PUBLIC OFFICE
candidate has won and been proclaimed. Estoppel (b) 35 years old at time of appointment maintaining the qualification standards as an IN GENERAL: Individuals who lack ANY of the
will not apply in such a case. [Castaneda v. Yap (c) college degree holder incentive to career advancement. (Sec. 7, Rule IV, qualifications prescribed by the Constitution or by law for a
(1952)] (d) not a candidate for elective position in election Omnibus Rules) public office are ineligible (i.e. disqualified from holding
immediately preceding appointment (c) Such establishment, administration, and such office).
(b) Citizenship requirement should be possessed on start (e) chairman and majority should be members of the bar maintenance shall be assisted and approved by the
of term . The Local Government Code does not who have been engaged in the practice of law for at CSC and shall be in consultation with the Wage Authority: The legislature has the right to prescribe
specify any particular date or time when the least 10 years and Position Classification Office (ibid) disqualifications in the same manner that it can prescribe
candidate must possess the required citizenship, (d) It shall be established for all positions in the 1st and qualifications, provided that the prescribed
unlike for residence and age. The requirement is to (7) COA Commissioners 2nd levels (Sec. 1, Rule IV, Omnibus Rules) disqualifications do not violate the Constitution.
ensure that no alien shall govern our people and (a) Natural-born citizen
country or a unit of territory thereof. An official (b) 35 years old at time of appointment (2) POLITICAL QUALIFICATIONS FOR AN OFFICE General Constitutional Disqualifications
begins to govern or discharge his functions only upon (c) CPA with >10 year of auditing experience or (i.e. membership in a political party) (1) Losing candidates cannot be appointed to any
proclamation and on start of his term. This liberal (d) Bar member engaged in practice of law for at least governmental office within one year after such election.
interpretation gives spirit, life and meaning to our 10 years General Rule [Art. IX-B Sec. 6]
law on qualifications consistent with its purpose. (e) Not candidates for any elective position in election Political qualifications are NOT Required for public office.
[Frivaldo v. COMELEC (1996)] immediately preceding appointment. (2) Elective officials during their tenure are ineligible for
appointment or designation in ANY capacity to ANY
PAGE 97 PAGE 98
public office or position [Art. IX-B Sec. 7(1)] unless they relatives by consanguinity or during President’s tenure as Dual allegiance, on the other hand, refers to the situation
forfeit their seat affinity within the fourth civil Members of the (8) Holding of office in the private sector: in which a person simultaneously owes, by some positive
degree Constitutional Commissions, (a) Section 7 (b)(1)of RA 6713 considers unlawful for act, loyalty to two or more states. While dual citizenship is
(3) Appointive officials shall not hold any other or the Office of the public officials and employees during their involuntary, dual allegiance is the result of an individual’s
governmental position. Ombudsman, or as incumbency to own, control, manage, or accept volition.
Secretaries, employment as officer employee, consultant,
Unless otherwise allowed by law or his position’s primary Undersecretaries, chairmen counsel, broker, agent, trustee or nominee in any [I]n including §5 in Article IV on citizenship, the concern of
functions [Art. IX-B Sec 7 (2)] or heads of bureaus or private enterprise regulated, supervised or licensed the Constitutional Commission was not with dual
offices, including by their office unless expressly allowed by law. citizens per se but with naturalized citizens who maintain
Note: There is no violation when another office is held by a government-owned-or - their allegiance to their countries of origin even after their
public officer in an ex officio capacity (where one can’t controlled corporations. (Art. (b) Section 7 of RA 6713 also generally provides for the naturalization.
receive compensation or other honoraria anyway), as VIII, Sec. 13) prohibited acts and transactions of public officials
provided by law and as required by the primary functions and employees. Subsection (b)(2) prohibits them Hence, the phrase “dual citizenship” in R.A. No. 7160,
of his office. [National Amnesty Commission v. COA (2004)] from engaging in the private practice of their §40(d) and in R.A. No. 7854, §20 must be understood as
Other Disqualifications
profession during their incumbency. As an referring to “dual allegiance.”
(1) Mental or physical incapacity
Specific Constitutional Disqualifications exception, a public official or employee can engage
in the practice of his or her profession under the (e) Fugitive from justice in criminal or non-political
Public Officer Disqualifications (2) Misconduct or crime: persons convicted of crimes
following conditions: first, the private practice is cases here or abroad;
involving moral turpitude are USUALLY disqualified
The President, Vice shall not hold any other authorized by the Constitution or by the law; (f) Permanent residents in a foreign country or those
from holding public office.
President, the Members of office or employment during and second, the practice will not conflict, or tend to who have acquired the right to reside abroad and
the Cabinet and their their tenure, UNLESS conflict, with his or her official functions. continue to avail of the same right after the
(3) Impeachment
deputies or assistants otherwise provided in the effectivity of the Local Government Code;
Constitution, (Art. VII, Sec. 13) (9) Relationship with the appointing power (g) Insane or feeble-minded.
(4) Removal or suspension from office: not presumed 
General Rule on Nepotism: The Civil Service Decree (PD
Senator or Member of the may not hold during his term non-imposable when such ineligibility is not
807) prohibits all appointments in the national and
House of Representatives any other office or constitutional or statutory declared.
local governments or any branch or instrumentality
employment in the
Government, or any (5) Previous tenure of office: for example, an appointed
thereof made in favor of the relative of: Powers and Duties of Public
(a) appointing authority;
subdivision, agency or
instrumentality thereof,
Ombudsman is absolutely disqualified
reappointment (Article XI, Constitution).
for
(b) recommending authority; Officers
(c) chief of the bureau office; or
including government - (d) person exercising immediate supervision over the CLASSIFICATION OF POWERS AND DUTIES
owned or -controlled (6) Consecutive terms limit:
appointee [De Leon, 2008]
corporations or their (a) Vice-President = 2 consecutive terms
subsidiaries (b) Senator = 2 consecutive terms
In the last two cases, it is immaterial who the appointing or AS TO NATURE
(c) Representative = 3 consecutive terms
recommending authority is. To constitute a violation of the Ministerial
Effect: or else he forfeits his (d) Elective local officials = 3 consecutive terms [Sec. 8,
law, it suffices that an appointment is extended or issued Official duty is ministerial when it is absolute, certain and
seat Art. X, Constitution]
in favor of a relative of the chief of the bureau or office, or imperative involving merely execution of a specific duty
the person exercising immediate supervision over the arising from fixed and designated facts. Where the officer
Shall also not be appointed Public officer’s voluntary renunciation of office for any
appointee [CSC v. Dacoycoy (1999)] or official body has no judicial power or discretion as to the
to any office when such was length of time = an interruption in the continuity of his
service for the full term for which he was elected. interpretation of the law, and the course to be pursued is
created or its emoluments Relative: related within the third degree of either fixed by law, their acts are ministerial only.
were increased during his consanguinity or of affinity.
term. (Art. VI, Sec 13) (7) Holding more than one office: to prevent offices of public
trust from accumulating in a single person, and to Performance of duties of this nature may, unless expressly
Members of the Supreme shall not be designated to Exceptions to rule on nepotism: prohibited, be properly delegated to another. Thus, a
prevent individuals from deriving, directly or indirectly,
Court and other courts any agency performing (a) persons employed in a confidential capacity ministerial act which may be lawfully done by another
any pecuniary benefit by virtue of their holding of dual
established by law quasi-judicial or (b) teachers officer may be performed by him through any deputy or
positions.
administrative functions. (c) physicians agent willfully created or appointed.
(Art. VIII, Sec. 12) (d) members of the Armed Forces of the Philippines
Civil Liberties Union v. Executive Secretary (1991):
Section 7, Article IX-B of the Constitution generally prohibits Where the law expressly requires the act to be performed
Members of the shall not hold any other (10) Under the Local Government Code (sec. 40)
elective and appointive public officials from holding by the officer in person, it cannot, though ministerial, be
Constitutional Commission office or employment [during (a) Sentenced by final judgment for an offense
multiple offices or employment in the government unless delegated to another.
their tenure]. (Art. IX-A, Sec. involving moral turpitude or for an offense
2) they are otherwise allowed by law or by the primary
punishable by 1 year or more of imprisonment, Discretionary
Ombudsman and his (Art. XI, Sec. 8) functions of their position.
within 2 years after serving sentence; They are such as necessarily require the exercise of reason
Deputies (b) Removed from office as a result of an administrative
This provision does NOT cover the President, Vice- in the adaptation of means to an end, and discretion in
Members of Constitutional must not have been case; determining how or whether the act shall be done or the
President and cabinet members – they are subject to a
Commissions, the candidates for any elective (c) Convicted by final judgment for violating the oath of course pursued.
stricter prohibition under Section 13 of Article VII.
Ombudsman and his position in the elections allegiance to the Republic;
Deputies immediately preceding their (d) Dual citizenship; When the law commits to any officer the duty of looking
To apply the exceptions found in Section 7, Article IX-B to
appointment (Art IX-B, Sec. 1; Section 13, Article VII would obliterate the distinction set by into facts and acting upon them, not in a way which it
Art. IX-C, Sec. 1; Art. IX-D, the framers of the Constitution as to the high-ranking Mercado v. Manzano (1999): specifically directs, but after a discretion in its nature, the
Sec. 1; Art XI, Sec. 8) officials of the Executive branch. Dual citizenship is different from dual allegiance. The function is quasi-judicial.
Members of Constitutional are appointed to 7-year term, former arises when, as a result of the concurrent
However, public officials holding positions without application of the different laws of two or more states, a The presumption is that the public officer was chosen
Commissions, the without reappointment (Sec.
additional compensation in ex-officio capacities as person is simultaneously considered a national by the said because he was deemed fit and competent to exercise that
Ombudsman and his 1(2) of Arts. IX-B, C, D; Art. XI,
provided by law and as required by their office’s primary states. judgment and discretion. Unless the power to substitute
Deputies Sec. 11)
functions are not covered by the Section 13, Article VII another in his place has been given to him, a public officer
The President’s spouse and shall not be appointed prohibition. cannot delegate his duties to another.
PAGE 99 PAGE 100
Nothing is better settled in the law than that a public DUTY TO MAKE PUBLIC DISCLOSURE OF STATEMENTS OF ASSETS
official exercises power, not rights. The government itself is AND LIABILITIES [SEC. 17, ART. XI] Unless the Constitution expressly or impliedly prohibits
AS TO THE OBLIGATION OF THE OFFICER TO PERFORM HIS POWERS merely an agency through which the will of the state is Public officials and employees have an obligation under Congress from doing so, it may delegate the power to
AND DUTIES expressed and enforced. Its officers therefore are likewise the Code of Conduct and Ethical Standards for Public other government bodies or officers.
Mandatory agents entrusted with the responsibility of discharging its Officials and Employees to accomplish and submit
Powers conferred on public officers are generally functions. As such there is no presumption that they are declarations under oath of, and the public has the right to The salary of a public officer may not, by garnishment,
construed as mandatory although the language may be empowered to act. There must be a delegation of such know, their assets, liabilities, net worth and financial and attachment or order of execution, be seized before being
permissive, where they are for the benefit of the public or authority, either express or implied. In the absence of a business interests including those of their spouses and of paid to him and, appropriated for the payment of his
individuals valid grant, they are devoid of power. What they do suffers unmarried children under 18 years of age living in their debts.
from a fatal infirmity. [Villegas v. Subido (1969)] household.
Permissive The rationale behind this doctrine is obvious consideration
Statutory provisions define the time and mode in which DUTIES OF PUBLIC OFFICERS TO OWE THE STATE AND THE CONSTITUTION ALLEGIANCE AT ALL of public policy. The functions and public services
public officers will discharge their duties, and those which (De Leon, 2008) TIMES [SEC. 18, ART XI] rendered by the State cannot be allowed to be paralyzed
are obviously designed merely to secure order, uniformity, or disrupted by the diversion of public funds from their
system and dispatch in public business are generally TO BE ACCOUNTABLE TO THE PEOPLE, TO SERVE THEM WITH legitimate and specific objects, as appropriated by law. [De
deemed directory. UTMOST RESPONSIBILITY, INTEGRITY, LOYALTY AND EFFICIENCY la Victoria v. Burgos, (1995)]
[SEC. 1, ART XI]
If the act does not affect third persons and is not clearly Rights of Public Officers BASIS OF RIGHT TO COMPENSATION
beneficial to the public, permissive words will not be To obey the law The relation between an officer and the public is not the
construed as mandatory. It is the duty of an officer to obey the general laws and the IN GENERAL [De Leon, 2008] creation of contract, nor is the office itself a contract.
laws which prescribe the duties of his office, and a public RIGHTS INCIDENT TO PUBLIC OFFICE Hence, his right to compensation is not the creation of
AS TO THE RELATIONSHIP OF THE OFFICER TO HIS SUBORDINATES officer has no power to vary or waive any statutory law. The rights of one elected or appointed to office are, in contract. It exists as the creation of law and belongs to him
Power of Control general, measured by the Constitution or the law under not by force of any contract but because the law attaches it
It implies the power of an officer to manage, direct or As a general rule, a public officer must obey a law found on which he was elected or appointed. to the office.
govern, including the power to alter or modify or set aside the statute books until its constitutionality is judicially
what a subordinate had done in the performance of his passed upon in a proper proceeding. Right to office – The just and legal claim to exercise the The right to compensation grows out of the services
duties and to substitute his judgment for that of the latter. powers and the responsibilities of the public office rendered. After services have been rendered, the
To accept and continue in office compensation thus earned cannot be taken away by a
Power of Supervision It is the duty of every person having the requisite subsequent law.
qualifications, when elected or appointed to a public office, Term Tenure
Supervisory power is the power of mere oversight over an
inferior body which does not include any restraining to accept it. The theory is that the public has the right to Period during which the Period during which the As a general proposition, a public official is not entitled to
authority over such body. command the services of any citizen in any official position officer may claim to hold the officer actually holds office any compensation if he has not rendered any service.
which it may designate. office as of right [Acosta v. CA, (2000)]
A supervising officer merely sees to it that the rules are
followed, but he himself does not lay down such rules, nor To accept the burden of office Right of a de facto officer to salary –where there is no de
RIGHTS AS A CITIZEN
does he have the discretion to modify or replace them. One who accepts a public office does so with the burden, jure officer, a de facto officer who, in good faith, has
and is considered as accepting its burdens and obligations Protection from publication commenting on his fitness and possession of the office and has discharged the duties
with its benefits. He thereby subjects himself to all the like thereof, is entitled to salary
AUTHORITY OF PUBLIC OFFICERS
constitutional and legislative provisions relating thereto The mere fact that one occupies a public office does not
[Nachura, 2009]
and undertakes to perform all the duties of the office. deprive him of the protection accorded to citizens by the RIGHT TO BACK SALARIES
Constitution and the laws. Back salaries are payable to an officer illegally dismissed
Authority of public officers consists of those which are
(1) Expressly conferred upon him by the act appointing him As to diligence and care or otherwise unjustly deprived of his office, the right to
Every public officer is bound to use reasonable skill and However, by reason of the public character of his recover accruing from the date of deprivatio. The claim for
(2) Expressly annexed to the office by law and
diligence in the performance of his official duties, employment or office, a public officer is, in general, held back salaries must be coupled with a claim for
(3) Attached to the office by common law as incidents to it
particularly where rights of individuals may be jeopardized not entitled to the same protection from publications reinstatement and subject to the prescriptive period of 1 yr
by his neglect. commenting on his fitness and the like, as is accorded to
Doctrine of necessary implication – all powers necessary for
the ordinary citizen. To fall under this exception, 2 conditions must be complied
the effective exercise of the express powers are deemed
impliedly granted As to choice and supervision of subordinates with:
It is the duty of a public officer having an appointing power Engaging in certain political and business activities (1) the employee must be found innocent of the charges
Authority can be exercised only during the term when the to make the best available appointment. The governmental interest in maintaining a high level (2) his suspension must be unjustified.
public officer is, by law, invested with the rights and duties service by assuring the efficiency of its employees in the
of the office The degree of care required in selecting subordinates must performance of their tasks may require public employees Right to Vacation Leave and Sick Leave with Pay – under
depend upon the nature of the work to be performed and to suspend or refrain from certain political or business Sec. 81 of the LGC, elective officials shall be entitled to the
SOURCE OF POWERS AND AUTHORITY the circumstances of each case. activities that are embraced within the constitutional rights same leave privilieges as those enjoyed by appointive local
[De Leon, 2008] of others, when such activities are reasonably deemed officials, including the accumulation and commutation
Under our political system, the source of governmental Ethical duties inconsistent with their public status and duties. thereof. Government officers and employees are entitled to
authority is found in the people. Directly or indirectly Every public officer is bound to perform the duties of his commutation of all leave credits without limitation and
through their chosen representatives, they create such office honestly, faithfully and to the best of his ability, in RIGHT TO SALARY [De Leon, 2008] regardless of the period when the credits were earned
offices and agencies as they deem to be desirable for the such a manner as to be above suspicion of irregularities, Salary – personal compensation to be paid to the public provided the claimant was in the service as of Jan. 9, 1985
administration of the public functions and declare in what and to act primarily for the benefit of the public. officer for his services, and it is generally a fixed annual or [Presidential Memo Circular No. 54]
manner and by what persons they shall be exercised. periodical payment depending on the time and not on the
As to outside activities: It is the duty of public officers to amount of the services he may render RIGHT TO RETIREMENT PAY
Their will, in these respects, finds its expression in the refrain from outside activities which interfere with the given to government employees to reward them for giving
Constitution and the laws. The right to be a public officer, proper discharge of their duties Distinguished from wages in that salary is given to officers giving the best years of their lives in the service of their
then, or to exercise the powers and authority of a public of higher degree of employment than those to whom country. Retirement laws are liberally construed in favor of
office, must find its source in some provision of the public wages are given the retieree [Profeta v. Drilon (1992)]. It may not be
law. withheld and applied to his indebtedness to the
The power to fix the compensation of public officers is not government [Tantuico v. Domingo (1994)]
inherently and exclusively legislative in character.
PAGE 101 PAGE 102

to the public service provided that the acts of the (a) where such are indispensable in the proper conduct of (9) The right to be secure in one's person, house, papers,
OTHER RIGHTS [De Leon, 2008] appointing power are bona fide for the best interest of the the office, the officer may not take them as his own and effects against unreasonable searches and
public service and the person chosen has the needed property. seizures;
RIGHTS UNDER THE CONSTITUTION qualifications. (b) if, not being required by law, they are prepared by the (10) The liberty of abode and of changing the same;
Right to self-organization officer apart from his official duties and are not (11) The privacy of communication and correspondence;
The right to self-organization shall not be denied to PERSONNEL ACTIONS indispensable in the proper conduct of the office, the (12) The right to become a member of associations or
government employees. [Sec. 2(5), Art. IX-B, Constitution]. Any action denoting the movement or progress of officer may acquire a property right therein. societies for purposes not contrary to law;
Government employees in the civil service are granted the personnel in the civil service is known as personnel action. (13) The right to take part in a peaceable assembly to
right to form unions enjoyed by workers in the private petition the government for redress of grievances;
sector. It includes: (14) The right to be free from involuntary servitude in any
(a) appointment through certification form;
However, the constitutional grant to government workers (b) promotion Liabilities of Public Officers (15) The right of the accused against excessive bail;
of the right to form labor organizations or unions does not (c) transfer (16) The right of the accused to be heard by himself and
guarantee them the right to bargain collectively with the (d) reinstatement The liability of a public officer to an individual or the public counsel, to be informed of the nature and cause of the
government or to engage in concerted activities including (e) reemployment is based upon and is co-extensive with his duty to the accusation against him, to have a speedy and public
the right to strike, which are enjoyed by private employees. (f) detail individual or the public. (De Leon, 2008) trial, to meet the witnesses face to face, and to have
They are prohibited from staging strikes, demonstrations, (g) reassignment compulsory process to secure the attendance of
mass leaves, walk-outs and other forms of mass actions (h) demotion and GENERAL RULE ON LIABILITY witness in his behalf;
which will result in temporary stoppage or disruption of (i) separation Apublic officer is not liable for the injuries sustained by (17) Freedom from being compelled to be a witness
public services another as a consequence of official acts done within the against one's self, or from being forced to confess
RIGHTS UNDER THE REVISED GOVERNMENT SERVICE INSURANCE scope of his authority, except as otherwise provided by law guilt, or from being induced by a promise of immunity
Right to protection of temporary employees ACT (Nachura, 2009) or reward to make such confession, except when the
Employees in the government given temporary Covered employees are entitled to retirement benefits, person confessing becomes a State witness;
appointments do not enjoy security of tenure. They shall be separation benefits, unemployment or involuntary A public officer shall not be civilly liable for acts done in (18) Freedom from excessive fines, or cruel and unusual
given such protection as may be established by law to separation benefits, disability benefits, survivorship the performance of his official duties, unless there is a clear punishment, unless the same is imposed or inflicted
prevent indiscriminate dismissals and to see to it that their benefits, funeral benefits and life insurance benefits. showing of bad faith, malice or negligence [Sec. 38(1), in accordance with a statute which has not been
separation or replacement is made only for justifiable Administrative Code] judicially declared unconstitutional; and
reasons RIGHT TO REIMBURSEMENT AND INDEMNITY (19) Freedom of access to the courts.
When a public officer, in the due performance of his duties, No subordinate officer or employee shall be civilly liable for
Freedom of members of Congress from arrest and from has been expressly or impliedly required by law to incur acts done by him in good faith in the performance of his In any of the cases referred to in this article, whether or not
being questioned expenses on the public account, not covered by his salary duties. However, he shall be liable for wilful or negligent the defendant's act or omission constitutes a criminal
A Senator or Member of the House of Representatives or commission and not attributable to his own neglect or acts done by him which are contrary to law, morals, public offense, the aggrieved party has a right to commence an
shall, in all offenses punishable by not more than six years default, the reasonable and proper amount thereof forms a policy and good customs even if he acted under orders or entirely separate and distinct civil action for damages, and
imprisonment, be privileged from arrest while Congress is legitimate charge against the public for which he should instructions of his superiors for other relief. Such civil action shall proceed
in session. No member shall be questioned nor be held be reimbursed. independently of any criminal prosecution (if the latter be
liable in any other place for any speech or debate in the Under Sec. 24, LGC, local governments and their officials instituted), and mat be proved by a preponderance of
Congress or in any committee thereof. [Sec. 11, Art. VI, Within the same limits, the officer is entitled to be are not exempt from liability for death or injury to persons evidence.
Constitution] indemnified by the public against the consequences of acts or damage to property
which he has been expressly or impliedly required to The indemnity shall include moral damages. Exemplary
Right not to be removed or suspended except for cause perform upon the public account, and which are not STATUTORY LIABILITY damages may also be adjudicated.
provided by law manifestly illegal and which he does not know to be Art. 27. Any person suffering material or moral loss
Implicit in the constitutional prohibition against removal or wrong. because a public servant or employee refuses or neglects, The responsibility herein set forth is not demandable from
suspension except for cause, is the existence of a charge, without just cause, to perform his official duty may file an a judge unless his act or omission constitutes a violation of
due hearing, and the finding of guilt by the proper RIGHT TO REINSTATEMENT AND BACK SALARY
action for damages and other relief against he latter, the Penal Code or other penal statute. [Civil Code]
authority. Reinstatement means the restoration to a state or without prejudice to any disciplinary administrative action
condition from which one had been removed or separated. that may be taken. [Civil Code] This provision renders a public officer civilly liable for
RIGHTS UNDER THE CIVIL SERVICE DECREE AND THE NEW One who is reinstated assumes the position he had damages for directly or indirectly obstructing, defeating,
ADMINISTRATIVE CODE occupied prior to the dismissal violating or in any manner impeding or impairing civil
The provision contemplates a refusal or neglect without
(a) Right to preference in promotion just cause by a public servant or employee to perform his liberties guaranteed by the Constitution.
(b) Right to present complaints and grievances Back salary or wages is a form of relief that restores the
official duty. Where there is just cause, he may not be held
(c) Right not to be suspended or dismissed except for income that was lost by reason of unlawful dismissal Under this provision, it is not necessary that the public
liable.
cause as provided by law and after due process officer acted with malice or bad faith. To be liable, it is
(d) Right to organize For a plaintiff to succeed in seeking reinstatement to an enough that there was a violation of the constitutional
office, he must prove his right to the office. Unless this Art. 32. Any public officer or employee, or any private rights of the aggrieved party, even on the pretext of
NEXT-IN-RANK RULE right is shown, the action must fail even if the appointment individual, who directly or indirectly obstructs, defeats, justifiable motives or good faith in the performance of
This rule specifically applies only in cases of promotion. It of the successor is first in issue. violates or in any manner impedes or impairs any of the one’s duties.
neither grants a vested right to the holder nor imposes a following rights and liberties of another person shall be
ministerial duty on the appointing authority to promote RIGHTS TO PROPERTY, DEVICES AND INVENTIONS liable to the latter for damages: Good faith is not a defense.
such person to the next higher position. Title to a public office carries with it the right, during the (1) Freedom of religion;
incumbency of the officer, to the insignia and property (2) Freedom of speech;
CRIMINAL LIABILITY [DE LEON, 2008]
One who is “next-in-rank” to a vacancy is given preferential thereof. (3) Freedom to write for the press or to maintain a
The mere fact that an officer is acting in an official capacity
consideration for promotion to a vacant position, but it periodical publication;
will not relieve him from criminal liability.
does not necessarily follow that he alone and no one else The question whether records, discoveries, inventions, (4) Freedom from arbitrary or illegal detention;
can be appointed. devices, data and the like, made or prepared by an officer (5) Freedom of suffrage;
Crimes peculiar to certain public officers:
while he is occupying the office, belong to the public, must (6) The right against deprivation of property without due
(1) Revised Penal Code
Reason for the rule: The preference given assumes that be determined wit reference to the facts of each case. process of law;
(2) Anti-Graft and Corrupt Practices Act
employees working in an office for longer period have (7) The right to a just compensation when private
(3) Code of Conduct and Ethical Standards
gained not only superior skills but also greater dedication property is taken for public use;
(4) Forfeiture of Unexplained Wealth Act
(8) The right to the equal protection of the laws;
PAGE 103 PAGE 104
(5) Civil Service Decree negligence or misfeasance of his subordinates, unless he suspension is unjustified
(6) Government Auditing Code has actually authorized by written order the specific act or If reprimanded – cannot Where an officer was unlawfully removed and was
(7) Local Government Code misconduct complained of [Sec. 38(3), Administrative Code] claim backwages. Penalty is prevented for a time by no fault of his own from
(8) National Internal Revenue Code commuted performing the duties of his office, it was held that he
(9) Omnibus Election Code Non-applicability of the Doctrine of Command Responsibility might recover, and that the amount that he had earned in
and the Principle of Respondeat Superior to Public Officers. other employment during his unlawful removal should not
Rules on Preventive Suspension:
Art. 34 When a member of a city or municipal police force – Neither the principle of command responsibility (in be deducted from his unpaid salary. He may recover the
Appointive Officials.
refuses or fails to render aid or protection to any person in military or political structural dynamics) nor the doctrine of full amount notwithstanding that during the period of his
(1) Not a Presidential Appointee
case of danger to life or property, such peace officer shall respondeat superior (in quasi delicts) applies in the law of removal, the salary has been paid to another appointed to
(a) By – the proper disciplining authority
be primarily liable for damages, and the city or public officers. The negligence of the subordinate cannot fill the vacancy unlawfully created.
(b) Against – any subordinate officer or employee
municipality shall be subsidiarily responsible therefor. The be ascribed to his superior in the absence of evidence of
under such authority
civil action herein recognized shall be independent of any the latter’s own negligence [Reyes v. Rural Bank of San The “no work, no pay” principle does not apply where it has
(c) When – pending an investigation
criminal proceedings, and a preponderance of evidence Miguel (2004)] been sufficiently shown that a public official was
(d) Grounds – Dishonesty, oppression or grave
shall suffice to support such action [Civil Code] wrongfully prevented from entering the office and carrying
misconduct, neglect in the performance of duty or if
Exception: The President, being the commander-in-chief of out his duties
there are reasons to believe that respondent is
all armed forces, necessarily possesses control over the
Sec. 38. Liability of Superior Officers. – guilty of the charges which would warrant his
military that qualifies him as a superior within the purview If the illegal dismissal is found to have been made in bad
(2) Any public officer who, without just cause, neglects to removal from the service
of the command responsibility doctrine [In the Matter of the faith by the superior officers then they will be held
perform a duty within a period fixed by law or regulation, or (e) Period – administrative investigation must be
Petition for Writ of Amparo and Habeas Data in favor of personally accountable for back salaries of the illegally
within a reasonable period if none is fixed, shall be liable terminated within 90 days, otherwise the
Noriel H. Rodriguez; Rodriguez v. Macapagal-Arroyo (2011)] dismissed employee.
for damages to the private party concerned without respondent shall be automatically reinstated
prejudice to such other liability as may be prescribed by unless the delay in the disposition of the case is due
PREVENTIVE SUSPENSION AND BACK SALARIES The award of backwages is limited to a maximum period of
law. [Administrative Code] to the fault, negligence or petition of the
Preventive Suspension is a disciplinary measure which is 5 years and not to full back salaries from illegal
respondent, in which case the period of delay shall
intended to enable the disciplinary authority to investigate termination up to reinstatement [David v. Gania, (2003)]
Liability on Contracts – the public officer shall be not be counted
charges against the respondent by preventing the latter
personally liable on contracts he enters into if he acted from using his position or office to influence witnesses, to
without, or exceeded his authority intimidate them, or to tamper with the records which may (2) Presidential Appointee
be vital in the prosecution of the case against him Can only be investigated and removed from office after
Liability on Tort – The public officer shall be personally due notice and hearing by the President under the
principle that the power to remove is inherent in the power
Immunity of Public Officers
liable if he goes beyond the scope of his authority, or KINDS OF PREVENTIVE SUSPENSION
exceeds the powers conferred upon him by law (a) Preventive suspension pending investigation to appoint as can be implied from Sec. 5 of RA 2260
General Rule: The doctrine of state immunity from suit
The proper disciplining authority may preventively [Villaluz v. Zaldivar (1965)]
applies to complaints filed against public officials for acts
Presidential Immunity from Suit –The privilege is enjoyed suspend any subordinate officer under his authority done in the performance of their duties.
only during the tenure of the President. pending an investigation, if the charge against such Elective Officials [Sec. 63, RA 7170]. –
officer involves dishonesty, oppression or grave (1) By – against Exceptions:
THREE-FOLD RESPONSIBILITY OF PUBLIC OFFICERS misconduct or neglect in the performance of duty or if (a) President – elective official of a province, HUC or (1) Where the public official is charged in his official
[De Leon, 2008] there are reasons to believe that the respondent is ICC capacity for acts that are unlawful and injurious to the
A public officer is under a three-fold responsibility for guilty of the charges which would warrant his removal (b) Governor – elective official of CC or municipality rights of others. Not exempt, in their personal capacity,
violation of duty or for wrongful act or omission: from service (De Leon, 2008) (c) Mayor – elective official of a brgy from liability arising from acts committed in bad faith
(1) Civil Liability: if the individual is damaged by such
violation, the official shall, in some cases, be held liable No compensation is due for the period of preventive (2) When – at any time after the issues are joined (2) Where the public official is clearly being sued not in his
civilly to reimburse the injured party suspension pending investigation because such is not a official capacity but in his personal capacity, although
penalty but only a means of enabling the disciplining (3) Grounds the acts complained of may have been committed
(2) Criminal Liability: if he law has attached a penal authority to conduct an unhampered investigation. (De while he occupied a public position [Lansang v. CA
sanction, the officer may be punished criminally (a) Reasonable ground to believe that the respondent
Leon, 2008) (2000)]
has committed the act or acts complained of
(3) Administrative Liability: such violation may also lead to (b) Preventive suspension pending appeal if the penalty (b) Evidence of culpability is strong
(3) Suit to compel performance of official duy or restrain
imposition of fine, reprimand, suspension or removal imposed by the disciplining authority is suspension or (c) Gravity of the offense so warrants performance of an act
from office. This administrative liability is separate and dismissal and, after review, the respondent is (d) Continuance in office of the respondent could
distinct from the penal and civil liabilities. (Agpalo, exonerated [Caniete v. Secretary of Education (2000)] influence the witnesses or pose a threat to the safety DOCTRINE OF OFFICIAL IMMUNITY FROM LIABILITIES
2005) and integrity of the records and other evidence FOR PUBLIC OFFICERS
Employees are entitled to compensation for the period of Rationale: promotion of fearless, vigorous and effective
LIABILITY OF MINISTERIAL OFFICERS their suspension pending appeal if they are found (4) Duration administration of policies of government.
(1) Nonfeasance - Neglect or refusal to perform an act innocent. Such suspension is actually punitive so that a (a) Single administrative case – not to exceed 60 days
which is the officer’s legal obligation to perform public officer should be reinstated with full pay for the (b) Several administrative cases – not more than 90 It is generally recognized that public officers and
period of the suspension. days within a single year on the same ground or employees would be unduly hampered, deterred and
(2) Misfeasance – Failure to use that degree of care, skill, grounds existing and known at the time of the first intimidated in the discharge of their duties, if those who
and diligence required in the performance of official suspension act improperly, or even exceed the authority given them,
duty Pending Investigation Pending Appeal
were not protected to some reasonable degree by being
Not a penalty but only a Punitive in character (5) Preventive suspension of an elective local official is not relieved from private liability. The threat of suit could also
(3) Malfeasance – the doing, through ignorance, means of enabling the deter competent people from accepting public office.
an interruption of the 3-term limit rule [Aldovino v.
inattention or malice, of an act which he had no legal disciplining authority to COMELEC (2009)]
right to perform conduct unhampered OTHER PUBLIC POLICY CONSIDERATIONS:
investigation (1) loss of valuable time caused by such actions
ILLEGAL DISMISSAL, REINSTATEMENT AND BACK
(2) unfairness of subjecting officials to personal liability for
No backwages due for the If exonerated – reinstated SALARIES
the acts of their subordinates
COMMAND RESPONSIBILITY period of suspension even if with full pay for the period of Reinstatement and back salary or wages are separate and
A head of a department or a superior officer shall not be found innocent unless suspension distinct reliefs given to an illegally dismissed official or
civilly liable for the wrongful acts, omissions of duty, employee.
PAGE 105 PAGE 106

(3) a feeling that the ballot and removal procedures are DE FACTO OFFICER DEFINED (a) Reputation or acquiescence;
De Jure De Facto
more appropriate methods of dealing with the One who has the reputation of being the officer that he (b) Known and valid appointment or election but the
misconduct in public office. assumes to be, and yet is not a good officer in point of law. Basis of Authority officer failed to conform to a legal requirement
[Torres v. Ribo (1948)] (c) Known appointment or election but void because of
OFFICIAL IMMUNITY DISTINGUISHED FROM STATE Right: Reputation: He possesses ineligibility of the officer, or want of authority of the
IMMUNITY He must have: He has the lawful right / office and performs its appointing or electing authority, or because of an
The immunity of public officials is a more limited principle (1) acted as an officer for such length of time, title to the office duties under color of right, irregularity in his appointment or election, such
than governmental immunity since its purpose is not (2) under color of title and under such circumstances of but he is not technically ineligibility, want of authority or irregularity being
directly to protect the sovereign, but rather to do so only reputation or acquiescence by the public and public qualified to act in all points unknown to the public
collaterally, by protecting the public official in the authorities, of law (d) Known appointment or election pursuant to an
performance of his government function. (3) as to afford a presumption of election or appointment, How Ousted unconstitutional law before declaration of
and unconstitutionality
The doctrine of sovereign immunity principally rested upon (4) induce people, without inquiry, and relying on the Cannot be ousted. In a direct proceeding (quo
the tenuous ground that the king could do no wrong. It supposition that he is the officer he assumes to be, to warranto); WHO ARE NOT CONSIDERED DE FACTO OFFICERS?
served to protect the impersonal body politic or submit to or invoke his action. (collaterally) (1) A judge who has accepted an appointment as finance
government itself from tort liability. Validity of Official Acts secretary and yet renders a decision after his
A person is a de facto officer when the duties of his office acceptance: if he has ceased to be judge by actually
Official Immunity serves as a protective aegis for public are exercised under ANY of the following circumstances: Valid, subject to exceptions Valid as to the public until accepting and entering into some other office and has
officials from tort liability for damages arising from (1) There is no known appointment or election, but people (e.g., acting beyond his his title to the office is actually entered upon the performance of the duties of
discretionary acts or functions in the performance of their are induced by circumstances of reputation or scope of authority, etc.) adjudged insufficient. the other office, it is difficult to understand how he can
official duties. acquiescence to suppose that he is the officer he Rules on Compensation still be considered as actually occupying and
assumes to be. Consequently, people do not to inquire performing the duties of the office which he had
OFFICIAL IMMUNITY NOT ABSOLUTE into his authority, and they submit to him or invoke his Rightfully entitled to Conditionally entitled to abandoned and vacated. An abandonment and a
A public officer enjoys only qualified, not absolute action; compensation; receive compensation: only vacation of an office is inconsistent and repugnant to the
immunity. The protection afforded by the doctrine when no de jure officer is idea of actually continuing to perform the duties of such
generally applies only to activities within the scope of office (2) He possessed public office under color of a known and The principle "No work, no declared; office; [Luna v. Rodriguez (1917)]
that are in good faith and are not reckless, malicious or valid appointment or election, but he failed to conform pay" is inapplicable to him.
corrupt. to some precedent requirement or condition (e.g., taking He is paid only for actual (2) A judge whose position has already been lawfully
an oath or giving a bond); services rendered. abolished, and yet promulgates a decision in a criminal
But acts of a public officer are protected by the case after the abolition and over the fiscal’s objection
presumption of good faith. Even mistakes concededly (3) He possessed public office under color of a known OFFICER DE FACTO V. INTRUDER [People v. So (1995)]
committed by such a public officer in the discharge of his election or appointment, but such is VOID because:
De Jure De Facto
official duties are not actionable as long as it is not shown (a) He’s ineligible; OFFICE CREATED UNDER AN UNCONSTITUTIONAL STATUTE
that they were motivated by malice or gross negligence (b) The electing or appointing body is not empowered Nature The prevalent view is that a person appointed or elected in
amounting to bad faith. to do such; accordance with a law later declared to be
(c) His exercise of his function was defective or He becomes officer under He possesses office and unconstitutional may be considered de facto at least
IMMUNITY FROM SUIT OF THE PRESIDENT irregular; any of the 4 circumstances performs official acts without before the declaration of unconstitutionality.
General Rule: The President shall be immune from suit (d) Important: The public does NOT KNOW of such discussed under Part II actual or apparent authority.
during his tenure. ineligibility, want of power, or defect being. (above). LEGAL EFFECT OF ACTS OF DE FACTO OFFICERS
Basis of Authority [Monroy v. CA (1967)]
Exception: (4) He possessed public office under color of an election or (1) As regards the officers themselves: A party suing or
(1) Impeachment complaint [Sec. 2 Art. XI, Constitution] an appointment by or pursuant to a public, unconstitutional Color of right or title to None. Neither lawful title nor defending in his own right as a public officer must
(2) While the President is immune from suit, she may not law, before the same is adjudged to be such. office color of right to office. show that he is an officer de jure. It is not sufficient that
be prevented from instituting a suit Validity of “official acts” he be merely a de facto officer.
What is unconstitutional is the officer’s appointment to an
A non-sitting President does not enjoy immunity from suit, office not legally existing, (not creation of an Valid as to the public until Absolutely void; His acts can (2) As regards the public and third persons: The acts of a de
even for acts committed during the latter’s tenure [In the unconstitutional office). [Norton v. County of Shelby (1886)] his title to the office is be impeached at any time in facto officer are valid as to third persons and the public
Matter of the Petition for the Writ of Amparo and Habeas adjudged insufficient any proceeding (unless and until his title to office is adjudged insufficient.
Data in favor of Noriel H. Rodriguez; Rodriguez v. OFFICER DE JURE V. OFFICER DE FACTO (Asked in until he continues to act for a
Macapagal-Arroyo (2011)] 2000, 2004) long time, creating a Rationale: The doctrine is intended not for the
presumption of his right to protection of the public officer, but for the protection of
De Jure De Facto act) (De Leon, p. 119) the public and individuals who get involved in the
Requisites Rules of Compnesation official acts of persons discharging the duties of a
De facto Officers A de jure office exists; De jure office; Entitled to receive

compensation only when
Not entitled to compensation
at all.
public office.
(3) De Facto Officer’s Official Acts are not subject to

He is legally qualified for the He assumed office under no de jure officer is collateral attack
DE FACTO DOCTRINE
office; color of right or general declared and only for
It is the doctrine that a person who is admitted and sworn
acquiescence by the public; actual services rendered. Rule: A de facto officer’s and his acts’ validity cannot be
into office by the proper authority is deemed to be rightfully
in such office until: He is lawfully chosen to such collaterally questioned (in proceedings where he is not a
(1) he is ousted by judicial declaration in a proper office; He actually and physically An intruder / usurper may be presumed a de facto officer party, or were not instituted to determine the very
proceeding; or possessed the office in good with the passage of time, when the public presumes in question).
(2) his admission thereto is declared void. He undertakes to perform faith. their minds IN GOOD FAITH that the intruder is rightfully
the duties of such office acting as a public officer. Remedy: Quo warranto proceedings filed by:
Doctrine’s Purpose: to ensure the orderly functioning of according to law’s (a) The person claiming entitlement to the office;
government. The public cannot afford to check the validity prescribed mode. ELEMENTS OF A DE FACTO OFFICERSHIP (b) The Republic of the Philippines (represented by the
of the officer's title each time they transact with him. (1) A validly existing public office; Solicitor-General or a public prosecutor).
(2) Actual physical possession of the office in good faith;
(3) Color of title to the office:
PAGE 107 PAGE 108
LIABILITY OF DE FACTO OFFICERS

(De Leon, pp. 130-131) Termination of Official Where no such form is prescribed no particular mode is
required, but the resignation may be made by any method
to the other and in the nature of the functions and duties
which attach to them
A de facto officer generally has the same degree of liability
in accountability for official acts like a de jure officer. Relation indicative of the purpose. It need not be in writing, unless
so required by law. It exists where:
(1) There is conflict in such duties and functions, so that the
The de facto officer may be liable for all imposable penalties EXPIRATION OF THE TERM OR TENURE OF OFFICE A written resignation, delivered to the board or officer performance of the duties of one interferes with the
for ANY of the following acts: Upon the expiration of the officer’s term, unless he is authorized to receive it and fill the vacancy thereby performance of the duties of the other as to render it
(1) usurping or unlawfully holding office; authorized by law to hold over, his rights, duties and created, is prima facie, but not conclusive evidence of the improper from consideration of public policy for one
(2) exercising the functions of public office without lawful authority as a public officer must ipso facto cease. intention to relinquish the office. person to retain both.
right; (2) One is subordinate to the other and is subject in some
(3) ineligibility for the public office as required by law Term of office – the time during which the officer may claim RESIGNATION REVOCABLE BEFORE NOTIFICATION OF ACCEPTANCE degree to its supervisory power for obviously in such a
to hold the office as of right and fixes the interval after In the case of Republic v. Singun (2008), the Court ruled situation, the design that one acts as a check on the
The de facto officer cannot excuse responsibility for crimes which the several incumbents shall succeed one another. It that since respondent was not finally notified of its other would be frustrated.
committed in his official capacity by asserting his de facto is a fixed and definite period of time to hold office, perform acceptance, respondent could validly be withdrawn. (3) The Constitution of the law itself declares the
status. its functions and enjoy its privileges and emoluments until (1) Art. 238 of the RPC makes it an offense for any public incompatibility even though there is no inconsistency in
the expiration of said period officer who, before acceptanceof his resignation, abandons the nature and functions of the offices.
RIGHT TO COMPENSATION OF DE FACTO OFFICER his office to the detriment of the public service
General Rule: Tenure of office – the period during which the incumbent (2) Accepting Authority Exceptions:
None. A de facto officer cannot sue for the recovery of actually holds office. (a) As provided by law (1) Where the public officer is authorized by law to accept
salary, fees or other emoluments attached to the office, for (b) If the law is silent on who shall accept and the the other office (ex officio capacity)
the duties he has performed. His acts, as far as he himself is Accomplishment of the Purpose – Where an office is public officer is an appointive officer, tender to the (2) In case of the forbidden office, it is the second office
concerned, are void. (63A Am. Jur. 2d 1094-1095) created, or an officer is appointed, for the purpose of appointing authority. If elective, tender by those that is absolutely void
performing a single act or the accomplishment of a given authorized by law
The rightful incumbent may recover from the de facto officer result, the office terminates and the officer’s authority ABANDONMENT OF OFFICE
the salary received by the latter during his wrongful tenure, ceases with the accomplishment of the purposes which ABANDONMENT
Resigning Public Officer Accepting Authority
even though he entered into the office in good faith and called it into being Abandonment is the voluntary relinquishment of an office
under color of title. [Monroy v CA (1967)] President and VP Congress by the holder of all right, title, or claim thereto with the
REACHING THE AGE LIMIT (RETIREMENT) intention of not reclaiming it or terminating his possession
Exceptions: This mode results in the compulsory and automatic Members of Congress Respective Houses and control thereof.
(1) Where there is no de jure public officer, the officer de retirement of a public officer Governor, Vice Gov, Mayor, President
facto who in good faith has had possession of the office Vice Mayor, of HUC and ICC REQUISITES
and has discharged the duties pertaining thereto is legally COMPULSORY RETIREMENT AGE (1) Intention to abandon
entitled to the emoluments of the office. [Monroy v. CA (1) Members of the Judiciary – 70 yrs old City Mayors and Vice Mayors Governor (2) Overt act by which the intention is carried into effect
(1967)] (2) Other government officers and employees – 65 yrs old of CCs, Municipal Mayors
[new GSIS Charter] and Vice Mayors SPECIES OF RESIGNATION
(2) In Civil Liberties Union v. Executive Secretary (1991), even (3) Optional retirement age – after rendition of the Sanggunian Members Sanggunian concerned While resignation in general is a formal relinquishment,
as EO No. 284 was declared unconstitutional because it minimum number of years of service [RA 1616] abandonment is a voluntary relinquishment through non-
allowed Cabinet members to hold multiple offices in direct Elective Barangay Officials Municipal or City Mayors user. Non-user refers to a neglect to use a privilege or a
contravention of the Constitution, it was held that during DEATH OR PERMANENT DISABILITY Appointive Public Officers Appointing Authority right or to exercise an easement or an ofice [Municipality of
their tenure in the questioned positions, the respondents The death of the incumbent of an office, which is by law to San Andres, Catanduanes v. CA (1998)]
may be considered de facto officers and as such entitled to be filled by one person only, necessarily renders the office EFFECTIVE DATE OF RESIGNATION
the emoluments of the office/s for actual service rendered. vacant. The public official cease to hold office upon his The date specified in the tender; and if no such date is Abandonment may also result from acquiescence by the
death and all his rights, duties and obligations pertinent to specified, then resignation shall be effective when the officer in his wrongful removal [Canonizado v. Aguirre
A de facto officer, not having good title, takes the salaries the office are extinguished. public officer receives notice of the acceptance of his (2001)].
at his risk and must account to the de jure officer (when resignation, not the date of the letter or notice of
there is one) for whatever salary he received during the Permanent disability covers both physical or mental acceptance [Gamboa v. CA (1981)] Civil Service Rules – an officer or employee shall be
period of his wrongful tenure, even if he occupied the office disability. automatically separated from the service if he fails to
in good faith. COURTESY RESIGNATION
return to the service after the expiration of one-year leave
RESIGNATION Courtesy Resignation cannot properly be interpreted as a of absence without pay. Also, officers and employeees who
BUT when the de jure officer assumed another position Resignation is the act of giving up or the act of a public resignation in the legal sense for it is not necessarily a are absent for at least 30 days without approved leave
under protest, for which she received compensation: while officer by which he declines his office and renounces the reflection of a public official’s intention to surrender his (AWOL) shall be dropped from the service after due notice
her assumption to the said position and her acceptance of further right to use it. It is an expression of the incumbent position. Rather, it manifests his submission to the will of
the corresponding emoluments do not constitute in some form, express or implied, of the intention to the political authority and the appointing power [Ortiz v. PRESCRIPTION OF RIGHT TO OFFICE
abandonment of her rightful office, she cannot recover full surrender, renounce and relinquish the office and the COMELEC (1988)] Under the Rules of Court, quo warranto is the proper
back wages for such. She is only entitled to back pay acceptance thereof by competent lawful authority [Ortiz v. remedy against a public officer for is ouster from office
differentials between the salary rates for the lower position COMELEC (1988)] ACCEPTANCE OF AN INCOMPATIBLE OFFICE which should be commenced within one year after the
she assumed and the position she is rightfully entitled to. It is contrary to the policy of the law that the same cause of such ouster or the right of the plaintiff to hold
[Gen. Manager, Philippine Ports Authority v. Monserate REQUISITES: individual should undertake to perform inconsistent and such office or position arose; otherwise, the action will be
(2002)] (1) Intention to relinquish a part of the term incompatible duties. barred.
(2) Act of relinquishment
(3) Acceptance by the proper authority, either expressly or General Rule: One who, while occupying one office, accepts Rationale for the one year period: Title to public office
implied another incompatible with the first, ipso facto, absolutely should not be subjected to uncertainties but should be
vacates the first office. determined as speedily as possible.
FORM OF RESIGNATION:
Where by law a resignation is required to be made in any WHEN INCOMPATIBLE
Filing of an action for administrative remedy does not
particular form, that form must be substantially complied Incompatibility is to be found in the character of the offices suspend the period for filing the appropriate judicial
with. and their relation to each other, in the subordination of one proceeding.
PAGE 109 PAGE 110

REMOVAL corruption, other high crimes, or betrayal of public trust. would affect public interest. (no abandonment) [Zandueta (d) Reinstatement
Removal entails the ouster of an incumbent before the All other public officers and employees may be removed v. De La Costa (1938)] (e) Reemployment
expiration of his term. It implies that the office exists after from office as provided by law, but not by impeachment. (f) Detail, reassignment
the ouster. Another term used is dismissal. (Sec. 2, Art. XI, Constitution) CONVICTION OF A CRIME (g) Demotion
When the penalties of perpetual or temporary absolute (h) Separation
Removal from office may be express or implied. The House of Representatives has the sole power to disqualification or penalties of perpetual or temporary (3) Employment status
(1) Appointment of another officer in the place of the initiate all cases of impeachment while the Senate sits as a special disqualification are imposed upon conviction of a (4) Qualification standards
incumbent operates as a removal if the latter was court for the trial of impeachment cases. Judgment in crime, termination of official relation results, for one of the
notified. [De Leon] cases of impeachment shall not extend further than effects of the imposition of said penalties is the deprivation RECALL OF APPOINTMENT
(2) The transfer of an officer or employee without his removal from office and disqualification to hold any office of the public office which the offender may have held. Includes the authority to recall an appointment which has
consent from one office to another, whether it results in under the Republic of the Philippines, but the party been initially approved when it is shown that the same was
promotion or demotion, advancement or reduction in convicted shall nevertheless be liable and subject to Conviction means conviction in a trial court. It issued in disregard of pertinent CSC laws, rules and
salary, is equivalent to his illegal removal or separation prosecution, trial, and punishment, according to law. (Sec. contemplates a court finding guilt beyond reasonable regulations.
from the first office. [Gloria v. Court of Appeals [2000]] 3, Art. XI, Constitution) doubt followed by a judgment upholding and
(3) Demotion to a lower position with a lower rate of implementing such finding. As opposed to Recall under Sec 69-75 of the Local
compensation is also equivalent to removal if no cause ABOLITION OF OFFICE Government Code: Recall is a mode of removal of a public
is shown for it. [De Guzman v. CSC (1994)] To consider an office abolished, there must have been an FAILURE TO ASSUME ELECTIVE OFFICE WITHIN SIX official by the people before the end of his term of office.
intention to do away with it wholly and permanently. MONTHS FROM PROCLAMATION [Garcia v. COMELEC, (1993)]
It is the forcible and permanent separation of the The office of any official elected who fails or refuses to take
incumbent from office before the expiration of his term Except when restrained by the Constitution, the Congress his oath of office within six months from his proclamation REVIEW APPOINTEE’S QUALIFICATIONS.
[Ingles v. Mutuc (1968)]. has the right to abolish an office, even during the term for shall be considered vacant, unless said failure is for a The only function of the CSC is to review the appointment
which an existing incumbent may have been elected. cause or causes beyond his control [Sec. 11, BP 881] in the light of the requirements of the Civil Service Law,
Note: Constitutional guarantee of security of tenure – No and when it finds the appointee to be qualified and all
officer or employee of the civil service shall be removed or Valid abolition of office does not constitute removal of the RECALL other legal requirements have been otherwise satisfied, it
suspended except for cause provided by law [Sec. 2(3), Art incumbent. It is a method of removal prior to the expiration of the term has no choice but to attest to the appointment. [Lapinid v.
IX-B, Constitution]. of a public officer on account of loss of confidence CSC (1991)]
No law shall be passed reorganizing the Judiciary when it exercised directly by the registered voters of a local
Demotions and transfers without just cause are undermines the security of tenure of its members [Sec. 2, government unit WHAT IT CANNOT DO.
tantamount to removal. Art. VIII, Constitution]. (1) It cannot order the replacement of the appointee simply
Note: Appointive and Elective Officials Not Deemed because it considers another employee to be better
Removal or resignation from office is not a bar to a finding The fundamental principle afforded to civil service Resigned upon Filing of CoC – Sec. 13(3) of RA 9369 and qualified. [Lapinid v. CSC (1991)]
of administrative liability [Office of the President v. Cataquiz employees against removal “except for cause as provided Sec. 66 of BP 881, which makes an appointive official ipso (2) The CSC cannot co-manage or be a surrogate
(2011)]. by law” does not protect them against abolition of the facto resigned from his office upon the filing of his Coc, administrator of government offices and agencies.
positions held by them in the absence of any other were declared as unconstitutional [Eleazar v. Quinto (2010)] (3) It cannot change the nature of the appointment
Removal not for a just cause, or non-compliance with the provision expressly or impliedly prohibiting abolition extended by the appointing officer. [Luego v. CSC (1986)]
prescribed procedure constitutes a reversible error and thereof. [Castillo v. Pajo, (1958)] Equal Protection Clause Violated – since it creates a
entitles the officer or employee to reinstatementwith back situation of obvious discrimination against appointive APPOINTMENTS TO THE CIVIL SERVICE
salaries and without loss of seniority rights REQUISITES [Mendoza v. Quisumbing (1990)]: officials who were deemed ipso facto resigned upon filing SCOPE
(1) Abolition must be done in good faith of CoCs while elective officials were not. The differential Embraces all branches, subdivisions, instrumentalities and
Extent of the President’s removal power: (2) Clear intent to do away with the office treatment was not germane to the purposes of the law agencies of the Government, including GOCCs with
(1) With respect to non-career officers exercising purely (3) Not for personal or political reasons original charters [Art. IX-B Sec. 2(1), Constitution]
executive functions whose tenure is not fixed by law (4) Cannot be implemented in a manner contrary to law Overbroad – because it pertains to all civil servants holding
(i.e. members of the Cabinet), the President may appointive posts without distinction as to whether they CLASSES OF SERVICE (Also discussed in Constitutional Law 1)
remove them with or without cause and Congress may Reorganization – reduction of personnel, consolidation of occupy high positions in government or not. And also, the (1) Career Service – Entrance based on merit and fitness
not restrict such power. offices, or abolition thereof by reason of economy or provision is directed to the activity of seeking any and all determined by competitive examinations, or based on
(2) With respect to officers exercising quasi-legislative or redundancy of functions. It could result in the loss of one’s public offices, whether they be partisan or nonpartisan in highly technical qualifications, opportunity for
quasi-judicial functions (e.g. members of the SEC), they position through removal or abolition of an office. character, whether they be in the national, municipal or advancement to higher career positions and security of
may be removed only on grounds provided by law to However, for a reorganization for the purpose of economy barangay level. tenure.
protet their independence. or to make the bureaucracy more efficient to be valid, it
(3) With respect to constitutional officers removable only must pass the test of good faith; otherwise, it is void ab (2) Non-career Service – Entrance on bases other than
by means of impeachment, and judges of lower courts, initio [United Claimant Association of NEA v. NEA (2012)] those of the usual tests. Tenure limited to a period
they are not subject to the removal of the President. specified by law or which is coterminous with the
(4) With respect to civil service officers, the President may Reorganization is valid provided they are pursued in good The Civil Service appointing authority or the duration of a particular project.
remove them at his pleasure with or without cause. faith (i.e. elective officials, Department Heads and Members of
SCOPE Cabinet)
IMPEACHMENT Attrition – reduction of personnel as a result of resignation, Embraces all branches, subdivisions, instrumentalities and
Impeachment – method of national inquest into the retirement, dismissal in accordance with existing laws, agencies of the Government, including government-owned REQUISITES:
conduct of public men. death or transfer to another office [Sec. 2(a), RA 7430 and controlled corporations with original charters [Sec. (1) Appoint only according to merit and fitness, to be
Attrition Law] 2(1), Art. IX-B, Constitution] determined as far as practicable.
Purpose: To protect the people from official delinquencies (2) Require a competitive examination.
or malfeasances. It is primarily intended for the protection IS ABANDONMENT EQUIVALENT TO ABOLITION? CIVIL SERVICE COMMISSION’S (CSC’S) JURISDICTION
of the State, not for the punishment of the offender. When a public official voluntarily accepts an appointment Exclusive Jurisdiction Exceptions:(Positions where Appointees are exempt from
to an office newly created by law -- which new office is (1) Disciplinary cases Competitive Examination Requirements)
The President, the Vice-President, the Members of the incompatible with the former -- he will be considered to (2) Cases involving “personnel action” affecting the Civil (1) Policy determining - in which the officer lays down
Supreme Court, the Members of the Constitutional have abandoned his former office. Service employees: principal or fundamental guidelines or rules; or
Commissions, and the Ombudsman may be removed from (a) Appointment through certification formulates a method of action for government or any
office on impeachment for, and conviction of, culpable Except: when the public official is constrained to accept (b) Promotion of its subsidiaries
violation of the Constitution, treason, bribery, graft and because the non-acceptance of the new appointment (c) Transfer
PAGE 111 PAGE 112
(2) Primarily Confidential – denoting not only confidence in court, instituted by written accusation called ‘articles of (6) Publicize matters covered by its investigation when
the aptitude of the appointee for the duties of the office Exceptions: impeachment.’” [Agpalo, 2005] circumstances so warrant and with due prudence.
but primarily close intimacy which ensures freedom of (1) Temporary Appointee (7) Determine the causes of inefficiency, red tape,
intercourse without embarrassment or freedom from (2) Career Executive Service Personnel whose status and Its purpose is to protect the people from official mismanagement, fraud, and corruption in the
misgivings or betrayals on confidential matters of the salaries are based on ranks (≠ positions) delinquencies or malfeasances. It is primarily intended for Government and make recommendations for their
state [“Proximity Rule” as enunciated in De los Santos v the protection of the State, not for the punishment of the elimination and the observance of high standards of
Mallare (1950)] Reinstatement offender. The penalties attached to impeachment are ethics and efficiency.
(3) Highly Technical – requires possession of technical skill Reinstatement is technically the issuance of a new merely incidental to the primary intention of protecting the (8) Promulgate its rules of procedure and exercise such
or training in a superior degree. (i.e. City Legal Officer) appointment and is discretionary on the part of the people as a body politic. [De Leon, 2008] other powers or perform such functions or duties as
appointing power. may be provided by law. [SEC. 13, ART. XI,
Note: It is the nature of the position which determines GROUNDS [Sec. 2, Art. XI, Constitution] CONSTITUTION]
whether a position is policy determining, primarily It cannot be the subject of an application for a writ of (1) culpable violation of the Constitution
confidential or highly technical mandamus. (2) treason
(3) bribery Sec. 15. Powers, Functions and Duties. – The Office of the
PERSONNEL ACTIONS (4) graft and corruption Ombudsman shall have the following powers, functions
Who may be reinstated to a position in the same level for
(5) other high crimes and duties
which he is qualified:
OTHER PERSONNEL ACTIONS (1) Any permanent appointee of a career service position (6) betrayal of public trust
Promotion is a movement from one position to another Paragraphs 1-7 is almost the same as in the Constitution
(2) No commission of delinquency or misconduct, and is
with increase in duties and responsibilities as authorized by not separated. The acts which are impeachable grounds must be
law and is usually accompanied by an increase in pay. committed in the performance of the official’s public office. (8) Administer oaths, issue subpoena and subpoena
[Agpalo, 2005] ducestecum, and take testimony in any investigation or
Same effect as Executive Clemency, which completely
Next-in-rank Rule inquiry, including the power to examine and have
obliterates the adverse effects of the administrative
The person next in rank shall be given PREFERENCE in No impeachment proceedings shall be initiated against access to bank accounts and records;
decision which found him guilty of dishonesty. He is
promotion when the position immediately above his is the same official more than once within a period of one (9) Punish for contempt in accordance with the Rules of
restored ipso facto upon grant of such. Application for
vacated. year. [Sec. 3, Art. XI, Constitution] Court and under the same procedure and with the
reinstatement = unnecessary.
same penalties provided therein;
BUT the appointing authority still exercises discretion and “Having concluded that the initiation takes place by the act (10) Delegate to the Deputies, or its investigators or
Detail
is not bound by this rule, although he is required to specify of filing of the impeachment complaint and referral to the representatives such authority or duty as shall ensure
Detail is the movement of an employee from one agency to
the “special reason or reasons” for not appointing the House Committee on Justice, the initial action taken the effective exercise or performance of the powers,
another without the issuance of an appointment.
officer next-in-rank. thereon, the meaning of Section 3 (5) of Article XI becomes functions, and duties herein or hereinafter provided;
(1) Only for a limited period.
clear. Once an impeachment complaint has been initiated (11) Investigate and initiate the proper action for the
(2) Only for employees occupying professional, technical
Automatic Reversion Rule in the foregoing manner, another may not be filed against recovery of ill-gotten and/or unexplained wealth
and scientific positions.
All appointments involved in a chain of promotions must the same official within a one year period following Article amassed after February 25, 1986 and the prosecution
(3) Temporary in nature.
be submitted simultaneously for approval by the XI, Section 3(5) of the Constitution.” [Francisco, Jr. v. House of the parties involved therein [SEC. 15, RA 6770]
Commission. Reassignment of Representatives, (2003)]
An employee may be reassigned from one organizational DISCIPLINARY POWER OVER PUBLIC OFFICERS
The disapproval of the appointment of a person proposed unit to another in the SAME agency. OMBUDSMAN [Agpalo, 2005] The Office of the Ombudsman has disciplinary authority
to a higher position invalidates the promotion of those in FUNCTIONS over all elective and appointive officials of the government
the lower positions and automatically restores them to It is a management prerogative of the CSC and any dept or and its subdivisions, instrumentalities and agencies,
The Office of the Ombudsman shall have the following including Members of the Cabinet, local government,
their former positions. agency embraced in the Civil Service. powers, functions and duties: government-owned or controlled corporations and their
(1) Investigate on its own, or on complaint by any person, subsidiaries. (Sec. 21, RA 6770)
However, the affected persons are entitled to payment of It does not constitute removal without cause. any act or omission of any public official, employee,
salaries for services actually rendered at a rate fixed in The disciplinary power of the Ombudsman is not exclusive
office or agency, when such act or omission appears to but is shared with other disciplinary authorities of the
their promotional appointments. (Sec. 13 of the Omnibus Requirements: be illegal, unjust, improper, or inefficient.
Rules Implementing Administrative Code) (1) NO reduction in rank, status or salary. government.
(2) Direct, upon complaint or at its own instance, any
(2) Should have a definite date or duration (c.f. Detail). public official or employee of the Government, or any
Requisites. Otherwise, a floating assignment = a diminution in status The disciplinary power of the Ombudsman over elective
subdivision, agency or instrumentality thereof, as well officials is concurrent with the power vested in the officials
(a) series of promotions or rank. as of any government-owned or controlled corporation
(b) all promotional appointments are simultaneously specified in the Local Government Code of 1991. [Hagad v.
with original charter, to perform and expedite any act Dozo-Dadole, (1995)]
submitted to the Commission for approval or duty required by law, or to stop, prevent, and correct
(c) the Commission disapproves the appointment of a Reemployment any abuse or impropriety in the performance of duties.
person to a higher position. Names of persons who have been appointed permanently Exceptions to Ombudsman’s Disciplinary Power
(3) Direct the officer concerned to take appropriate action The Ombudsman has no disciplinary power over the
to positions in the career service and who have been against a public official or employee at fault, and
Appointment through Certification is issued to a person who separated as a result of reduction in force and/or following (Sec. 21, RA 6770). –
recommend his removal, suspension, demotion, fine, (1) Officials who may be removed only by impeachment
is: reorganization, shall be entered in a list from which censure, or prosecution, and ensure compliance
(1) selected from a list of qualified persons certified by the selection for reemployment shall be made. (2) Members of Congress
therewith. (3) Members of the Judiciary
Civil Service Commission from an appropriate register of (4) Direct the officer concerned, in any appropriate case,
eligibles and subject to such limitations as may be provided by
(2) qualified However, the Office of the Ombudsman has the power to
law, to furnish it with copies of documents relating to investigate any serious misconduct in office committed by
Transfer Accountability of Public contracts or transactions entered into by his office
involving the disbursement or use of public funds or
officials removable by impeachment, for the purpose of
filing a verified complaint for impeachment, if warranted.
Transfer is a movement from one position to another which
is of equivalent rank, level or salary without break in Officers properties, and report any irregularity to the
Commission on Audit for appropriate action.
(Sec. 22, RA 6770)
service. (5) Request any government agency for assistance and
IMPEACHMENT Power to Preventively Suspend
information necessary in the discharge of its The Ombudsman or his Deputy may preventively suspend
This may be imposed as an administrative remedy. Impeachment has been defined as “a criminal proceeding responsibilities, and to examine, if necessary, pertinent
against a public officer, before a quasi-judicial political any officer or employee under his authority pending an
records and documents. investigation, if in his judgment the evidence of guilt is
If UNconsented = violates security of tenure.
strong, and
PAGE 113 PAGE 114

(1) the charge against such officer or employee involves In the absence of any allegation that the offense charged employees, including those employed in government-
dishonesty, oppression or grave misconduct or neglect was necessarily connected with the discharge of the duties owned or -controlled corporations, they shall be tried Section 2 of Republic Act No. 7080 punishes the crime of
in the performance of duty; or functions of a public officer, the ordinary court, not the jointly with said public officers and employees in the plunder. It provides that any public officer who, by himself
(2) the charges would warrant removal from the service; or Sandiganbayan, has jurisdiction to hear and decide the proper courts which shall exercise exclusive jurisdiction or in connivance with members of his family, relatives by
(3) the respondent's continued stay in office may prejudice case. over them. affinity or consanguinity, business associates, subordinates
the case filed against him. (Sec. 24, RA 6770) or other person, amasses, accumulates or acquires ill-
What is controlling is not whether the phrase "committed EXCLUSIVE APPELLATE JURISDICTION gotten wealth through a combination or series of overt or
The preventive suspension shall continue until the case is in relation to public office" appears in the Information. The Sandiganbayan shall exercise exclusive appellate criminal acts in the aggregate amount or total value of at
terminated by the Office of the Ombudsman but not more What determines the jurisdiction of the Sandiganbayan is jurisdiction over final judgments, resolutions or orders of least seventy-five million pesos (P75,000,000.00), shall
than six (6) months, without pay, except when the delay in the specific factual allegation in the Information that regional trial courts whether in the exercise of their own be guilty of plunder and shall be punished by life
the disposition of the case by the Office of the would indicate close intimacy between the discharge of the original jurisdiction or of their appellate jurisdiction. imprisonment with perpetual absolute disqualification
Ombudsman is due to the fault, negligence or petition of accused's official duties and the commission of the offense from holding any public office. Any person who
the respondent, in which case the period of such delay charged in order to qualify the crime is having been APPELLATE JURISDICTION OF THE SUPREME COURT – limited to participated with the said officer in the commission of
shall not be counted in computing the period of committed in relation to public office. The relation questions of lawover decisions and final orders of the plunder shall likewise be punished. The court shall declare
suspension herein provided. (Sec. 24, RA 6770) between the crime and the office must be direct and not Sandiganbayan [Republic v. Sandiganbayan (2002)] any and all ill-gotten wealth and their interests and other
accidental, that is, the relation has to be such that, in the incomes and assets including the properties and shares of
Prior notice and hearing is not required before suspension legal sense, the offense cannot exist without the office. ILL-GOTTEN WEALTH stocks derived from the deposit or investment thereof
may be meted out. Suspension is not a punishment or The right of the State to recover properties unlawfully forfeited in favor of the State. (Agpalo, 2005)
penalty but only a preventive measure to prevent the OFFICIALS AND PRIVATE INDIVIDUALS SUBJECT TO ITS JURISDICTION acquired by public officials or employees, from them or
respondent from using his position or office to influence or Under Section 4(a, b) of PD No. 1606, as amended, the from their nominees or transferees, shall not be barred by TERM LIMITS
intimidate prospective witnesses or tamper with the Sandiganbayan shall exercise exclusive original jurisdiction prescription, laches or estoppel [Sec. 15, Art. XI, All elective local officials, except barangay officials
records which may be vital in the prosecution of the case over the cases mentioned in (a), (b), and (c) above where Constitution] (Sec. 8, Art. X, Constitution; Sec. 43 LGC)
against them. one or more of the accused are officials occupying Term of office: 3 years from noon of June 30, 1992 or the
the following positions in the government, whether in a This provision applies only to civil actions for recovery of ill- date provided by law
JUDICIAL REVIEW IN ADMINISTRATIVE PROCEEDINGS permanent, acting or interim capacity at the time of the gotten wealth and not to criminal cases. Thus, prosecution
Decisions or resolutions of the Ombudsman in commission of the offense: of offenses arising from, relating or incident to, or involving All local officials first elected during the local elections
administrative cases absolving the respondent of the (1) Officials of the executive branch occupying the positions ill-gotten wealth in the said provision may be barred by immediately following the ratification of the 1987
charge or imposing upon him the penalty of public censure of regional director and higher, otherwise classified as prescription [Presidential Ad-hoc Fact Finding Committee Constitution shall serve until noon of June 30, 1992;
or reprimand, suspension of not more than one month, or a Grade '27' and higher, of the Compensation and on Behest Loans v. Desierto (1999)] (1) No official shall serve for more than 3 consecutive terms
fine equivalent to one month salary, is final and Position Classification Act of 1989 (R.A. No. 6758), for the same position;
unappealable. (Agpalo, 2005) specifically including: Ill-gotten wealth means any asset, property, business (2) Voluntary renunciation of the office for any length of
(a) Provincial governors, vice-governors, members of enterprise or material possession of any person acquired time is not an interruption in the continuity of his
Appeals from decisions of the Office of the Ombudsman in the sangguniang panlalawigan, and provincial by himself directly or indirectly through dummies, service for the full term for which he was elected
administrative disciplinary cases should be taken to the treasurers, assessors, engineers, and other nominees, agents, subordinates and/or business
Court of Appeals under the provisions of Rule 43. [Fabian provincial department heads; associates by any combination or series of the following RA 9164: Synchronized Barangay and Sangguniang
v. Ombudsman, (1998)] (b) City mayors, vice-mayors, members of the means or similar schemes: Kabataan Elections (2002)
sangguniang panlungsod, city treasurers, (1) through misappropriation, conversion, misuse, or Sec. 2.Term of Office
JUDICIAL REVIEW IN PENAL PROCEEDINGS assessors, engineers, and other city department malversation of public funds or raids on the public Term of office of barangay and sangguniang kabataan
In all other cases, the decision shall become final after the heads; treasury; officials: 3 years
expiration of 10 days from receipt thereof by the (c) Officials of the diplomatic service occupying the No barangay elective official shall serve for more than 3
respondent, unless a motion for reconsideration or a position of consul and higher; (2) by receiving, directly or indirectly, any commission, gift, consecutive terms in the same position
petition for review is file with the CA pursuant to Rule 43 of (d) Philippine army and air force colonels, naval share,percentage, kickbacks or any other form of (1) Reckoned from the 1994 barangay elections
the Rules of Court. (Agpalo, 2005) captains, and all officers of higher rank; pecuniary benefit from any person and/or entity in (2) Voluntary renunciation of office for any length of time
(e) Officers of the Philippine National Police while connection with any government contract or project or shall not be considered as an interruption
SANDIGANBAYAN occupying the position of provincial director and by reason of the office or position of the public officer
COMPOSITION those holding the rank of senior superintendent or concerned;
Under PD 1606 as amended by RA 8249 - A special court, higher;
of the same level as the Court of Appeals and possessing (f) City and provincial prosecutors and their assistants, (3) by the illegal or fraudulent conveyance or disposition of
all the inherent powers of a court ofjustice, to be known as and officials and prosecutors in the Office of the assets belonging to the National Government or any of
the Sandiganbayan is hereby created composed of a Ombudsman and special prosecutor; its subdivisions, agencies or instrumentalities or
presiding justice and fourteen associate justices who shall government-owned or controlled corporations and
be appointed by the President (2) Presidents, directors or trustees, or managers of their subsidiaries,
government-owned or controlled corporations, state
EXCLUSIVE ORIGINAL JURISDICTION OVER universities or educational institutions or foundations; (4) by obtaining, receiving or accepting directly or indirectly
(1) violations of R.A. No. 3019 and No. 1379 (3) Members of Congress and officials thereof classified as any shares of stock, equity or any other form of interest
(2) crimes committed by public officers and employees Grade "27" and up under the Compensation and or participation including the promise of future
embraced in Title VIII of the Revised Penal Code Position Classification Act of 1989; employment in any business enterprise or undertaking;
(3) other offenses or felonies (whether simple or (4) Members of the judiciary without prejudice to the
complexed with other crimes) committed by public provisions of the Constitution; (5) by establishing agricultural, industrial or commercial
officers and employees in relation to their office, where (5) Chairmen and members of Constitutional monopolies or other combinations and/or
the penalty prescribed by law is higher than prision Commissions, without prejudice to the provisions of the implementation of decrees and orders intended to
correccional or imprisonment for six (6) years, or a fine Constitution; and benefit particular persons or special interests, or
of P6,000; and (6) All other national and local officials classified as Grade
(4) Civil and criminal cases filed pursuant to and in "27" and higher under the Compensation and Position (6) by taking undue advantage of official position,
connection with Executive Orders No. 1,2, 14, and 14-a Classificafion Act of 1989. authority, relationship, connection or influence to
issued in 1986 unjustly enrich himself or themselves at the expense
In case private individuals are charged as co-principals, and to the damage and prejudice of the Filipino people
accomplices or accessories with the public officers or and the Republic of the Philippines. (Sec. 1, RA 7080)
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General Principles (4) Regulation of businesses affected with public interest

(e.g. Insurance Commission, LTFRB, NTC, HLURB);
(5) Regulation of private businesses and individuals (e.g.
DEFINITIONS SEC);
Administrative Law is that branch of modern law under (6) Adjustment of individual controversies because of a
which the executive department of the government, acting strong social policy involved (e.g. ECC, NLRC, SEC,
in a quasi-legislative or quasi-judicial capacity, interferes DAR, COA).
with the conduct of the individual for the purpose of
promoting the well-being of the community [Dean Roscoue
Pound]
Administrative Agencies are the organs of government, Powers of Administrative

other than a court and other than the legislature, which
affect the rights of private parties either through Agencies
adjudication or through rule-making [Nachura]. The powers of administrative agencies are:
(1) Quasi-legislative (Rule-making)
HISTORICAL CONSIDERATIONS (2) Quasi-judicial (Adjudicatory) and
Why did administrative agencies come about? (3) Determinative powers
(1) Growing complexities of modern life
(2) Multiplication of number of subjects needing Does the grant of such powers to Administrative Agencies
government regulation; and violate the Doctrine of Separation of Powers? No.
(3) Increased difficulty of administering laws [Pangasinan
Transportation v. Public Service Commission (1940)] Administrative agencies became the catch basin for the
residual powers of the 3 branches (Dicey). The theory of the
Why are administrative agencies needed? separation of powers is designed to forestall over action
Because the government lacks: resulting from concentration of power. However with the
(1) Time growing complexity of modern life, there is a constantly
(2) Expertise and growing tendency toward the delegation of greater powers
(3) Organizational aptitude for effective and continuing by the legislature. [Pangasinan Transportation v. Public
regulation of new developments in society [Stone] Service Commission (1940)]
QUASI-LEGISLATIVE (RULE-MAKING) POWER

(Asked 5 times in the Bar)
Administrative Agencies The authority delegated by the law-making body to the

administrative agency to adopt rules and regulations
intended to carry out the provisions of a law and
MODES OF CREATION OF ADMINISTRATIVE AGENCIES implement a legislative policy.
(1) 1987 Constitution
(E.g. CSC, COMELEC, COA, CHR, Commission on DOCTRINE OF SUBORDINATE LEGISLATION
Appointments, Judicial and Bar Council, NEDA and Power to promulgate rules and regulations is only limited
Office of the Ombudsman) to carrying into effect what is provided in the legislative
(2) Legislative Enactments enactment.
(E.g. NLRC, SEC, PRC, Social Security Commission,
Commission on Immigration and Deportation, NON-DELEGATION DOCTRINE
Philippine Patent Office, Games and Amusement Potestas delegata non delegare potest. What has been
Board, Board of Energy, and Insurance Commission) delegated cannot be delegated.
(3) Executive Orders/ Authorities of law
(E.g. Fact-finding Agencies) LEGISLATIVE DELEGATION
REQUISITES FOR A VALID DELEGATION
WHEN IS AN AGENCY ADMINISTRATIVE? (1) The law must be complete in itself and must set forth the
Where its function is primarily regulatory EVEN IF it policy to be executed
conducts hearings and determines controversies to carry (2) The law must fix a standard, the limits of which are
out its regulatory duty. sufficiently determinate or determinable, to which the
delegate must conform
On its rule-making authority, it is administrative when it
does not have discretion to determine what the law shall WHAT IS A SUFFICIENT STANDARD:
be but merely prescribes details for the enforcement of the (1) Defines legislative policy, marks its limits, maps out its
law. boundaries and specifies the public agency to apply it;
and
TYPES OF ADMINISTRATIVE AGENCIES (2) Indicates the circumstances under which the legislative
(1) Government grant or gratuity, special privilege (e.g. command is to be effected. [Santiago v. COMELEC
Bureau of Lands, Phil. Veterans Admin., GSIS, SSS, (1997); ABAKADA Guro List v. Ermita (2005)]
PAO);
(2) Carrying out the actual business of government (e.g. FORMS OF THE SUFFICIENT STANDARD:
BIR, Customs, Immigration, Land Registration (1) Express
Authority); (2) Implied [Edu v. Ericta (1970)]
(3) Service for public benefit (e.g. Philpost, PNR, MWSS,
NFA, NHA);
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(3) Embodied in other statutes on the same matter and not Kind of Due process does not always entail notice and hearing
Administrative Judicial
necessarily in the same law being challenged. REQUISITES FOR VALIDITY Proceedings prior to the deprivation of a right. Hearing may occur after
[Chiongbian v. Orbos (1995)] Requisites of a valid administrative rule (WRAP) parties deprivation, as in emergency cases, in which case, there
(1) Within the scope or authority of law must be a chance to seek reconsideration. [UP Board of
KINDS OF ADMINISTRATIVE RULES AND REGULATIONS (2) Authorized by law The agency itself The parties are Regents v. CA (1999)]
(1) Supplementary legislation (3) Reasonableness may be a party to only the private
Parties
Pertains to rules and regulations to fix details in the (4) Promulgated in accordance with prescribed Procedure the proceedings litigants Presence of a party at a trial is not always the essence of
execution of a policy in the law. e.g. IRRs of the Labor before it due process. All that the law requires is the element of
Code. Publication Rules fairness; that the parties be given notice of trial and
(2) Interpretative legislation (1) Administrative rules and regulations are subject to the Requisites for a Valid Exercise (1) an opportunity to be heard
Pertains to rules and regulations construing or publication and effectivity rules of the Admin Code in (1) Jurisdiction (2) in administrative proceedings, an opportunity to seek
interpreting the provisions of a statute to be enforced relation to the Civil Code. (2) Due process reconsideration
and they are binding on all concerned until they are (2) EO 200 requires publication of laws in the Official (3) an opportunity to explain one’s side
changed, i.e. BIR Circulars. Gazette or in a newspaper of general circulation. General Rule
Publication is indispensable, especially if the rule is A tribunal, board or officer exercising judicial functions acts The law, in prescribing a process of appeal to a higher
General Distinctions from Legislative Rules general. without jurisdiction if no authority has been conferred to it level, contemplates that the reviewing officer is a person
Exceptions: by law to hear and decide cases different from the one who issued the appealed decision.
Legislative Rules Interpretative Rules (1) Jurisdiction to hear is explicitly or by necessary
(1) Interpretative rules Otherwise, the review becomes a farce; it is rendered
Promulgated pursuant to Passed pursuant to its quasi- (2) Internal regulations (i.e. regulating personnel) implication, conferred through the terms of the meaningless. [Rivera v. CSC (1995)]
its quasi-legislative / judicial capacity. (3) Letters of instructions issued by administrative enabling statute.
rule-making functions. superior to subordinates (2) Effect of administrative acts outside jurisdiction—Void. Is a trial necessary? —NO. WON to hold an adversarial trial
Create a new law, a new Merely clarify the meaning of (3) Effectivity: 15 days after publication, not 15 days from is discretionary. Parties cannot demand it as a matter of
policy, with the force and a pre-existing law by date of filing with the UP Law Center. Powers included in Quasi-Judicial Function right. [Vinta Maritime v. NLRC (1978)].
effect of law. inferring its implications. Exceptions: (1) Subpoena Power – In any contested case, the agency
Need publication. Need not be published. (1) Different date is fixed by law or specified in the rule. shall have the power to require the attendance of The right of a party to confront and cross-examine
(2) In case of imminent danger to public health, safety witnesses or the production of books, papers, opposing witness is a fundamental right which is part of
So long as the court finds The court may review their documents and other pertinent data. [Sec. 13, 1987
that the legislative rules correctness of the and welfare. due process. If without his fault, this right is violated, he is
Admin Code] entitled to have the direct examination stricken off the
are within the power of interpretation of the law (2) Contempt Power
the administrative given by the administrative Penal Rules record. [Bachrach Motors v. CIR (1978)]
General Rule: Get the aid of RTC.
agency to pass, as seen body, and substitute its own Omission of Some Rules. – (2) Every rule establishing an
Exception: Law gives agency contempt power. [Sec. 13, Evidence on record must be fully disclosed to the parties.
in the primary law, then view of what is correct to the offense or defining an act which, pursuant to law is 1987 Admin Code]
the rules bind the court. administrative body. If it is punishable as a crime or subject to a penalty shall in all [American Inter-Fashion v. Office of the President (1991)] but
(3) Power to issue Search Warrant or Warrant of Arrest respondents in administrative cases are not entitled to be
The court cannot not within the scope of the cases be published in full text. [Sec. 6, 1987 Administrative General Rule: Only Judges may issue
question the wisdom or administrative agency, court Code] informed of findings of investigative committees but only
Exception: Deportation Proceedings [Harvey v. of the decision of the administrative body. [Pefianco v.
correctness of the policy can only invalidate the same (1) The law itself must declare the act as punishable and Defensor-Santiago (1988)]
contained in the rules. but not substitute its decision Moral (2000)]
must also define or fix the penalty for the violation.
or interpretation or give its (2) Can administrative bodies make penal rules? NO. Penal Administrative Due Process
own set of rules. statutes are exclusive to the legislature and cannot be Due process is violated when:
Due Process (1) There is failure to sufficiently explain the reason for the
Due process involves Due process means that the delegated. Administrative rules and regulations must Findings of facts by administrative bodies which observed
not include, prohibit or punish acts which the law does decision rendered; or
whether the parties were body observed the proper procedural safeguards (e.g. notice and hearing parties, and (2) If not supported by substantial evidence;
afforded the opportunity procedure in passing rules. not even define as a criminal act. [People v. Maceren a full consideration of evidence) are accorded the greatest (3) And imputation of a violation and imposition of a fine
to be notified and heard (1977)] respect by courts
(3) If a rule is penal, it must be published before it takes despite absence of due notice and hearing. [Globe
before the issuance of
Telecom v. NTC (2004)].
the ruling. effect. [People v. Que Po Lay (1954)] Cardinal Primary Rights
Ang Tibay v CIR (1950) lays down the cardinal primary Self-incrimination
Restrictions on interpretative regulations: (a) does not QUASI-JUDICIAL (ADJUDICATORY) POWER rights: The right against self-incrimination may be invoked by the
change the character of a ministerial duty, (b) does not (Asked 4 times in the Bar) (1) Right to a hearing (Includes the right of a party to
The power of the administrative agency to determine respondent at the time he is called by the complainant as
involve unlawful use of legislative or judicial power. present his own case and submit evidence in support a witness. However, if he voluntarily takes the witness
questions of fact to which the legislative policy is to apply, thereof) stand, he can be cross examined; but he may still invoke
Administrative interpretations: may eliminate construction in accordance with the standards laid down by the law (2) The tribunal must consider the evidence presented
itself the right when the question calls for an answer which
and uncertainty in doubtful cases. When laws are (3) Decision must be supported by evidence. incriminates him for an offense other than that charged.
susceptible of two or more interpretations, the (4) Evidence must be substantial. [People v. Ayson (1989)]
administrative agency should make known its official SOURCE
position. Incidental to the power of regulation but is often expressly Quantum of Proof (Substantial Evidence) Notice and Hearing
conferred by the legislature through specific provisions in The amount of relevant evidence which a reasonable
the charter of the agency When required:
Administrative construction/ interpretation not controlling mind might accept as adequate to justify a conclusion (1) When the law specifically requires it.
as to the proper construction of a statute, but generally it is [Sec. 5 Rule 134 Rules of Court] (2) When it affects a person’s status and liberty.
given great weight, has a very persuasive influence and DISTINCTIONS FROM JUDICIAL PROCEEDINGS
may actually be regarded by the courts as the controlling Kind of (5) Decision must be rendered on the evidence presented
Administrative Judicial When not required:
factor. Proceedings at the hearing or at least contained in the record and
Nature of (1) Urgent reasons.
Inquisitorial Adversarial disclosed to the parties affected (2) Discretion is exercised by an officer vested with it upon
Administrative interpretation is merely advisory; Courts Proceedings (6) Independent consideration of judge (Must not simply an undisputed fact.
finally determine what the law means. Liberally applied Follow technical accept the views of a subordinate)
Rules of (3) If it involves the exercise of discretion and there is no
rules in the Rules (7) Decision rendered in such a manner as to let the parties
Procedure grave abuse.
Contingent legislation of Court know the various issues involved and the reasons for (4) When rules to govern future conduct of persons or
Pertains to rules and regulations made by an Nature and Decision limited Decision includes the decision rendered. enterprises, unless law provides otherwise.
administrative authority on the existence of certain facts or Extent of to matters of matters brought
(5) In the valid exercise of police power.
things upon which the enforcement of the law depends. Decision general concern as issue by the
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Administrative Decisions or Interpretation not part of the Effect When are notice and hearing required in licensing? Only if DOCTRINE OF PRIMARY ADMINISTRATIVE
legal system: A memorandum circular of a bureau head Decisions and orders of administrative bodies rendered it is a contested case. Otherwise, it can be dispensed JURISDICTION
could not operate to vest a taxpayer with a shield against pursuant to their quasi-judicial authority have, upon their with.(e.g. driver’s licenses). General Rule: Courts will not intervene if the question to be
judicial action [PBCom v. CIR (1999)] finality, the force and effect of a final judgment within the resolved is one which requires the expertise of
purview of the doctrine of res judicata, which forbids the No expiry date does not mean the license is perpetual. A administrative agencies and the legislative intent on the
Administrative Appeal and Review reopening of matters once judicially determined by license permit is a special privilege, a permission or matter is to have uniformity in the rulings.
Different kinds of administrative appeal and review: [De competent authorities. authority to do what is within its terms. It is always
Leon] revocable. [Gonzalo Sy Trading v. Central bank (1976)] It can only occur where there is a concurrence of
(1) That which inheres in the relation of administrative However, Res Judicata does not apply in administrative jurisdiction between the court and the administrative
superior to administrative subordinate where adjudication relative to citizenship [Board of FIXING OF RATES, WAGES, PRICES agency.
determinations are made at lower levels of the same Commissioners v. De la Rosa (1991)] “Rate” means any charge to the public for a service open
administrative system; to all and upon the same terms, including individual or It is a question of the court yielding to the agency because
(2) That embraced in statutes which provides for a FACT-FINDING, INVESTIGATIVE, LICENSING AND joint rates, tolls, classification or schedules thereof, as well of the latter’s expertise, and does not amount to ouster of
determination to be made by a particular officer of RATE-FIXING POWERS as communication, mileage, kilometrage and other special the court. [Texas & Pacific Railway v. Abilene (1907)]
body subject to appeal, review, or redetermination by ASCERTAINMENT OF FACT rates which shall be imposed by law of regulation to be
another officer of body in the same agency or in the A statute may give to non-judicial officers: observed and followed by any person. [Sec. 2(3), 1987 It is the recent jurisprudential trend to apply the doctrine of
same administrative system; (1) The power to declare the existence of facts which call Administrative Code] primary jurisdiction in many cases that demand the special
(3) That in which the statute attempts to make a court a into operation the statute’s provisions and competence of administrative agencies. It may occur that
part of the administrative scheme by providing in terms (2) May grant them and their subordinate officers the the Court has jurisdiction to take cognizance of a particular
or effect that the court, on review of the action of an power to ascertain and determine appropriate facts as Public Participation. – (2) In the fixing of rates, no rule or case, which means that the matter involved is also judicial
administrative agency, shall exercise powers of such a basis of procedure in the enforcement of laws. final order shall be valid unless the proposed rates shall in character. However, if the determination of the case
extent that they differ from ordinary judicial functions (3) Such functions are merely incidental to the exercise of have been published in a newspaper of general circulation requires the expertise, specialized skills and knowledge of
and involve a trial de novo of matters of fact or power granted by law to clear navigable streams of at least 2 weeks before the first hearing thereon. [Sec. 9, the proper administrative bodies because technical
discretion and application of the independent unauthorized obstructions. They can be conferred upon 1987 Administrative Code] matters or intricate questions of facts are involved, then
judgment of the court; executive officials provided the party affected is given relief must first be obtained in an administrative proceeding
(4) That in which the statute provides that an order made the opportunity to be heard. [Lovina v. Moreno (1963)] Generally, the power to fix rates is a quasi-legislative before a remedy will be supplied by the courts even though
by a division of a Commission or Board has the same function. However, it becomes judicial when the rate is the matter is within the proper jurisdiction of a court.
force and effect as if made by the Commission subject INVESTIGATIVE POWERS applicable only to an individual. [Industrial Enterprises v. CA (1990)]
to a rehearing by the full Commission, for the Administrative agencies’ power to conduct investigations
‘rehearing’ is practically an appeal to another and hearings, and make findings and recommendations Can the power to fix rates be delegated to a common Well-entrenched is the rule that courts will not interfere in
administrative tribunal; thereon is inherent in their functions as administrative carrier or other public service? NO. The latter may propose matters which are addressed to the sound discretion of the
(5) That in which the statute provides for an appeal to an agencies new rates, but these will not be effective without the government agency entrusted with the regulation of
officer on an intermediate level with subsequent approval of the administrative agency. [KMU v. Garcia activities coming under the special and technical training
appeal to the head of the department or agency; and Findings of facts by administrative bodies which observed (1994)] and knowledge of such agency. Administrative agencies are
(6) That embraced in statutes which provide for appeal at procedural safeguards (e.g. notice and hearing parties, and given a wide latitude in the evaluation of evidence and in the
the highest level, namely, the President a full consideration of evidence) are accorded the greatest What are considered in the fixing of rates? exercise of their adjudicative functions, latitude which
respect by courts (1) The present valuation of all the property of a public includes the authority to take judicial notice of facts within
A party must prove that it has been affected or aggrieved utility, and their special competence [Quiambao v. CA (2005)]
by an administrative agency in order to entitle it to a review LICENSING FUNCTION (2) The fixed assets.
by an appellate administrative body or another Lincensing Procedure. – (1) When the grant, renewal, The doctrine of primary jurisdiction applies where a claim is
administrative body. denial or cancellation of a license is required to be The property is deemed taken and condemned by the originally cognizable in the courts, and comes into play
preceded by notice and hearing, the provisions concerning public at the time of filing the petition, and the rate should whenever enforcement of the claim requires the resolution
The appellate administrative agency may conduct contested cases shall apply insofar as practicable. go up and down with the physical valuation of the of issues which, under a regulatory scheme, have been
additional hearings in the appealed case, if deemed (2) Except in cases of willful violation of pertinent laws, property. [Ynchausti v. Public Utility Commissioner (1922)] placed within the special competence of an administrative
necessary [Reyes v. Zamora (1979)]. rules and regulations or when public security, health, or body; in such case, the judicial process is suspended
safety requires otherwise, no license may be withdrawn, pending referral of such issues to the administrative body
Administrative Res Judicata suspended, revoked or annulled without notice and for its view. And, in such cases, the court cannot arrogate
The doctrines of forum shopping, litis pendentia and res
judicata also apply to administrative agencies.
hearing. [Sec. 17, 1987 Administrative Code] Judicial Recourse and Review into itself the authority to resolve a controversy, the
jurisdiction over which is initially lodged with an
administrative body of special competence. [Sherwill v.
When it applies Non-expiration of License. – Where the licensee has made General Rule: Judicial review may be granted or withheld as Sitio Sto Nino (2005)]
The doctrine of res judicata applies only to judicial or timely and sufficient application for the renewal of a Congress chooses. Thus, a law may provide that the
quasi-judicial proceedings and not to the exercise of purely license with reference to any activity of a continuing nature, decision of an administrative agency shall be final and RATIONALE: In this era of clogged docket courts, the need
administrative functions. Administrative proceedings are the existing license shall not expire until the application irreviewable and still not offend due process. for specialized administrative boards with the special
non-litigious and summary in nature; hence, res judicata shall have been finally determined by the agency. [Sec. 18, knowledge and capability to hear and determine promptly
does not apply. [Nasipit Lumber Co. v. NLRC (1989)] 1987 Administrative Code] Exception: Judicial Power vests in the Supreme Court the disputes on technical matters has become well nigh
power to determine whether or not there is grave abuse of indispensable. Between the power lodged in an
Requisites: “License” includes the whole or any part of any agency dicretion. [Nachura] administrative body and a court, the unmistakable trend
(1) The former judgment must be final; permit, certificate, passport, clearance, approval, has been to refer it to the former. [GMA v. ABS CBN (2005)]
(2) It must have been rendered by a court having registration, charter, membership, statutory exemption or Rule 43 of the Rules of Court provides that the Court of
jurisdiction over the subject matter and the parties; other form of permission, or regulation of the exercise of a Appeals shall have appellate jurisdiction over judgments REQUISITES:
(3) It must be a judgment on the merits; and right or privilege. [Sec. 2(10), 1987 Administrative Code] or final orders of the Court of Tax Appeals and from (1) Administrative body and the regular court have
(4) There must be identity of parties, subject matter and awards, judgments, final orders or resolutions of or concurrent and original jurisdiction
cause of action [Ipekdijan Merchandising v. CTA (1963), authorized by any quasi-judicial agency in the exercise of (2) Question to be resolved requires expertise of
Firestone Ceramics v. CA (1999), DBP v. CA (2001)] “Licensing” includes agency process involving the grant, its quasi-judicial functions. administrative agency
renewal, denial, revocation, suspension, annulment, (3) Legislative intent on the matter is to have uniformity in
withdrawal, limitation, amendment, modification or rulings
conditioning or a license. [Sec. 2(11), 1987 Admiistrative
Code]
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(4) Administrative agency is performing a quasi-judicial or (9) When it involves the rule-making or quasi-legislative
adjudicatory function (not rule-making or quasi- functions of an administrative agency. [Smart v. NTC
legislative function [Smart v. NTC (2003)] (2003)]
(10) Administrative agency is in estoppel. [Republic v.
Rationale: It is presumed that an administrative agency, if Sandiganbayan (1996)]
afforded an opportunity to pass upon a matter, would (11) Doctrine of qualified political agency
decide the same correctly, or correct any previous error (12) Subject of controversy is private land in land case
committed in its forum [Caballes v Sison (2004)] proceedings. [Paat v. CA (1997)]
(13) Blatant violation of due process. [Paat v. CA (1997);
WHEN THE DOCTRINE IS INAPPLICABLE: Pagara v. CA]
(1) If the agency has exclusive jurisdiction (14) Where there is unreasonable delay or official inaction.
(2) When the issue is not within the competence of the [Republic v. Sandiganbayan (1996)]
administrative body to act on. (15) Administrative action is patently illegal amounting to
(3) When the issue involved is clearly a factual question lack or excess of jurisdiction. [Paat v. CA (1997)]
that does not require specialized skills and knowledge (16) Resort to administrative remedy will amount to a
for resolution to justify the exercise of primary nullification of a claim. [DAR v. Apex Investment (2003);
jurisdiction. Paat v. CA (1997)]
(17) No administrative review provided for by law. [Estrada
EFFECT v. CA (2004)]
The case is not dismissed, but merely suspended until after (18) Issue of non-exhaustion of administrative remedies
the matters within the competence of the administrative rendered moot. [Estrada v. CA (2004)]
agency are threshed out and determined. [Vidad v. RTC (19) In quo warranto proceedings. [Corpus v. Cuaderno
(1993)] (1962)]
(20) Law expressly provides for a different review
DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE procedure. [Samahang Magbubukid v. CA (1999)]
REMEDIES
General Rule: Where the law has delineated the procedure EFFECT OF FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES:
by which administrative appeal or remedy could be It does not affect jurisdiction of the court.
effected, the same should be followed before recourse to
judicial action can be initiated. [Pascual v. Provincial Board The only effect of non-compliance is it that will deprive
(1959)] complainant of a cause of action, which is a ground for a
motion to dismiss.
REQUISITES:
(1) The administrative agency is performing a quasi-judicial But if not invoked at the proper time, this ground is
function. deemed waived. [Republic v. Sandiganbayan (1996)]
(2) Judicial review is available.
(3) The court acts in its appellate jurisdiction. Doctrine of Primary
Doctrine of Exhaustion of
Administrative
Administrative Remedies
RATIONALE: Jurisdiction
(1) Legal reason: The law prescribes a procedure.
Jurisdiction of Court
(2) Practical reason: To give the agency a chance to correct
its own errors [and prevent unnecessary and premature Concurrent Original
resort to the courts Appellate Jurisdiction with Admin
(3) Reasons of comity: Expedience, courtesy, convenience. Body
Ground for non-exercise of Jurisdiction
EXCEPTIONS TO THE DOCTRINE OF EXHAUSTION OF REMEDIES:
(1) Purely legal questions. [Castro v. Secretary (2001)] The court yields to the
(2) Steps to be taken are merely matters of form. [Pascual jurisdiction of the
Exhaustion of
v. Provincial Board (1959)] Administrative agency
Administrative Remedy a
(3) Administrative remedy not exclusive but merely because of its
condition precedent.
cumulative or concurrent to a judicial remedy. [Pascual specialized knowledge
v. Provincial Board (1959)] or expertise
(4) Validity and urgency of judicial action or intervention. Court Action
[Paat v. CA (1997)]
(5) No other plain, speedy, adequate remedy in the Dismiss Suspend Judicial Action
ordinary course of the law. [Paat v. CA (1997);
Information Technology Found’n v. COMELEC (2004)] DOCTRINE OF FINALITY OF ADMINISTRATIVE ACTION
(6) Resort to exhaustion will only be oppressive and No resort to the courts will be allowed unless the
patently unreasonable. [Paat v. CA (1997); Cipriano v. administrative action has been completed and there is
Marcelino (1972)] nothing left to be done in the administrative structure.
(7) Where the administrative remedy is only permissive or
voluntary and not a prerequisite to the institution of The Doctrine of Finality of Administrative Action is a
judicial proceedings. [Corpuz v. Cuaderno (1962)] broader doctrine which encompasses the Doctrine of
(8) Application of the doctrine will only cause great and Exhaustion of Administrative Remedies. It is a prerequisite
irreparable damage which cannot be prevented except for judicial review.
by taking the appropriate court action. [Paat v. CA
(1997); Cipriano v. Marcelino (1972)]
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Suffrage ELECTION PERIOD

Unless otherwise fixed by the COMELEC in special cases,
constituted government (e.g. rebellion, sedition,
violation of the firearms law) or any crime against
of the city or municipality wherein he resides and
including the same in the book of registered voters upon
The right to vote in the election of officers chosen by the the election period shall commence 90 days before the national security (unless restored to full civil and approval by the Election Registration Board. [Sec. 3(a),
people and in determination of questions submitted to day of the election and shall end 30 days thereafter. [Art. political rights in accordance with law) shall R.A. 8189]
the people. IX-C, Sec. 9, Const.] automatically reacquire the right to vote upon the
expiration of 5 years after the service of sentence Registration does not confer the right to vote but it is a
SCOPE (c) Insane or incompetent persons as declared by condition precedent to the exercise of the right [Yra v.
Election – the means by which the people choose their competent authority Abano (1928)]
officials for a definite and fixed period and to whom they
entrust for the time being the exercise of the powers of Qualification and Registered voter: In order that a qualified elector may vote SYSTEM OF CONTINUING REGISTRATION OF
government. in any election, plebiscite or referendum, he must be VOTERS
Disqualification of Voters registered in the Permanent List of Voters for the city or The personal filing of application of registration of voters
KINDS OF ELECTION municipality in which he resides. [Sec. 115, B.P. 881, shall be conducted daily in the office of the Election
Regular – one provided by law for the election of officers QUALIFICATIONS Omnibus Election Code] Officer during regular office hours.
either nation-wide or in certain subdivisions thereof, after [Art. V, Sec. 1, 1987 Const.]
the expiration of the full term of the former officers. (1) Citizenship: Filipino citizen by birth or naturalization Note: No literacy, property or other substantive PERIOD OF REGISTRATION
Incumbent upon one who claims Philippine requirement shall be imposed on the exercise of suffrage. No registration shall be conducted within
Note: The SK election is not a regular election because citizenship to prove to the satisfaction of the courth (1) 120 days before a regular election
the latter is participated in by youth with ages ranging that he is really Filipino. Any doubt regarding OVERSEAS ABSENTEE VOTER (2) 90 days before a special election [Sec. 8, R.A. 8189]
from 15-21 (now 15-18 as per RA 9164), some of whom are (1) Qualifications
citizenship must be resolved in favor of the state. [Go
not qualified voters to elect local or national elective (a) All Filipino citizens abroad COMELEC Resolution 8585 which set the deadline for
officials [Paras v. COMELEC (1996)] v. Ramos (2009)] (b) Not otherwise disqualified by law voter registration to Oct. 31, 2009 (election was May 10,
(c) At least 18 years of age on the day of elections 2010 – more than 120 days) was declared null and void
Special – one held to fill a vacancy in office before the (2) Age: at least 18 at the time of the election [Sec. 3(f), R.A. 9189] because Sec. 8 of RA 8189 has determined that the
expiration of the full term for which the incumbent was period of 120 days before a regular election and 90 days
elected. (3) Residency: (2) Disqualifications before a special election is enough time for the COMELEC
(a) Resident of the Philippines for at least 1 year and (a) have lost their Filipino citizenship in accordance to make ALL the necessary preparations with respect to
Plebiscite – election at which any proposed amendment (b) Resident of the place wherein they propose to with Philippine laws the coming elections. COMELEC is granted the power to
to, or revision of, the Constitution is submitted to the vote for at least 6 months immediately preceding (b) have expressly renounced their Philippine fix other periods and dates for pre-election activities only
people for their ratification. It is also the means by which the election citizenship and who have pledged allegiance to a if the same cannot be reasonably held within the period
the voter in affected areas consent or object to the foreign country provided by law. There is no ground to hold that the
change in the form of local government Note: Any person who temporarily resides in another (c) have committed and are convicted in a final mandate of continuing voter registration cannot be
city, municipality or country solely by reason of his: judgment by a court or tribunal of an offense reasonably held within the period provided by Sec. 8 of
Referendum – submission of a law passed by the national (1) employment in private or public service punishable by imprisonment of not less than 1 R.A. 8189. [Palatino v. COMELEC (2009)]
or local legislative body to the registered voters at an (2) educational activities year, including those who have committed and
election called for the purpose for their ratification or (3) work in the military or naval reservations within been found guilty of Disloyalty as defined under Akbayan-Youth vs. COMELEC (2001)
rejection. the Philippines Article 137 of the RPC Petitioners filed their petition with the Court and sought
(4) service in the AFP, PNP or (d) immigrant or a permanent resident who is the conduct of a two-day registration all within the 120-
Initiative – the power of the people to propose (5) confinement or detention in government recognized as such in the host country unless day prohibitive period. In this case, both the dates of filing
amendments to the Constitution or to propose and enact institutions in accordance with law shall not be he/she executes, upon registration, an affidavit of the petition and the extension sought are prior to the
legislation through an election called for the purpose. deemed to have lost his original residence [Sec. 9, prepared for the purpose by the Commission 120-day prohibitive period.
[Sec. 3(a), R.A. 6735, The Initiative and Referendum Act] R.A. 8189, Voter’s Registration Act of 1996] declaring that:
(i) he/she shall resume actual physical ILLITERATE OR DISABLED VOTERS
3 systems of initiative: It is not necessary that a person should have a house permanent residence in the Philippines not Illiterate person - may register with the assistance of the
(1) Initiative on the Constitution – petition proposing in order to establish his residence or domicile in a later than 3 years from approval of his/her Election Officer or any member of an accredited citizen’s
amendments to the Constitution. municipality. It is enough that he should live there, registration and arms
(2) Initiative on statutes: petition proposing to enact a provided that his stay is accompanied by his (ii) he/she has not applied for citizenship in
national legislation. intention to reside therein permanently. [Marcos v. another country Physically disabled person – application for registration
(3) Initiative on local legislation: petition proposing to COMELEC (1995)] may be prepared by:
enact a regional, provincial, city, municipal or Effect of failure to return: cause for the removal of (1) any relative within the 4th civil degree of
barangay law, resolution or ordinance. In election cases, the Court treats domicile and his/her name from the National Registry of consanguinity or affinity or
residence as synonymous terms. Both import not Absentee Voters and his/her permanent (2) by the Election Officer or
The constitutional provision on people's initiative to only an intention to reside in a fixed place but also disqualification to vote in absentia. (3) any member of an accredited citizen’s arm [Sec. 14,
amend the Constitution can only be implemented by law personal presence in that place, coupled with R.A. 8189]
to be passed by Congress. No such law has been passed. conduct indicative of such intention. [Pundaodaya v. (e) Previously declared insane or incompetent by
R.A. No. 6735 is incomplete, inadequate, or wanting in COMELEC (2009)] competent authority in the Philippines or abroad, Disabled Voter – a person with impared capacity to use
essential terms and conditions insofar as initiative on as verified by the Philippine embassies, the Automated Election System (AES) [Sec. 2(11), RA 9369
amendments to the Constitution is concerned. Note: (4) Not otherwise disqualified by law: These are the 3 consulates or foreign eservice establishments The Poll Automation Law]
Section 2 of Art. XVII Constitution is limited to proposals grounds for disqualification to register as a voter concerned. [Sec. 5, R.A. 9189]
to AMEND — not to REVISE — the Constitution. [Santiago under Sec. 11, R.A. 8189, Voter’s Registration Act of ELECTION REGISTRATION BOARD
v. COMELEC (1997)] 1996: There shall be in each city and municipality as many
(a) Sentenced by final judgment to suffer Election Registration Boards as there are election officers
Recall: the termination of official relationship of a local imprisonment for not less than 1 year (unless therein [Sec. 15, RA 8189]
elective official for loss of confidence prior to the granted a plenary pardon or an amnesty) shall Registration of Voters
expiration of his term through the will of the electorate. automatically reacquire right to vote upon the COMPOSITION
expiration of 5 years after the service of sentence. DEFINITION (1) Chairman: Election Officer
(b) Adjudged by final judgment for having committed Act of accomplishing and filing of a sworn application for If disqualified, COMELEC shall designate an acting
any crime involving disloyalty to the duly registration by a qualified voter before the election officer Election Officer
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(2) Members: the right to vote upon the expiration of 5 years after Petition for Inclusion Petition for Exclusion
(a) Public school official most senior in rank the service of sentence No order, ruling or decision annulling a book of voters
(b) Local civil registrar, or in his absence, the city or shall be executed within 90 days before an election. [Sec. When to File
municipal treasurer. If neither are available, any (3) Insane or incompetent persons as declared by 39, RA 8189]
other appointive civil service official from the competent authority Any time except 105 days Any time except 100 days
same locality as designated by the COMELEC. OVERSEAS ABSENTEE VOTER before a regular election or before a regular election or
(4) Did not vote in the 2 successive preceding regular DEFINITIONS 75 days before a special 65 days before a special
Disqualification: relation to each other or to any elections (excluding SK elections) Absentee Voting: process by which qualified citizens of the election election
th
incumbent city or municipal elective official within the 4 Philippines abroad exercise their right to vote. [Sec. 3(a), Who may file
civil degree of consanguinity or affinity. [Sec. 15, RA 8189] (5) Registration has been ordered excluded by the Court RA 9189, The Overseas Absentee Voting Act]
and (1) one whose application (1) one whose application for
CHANGE OF RESIDENCE OR ADDRESS Overseas Absentee Voter: citizen of the Philippines who is for registration has registration has been
CHANGE OF RESIDENCE TO ANOTHER CITY OR MUNICIPALITY (6) Lost his Filipino citizenship. [Sec. 27, RA 8189] qualified to register and vote under this Act, not been disapproved by disapproved by the BEI
The registered voter may apply with the Election Officer otherwise disqualified by law, who is abroad on the day of the BEI or or
of his new residence for the transfer of his registration REACTIVATION OF REGISTRATION elections. [Sec. 3(f), RA 9189] (2) one whose name has (2) one whose name has
records. [Sec. 12, RA 8189] Any voter whose registration has been deactivated may been stricken out from been stricken out from
file with the Election Officer a sworn application for COVERAGE the list the list
CHANGE OF ADDRESS IN THE SAME MUNICIPALITY OR CITY reactivation of his registration in the form of an affidavit Elections for president, vice-president, senators and Period to decide
Voter shall immediately notify the Election Officer in stating that the grounds for the deactivation no longer party-list representatives [Sec. 3(f), RA 9189]
writing. [Sec. 13, RA 8189] exist. Within 15 days after its Within 10 days from its filing
PERSONAL OVERSEAS ABSENTEE REGISTRATION filing
CHALLENGES TO RIGHT TO REGISTER When: Any time not later than 120 days before a regular Registration as an overseas absentee voter shall be done
WHO MAY CHALLENGE APPLICATION FOR REGISTRATION election and 90 days before a special election. [Sec. 28, in person. [Sec. 5, RA 9189] OVERSEAS ABSENTEE VOTER
Any voter, candidate or representative of a registered RA 8189] Petition for Inclusion Petition for Exclusion
political party. NATIONAL REGISTRY OF OVERSEAS ABSENTEE VOTERS [Sec. 6.6, RA 9189] [Sec. 6.7, RA 9189]
Election Officer shall submit said application to the ERB Definition
FORM and if approved, the Election Officer shall retrieve the The consolidated list prepared, approved and maintained When to file
(1) In writing registration record from the inactive file and include the by the COMELEC, of overseas absentee voters whose 5 days after receipt of Any time not later than 210
(2) State the grounds therefor same in the corresponding precinct book of voters applications for registration as absentee voters, including notice of disapproval days before the day of the
(3) Under oath and those registered voters who have applied to be certified elections
(4) Attached to the application, together with the proof Local heads or representatives of political parties shall be as absentee voters, have been approved by the Election
properly notified on approved applications Who may file
of notice of hearing to the challenger and the Registered Board. [Sec. 3(e), RA 9189]
applicant Applicant or his authorized Any interested person
CERTIFIED LIST OF VOTERS Grounds for cancellation/amendment of entries therein: representative
WHEN FILED List of Voters – refers to an enumeration of names of (1) When the overseas absentee voter files a letter under
nd Period to decide
Must be filed not later than the 2 Monday of the month registered voters in a precinct duly certified by the oath addressed to the Comelec that he/she wishes to
in which the same is scheduled to be heard or processed Election Registration Board for use in the Election be removed from the Registry of Overseas Absentee 5 days after its filing 15 days after its filing
by the ERB [Sec. 18, RA 8189] Voters, or that his/her name be transferred to the
Preparation - The ERB shall prepare and post a certified regular registry of voters.
HEARING list of voters 90 before a regular election and 60 days
rd
3 Monday of the month before a special election. [Sec. 30, RA 8189] (2) When an overseas absentee voter’s name was
ordered removed by the Comelec from the Registry of Political Parties
DECISION Posting – copies of the certified list along with a certified Overseas Absentee Voters for his/her failure to
Before the end of the month list of deactivated voters categorized by precinct per exercise his/her right to vote under R.A. 9189 for 2 PARTY SYSTEM
barangay, within the same period shall be posted in the consecutive national elections. [Sec. 9, RA 9189] A free and open party system shall be allowed to evolve
DEACTIVATION OF REGISTRATION office of the Election Officer and in the bulletin board of according to the free choice of the people. [Art. IX-C, Sec.
Deactivation – process of deactivating the registration of each city/municipal hall. Upon payment of the fees as 6, Const.]
certain persons, removing their registration records from fixed by the Commission, the candidates and heads shall
also be furnished copes thereof [Sec. 30, RA 8189]
the corresponding precinct book of voters and placing the
same in the inactive file, properly marked “deactivated” Inclusion and Exclusion No votes cast in favor of a political party, organization,
coalition shall be valid, except for those registered under
and dated in indelible ink. GROUNDS WHEN LIST OF VOTERS WILL BE ALTERED
(1) Deactivation/Reactivation Proceedings the party-list system. [Art. IX-C, Sec. 7, Const.]
CAUSES OF DEACTIVATION (2) Exclusion/Inclusion JURISDICTION OF THE COMELEC OVER POLITICAL
The board shall remove the registration records of the (3) Cancellation of Registration in case of death JURISDICTION IN INCLUSION AND EXCLUSION CASE PARTIES
following persons from the corresponding precinct book (4) New voters The Municipal and Metropolitan Trial Courts shall have PARTY
of voters and place the same in the inactive file: (5) Annulment of Book of Voters original and exclusive jurisdiction over all cases of Either a political party or a sectoral party or acoalition of
(1) Sentenced by final judgment to suffer imprisonment (6) Transfer of Residence inclusion and exclusion of voters in their respective cities parties [Sec. 3(b), RA 7941, Party-List System Act]
for not less than 1 year (unless granted a plenary or municipalities. [Sec. 33, RA 8189]
pardon or an amnesty) shall automatically reacquire ANNULMENT OF BOOK OF VOTERS PARTY-LIST SYSTEM
right to vote upon the expiration of 5 years after the The COMELEC shall, upon verified petition of any voter or APPEAL Mechanism of proportional representation in the election
service of sentence as certified by clerks of courts election officer or duly registered political party, and after Decisions of the MTC or MeTC may be appealed by the of representatives to the House of Representatives from
notice and hearing, annul any book of voters that is: aggrieved party to the RTC within 5 days from receipt of national, regional and sectoral parties or organizations or
(2) Adjudged by final judgment for having committed (1) not prepared in accordance with R.A. 8189 or the notice thereof. No motion for reconsideration shall be coalitions registered with the COMELEC. [Sec. 3(a), RA
any crime involving disloyalty to the duly constituted Voters’ Registration Act of 1996 entertained. [Sec. 33, RA 8189] 7941]
government (e.g. rebellion, sedition, violation of the (2) prepared through fraud, bribery, forgery,
firearms law) or any crime against national security impersonation, intimidation, force, or any similar POLITICAL PARTY
(unless restored to full civil and political rights in irregularity An organized group of citizens advocating an ideology or
accordance with law) shall automatically reacquire (3) contains data that are statistically improbable platform, principles and policies for the general conduct
PAGE 127 PAGE 128
of government and which, as the most immediate means GROUPS WHICH CANNOT BE REGISTERED AS POLITICAL PARTIES No change of names or alteration shall be allowed after There are 2 steps in the second round of seat allocation:
of securing their adoption, regularly nominates certain of (1) Religious denominations and sects the same shall have been submitted to the COMELEC (1) The percentage of votes garnered by each party-list
its leaders and members as candidates for public office. (2) Those which seek to achieve their goals through except when: candidate is multiplied by the remaining available
[Sec. 60, BP 881 and Sec. 3(c) of RA 7941] violence or unlawful means (1) the nominee dies seats. The whole integer of the product corresponds
(3) Those which refuse to uphold and adhere to the (2) withdraws his nomination to a party’s share in the remaining available seats
3 KINDS OF PARTIES: Constitution (3) becomes incapacitated
(1) National party - constituency is spread over the (4) Those supported by foreign governments [Art. IX-C, Formula for remaining available seats =
geographical territory of at least a majority of the Sec. 2 (5), Constitution] Incumbent sectoral representatives in the House of No. of seats available to party- x Guaranteed seats
regions. Representatives who are nominated shall not be list representatives of the two-
(2) Regional party - constituency is spread over the PURPOSE OF REGISTRATION considered resigned [Sec. 8, RA 7941] percenters
geographical territory of at least a majority of the (1) To acquire juridical personality
cities and provinces comprising the region. (2) To entitle it to rights and privileges granted to QUALIFICATIONS OF PARTY LIST REPRESENTATIVES Formula for percentage of votes garnered by each party-list
(3) Sectoral party – organized group of citizens belonging political parties (1) Natural-born citizen of the Philippines candidate =
to any of the following sectors: labor, peasant, (3) To participate in the party-list system (2) Registered voter
fisherfolk, urban poor, indigenous cultural (3) Resident of the Philippines for a period of not less
No. of votes garnered by each
party ÷ Total no. of votes
cast for party-list
communities, elderly, handicapped, women, youth, GROUNDS FOR REFUSAL /CANCELLATION OF REGISTRATION than 1 year immediately preceding the day of the candidates
veterans, overseas workers and professionals whose The COMELEC may, motu propio or upon verified election
principal advocacy pertains to the special interests complaint of any interested party, refuse or cancel, after (4) Able to read and write (2) Assign one party-list seat to each of the parties next
and concerns of their sector. due notice and hearing, the registration of any national, (5) Bona fide member of the party or organization which in rank until all available seats are completely
regional or sectoral party, organization or coalition on any he seeks to represent for at least 90 days preceding distributed.
Sectoral organization: group of citizens or a coalition of of the following grounds: the day of the election
groups of citizens who share similar physical attributes or (1) Religious sect or denomination, organization or (6) at least 25 years old on the day of the election BOC’s Note: Atong Paglaum v. COMELEC, G.R. No.
characteristics, employment, interests or concerns. association, organized for religious purposes 203766, April 3, 2013 is beyond the 2013 Bar Coverage
(2) Advocates violence or unlawful means to seek its goal PARAMETERS IN ALLOCATION OF SEATS FOR cut-off date, but the decision reversed and significantly
Coalition: an aggrupation of duly registered national, (3) Foreign party or organization PARTY-LIST REPRESENTATIVES modified previous Court rulings on the party-list system.
regional, sectoral parties or organizations for political (4) Receives support from any foreign government, 20% ALLOCATION
and/or election purposes. [Sec. 3, R.A. 7941, Party-List foreign political party, foundation, organization, The combined number of all party-list congressmen shall EFFECT OF CHANGE OF AFFILIATION
System Act] whether directly or through any of its officers or not exceed 20% of the total membership of the House of Any elected party-list representative who changes his
members or indirectly through third parties for Representatives, including those elected under the party- political party or sectoral affiliation:
PURPOSE partisan election purposes list. (1) during his term of office shall forfeit his seat
To enable Filipino citizens belonging to marginalized and (5) Violates or fails to comply with laws, rules or (2) within 6 months before an election shall not be
underrepresented sectors, organizations and parties, and regulations relating to elections Number available to x 20 = Number of seats eligible for nomination as party-list representative
who lack well-defined political constituencies but who (6) Declares untruthful statements in its petition party-list available to under his new party or organization [Sec. 15, R.A.
could contribute to the formulation and enactment of (7) Ceased to exist for at least 1 year representatives actually party-list 7941]
appropriate legislation that will benefit the nation as a (8) Fails to participate in the last 2 preceding elections or obtained, is entitled to a representatives
whole, to become members of the House of (9) Fails to obtain at least 2% of the votes cast under the maximum of 3 seats;
Representatives. [Sec. 2, R.A. 7941] party-list system in the 2 preceding elections for the one qualifying and of
constituency in which it has registered [Sec. 6, RA seats available to
REGISTRATION 7941] legislative districts Candidacy
Any organized group of persons may register as a party, .80
organization or coalition for purposes of the party-list CERTIFIED LIST OF REGISTERED PARTIES QUALIFICATIONS OF CANDIDATES
sytem. COMELEC shall prepare a certified list of national, 2% THRESHOLD CANDIDATE, DEFINITION
regional, or sectoral parties, organizations or coalitions Only those parties garnering a minimum of 2% of the Any person who files his certificate of candidacy within
PROCEDURE FOR REGISTRATION which have applied or who have manifested their desire total votes cast for the party-list system shall be entitled prescribed period shall only be considered as a candidate
to participate under the party-list system to one guaranteed seat each. at the start of the campaign period for which he filed his
File with the COMELEC not later than 90 days before
the election a petition verified by its president or certificate of candidacy. [Sec. 15, R.A. 9369, Poll
Must prepare the list not later than 60 days before PROPORTIONAL REPRESENTATION Automation Law]
secretary stating its desire to participate in the party-
election. The additional seats shall be computed in “proportion to
list system as a national, regional or sectoral party or
organization or a coalition of such parties or their total number of votes”. Unlawful acts or omissions applicable to a candidate
Names of party-list nominees shall not be shown on the shall take effect only upon the start of the aforesaid
organizations attaching thereto its constitution, by-
certified list [Sec. 7, RA 7941] 3-SEAT LIMIT campaign period. [Sec. 15, R.A. 9369]
laws, platform or program of government, list of
officers, coalition agreement and other relevant Each party, regardless of the number of votes it actually
NOMINATION OF PARTY -LIST REPRESENTATIVES obtained, is entitled to a maximum of 3 seats; one Any registered national, regional, or sectoral party,
information as the COMELEC may require
Each registered party, organization or coalition shall qualifying and 2 additional seats. organization or coalition thereof that has filed a
submit to the COMELEC not later than 45 days before the manifestation to participate under the party-list system
election a list of names, not less than 5, from which party- Banat vs. Comelec GR No. 179271, July 8. 2009 which has not withdrawn or which has not been
COMELEC shall publish the petition in at least 2 list representatives shall be chose in case it obtains the Held: In computing the allocation of additional seats, the disqualified before the start of the campaign period.
national newspapers of general circulation required number of votes. continued operation of the 2% threshold for the [Comelec Res. 8758, Feb. 4, 2010]
distribution of the additional seats as found in the second
A person may be nominated: clause of Sec. 11(b) of R.A. 7941 which provides that QUALIFICATIONS
(1) in 1 list only “those garnering more than 2% of the votes shall be Qualifications prescribed by law are continuing
(2) if he/she has given their consent in writing entitled to additional seats in proportion to their total requirements and must be possessed for the duration of
COMELEC shall, after due notice and hearing, resolve
(3) is not a candidate for any elective office or number of votes” is unconstitutional. The 2% threshold the officer's active tenure [Frivaldo v. COMELEC (1989);
the petition within 15 days from the date it was
(4) has not lost his bid for an elective office in the frustrates the attainment of the permissive ceiling that Labo v. COMELEC (1989)].
submitted for decision but in no case not later than 60 immediately preceding election 20% of the members of the HR shall consist of party-list
days before election [Sec. 5, R.A. 7941]
representatives.
PAGE 129 PAGE 130

(1999)] (b) cancel the certificate of candidacy for the other

office/s [Sec. 73, B.P. 881]
Under R.A. 9225 Citizenship Retention and Re-
acquisition Act of 2003, a Filipino who becomes a EFFECT OF FILING
Requirements Pres/VP Senator District Rep Gov/ Vice Gov/ Mayor/ Vice naturalized citizen of another country is allowed to (1) Any person holding a public appointive office or
Mayor/ P.Brgy/Sanggunian retain his Filipino citizenship by swearing to the position including active members of the AFP, and
Member supreme authority of the Republic of the Philippines. other officers and employees in GOCCs, shall be
The act of taking an oath of allegiance is an implicit considered ipso facto resigned from his office upon the
Citizenship Natural -born Natural -born Natural -born Citizen of the Philippines renunciation of a naturalized citizen’s foreign filing of his certificate of candidacy. [Sec. 66(1), B.P.
Registered Voter ✔ ✔ ✔ ✔ citizenship. 881]
- Applies to employees of GOCCs without an original
Read and Write ✔ ✔ ✔ ✔ Dual citizenship is not a ground for disqualification charter [PNOC Energy Devt. Corp. v. NLRC (1993)]
Age At least 40 on At least 35 on election At least 25 on election On election day: from running for elective position. Like any other
election day day day 23 – gov., vice gov., member of natural-born Filipino, it is enough for a person with (2) Any person holding an elective office or position shall
sangguniang panlalawigan, dual citizenship who seeks public office to (1) file his not be considered resigned upon the filing of his
mayor, vice mayor, member of certificate of candidacy and (2) swear to the Oath of certificate of candidacy for the same or any other
the sangguniang panlungsod of Allegiance contained therein. [Cordora vs. COMELEC, elective office or position. [Sec. 4, Comelec Resolution
HUC (2009)] No. 8678, Guidelines on the Filing of Certificates of
Candidacy and Nomination of Official Candidates of
21 – mayor or vice mayor of ICC, With respect to a person with dual allegiance, the Court Registered Political Parties in Connection with the May
CC or municipalities held that candidate’s oath of allegiance to the Republic 10, 2010 National and Local Elections] – SC upheld the
of the Philippines and his Certificate of Candidacy do validity of the COMELEC Resolution in Quinto v.
18 – member of the not substantially comply with the requirement of a COMELEC
sangguniang panlungsod, or personal and sworn renunciation of foreign
bayan or punong baranggay or citizenship. Section 5(2) of R.A. No. Note: Sec. 67 B.P. 811 which deemed elective officials
member of the sangguniang 9225 compels natural-born Filipinos, who have been automatically resigned from office upon filing of their
baranggay naturalized as citizens of a foreign country, but who certificate of candidacy was repealed by Sec. 14 R.A
reacquired or retained their Philippine citizenship (1) to 9006, Fair Election Act. This means that such elective
15 but not more than 18 - SK take the oath of allegiance under Section 3 of Republic official is no longer deemed resigned when he files his
Act No. 9225, and (2) for those seeking elective public CoC for any position
Residence 10 yrs immediately 2 yrs immediately Resident of the same 1 yr immediately preceding the offices in the Philippines, to additionally execute
preceding the election preceding the election district for a period of election a personal and sworn renunciation of any and all (3) Filing of 2 CoCs – when a person files 2 CoCs for
day not less than 1 yr foreign citizenship before an authorized public officer different offices, he becomes ineligible for either
immediately preceding prior or simultaneous to the filing of their certificates of position [Sec. 73, BP 881]
the election candidacy, to qualify as candidates in Philippine - He may withdraw one of his certificates by filing a
elections. [Jacot vs. Dal, (2008)] sworn declaration with the Commission before the
deadline for the filing of CoCs
DISQUALIFICATIONS campaign or vote for or against any candidate or (5) Fugitive from justice in criminal and non-political cases
Under the Omnibus Election Code aspirant for the nomination or selection of candidates here and abroad SUBSTITUTION OF CANDIDATES
(1) Declared incompetent or insane by competent (Sec. 261.d) (6) Insane or feeble-minded If after the last day for filing of the certificates of candidacy,
authority (Sec. 12) (13) Threatened, intimidated, caused, inflicted or produced an official candidate of a registered political party dies,
(2) Permanent resident of or an immigrant to a foreign any violence, injury, punishment, damage, loss or FILING OF CERTIFICATES OF CANDIDACY withdraws or is disqualified for any cause:
country unless he has waived such status (Sec. 68) disadvantage upon any person or of the immediate No person shall be eligible for any elective public office (1) He may be substituted by a candidate belonging to
(3) Sentenced by final judgment for: members of his family, his honor or property, or used unless he files a sworn certificate of candidacy within the and nominated by the same political party.
(a) Subversion, insurrection, rebellion fraud to compel, induce or prevent the registration of period fixed herein. [Sec. 73, B.P. 881] (2) No substitute shall be allowed for any independent
(b) Any offense for which he has been sentenced to a any voter, or the participation in any campaign, or the candidate. [Recabo, Jr. v. COMELEC (1999)]
penalty of more than 18 months imprisonment casting of any vote, or any promise of such registration, The certificate of candidacy shall be filed by the candidate (3) The substitute must file his certificate of candidacy not
(c) A crime involving moral turpitude (Sec. 12) campaign, vote, or omission therefrom (Sec. 261.e) personally or by his duly authorized representative. later than mid-day of the election day
(4) Given money or other material consideration to (14) Unlawful electioneering (Sec. 261.k)
influence, induce or corrupt voters or public officials (15) Violated the prohibition against release, disbursement When: any day from the commencement of the election If the death, withdrawal or disqualification should happen
performing electoral functions (Sec. 68) or expenditure of public funds 45 days before a regular period but not later than the day before the beginning of between the day before the election and mid-day of the
(5) Committed acts of terrorism to enhance his candidacy election or 30 days before a special election (Sec. 261.v) the campaign period. election day, certificate may be filed with:
(Sec. 68) (16) Solicited votes or undertook propaganda on election (1) any Board of Election Inspectors in the political
(6) Spent in his election campaign an amount in excess of day for or against any candidate or any political party In cases of postponement or failure of election, no subdivision where he is a candidate or
that allowed (Sec. 68) within the polling place or within a 30m radius (Sec. additional certificate of candidacy shall be accepted except (2) with the COMELEC if it is a national position [Sec. 77,
(7) Solicited, received or made prohibited contributions 261.cc.6) in cases of substitution of candidates. [Sec. 75, B.P. 881] B.P. 881]
(Sec. 68)
(8) Engaged in election campaign or partisan political Under Section 40 of the LGC Filing of 2 certificates of candidacy: MINISTERIAL DUTY OF COMELEC TO RECEIVE CERTIFICATE
activity outside the campaign period and not pursuant (1) Sentenced by final judgment for an offense punishable (1) No person shall be eligible for more than one office to Duty of COMELEC [Sec. 76, B.P. 881]
to a political party nomination (Sec. 80) by at least 1 year imprisonment within 2 years after be filled in the same election. General Rule: The COMELEC shall have the ministerial duty
(9) Removed, destroyed, defaced lawful election serving sentence (2) If he files a certificate of candidacy for more than one to receive and acknowledge receipt of the certificates of
propaganda (Sec. 83) (2) Removed from office as a result of an administrative office he shall not be eligible for either. candidacy provided said certificates are: under oath and
(10) Engaged in prohibited forms of election propaganda case (3) Before the expiration of the period for the filing of contain all the required data and in the form prescribed by
(Sec. 85) (3) Convicted by final judgment for violating the oath of certificates of candidacy, the person who has filed the Commission.
(11) Violated election rules and regulations on election allegiance to the Republic of the Philippines more than one certificate of candidacy, may -
propaganda through mass media (Sec. 86) (4) Dual citizenship (a) declare under oath the office for which he desires to Exception: COMELEC may go beyond the face of the
(12) Coerced, intimidated, compelled, or influenced any of Dual citizenship as a disqualification must refer to be eligible and certificate of candidacy –
his subordinates, members, or employees to aid, citizens with dual allegiance. [Mercado v. Manzano, (1) Nuisance candidates
PAGE 131 PAGE 132
(2) Petition to deny due course or to cancel a certificate of EFFECT OF DISQUALIFICATION

candidacy Procedure WITHDRAWAL OF CANDIDATES (2) Public expressions of opinions or discussions of
(1) Who may file: Any citizen of voting age, or any duly A person who has filed a certificate of candidacy may, prior probable issues in a forthcoming election or on
The COMELEC has no discretion to give or not to give registered political party, organization or coalition of to the election, withdraw the same by submitting to the attributes or criticisms of probable candidates
due course to a certificate of candidacy filed in due political parties office concerned a written declaration under oath. proposed to be nominated in a forthcoming political
form. While the COMELEC may look into patent (2) Where: Law Department of the COMELEC party convention. [Sec. 79, BP 881]
defects in the certificate, it may not go into matters not (3) When: Any day after the last day for filing of certificates Effect of filing or withdrawal of a certificate of candidacy:
appearing on their face. [Abcede v. Imperial, (1958)] of candidacy, but not later than the date of shall not affect whatever civil, criminal or administrative
proclamation liabilities which a candidate may have incurred. [Sec. 73, BP Persons Prohibited from Campaigning:
NUSIANCE CANDIDATES (4) Grounds: Sec. 68 of BP 881. All other election offenses 881] (1) Members of the board of election inspections [Sec. 173,
Petition to declare a duly registered candidate as a are beyond the ambit of the COMELEC jurisdiction BP 881]
nuisance candidate [Sec. 5, RA 6646, The Electoral Reforms [Codilla v. COMELEC (2004)] (2) Civil service officers or employees [Art. IX-B, Sec. 2 (4),
Law of 1987] Const.]
Who may file: any registered candidate for the same office
Effect (asked in 1990, 1992, 1996, 2003)
Any candidate who has been declared by final judgment to Campaign (3) Members of the military [Art. XVI, Sec. 5 (3), Const.]
(4) Foreigners, whether juridical or natural persons.
be disqualified shall not be voted for, and the votes cast for
When: within 5 days from the last day for the filing of him shall not be counted. The fact that the candidate who PREMATURE CAMPAIGNING CAMPAIGN PERIOD
certificates of candidacy obtained the highest number of votes is later declared to General Rule: Any election campaign or partisan political For President, Vice-President and Senators
be disqualified or not eligible for the office to which he was activity for or against any candidate outside of the 90 days before the day of the election.
How: personally or through duly authorized representative elected, does not necessarily entitle the candidate who campaign period is prohibited and shall be considered as
with the COMELEC obtained the second highest number of votes to be an election offense. [Sec. 80, BP 881] For Members of the HR and elective provincial, city and
declared the winner of the elective office. municipal officials
Grounds: certificate of candidacy has been filed - Exception: Political parties may hold political conventions 45 days before the day of the election. [Sec. 5, RA 7166]
(1) To put the election process in mockery or disrepute or A possible exception is predicated on the concurrence of to nominate their official candidates within 30 days before
(2) To cause confusion among the voters by the similarity two assumptions, namely: (1) the one who obtained the the start of the period for filing a certificate of candidacy. EQUAL ACCESS TO MEDIA TIME AND SPACE
of the names of the registered candidates or highest number of votes is disqualified; and (2) the [Sec. 15, RA 9369, Poll Automation Law] Print advertisements shall not exceed 1/4 page, in broad
(3) Clearly demonstrate that the candidate has no bona electorate is fully aware in fact and in law of a candidate’s sheet and 1/2 page in tabloids thrice a week per
fide intention to run for the office for which the disqualification so as to bring such awareness within the PROHIBITED CAMPAIGNING DAYS newspaper, magazine or other publications.
certificate of candidacy has been filed and thus prevent realm of notoriety but would nonetheless cast their votes It is unlawful for any person to engage in an election
a faithful determination of the true will of the in favor of the ineligible candidate [Grego v. COMELEC campaign or partisan political activity on: Bona fide candidates and registered political parties
electorate [Sec. 69, B.P. 881] (1997)] (1) Maundy Thursday running for nationally elective office are entitled to not
(2) Good Friday more than 120 mins of TV advertisement and 180 mins of
Proceeding: summary in nature Any candidate who has been declared by final judgment to (3) eve of Election Day and radio advertisement whether by purchase or by donation.
be disqualified – (4) Election Day [Sec. 3, COMELEC Resolution 8758]
PETITION TO DENY OR CANCEL CERTIFICATES OF CANDIDACY (1) shall not be voted for and Bona fide candidates and registered political parties
Who may file: Any person (2) the votes cast for him shall not be counted At the time the supposed premature campaigning took running for locally elective office are entitled to not more
(3) If a candidate is not declared by final judgment before place, Penera was not officially a “candidate” albeit she than 60 mins of TV advertisement and 90 mins of radio
When: Any time not later than 25 days from the time of the an election to be disqualified and he is voted for and already filed her certificate of candidacy. Under Section 15 advertisement whether by purchase or by donation.
filing of the certificate of candidacy receives the winning number of votes in such election of RA 9369, a person who files his certificate of candidacy
is considered a candidate only at the start of the campaign Broadcast stations or entities are required to submit copies
Exclusive ground: any material representation contained in The Court or COMELEC shall continue with the trial and period, and unlawful acts applicable to such candidate of their broadcast logs and certificates of performance to
the certificate of candidacy is false. Provided that hearing of the action, inquiry, or protest and take effect only at the start of such campaign period. Thus, the COMELEC for the review and verification of the
(1) the false representation pertains to material matter a candidate is liable for an election offense only for acts frequency, date, time and duration of advertisement
affecting substantive rights of a candidate and Upon motion of the complainant or any intervenor, may done during the campaign period, not before. Before the broadcast for any candidate or political party.
(2) the false representation must consist of deliberate during the pendency thereof, order the suspension of the start of the campaign period, such election offenses cannot
attempt to mislead, misinform, or hide a fact which proclamation of such candidate whenever the evidence of be committed and any partisan political activity is lawful. All mass media entities are required to furnish the
would otherwise render a candidate ineligible [Salcedo his guilt is strong. [Sec. 6, RA 6646, The Electoral Reforms [Penera v. COMELEC (2009)] COMELEC with a copy of all contracts for advertising,
II v. COMELEC (1999)] Law of 1987] promoting or opposing any political party or the candidacy
ELECTION CAMPAIGN OR PARTISAN POLITICAL ACTIVITY of any person for public office within 5 days after its
Decision: Shall be decided, after due notice and hearing, Where a similar complaint/petition is filed: An act designed to promote the election or defeat of a signing.
not later than 15 days before the election. [Sec. 78, BP 881] (1) before the election and proclamation of the particular candidate or candidates to a public office. [Sec.
respondent and the case is not resolved before the 79, B.P. 881] No franchise or permit to operate a radio or TV station
The false representation must pertain to a material fact election - the trial and hearing of the case shall shall be granted or issued, suspended or cancelled during
that affects the right of the candidate to run for the continue and referred to the Law Department for It includes: the election period.
election for which he filed his COC. Such material fact preliminary investigation (1) forming organizations or groups of persons
refers to a candidate’s eligibility or qualification for elective (2) after the election and before the proclamation of the (2) holding political causcuses, meetings, rallies or other Any mass media columnist, commentator, announcer,
office like citizenship, residence or status as a registered respondent - the trial and hearing of the case shall be similar assemblies reporter, on-air correspondent or personality who is a
voter. Aside from the requirement of materiality, the false suspended and referred to the Law Department for (3) making speeches or commentaries candidate for any elective public office or is a campaign
representation must consist of a deliberate attempt to preliminary investigation (4) publishing or distributing campaign literature or volunteer for or employed or retained in any capacity by
mislead, misinform, or hide a fact that would otherwise materials for the purpose of soliciting votes and/or any candidate or political party shall:
render a candidate ineligible. In other words, it must be Note: In either case, if the evidence of guilt is strong, the undertaking any campaign or propaganda to support (1) be deemed resigned, if so required by their employer or
made with the intention to deceive the electorate as to the COMELEC may order the suspension of the proclamation or oppose the election of any candidate (2) take a leave of absence from his/her work as such
would-be candidate’s qualifications for public office. [Salic of respondent, and if proclaimed, to suspend the effects of during the campaign period
Maruhom v. COMELEC (2009)] proclamation. [Sec. 4, Resolution No. 8678] Exclusions:
(1) Acts performed for the purpose of enhancing the No movie, cinematograph or documentary shall be publicly
Jurisdiction over a petition to cancel a certificate of chances of aspirants for nomination for candidacy to a exhibited in a theater, television station or any public
candidacy lies with the COMELEC in division and not with public office by a political party, aggroupment, or forum during the campaign period which:
the COMELEC en banc [Garvida v. Sales (1997)] coalition of parties. (1) portrays the life or biography of a candidate
PAGE 133 PAGE 134

(2) is portrayed by an actor or media personality who is (2) includes the use of facilities personally owned by the
himself a candidate. [Sec. 6, RA 9006] candidate, the money value of the use of which can be Directly or indirectly: For any candidate, political party, organization or any
assessed based on the rates prevailing in the area. (1) donation, contribution or gift in cash or in kind person to:
ELECTION SURVEYS [Sec. 94, BP 881] (2) undertake or contribute to the construction or repair of (1) Give or accept, directly or indirectly, free of charge,
The measurement of opinions and perceptions of the roads, bridges, school buses, puericulture centers, transportation, food or drinks or things of value during
voters as regards a candidate's popularity, qualifications, PROHIBITED CONTRIBUTIONS medical clinics and hospitals, churches or chapels the five hours before and after a public meeting, on the
platforms or a matter of public discussion in relation to the (1) From Public or private financial institutions. Unless: cement pavements, or any structure for public use or day preceding the election, and on the day of the
election, including voters' preference for candidates or (a) the financial institutions are legally in the business for the use of any religious or civic organization. election;
publicly discussed issues during the campaign period. of lending money (2) Give or contribute, directly or indirectly, money or
(b) the loan is made in accordance with laws and Exceptions: things of value for such purpose (Sec. 89, BP 881)
Surveys affecting national candidates shall not be regulations AND (1) Normal and customary religious dues or contributions
published 15 days before an election and surveys affecting (c) the loan is made in the ordinary course of business (2) Periodic payments for legitimate scholarships Note: Sec. 85 “Prohibited election propaganda” of BP 881
local candidates shall not be published 7 days before an (2) Natural and juridical persons operating a public utility established and school contributions habitually made was repealed by Sec. 14 RA 9006.
election. or in possession of or exploiting any natural resources before the prohibited period [Sec. 104, BP 881]
of the nation LIMITATIONS ON EXPENSES
Exit polls may only be taken subject to the following (3) Natural and juridical persons who hold contracts or LAWFUL AND PROHIBITED ELECTION PROPAGANDA FOR CANDIDATES
requirements: sub-contracts to supply the government or any of its LAWFUL ELECTION PROPAGANDA (1) President and VP: P10 for every voter currently
(1) Pollsters shall not conduct their surveys within 50m divisions, subdivisions or instrumentalities, with goods (1) Pamphlets, leaflets, cards, decals, stickers, or other registered
from the polling place, whether said survey is taken in or services or to perform construction or other works written or printed materials not larger than 8.5x14 (2) Other candidates: P3 for every voter currently
a home, dwelling place and other places (4) Grantees of franchises, incentives, exemptions, inches registered in the constituency where he filed his
(2) Pollsters shall wear distinctive clothing allocations or similar privileges or concessions by the (2) Handwritten or printed letters urging voters to vote for certificate of candidacy
(3) Pollsters shall inform the voters that they may refuse government or any of its divisions, subdivisions or or against any political party or candidate
to answer and instrumentalities, including GOCCs (3) Cloth, paper or cardboard posters, framed or posted, CANDIDATES WITHOUT A POLITICAL PARTY
(4) The result of the exit polls may be announced after the (5) Grantees, within 1 year prior to the date of the election, not larger than 2x3 feet P5 for every voter
closing of the polls on election day and must clearly of loans or other accommodations in excess of (4) Streamers not larger than 3x8 feet are allowed at a
identify the total number of respondents, and the P100,000 by the government or any of its divisions, public meeting or rally or in announcing the holding of FOR POLITICAL PARTIES
places where they were taken. Said announcement subdivisions or instrumentalities including GOCCs such. May be displayed 5 days before the meeting or P5 for every voter currently registered in the constituency
shall state that the same is unofficial and does not (6) Educational institutions which have received grants of rally and shall be removed within 24 hours after such or constituencies where it has official candidates [Sec. 13,
represent a trend. [Sec. 5, RA 9006] public funds amounting to no less than P100,000 (5) Paid advertisements in print or broadcast media R.A. 7166, Act Providing for Synchronized National and
(7) Officials or employees in the Civil Service, or members (a) Bear and be identified by the reasonably legible or Local Elections and Electoral Reforms]
APPLICATION FOR RALLIES, MEETINGS AND OTHER POLITICAL of the Armed Forces of the Philippines audible words “political advertisement paid for”
ACTIVITY (8) Foreigners and foreign corporations, including foreign followed by the true and correct name and address STATEMENT OF CONTRIBUTIONS AND EXPENSES
(1) All applications for permits must immediately be governments. [Secs. 95 and 96, BP 881] of the candidate or party for whose benefit the Every candidate and treasurer of the political party shall
posted in a conspicuous place in the city or municipal election propaganda was printed or aired. [Sec. 4.1, file:
building, and the receipt thereof acknowledged in PROHIBITED FUND-RAISING ACTIVITIES RA 9006] (1) in duplicate with the COMELEC
writing. The following are prohibited if held for raising campaign (b) If the broadcast is given free of charge by the radio (2) the full, true and itemized statement of all
(2) Applications must be acted upon in writing by local funds or for the support of any candidate from the start of or TV station, identified by the words "airtime for contributions and expenditures in connection with the
authorities concerned within 3 days after their filing. If the election period up to and including election day: this broadcast was provided free of charge by" election
not acted upon within said period, deemed approved. (1) Dances followed by the true and correct name and address (3) within 30 days after the day of the election
(3) The only justifiable ground for denial of the application (2) Lotteries of the broadcast entity. [Sec. 4.2, RA 9006]
is when a prior written application by any candidate or (3) Cockfights (c) Print, broadcast or outdoor advertisements EFFECT OF FAILURE TO FILE STATEMENT
political party for the same purpose has been (4) Games donated to the candidate or political party shall No person elected to any public offices shall enter upon
approved. (5) Boxing bouts not be printed, published, broadcast or exhibited the duties of his office until he has filed the statement of
(4) Denial of any application for said permit is appealable (6) Bingo without the written acceptance by said candidate contributions and expenditures
to the provincial election supervisor or to the (7) Beauty contests or political party. Written acceptance must be
COMELEC whose decision shall be made within 48 (8) Entertainments, or cinematographic, theatrical or attached to the advertising contract and submitted The same prohibition shall apply if the political party which
hours and which shall be final and executory. [Sec. 87, other performances to the COMELEC within 5 days after its signing. nominated the winning candidate fails to file the
BP 881] [Sec. 4.3, RA 9006, cf. Sec. 6.3, RA 9006] statements
For any person or organization, civic or religious, directly or (6) All other forms of election propaganda not prohibited
PROHIBITED CONTRIBUTIONS indirectly, to solicit and/or accept from any candidate or by the Omnibus Election Code or the Fair Election Act Administrative fines (except candidates for elective
DEFINITIONS from his campaign manager, agent or representative, or of 2001. [Sec. 3, RA 9006, The Fair Election Act] barangay office [Sec. 14, RA 7166]
Contribution: gift, donation, subscription, loan, advance or any person acting in their behalf, any gift, food, (1) 1st offense – P1,000-P30,000 in the discretion of the
deposit of money or anything of value, or a contract, transportation, contribution or donation in cash or in kind PROHIBITED ACTS Commission to be paid within 30 days from receipt of
promise or agreement to contribute from the start of the election period up to and including For any foreigner to: notice of such failure otherwise it shall be enforceable
(1) WON legally enforceable election day (1) Aid any candidate or political party, directly or by a writ of execution issued by the Commission
(2) made for influencing the results of the elections indirectly against the properties of the offender
(3) excludes services rendered without compensation by Except: normal and customary religious stipends, tithes, or (2) Take part or influence in any manner any election (2) 2nd offense – P2,000-P30,000 in the discretion of the
individuals volunteering their time in behalf of a collections on Sundays and/or other designated collection (3) Contribute or make any expenditure in connection with Commission. In addition, the offender shall be subject
candidate or political party days [Sec. 97, BP 881] any election campaign or partisan political activity to perpetual disqualification to hold public office
(4) includes the use of facilities voluntarily donated by [Sec. 81, BP 881]
other persons, the money value of which can be REQUISITES OF A PROHIBITED DONATION
assessed based on the rates prevailing in the area. Who: By candidate, spouse, relative within 2nd civil degree For any person during the campaign period to:
[Sec. 94, BP 881] of consanguinity or affinity, campaign manager, agent or (1) Remove, destroy, obliterate or in any manner deface or
representative; treasurers, agents or representatives of tamper with lawful election propaganda
Expenditures: payment of money or anything of value or a political party (2) Prevent the distribution of lawful election propaganda
contract, promise or agreement to make an expenditure [Sec. 83, BP 881]
(1) for the purpose of influencing the results of the When: During campaign period, day before and day of the
election election
PAGE 135 PAGE 136
conducts himself in a disorderly manner in its presence NATIONAL BOC FOR PRESIDENT AND VICE-PRESIDENT
Province City Municipality
or within its hearing and thereby interruprts or disturbs Composition
Board of Election Inspectors its proceedings, the BEI may issue an order in writing
directing any peace officer to take said person into
available
appointive
-Any
available
other -Any
available
other The Senate and the House of Representatives in joint
public session.
(BEI) and Board of custody until the adjournment of the meeting, but such
order shall not be executed as to prevent said person
provincial official appointive
official
city appointive
municipal official Functions:
Canvassers (BOC) from voting. A copy of such written order shall be

attached to the Minutes; Member
(1) Upon receipt of the certificates of canvass, the
President of the Senate shall, not later than 30 days
after the day of the election, open all the certificates in
Same as for Vice- Same as for Vice- Same as for Vice-
COMPOSITION OF BOARD OF ELECTION INSPECTORS (5) Furnish watchers Certificate of Votes (CEF No. A13) the presence of the Senate and the House of
Chairman Chairman Chairman
COMPOSITION upon request Representatives in joint public session.
[Sec. 13, RA 6646 and Sec. 164, BP 881] (2) Congress upon determination of the authenticity and
(1) Chairman – public school teacher (6) Perform such other functions as prescribed by the PROHIBITIONS ON BOC the due execution thereof in the manner provided by
(2) Poll Clerk – public school teacher Code or by the rules and regulations promulgated by (1) Chairman and members shall not be related within the law shall:
th
(3) Two members, each representing the two accredited the Commission 4 civil degree of consanguinity or affinity to any of the (a) canvass all the results for president and vice-
political parties candidates whose votes will be canvassed by said president and
COMPOSITION OF BOARD OF CANVASSERS board, or to any member of the said board. [Sec. 222, (b) proclaim the winning candidates. [Sec. 22, RA
QUALIFICATIONS [Sec. 20, RA 6646] BP 881] 9369]
[Sec. 166, BP 881]
(1) Good moral character and irreproachable reputation (2) No member or substitute member shall be transferred, NATIONAL BOC FOR SENATORS AND PARTY -LIST
Province City Municipality assigned or detailed outside of his official station, nor
(2) Registered voter of the city or municipality REPRESENTATIVES
(3) Never been convicted of any election offense or any shall he leave said station without prior authority of the Composition
Chairman COMELEC during the period beginning election day
other crime punishable by more than 6 months of The chairman and members of the COMELEC sitting en
imprisonment, or if he has pending against him an Provincial election City election Election registrar until the proclamation of the winning candidates. [Sec. banc
information for any election offense supervisor or registrar or a or COMELEC 223, BP 881]
(4) Speak , read and write English or the local dialect lawyer in the lawyer of representative Function
(5) At least 1 member of the BEI shall be an information COMELEC COMELEC; (3) No member shall feign illness to be substituted on It shall canvass the results by consolidating the certificates
technology-capable person who is trained and certified regional office election day until the proclamation of the winning of canvass electronically transmitted. Thereafter, the
by the DOST to use the AES (where AES shall be In cities with more candidates. Feigning of illness constitutes an election national board shall proclaim the winning candidates for
adopted) [Sec. 3, RA 9369 Amended Automated than 1 election offense. [Sec. 224, BP 881] senators and party-list representatives. [Sec. 23, RA 9369]
Elections System Law] registrar,
COMELEC shall CANVASS BY THE BOC PROCLAMATION
DISQUALIFICATIONS designate Canvass - the process by which the results in the election Proclamation shall be after the canvass of election returns,
[Sec. 167, BP 881] returns are tallied and totalled. in the absence of a perfected appeal to the COMELEC,
Vice Chairman
(1) Related within 4th degree of consanguinity or affinity proclaim the candidates who obtained the highest number
to any member of the BEI Certificates of canvass - official tabulations of votes of votes cast in the province, city, municipality or barangay,
Provincial fiscal City fiscal Municipal
(2) Related within 4th degree of consanguinity or affinity accomplished by district, municipal, city and provincial on the basis of the certificates of canvass.
treasurer
to any candidate to be voted for in the polling place or canvassers based on the election returns, which are the
his spouse Member results of the ballot count at the precinct level. Failure to comply with this duty constitutes an election
(3) Not engaged in any partisan political activity or take - The BOC shall canvass the votes by consolidating the offense. [Sec. 231, BP 881]
Provincial City Most senior district electronically transmitted results or the results
part in the election except to discharge his duties as superintendent of superintendent of school supervisor
such and to vote [Sec. 173, BP 881] contained in the data storage devices used in the WHEN PROCLAMATION VOID
schools schools or in his absence, a printing of the election returns. [Sec. 20, RA 9369]
principal of the (1) When it is based on incomplete returns [Castromayor v.
POWERS OF BOARD OF ELECTION INSPECTORS school district or Comelec (1995)] or
[Sec. 10, COMELEC Resolution 9640, General Instructions CERTIFICATE OF CANVASS AND STATEMENT OF (2) When there is yet no complete canvass. [Jamil v.
elementary school VOTES
for BEI on Testing and Sealing, Voting, Counting and Comelec (1997)]
Transmission of Election Results] (1) Within one hour after the canvassing, the Chairman of (3) A void proclamation is no proclamation at all, and the
(1) Conduct the voting in the polling place and administer In case of non-availability, absence, disqualification due to the district or provincial BOC or the city BOC of those proclaimed candidate’s assumption into office cannot
the electronic counting of votes, including the testing relationship, or incapacity for any cause of any of the cities which comprise one or more legislative districts deprive the COMELEC of its power to annul the
and sealing of the PCOS machine members, COMELEC may appoint the following as shall electronically transmit the certificates of canvass proclamation.
substitutes, in the order named: to:
(2) Print the election returns and transmit electronically (a) COMELEC sitting as the National BOC for senators PARTIAL PROCLAMATION
the election results through the use of the PCOS Province City Municipality and party-list representatives and Notwithstanding pendency of any pre-proclamation
machine to the (b) Congress as the National BOC for the president controversy, COMELEC may summarily order proclamation
(a) City/Municipal Board of Canvassers Chairman and vice president, directed to the President of the of other winning candidates whose election will not be
(b) Central Server Senate. [Sec. 20, RA 9369] affected by the outcome of the controversy. [Sec. 21, RA
(c) Transparency Server (Dominant Majority Ranking lawyer of Ranking lawyer of Ranking lawyer of 7166]
Party/Dominant Minority Party/Accredited the COMELEC the COMELEC the COMELEC (2) The certificates of canvass transmitted electronically
Citizens’ Arm/ KBP Server Vice Chairman and digitally signed shall be considered as official ELECTION RESULTING IN A TIE
election results and shall be used as the basis for the BOC, by resolution, upon 5 days notice to all tied
(3) Act as deputies of the Commission in the conduct of -Provincial auditor -City auditor or -Municipal proclamation of a winning candidate. [Sec. 20, RA candidates, shall hold a special public meeting at which
the elections -Registrar of equivalent; Administrator; 9369] the board shall proceed to the drawing of lots of tied
Deeds -Registrar of -Municipal candidates and shall proclaim as elected the candidates
(4) Maintain order within within the polling place and its -Clerk of Court Deeds; Assessor; (3) 30 copies shall be distributed in accordance to Sec. 21, who may be favored by luck. [Sec. 240, BP 881]
premises; keep access thereto open and unobstructed; nominated by the -Clerk of Court -Clerk of Court RA 9369.
enforce obedience to its lawful orders and prohibit the Executive Judge of nominated by the nominated by the There is a tie when:
use of cellular phones and camera by the voters. If any the RTC; Executive Judge of Executive Judge of (1) 2 or more candidates receive an equal and highest
person refuses to obey the lawful orders of the BEI, or -Any other the RTC; the MTC; number of votes; or
PAGE 137 PAGE 138

(2) 2 or more candidates are to be elected for the same him shall not be counted. The fact that the candidate who transmission of the election returns or in the custody or PRE-PROCLAMATION CONTROVERSY
position and 2 or more candidates received the same obtained the highest number of votes is later declared to canvass thereof such election results in a failure to (asked in 1987, 1988, 1996)
number of votes for the LAST PLACE in the number to be disqualified or not eligible for the office to which he was elect due to force majeure, violence, terrorism, fraud or Pre-Proclamation Controversy – proceedings of the board
be elected. elected, does not necessarily entitle the candidate who other analogous causes. [Sec. 6, BP 881] of canvassers which may be raised by any candidate or by
obtained the second highest number of votes to be any registered political party or coalition of political
PROCLAMATION OF A LONE CANDIDATE declared the winner of the elective office. Causes for the declaration of failure of election may occur parties, or by any accredited and participating party list
Upon the expiration of the deadline for the filing of before or after the casting of votes or on the day of the group, before the board or directly with the Commission
certificates of candidacy in a special election called to fill a A possible exception is predicated on the concurrence of election. [Sec. 4, R.A. 7166] [Rule 3, Sec. 1, COMELEC Resolution No. 8804]
vacancy in an elective position other than for President and two assumptions, namely: (1) the one who obtained the
VP, when there is only 1 qualified candidate, he shall be highest number of votes is disqualified; and (2) the The postponement, declaration of failure of election and Note: COMELEC Resolution No. 8804 applies to election
proclaimed elected without holding the special election electorate is fully aware in fact and in law of a candidate’s the calling of special elections shall be decided by the disputes under the Automated Election System (AES)
upon certification by the COMELEC that he is the only disqualification so as to bring such awareness within the COMELEC sitting en banc by a majority vote of its using the Precinct Count Optical Scan (PCOS) and shall
candidate for the office and is therefore deemed elected. realm of notoriety but would nonetheless cast their votes members. [Sec. 4, R.A. 7166] cover pre-proclamation controversies and election protests
[Sec. 2, RA 8295, Law on Proclamation of Solo Candidates] in favor of the ineligible candidate [Grego v. COMELEC [Rule 1, Sec. 2, COMELEC Resolution No. 8804]
(1997)] The COMELEC shall call for the holding or continuation of
the election not held, suspended or which resulted in a Any question or matter pertaining to or affecting:
Any candidate who has been declared by final judgment to failure to elect: (1) the proceedings of the board of canvassers, or
Remedies and Jurisdiction in be disqualified –

(1) shall not be voted for and
(1) upon a verified petition by any interested party and
(2) after due notice and hearing [Sec. 6, B.P. 881]
(2) any matter raised under Sec. 233-236 of BP 881 (see
below) in relation to the preparation, transmission,
Election Law (2) the votes cast for him shall not be counted
(3) If a candidate is not declared by final judgment before When: on a date reasonably close to the date of the
receipt, custody and appreciation of the election
returns. [Sec. 241, BP 881]
an election to be disqualified and he is voted for and election not held, suspended or which resulted in a failure
PETITION NOT TO GIVE DUE COURSE TO OR CANCEL receives the winning number of votes in such election to elect BUT not later than 30 days after the cessation of JURISDICTION
A CERTIFICATE OF CANDIDACY the cause of such postponement or suspension of the COMELEC has exclusive jurisdiction over pre-proclamation
CANCELLATION OF CERTIFICATE OF CANDIDACY The Court or COMELEC shall continue with the trial and election or failure to elect. [Sec. 6, BP 881] cases. It may order, motu proprio or upon written petition,
(1) Grounds hearing of the action, inquiry, or protest and the partial or total suspension of the proclamation of any
(a) False material representation in the certificate of DECLARATION OF FAILURE OF ELECTION candidate-elect or annul partially or totally any
candidacy; Upon motion of the complainant or any intervenor, may It is neither an election protest nor a pre-proclamation proclamation, if one has been made. [Sec. 242, BP 881]
(b) If the certificate filed is a substitute Certificate of during the pendency thereof, order the suspension of the controversy. [Borja v. Comelec, (1998)]
Candidacy, when it is not a proper case of proclamation of such candidate whenever the evidence of COMELEC has exclusive jurisdiction in pre-proclamation
substitution under Sec. 77 of BP 881. his guilt is strong. [Sec. 6, RA 6646, The Electoral Reforms Jurisdiction controversies arising from national, regional or local
Law of 1987] COMELEC, sitting en banc, may declare a failure of election elections. [Rule 3, Sec. 2, COMELEC Resolution No. 8804]
(2) Nature of Proceedings - Summary by a majority vote of its members.
Where a similar complaint/petition is filed: WHEN NOT ALLOWED
(3) Procedure (1) before the election and proclamation of the Requisites For the positions of President, VP, Senator, and Member of
Who may file: any citizen of voting age, or a duly respondent and the case is not resolved before the The following conditions must concur: the House of Representatives [Sec. 15, RA 7166]
registered political party, organization, or coalition of election - the trial and hearing of the case shall (1) No voting has taken place in the precincts concerned
political parties continue and referred to the Law Department for on the date fixed by law, or even if there was voting, NATURE OF PROCEEDINGS
preliminary investigation the election nonetheless resulted in a failure to elect; Heard summarily by the COMELEC after due notice and
When filed: Within 5 days from the last day for the filing and hearing. This is because canvass and proclamation should
of certificates of candidacy (2) after the election and before the proclamation of the (2) The votes cast would affect the results of the election. be delayed as little as possible.
respondent - the trial and hearing of the case shall be
Where filed: With the Law Department of the COMELEC suspended and referred to the Law Department for Procedure: ISSUES THAT MAY BE RAISED
preliminary investigation (1) Petitioner files verified petition with the Law This enumeration is restrictive and exclusive:
PETITION FOR DISQUALIFICATION Department of the COMELEC. (1) Illegal composition or proceedings of the board of
PROCEDURE Note: In either case, if the evidence of guilt is strong, the election canvassers;
Who may file: Any citizen of voting age, or any duly COMELEC may order the suspension of the proclamation (2) Unless a shorter period is deemed necessary by
registered political party, organization or coalition of of respondent, and if proclaimed, to suspend the effects of circumstances, within 24 hours, the Clerk of Court (2) Canvassed election returns are either:
political parties proclamation. [Sec. 4, Resolution No. 8678] concerned serves notices to all interested parties, (a) Incomplete
indicating therein the date of hearing, through the (b) Contain material defects;
Where: Law Department of the COMELEC PETITION TO DECLARE FAILURE OF ELECTIONS fastest means available. (c) Appear to be tampered with or falsified;
WHAT CONSTITUTES AN ELECTION (d) Contain discrepancies in the same returns or in
When: Any day after the last day for filing of certificates of Plurality of votes sufficient for: (3) Unless a shorter period is deemed necessary by the other authentic copies;
candidacy, but not later than the date of proclamation (1) a choice conditioned on the plurality of valid votes or circumstances, within 2 days from receipt of the notice
(2) a valid constituency regardless of the actual number of of hearing, any interested party may file an opposition (3) The election returns were:
Grounds: Sec. 68 of BP 881. All other election offenses are votes cast. with the Law Department of the COMELEC. (a) Prepared under duress, threats, coercion,
beyond the ambit of the COMELEC jurisdiction [Codilla v. intimidation or
COMELEC (2004)] FAILURE OF ELECTIONS (4) The COMELEC proceeds to hear the petition. The (b) Obviously manufactured or not authentic
Grounds: in any of such cases the failure or suspension of COMELEC may delegate the hearing of the case and
Period to decide: The Commission and the courts shall give election must affect the result of the election the reception of evidence to any of its officials who are (4) Substituted or fraudulent returns in controverted polling
priority to cases of disqualification by reason of violation of (1) Election in any polling place has not been held on the members of the Philippine Bar. places were canvassed, the results of which materially
this Act to the end that a final decision shall be rendered date fixed due to force majeure, violence, terrorism, affected the standing of the aggrieved candidate(s).
not later than seven days before the election in which the fraud, or other analogous causes. (5) The COMELEC then decides whether to grant or deny
disqualification is sought. [Sec. 72, BP 881] (2) Election in any polling place had been suspended the petition. This lies within the exclusive prerogative (5) Manifest errors in the Certificates of Canvass or Election
before the hour fixed for the closing of the voting due of the COMELEC. Returns [Sec. 15, R.A. 7166; Chavez v. COMELEC]
EFFECT (asked in 1990, 1992, 1996, 2003) to force majeure, violence, terrorism, fraud, or other
Any candidate who has been declared by final judgment to analogous causes.
be disqualified shall not be voted for, and the votes cast for (3) After the voting and during the preparation and
PAGE 139 PAGE 140
Note: In Rule 3, Sec. 1 of COMELEC Resolution No. 8804 (2) If the petition is for correction, it must be filed not later If filed directly with the Commission In an election protest, the protestee may be ousted and the
(promulgated March 22, 2010) there are only 2 issues than 5 days following the date of proclamation, and (1) Upon receipt of the petition by the COMELEC, the protestant seated in the office vacated.
covered in a pre-proclamation controversy: must implead all candidates who may be adversely Clerk of the Commission shall docket the same and
(1) Illegal composition of the BOC [Sec. 1, Rule 4, affected thereby. [Sec. 5(b), Rule 27, COMELEC Rules of send summons to the VOC concerned with an order General Rule:
COMELEC Resolution No. 8804] Procedure] directing it to submit, through the fastest verifiable As a general rule, the filing of an election protest or a
means available, its answer within 48 hrs petition for quo warranto precludes the subsequent filing
Exists when, among other circumstances, any of the Matters relating to the preparation, transmission, receipt, of a pre-proclamation controversy, or amounts to the
members do not possess legal qualifications and custody and appreciation of the election returns and (2) COMELEC en banc shall resolve the petition within 5 abandonment of one earlier filed, thus depriving the
appointments. The information technology capable certificates of canvass days from the filing of the answer or upon the COMELEC of the authority to inquire into and pass upon
person required to assist the BOC by RA 9369 shall be expiration of the period to file the same the title of the protestee or the validity of his proclamation.
included as among those whose lack of qualifications Where: Only with the Board of Canvassers The reason is that once the competent tribunal has
may be questioned EFFECT OF FILING OF PRE-PROCLAMATION CONTROVERSY acquired jurisdiction of an election protest or a petition for
When: At the time the questioned return is presented for (1) The period to file an election contest shall be quo warranto, all questions relative thereto will have to be
(2) Illegal proceedings of the BOC [Sec. 2, Rule 4, inclusion in the canvass. suspended during the pendency of the pre- decided in the case itself and not in another proceeding.
COMELEC Resolution No. 8804] proclamation contest in the COMELEC or the Supreme This procedure will prevent confusion and conflict of
Who: Any candidate, political party or coalition of political Court. authority. Conformably, we have ruled in a number of
Exists when the canvassing is a sham or mere parties cases that after a proclamation has been made, a pre-
ceremony, the results of which are predetermined and (2) The right of the prevailing party in the pre-proclamation proclamation case before the COMELEC is no longer
manipulated as when any of the following Note: Non-compliance with any of the steps above is fatal contest to the execution of COMELEC’s decision does viable. [Samad v. Comelec, (1993)]
circumstances are present: to the pre-proclamation petition. not bar the losing party from filing an election contest.
(1) Precipitate canvassing Exceptions: The rule admits of exceptions, however, as
(2) Terrorism Pre-proclamation controversies under COMELEC (3) Despite the pendency of a pre-proclamation contest, where:
(3) Lack of sufficient notice to the members of the Resolution No. 8804 the COMELEC may order the proclamation of other (1) the board of canvassers was improperly constituted;
BOC’s If filed before the BOC winning candidates whose election will not be affected (2) quo warranto was not the proper remedy;
(4) Improper venue (1) Upon receipt of the verified petition, the BOC shall by the outcome of the controversy. (3) what was filed was not really a petition for quo
immediately announce the fact of the filing of said warranto or an election protest but a petition to annul
ISSUES THAT CANNOT BE RAISED petition and the ground/s raised EFFECT OF PROCLAMATION OF WINNING CANDIDATE a proclamation;
(1) Appreciation of ballots, as this is performed by the BEI General Rule: A pre-proclamation controversy shall no (4) the filing of a quo warranto petition or an election
at the precinct level and is not part of the proceedings (2) BOC shall immediately deliberate on the petition and longer be viable after the proclamation and assumption protest was expressly made without prejudice to the
of the BOC [Sanchez v. Comelec, (1987)] make a prompt resolution within 24 hrs – reduced into into office by the candidate whose election is contested. pre-proclamation controversy or was made ad
writing The remedy is an election protest before the proper forum. cautelam; and
(2) Technical examination of the signatures and thumb (5) the proclamation was null and void. [Samad v.
marks of voters [Matalam v. Comelec (1997)] (3) If the decision is in favor of the petition, it shall Exceptions: The prevailing candidate may still be unseated Comelec, (1993)]
immediately inform the Commission of its resolution – even though he has been proclaimed and installed in office
(3) Prayer for re-opening of ballot boxes [Alfonso v. the Commission shall make appropriate action if: NATURE
Comelec, (1997)] (1) The opponent is adjudged the true winner of the Summary proceeding of a political character
In no case shall the receipt by the BOC of the election by final judgment of court in an election
(4) Padding of the Registry List of Voters of a municipality, electronically transmitted precinct, municipal, city or contest; PURPOSE
massive fraud and terrorism [Ututalum v. Comelec provincial results, be suspended by the filing of the (2) The prevailing party is declared ineligible or To ascertain the candidate lawfully elected to office
(1990)] said petition disqualified by final judgment of a court in a quo
warranto case; or WHO MAY FILE
(5) Challenges directed against the Board of Election Appeal an adverse resolution (3) The incumbent is removed from office for cause. A candidate who has duly filed a certificate of candidacy
Inspectors [Ututalum v. Comele (supra)] (1) The petitioner may appeal an adverse resolution by the and has been voted for.
BOC to the COMELEC, by notifying the BOC of his or PETITION TO ANNUL OR SUSPEND PROCLAMATION
(6) Fraud, terrorism and other illegal electoral practices. her intent to appeal, through a verbal and a written The filing of the petition suspends the running of the WHEN
These are properly within the office of election contests and verified notice of appeal period to file an election protest. [Alangdeo v. Comelec, Within 10 after the proclamation of the results of the
over which electoral tribunals have sole, exclusive (1989)] election.
jurisdiction. [Loong v. Comelec, (1992)] (2) Notice on the BOC shall not suspend the formal (1) It is suspendeded during the pendency of a pre-
proclamation of the official results of the election until No law provides for a reglementary period within which to proclamation controversy
PROCEDURE the final resolution of the appeal file a petition for the annulment of an election if there is as (2) It should be decided within 15 days from filing in case
Questions involving the composition or proceedings of the yet no proclamation. [Loong v. Comelec (supra)] of barangay officials
board of canvassers, or correction of manifest errors (3) 48 hrs from such notice to the BOC, the petitioner shall
submit before the Board a Memorandum on appeal ELECTION PROTEST WHO HAS JURISDICTION
Where: Either in the Board of Canvassers or directly with stating the reasons why the resolution being Election protest is a contest between the defeated and (1) COMELEC – over all contests relating to the elections,
the COMELEC. [Sec. 17, R.A. 7166] questioned is erroneous and should be reversed winning candidates on the ground of frauds or returns and qualifications of all elective regional,
irregularities in the casting and counting of the ballots, or provincial and city officials [Sec. 250, BP 881]
When: (4) Upon receipt by the BOC of the memorandum, the in the preparation of the returns. It raises the question of (2) RTC - over contests involving municipal officials [Sec.
(1) a petition involves the illegal composition or Board shall forward the entire records of the petition at who actually obtained the plurality of the legal votes and 251, BP 881]
proceedings of the board, must be filed immediately the expense of the petitioner therefore is entitled to hold the office. [Samad v. Comelec, (3) MeTC or MTC – over election contests involving
when the board begins to act as such [Laodeno v. (1993)] barangay officials [Sec. 252, BP 881]
Comelec (1997)], or at the time of the appointment of (5) Upon receipt of the records, the petition shall be
the member whose capacity to sit as such is objected docketed by the Clerk of Commission and submitted to An election contest consists of either: GROUNDS
to if it comes after the canvassing of the board, or the COMELEC en banc for consideration and decision (1) an election protest or a (1) Fraud
immediately at the point where the proceedings are or (2) quo warranto (2) Terrorism
begin to be illegal. Otherwise, by participating in the (6) Within 5 days, the COMELEC shall render its decision which, although two distinct remedies, would have one (3) Irregularities
proceedings, the petitioner is deemed to have on appeal objective in view: to dislodge the winning candidate from (4) Illegal acts committed before, during, or after the
acquiesced in the composition of the BOC. office. casting and counting of votes
PAGE 141 PAGE 142

PAYMENT OF DOCKET FEE Election Protest Quo Warranto MTCs, by way of exception, exercise jurisdiction only over of promoting the election of such candidate. [Sec. 28,
A protestant has to pay a docket fee of P300 and an offenses relating to failure to register or to vote RA 6646]
additional docket fee if there is a claim for damages. A protestee may be ousted While the respondent may
Failure to pay the basic docket fee shall result to the and the protestant seated in be unseated, the petitioner PREFERENTIAL DISPOSITION OF ELECTION (3) Coercion of subordinates to vote for or against any
dismissal of the protest [Soller v. COMELEC (2000)] the office vacated will not be seated OFFENSES candidate [Sec. 261(d), BP 881]
(1) The investigating officer shall resolve the case within 5
EFFECT OF FILING PETITION TO ANNUL OR TO SUSPEND THE days from submission. (4) Dismissal of employees, laborers, or tenants for refusing
PROCLAMATION (2) The courts shall give preference to election cases over or failing to vote for any candidate [Sec. 261(d(2)), BP
The filing with the Commission of a petition to annual or to Quo Warranto in an elective Quo Warranto in an all other cases except petitions for writ of habeas 881]
suspend the proclamation of any candidate shall suspend office appointive office corpus.
the running of the period within which to file an election Issue is the eligibility of the Issue is the legality of the (5) Being a flying voter [Sec. 261z (2), B.P. 881]
protest or quo warranto proceedings. [Sec. 248, BP 881] officer-elect appointment ELECTION OFFENSES
REGISTRATION COUNTING OF VOTES
QUO WARRANTO Court or tribunal cannot The court determines who of (1) Failure of the Board of Election Inspectors to post the (1) Tampering, increasing, decreasing votes, or refusal to
A petition for quo warranto under the Omnibus Election declare the protestant (or the parties has legal title to list of voters in each precinct. [Sec. 9, RA 7166]; correct tampered votes after proper verification and
Code raises in issue the disloyalty or ineligibility of the the candidate who obtained the office hearing by any member of the board of election
winning candidate. It is a proceeding to unseat the the second highest number (2) Change or alteration or transfer of a voter's precinct inspectors [Sec. 27(b), RA 6646]
respondent from office but not necessarily to install the of votes) as having been assignment in the permanent list of voters without the
petitioner in his place. [Samad v. Comelec, (1993)] elected express written consent of the voter [Sec. 4, RA 8189] A special election offense to be known as electoral
sabotage and the penalty to be imposed shall be life
In a quo warranto proceeding, the petitioner is not EXECUTION PENDING APPEAL CERTIFICATE OF CANDIDACY imprisonment. [Sec. 42, RA 9369]
occupying the position in dispute. Moreover, under the The trial court may grant a motion for execution pending (1) Continued misrepresentation or holding out as a
Omnibus Election Code, quo warranto is proper only for appeal because the mere filing of an appeal does not candidate of a disqualified candidate or one declared by (2) Refusal to issue to duly accredited watchers the
the purpose of questioning the election of a candidate on divest the trial court of its jurisdiction over a case and to final and executory judgment to be a nuisance certificate of votes cast and the announcement of the
the ground of disloyalty or ineligibility. [Samad v. Comelec, resolve pending incidents candidate [Sec. 27(f), RA 6646] election, by any member of the board of election
(1993)] inspectors [Sec. 27(c), RA 6646]
Valid and special reasons to grant the same (2) Knowingly inducing or abetting such misrepresentation
It is a proceeding to unseat the ineligible person from (1) The public interest is involved or the will of the of a disqualified or nuisance candidate [Sec. 27(f), RA CANVASSING
office but not to install the protestant in his place. In this electorate 6646]; Any chairperson of the board of canvassers who fails to
sense, it is strictly speaking, not a contest where the parties (2) The shortness of the remaining portion of the term give notice of meeting to other members of the board,
strive for supremacy. While the respondent may be (3) The length of time that the election contest has been (3) Coercing, bribing, threatening, harassing, intimidating, candidate or political party as required [Sec. 27(e), RA
unseated, the petitioner will not be seated. pending terrorizing, or actually causing, inflicting or producing 6646]
violence, injury, punishment, torture, damage, loss or
WHO MAY FILE The rule is strictly construed against the movant and only disadvantage to discourage any other person or ACTS OF GOVERNMENT OR PUBLIC OFFICERS
Any voter when the reason is of such urgency will such execution persons from filing a certificate of candidacy in order to (1) Appointment of new employees, creation of new
pending appeal be allowed, as it is an exception to the eliminate all other potential candidates from running positions, promotion, or giving salary increases within
WHEN general rule in a special election [Sec. 5, RA 8295] the election period [Sec. 261(g), BP 881]
Within 10 days after the proclamation of the results of the
election. ELECTION CAMPAIGN (2) Transfer of officers and employees in the civil service
(1) Appointment or use of special policemen, special agents within the election period without the prior approval of
WHO HAS JURISDICTION or the like during the campaign period [Sec. 261(m), BP the COMELEC [Sec. 261(h), BP 881]
(1) COMELEC – over petitions for quo warranto involving Prosecution of Election 881]
(3) Intervening of public officers and employees in the civil
regional, provincial and city officials [Sec. 253, BP 881]
(2) RTC - over petitions for quo warranto involving Offenses (2) Use of armored land, water or aircraft during the
campaign period [Sec. 261(r), BP 881]
service in any partisan political activity [Sec. 261(i), BP
881]
municipal officials [Sec. 253, BP 881]
(3) MeTC or MTC – over petitions for quo warranto JURISDICTION OVER ELECTION OFFENSES
involving barangay officials [Sec. 253, BP 881] INVESTIGATION AND PROSECUTION
(3) Unlawful electioneering [Sec. 261(k), BP 881] (4) Use of public funds for an election campaign [Sec.
COMELEC has exclusive jurisdiction to investigate and 261(o), BP 881]
GROUNDS prosecute cases involving violation of election laws [Sec. 2 (4) Acting as bodyguards or security in the case of
(1) Ineligibility (6), Art. IX-C, 1987 Consti] policemen and provincial guards during the campaign (5) Illegal release of prisoners before and after election
(2) Disloyalty to the Republic period [Sec. 261(t), BP 881] [Sec. 261(n), BP 881]
However, it may validly delegate the power to the
Election Protest Quo Warranto Provincial Prosecutor or to the Ombudsman. (5) Removal, destruction, obliteration, or tampering of (6) Release, disbursement or expenditure of public funds
lawful election propaganda, or preventing the during the prohibited period [Sec. 261(v), BP 881]
Strictly a contest between Refers to questions of In the event that the COMELEC fails to act on any distribution thereof [Sec. 83, BP 881 vis-à-vis Sec. 262,
the defeated and winning disloyalty or ineligibility of complaint within 4 months from its filing, the complainant BP 881] (7) Construction of public works, etc. during the prohibited
candidates based on the winning candidate. It is a may file the complaint with the fiscal or the Department of period [Sec. 261(w), BP 881]
grounds of election frauds or proceeding to unseat the VOTING
Justice, if warranted. [Sec. 265, BP 881]
irregularities as to who ineligible person from office, (1) Vote-buying and vote-selling [Sec. 261(a), BP 881] (8) Suspension of elective local officials during the
actually obtained the but not to install the It is not the duty of the COMELEC, as investigator and election period without prior approval of the COMELEC
majority of the legal votes protestant in place prosecutor, to gather proof in support of a complaint filed (2) Conspiracy to bribe voters [Sec. 261(b), BP 881]: A [Sec. 261(x), BP 881]
and therefore is entitled to before it [Kilosbayan v. COMELEC (1997)] disputable presumption of a conspiracy to bribe voters
hold the office is created when there is proof that at least 1 voter in COERCION, INTIMIDATION, VIOLENCE
TRIAL AND DECISION different precincts representing at least 20% of the (1) Coercion of election officials and employees
Can only be filed by a Can be filed by any voter. It is total precincts in any municipality, city or province has
RTCs have exclusive original jurisdiction to try and decide
candidate who has duly filed not considered a contest been offered, promised or given money, valuable (2) Threats, intimidation, terrorism, use of fraudulent
a certificate of candidacy and where the parties strive for any criminal actions or proceedings for violation of election
laws. [Sec. 268, BP 881] consideration or other expenditure by a candidate's devices or other forms of coercion [Sec. 261(e), BP 881]
has been voted for supremacy relatives, leaders and/or sympathizers for the purpose
PAGE 143 PAGE 144
(3) Use of undue influence [Sec. 261(j), BP 881] ARRESTS IN CONNECTION WITH ELECTION and the tampering, increase and/ or decrease votes refusal BEIs or BOCs involved, shall be meted the same penalty of
CAMPAIGN to credit the correct votes or to deduct tampered votes, life imprisonment.
(4) Carrying deadly weapons within the prohibited area Only upon a warrant of arrest issued by a competent judge shall adversely affect the results of the election to the said
[Sec. 261(p), BP 881] after all the requirements of the Constitution have been national office to the extent that losing candidate/s is /are
strictly complied with made to appear the winner/s;
(5) Carrying firearms outside residence or place of
business [Sec. 261(q), BP 881] PRESCRIPTION Regardless of the elective office involved, when the
5 years from the date of their commission. If the discovery tampering, increase and/or decrease of votes committed
(6) Organization or maintenance of reaction forces, strike of the offense be made in an election contest proceeding, or the refusal to credit the correct votes or to deduct
forces, or similar forces during the election period [Sec. the period of prescription shall commence on the date on tampered votes perpetrated is accomplished in a single
261(u), BP 881] which the judgment in such proceedings becomes final election document or in the transposition of the figure /
and executory. [Sec. 267, BP 881] results from one election document to another and
OTHER PROHIBITIONS involved in the said tampering increase and/or decrease or
(1) Unauthorized printing of official ballots and election PROHIBITED ACTS UNDER RA 9369 refusal to credit correct votes or deduct tampered votes
returns with printing establishments that are not under (1) Utilizing without authorization, tampering with, exceed 5,000 votes, and that the same adversely affects
contract with the COMELEC [Sec. 27(a), RA 6646] damaging, destroying or stealing: the true results of the election
(a) Official ballots, election returns, and certificates of
(2) Wagering upon the results of elections [Sec. 261(c), BP canvass of votes used in the system; and Any and all other forms or tampering increase/s and/ or
881] (b) Electronic devices or their components, peripherals decrease/s of votes perpetuated or in cases of refusal to
or supplies used in the AES such as counting credit the correct votes or deduct the tampered votes,
(3) Sale, etc. of intoxicating liquor on the day fixed by law machine, memory pack/diskette, memory pack where the total votes involved exceed 10,000 votes
for the registration of voters in the polling place, or the receiver and computer set
day before the election or on election day [Sec. 261(dd) PENALTY
(1), BP 881] (2) Interfering with, impeding, absconding for purpose of Any and all other persons or individuals determined to be
gain, preventing the installation or use of computer in conspiracy or in connivance with the members of the
(4) Opening booths or stalls within 30 meters of any counting devices and the processing, storage,
polling place [Sec, 261(dd) (2), BP 881] generation and transmission of election results, data or
information
(5) Holding fairs, cockfights, etc. on election day [Sec.
261(dd) (3), BP 881] (3) Gaining or causing access to using, altering, destroying
or disclosing any computer data, program, system
(6) Refusal to carry election mail during the election software, network, or any computer-related devices,
period [Sec. 261(dd) (4), BP 881]. In addition to the facilities, hardware or equipment, whether classified or
prescribed penalty, such refusal constitutes a ground declassified
for cancellation or revocation of certificate of public
convenience or franchise. (4) Refusal of the citizens' arm to present for perusal its
copy of election return to the board of canvassers
(7) Discrimination in the sale of air time [Sec. 261(dd) (5),
BP 881] In addition to the prescribed penalty, such (5) Presentation by the citizens' arm of tampered or
refusal constitutes a ground for cancellation or spurious election returns
revocation of the franchise.
(6) Refusal or failure to provide the dominant majority and
Note: Good faith is not a defense, as election offenses are dominant minority parties or the citizens'' arm their
generally mala prohibita. copy of election returns and
PENALTIES (7) The failure to post the voters' list within the specified
For individuals time, duration and in the designated location shall
(1) Imprisonment of not less than 1 year but not more than constitute an election offense on the part the election
6 years, without probation [Sec. 264, BP 881] officer concerned."
(2) Disqualification to hold public office
(3) Deprivation of the right of suffrage PENALTY
(1) imprisonment of 8 years and one day to 12 years
For a Foreigner without possibility of parole
(1) Imprisonment of not less than 1 year but not more than
6 years (without probation); (2) perpetual disqualification to hold public and any non-
(2) Deportation after service of sentence elective public office and
For a Political Party (3) deprivation of the right of suffrage.

Payment of a fine not less than P10,000 after a criminal
conviction Exception: Those convicted of the crime of electoral
sabotage, which includes acts or offenses committed in
Persons Required by Law to Keep Prisoners in their Custody any of the following instances:
For prisoners illegally released from any penitentiary or jail
during the prohibited period, where such prisoners commit NATIONAL ELECTIVE OFFICE
any act of intimidation, terrorism or interference in the When the tampering, increase and/or decrease of votes
election, prison mayor in its maximum period. [Sec. 264, perpetrated or the refusal to credit the correct votes or to
BP 881] deduct tampered votes is/are committed in the election of
a national elective office which is voted upon nationwide
PAGE 145 PAGE 146

UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION UP COLLEGE OF LAW LOCAL GOVERNMENT CODE BAR OPERATIONS COMMISSION
Public Corporations NATURE AND FUNCTION

DUAL NATURE
CONCEPT Every LGU created under this Code is a body politic and
Municipal Corporations Government-Owned or corporate. It shall exercise powers both as a political
Controlled Corporations subdivision of the National Government, and as a
(GOCCs) corporate entity representing the inhabitants of its
territory. [Sec. 15, LGC]
Purpose
Local governance over Agencies of the State for Political/Governmental Corporate/Proprietary
inhabitants of cities/towns; limited purposes to take
agency of the State for charge of some public or Exercised in the Exercised for the special
assistance in civil state work, other than administration of powers of benefit and advantage of
government of the country community work. [National the state and for promotion the community [Torio v.
for regulation of local and Waterworks & Sewerage of public welfare [Torio v. Fontanilla (1978)]
internal affairs. Authority v. NWSA Fontanilla (1978)]
Consolidated Unions (1964)]
Legislative, judicial, public, Ministerial, private, and
Personality and political corporate
Political subdivision of the Separate and distinct from LGU not liable except if: Can be held liable ex
Republic of the Philippines the government; subject to (1) Statute provides contractu or ex delicto;
the Corporation Code; otherwise;
Mere fact the the (2) damages due to defective
Government is a majority condition of roads, streets,
stockholder of the buildings, and other public
corporation does not make works [Art. 2189, Civil Code]
it a public corporation;
Government gives up its Examples: Examples:
sovereign character with (1) Regulations against fire, (1) Municipal waterworks,
regard to transactions of the disease; markets, wharves, fisheries;
corporation; [Bacani v. (2) Preservation of public (2) Maintenance of parks,
National Coconut peace; golf courses, cemeteries;
Corporation (1956)] (3) Establishment of schools,
public offices, etc.
Nature and Status
Constituted by law and Independent agency of the REQUISITES FOR CREATION, CONVERSION, DIVISION,
possessed of substantial government for MERGER, OR DISSOLUTION
control over its own affairs; administrative purposes; MINIMUM REQUIREMENTS
Autonomous in the sense Has corporate powers to be The territorial and political subdivisions are the provinces,
that it is given more powers, exercised by its board of cities, municipalities, and barangays. There shall be
authority, responsibilities, directors, and its own assets autonomous regions in Muslim Mindanao and the
and resources; and liabilities; [National Cordilleras. [Sec. 1, LGC]
Waterworks & Sewerage
Authority v. NWSA No province, city, municipality, or barangay may be
Consolidated Unions (1964)] created, divided, merged, abolished, or its boundary
altered except,
(a) in accordance with the criteria established in the Local
CLASSIFICATIONS Government Code and;
Municipal Corporation v. Quasi-Municipal Corporation (b) subject to approval by a majority of the votes cast in a
A municipal corporation exists by virtue of its charter, while plebiscite in the political units directly affected. [Sec.
a quasi-municipal corporation operates directly as an 10, LGC]
agency of the state.
GENERAL REQUIREMENTS
Law or Ordinance
A local government unit is created, divided, merged,
Municipal Corporations abolished, or its boundary altered:
(1) by law enacted by Congress, for provinces, cities,
ELEMENTS municipalities, and any other political subdivision;
(1) Legal creation or incorporation (2) by ordinance passed by the Sangguniang Panlalawigan
(2) Corporate name by which the entity is known and in or Panlungsod, for a barangay within its territorial
which all corporate acts are done jurisdiction;
(3) Population which is invested with the powers of the
corporation through duly constituted officers and Plebiscite
agents (1) Law or ordinance;
(4) Territory within which the local government exercises (2) Approved by majority of the votes cast in a plebiscite
civil and corporate functions; called for the purpose in the political unit or units
directly affected;
PAGE 147 PAGE 148
(3) Said plebiscite shall be conducted by the COMELEC Province City Municipality Barangay executive and legislative assemblies; The Effects of Downgrading (from independent component
within 120 days from the date of effectivity of the law or (c) metropolitan authority that will be created shall be city to component city) are: — (1) The city mayor will be
ordinance, unless said law or ordinance fixes another Population limited to basic services requiring coordination; [Sec. 11, placed under the administrative supervision of the
date. LGC] Governor; (2) Resolutions and ordinances will have to be
250,000 150,000 25,000 2,000
reviewed by the Provincial Board; (3) Taxes will have to be
inhabitants inhabitants inhabitants inhabitants,
Only amendments to, or revisions of, the Organic Act Highly Urbanized Cities and Independent Component Cities shared with the province;
and 5,000
constitutionally-essential to the creation of autonomous (a) independent of the province;
for
regions – those aspects specifically mentioned in the (b) for HUCs, as determined by law DIVISION AND MERGER
barangays in
Constitution which Congress must provide for in the (c) for ICCs, as determined by their charter if prohibited Division and merger shall comply with the same
cities and
Organic Act– require ratification through a plebiscite. If all from voting for provincial officers; [Sec. 12, LGC] requirements prescribed for their creation:
municipalitie
amendments to the Organic Act have to undergo the
s within
plebiscite requirement before becoming effective, this Autonomous Regions Provided: such division shall no reduce the income,
Metro Manila
would hamper the ARMM’s progress by impeding (a) consist of provinces, cities, and municipalities and population, or land area of the LGU concerned to less than
and highly-
Congress from enacting laws that timely address problems geographical areas sharing common and distinctive the minimum requirements prescribed;
urbanized
as they arise in the region, as well as weighing down the historical and cultural heritage, economic and social
cities
ARMM government with the costs that unavoidably follow structures, and other relevant characteristics within the Provided: the income classification of the original LGU
the holding of a plebiscite. [Abas Kida v. Senate of the Phil Territory framework of the Constitution; shall not fall below its current classification prior to the
(2012)] (b) President of the Philippines exercises general division;
Contiguous Contiguous Contiguous No minimum supervision over such region;
The phrase “in the political unit directly affected” refers to territory of at territory of at territory of at requirement (c) all powers not granted to it by law or the Constitution Effects of Merger
the residents of the political entity who would be least 2,000 least 100 least 50 shall be vested in the National Government; (1) Legal existence and right of office of the annexed LGU
economically dislocated by the separation of a portion square kms square kms square km (d) created via organic act for each autonomous region, are terminated
thereof who have the right to vote in said plebiscite. with participation of the regional consultative (2) Laws and ordinances of the annexing LGU shall prevail
[Padilla v. COMELEC (1992)] Creation of an LGU or its conversion from one level to commission, (3) Title to property is acquired by the annexing LGU
another level shall be based on verifiable indicators of (I). defines the basic structure of government for the (4) Debts are assumed by the annexing LGU
CREATION viability and projected capacity to provide services: region for both the executive department and
Nature of Power legislative assemblies Effects of Division
The authority to create municipal corporations is (1) Income – must be sufficient to provide for all essential (ii). provides for special courts with personal, family, (1) The legal existence of the original LGU is extinguished
essentially legislative in nature. [Pelaez v. Auditor General government facilities and services commensurate with and property law jurisdiction; [Sec. 15-18, LGC] (2) The property, rights, and powers are acquired by the
(1965)] the size of its population; dividing LGUs
(2) Population – total number of inhabitants within the De Facto Corporations
The enactment of a LGC is not a sine qua non for the territorial jurisdiction of the local government unit Occurs when there is defect in the creation but the legal ABOLITION
creation of a municipality, and before the enactment of concerned; existence has been recognized and acquiesced publicly An LGU may be abolished when its income, population, or
such, the power remains plenary except that creation (3) Land Area – must be: and officially. land area has been irreversibly reduced to less than the
should be approved in a plebiscite. [Torralba v. Sibagat (a) Contiguous, unless it comprises of two or more minimum standards prescribed for its creation.
(1987)] islands or is separated by an LGU independent of The requisites are. — (1) Valid law authorizing incorporation; (a) Certified by the national agencies concerned to the
the others; (2) Attempt in good faith to organize it; (3) Colorable Congress or the sanggunian, as the case may be.
Creations under Sec. 68, Admin. Code (b) Properly identified by metes and bounds with compliance with law; (4) Assumption of corporate powers; (b) Does result in an automatic cessation of the LGU;
The alleged power of the President to create municipalities technical descriptions; Congress or the sanggunian concerned must pass a law or
under the Administrative Code amounts to an undue (c) Sufficient to provide for such basic services and Municipal Corporations by Prescription. — Existence is ordinance for the abolition, and such must be subjected to
delegation of legislative power. The power of control of the facilities to meet the requirements of its populace; presumed where the corporation has claimed and a plebiscite. [Sultan Usman Sarangani v. COMELEC (2000)]
President over executive departments does not include the exercised corporate functions with the knowledge and
authority to abolish or create such. [Pelaez v. Auditor The income requirement covers the income accruing to the acquiescence of the legislature, and without interruption or Dissolution does not occur due to:
General (1965)] general fund, exclusive of special funds, transfers, and objection for a period long enough to afford title by (1) Non-user or surrender of charter
non-recurring income. prescription. [Martin, Public Corporations (1977)] (2) Failure to elect municipal officers
Beginning of Corporate Existence (3) Change of sovereignty
Commences upon the election and qualification of its chief Provinces and Cities must satisfy the income requirement, ATTACKS AGAINST VALIDITY OF INCORPORATION (4) Change of name
executive and a majority of the members of its sanggunian, and EITHER population or territory. Barangays have no The action is reserved to the state in a proceeding for quo
unless some other time is fixed therefor by the law or minimum requirement for area and income. warranto or any other direct proceeding. Collateral attacks
ordinance creating it. [Sec. 14, LGC] are not allowed.
Compliance with such requirements are attested to by:
Specific Requirements (1) Department of Finance The proceeding must be: Principles of Local Autonomy
General Rule: (2) National Statistics Office (NSO) (1) Brought in the name of the Republic of the Philippines
Province City Municipality Barangay (3) Lands Management Bureau (LMB) of the Department (2) Commenced by the Solicitor General or the fiscal when LOCAL AUTONOMY
of Environment and Natural Resources (DENR) directed by the President The territorial and political subdivisions shall enjoy local
Income (3) Timely raised [Municipality of San Narciso vs Mendez autonomy. [Sec. 2, Article X, 1987 Constitution]
INTERNAL REVENUE ALLOTMENTS (1994)]
Average Average Average No minimum
The IRA forms part of the income of the LGU. The funds
annual annual annual requirement DECLARATION OF POLICY
generated from local taxes, IRA, and national wealth DOWNGRADING
income of not income of not income of not (a) Policy of the State that the territorial and political
utilization proceeds accrue to the general fund of the LGU. Falls within the meaning of creation, division, merger,
less than less than less than subdivisions of the State shall enjoy genuine and
[Alvares v. Guingona (1996)] abolition, or substantial alteration; hence ratification in a
P20M, based P100M, P2.5M pesos, meaningful local autonomy to enable them to attain
plebiscite is necessary. There is a material change in the
on 1991 based on based on their fullest development as self-reliant communities
Other LGUs political and economic rights of the LGU's inhabitants as
constant 2000 1991 constant and make them more effective partners in the
Special Metropolitan Political Subdivisions well as its budget, and thus reasonable to require the
prices constant prices attainment of national goals.
(a) created by Congress, subject to a plebiscite; consent of the affected population. [Miranda vs. Aguirre
prices (b) The State shall provide for a more responsive and
(b) component cities/municipalities retain their basic (1999)] accountable local government structure instituted
autonomy and entitled to create their own local
through a system of decentralization whereby local
PAGE 149 PAGE 150
government units shall be given more powers, (g) Maintenance of peace and order NATURE Furthermore, small property landowners are similarly exempt
authority, responsibilities, and resources. [Sec. 2, LGC] (h) Preservation of the comfort and convenience of its The exercise of eminent domain is necessarily in from expropriation for purposes of socialized housing,
inhabitants [Sec. 16, LGC] derogation of private rights, hence the authority to exercise provided:
The princple of local autonomy under the 1987 NATURE such must be strictly construed. [Heirs of Suguitan v. City of (1) Those owners of real property which consist of residential
Constitution simply means decentralization. [Basco v. The police power of a municipal corporation extends to all Mandaluyong (2000)] lands within an area of not more than 300 sq. meters in
PAGCOR (1991)] great public needs, and includes all legislation and highly urbanized cities, and 800 in other urban cities;
functions of the municipal government. The drift is towards REQUISITES AND
DECENTRALIZATION social welfare legislation geared towards state policies to (1) Ordinance enacted by the local legislative council (2) They do not own real property other than the same.
Refers to either (1) decentralization of administration or to provide adequate social services, the promotion of general authorizing the local Chief Executive to exercise
(2) decentralization of power. welfare, and social justice. [Binay v. Domingo (1991)] eminent domain TAXING POWER
(2) For purpose of public use, public purpose, or welfare for Each LGU shall have the power to create new sources of
Decentralization of Public Use the benefit of the poor and landless funds and to levy taxes, fees, and charges subject to
Decentralization of Power (1) The public in general should have equal or common (3) Payment of just compensation based on the fair market limitations as Congress may provide, consistent with the
Administration
rights to use the land or facility involved on the same value of the property at the time of taking basic policy of local autonomy. Such taxes, fees, and charges
terms. (4) Valid and definite offer was previously made to the accrue exclusively to the local governments. [Sec 5, Article X,
Occurs when the central Abdication of political (2) The number of users in not the yardstick in determining owner of the property, but the offer was not accepted
government delegates power in favor of LGUs 1987 Constitution]
whether property is properly reserved for public use or [Sec. 19, LGC]
administrative powers to declared to be autonomous benefit. [Republic v. Gonzales (1991)]
political subdivisions in regions, making the latter The primary question is whether the government has
FUNDAMENTAL PRINCIPLES ON TAXATION BY AN LGU
order to broaden the base no longer accountable to (1) Taxation shall be uniform;
Two Branches of General Welfare Clause complied with the requisites for taking of private property. (2) Taxes, fees, and charges shall be equitable and based
of government power. the national government, (1) The general legislative power, which authorizes The value of the property is merely incidental to the
[Ganzon v. CA (1991)] but to its constituents as far as practicable on the taxpayer's ability to pay;
municipal councils to enact ordinances and make expropriation suit, as it is only after the court is satisfied
instead (3) Levied and collected only for a public purpose;
regulations not repugnant to law and may be with the propriety of expropriation that said amount is (4) Shall not be unjust, excessive, oppressive, or
The purpose of such is to necessary to carry into effect and discharge the powers determined. [Barangay San Roque v. Heirs of Pastor
relieve the central Not allowed under the 1987 confiscatory;
and duties conferred upon it by law. (2000)] (5) The collection of taxes, fees, and charges shall in no
government of the burden Constitution (2) The police power, which authorizes the municipality to
of managing local affairs case be left to any private person;
enact ordinances as may be proper and necessary for JUST COMPENSATION
and enable to concentrate (6) The revenue shall insure solely to the LGU, unless
the health and safety, prosperity, morals, peace, good Section 3A of Republic Act No. 6395, as amended (which otherwise specified;
on national concerns. order, comfort and convenience of the municipality and provides a fixed formula in the computation of just
(7) Each LGU shall, as far as practicable, evolve a
its inhabitant, and for the protection of their property. compensation in cases of acquisition of easements of right
DEVOLUTION progressive system of taxation;
[Rural Bank of Makati, Inc. v. Municipality of Makati of way) is not binding upon this Court. This is in keeping (8) Shall not be contrary to law, public policy, national
The act by which the national government confers power (2004)] with the established rule that the determination of “just
and authority upon the various local government units to economic policy, or in restraint of trade; [Sec. 130, LGC]
compensation” in eminent domain cases is a judicial
perform specific functions and responsibilities [Sec. 17, LIMITATIONS function. [National Power Corporation v. Lleto (2012)] \
LGC] (1) The General Welfare clause cannot be used to justify an
SOURCES OF LGU FUNDS
(1) Own sources of revenue
act not authorized by law. IMMEDIATE ENTRY BY THE LGU
(2) Taxes, fees, and charges which accrue exclusively for their
(2) The exercise of such must be via a valid ordinance [Tatel (1) Filing of the complaint for expropriation sufficient in form
use and disposition
v. Municipality of Virac (1992)] and substance
(3) Just share in national taxes which shall be automatically
Powers of Local Government (a) Not contrary to the Constitution or statute
(b) Not unfair or oppressive
(2) Deposit of the amount equivalent to 15% of the fair
market value of the property to be expropriated based on
and directly released to themselves
(4) Equitable share in the proceeds from utilization and
Units (c) Not partial or discriminatory
(d) Not unreasonable -Consistent with public policy
the current tax declaration development of national wealth and resources within
their territorial jurisdiction
Upon compliance with the requisites, the issuance of a writ
SOURCES OF POWER: ILLUSTRATIONS – POLICE POWER APPLIED of possession becomes ministerial. There is no need for a
(1) 1987 Constitution; Sec. 25, Art II and Sec. 5-7, Art X LGUs, in addition to administrative autonomy, also enjoy
(1) Prescribing zoning and classification of merchandise hearing for the writ to issue. [City of Iloilo v. Legaspi (2004)]
(2) Law; Local Government Code fiscal autonomy. LGUs have the power to create their own
sold in the public market;
(3) Charter sources of revenue, in addition to their equitable share in the
(2) Condemnation and demolition if buildings found to be SOCIALIZED HOUSING [RA 7279]
national taxes and their power allocate resources in
(4) Right to Self-Government; applies only in states which dangerous or ruinous condition; Under the Urban Development and Housing Act,
adhere to such doctrine accordance with their own priorities. [Pimentel v. Aguirre
(3) Regulation and operation of tricycles and to grant expropriation by an LGU for purposes of socialized housing (2000)]
franchises for the operation thereof; projects shall occur only as a last resort. It must be shown by
POLICE POWER (GENERAL WELFARE CLAUSE) (4) Zoning regulations; the LGU that other methods of acquisition have been
(1) Powers expressly granted (5) Providing burial assistance to the poor; exhausted: mortgage, land swapping, land consolidation,
COMMON LIMITATIONS ON TAXING POWER
(2) Powers impliedly granted Unless otherwise provided herein, the exercise of the taxing
(6) Enforcement of fishery laws within LGU waters; donation, joint venture agreements, and negotiated
(3) Powers necessary, appropriate, or incidental for efficient powers of provinces, cities, municipalities, and barangays
purchase.
and effective governance shall not extend to the levy of the following:
ILLUSTRATIONS –POLICE POWER DOES NOT APPLY
(4) Powers essential to the promotion of the general (a) Income tax, except when levied on banks and other
(1) Prohibition of operation of night clubs, as it is a lawful If all the other methods have been exhausted and
welfare financial institutions
trade or pursuit of occupation; expropriation to continue, the LGU shall prioritize (b) Documentary stamp tax
(5) Duty to ensure and support: (2) Rescinding of mayor's permits based on arbitrary expropriation of property of:
(a) Preservation and enrichment of culture (c) Taxes on estates, inheritance, gifts, legacies and other
grounds; (1) Government lands
(b) Promotion of health and safety acquisitions mortis causa
(2) Alienable public lands (d) Customs duties, registration fees of vessel and
(c) Enhancement of the right of the people to a EMINENT DOMAIN (3) Abandoned lands
balanced ecology wharfage on wharves, tonnage dues, and all other
It is the right or power of the sovereign state to appropriate (4) Areas for priority development
kinds of customs fees, charges and dues except
private property within the territorial sovereignty for public (5) Unacquired BLISS sites wharfage on wharves constructed and maintained by
Development of self-reliant scientific and purpose. (6) Private lands
technological capabilities the local government unit concerned
(d) Improvement of public morals (e) Taxes, fees, and charges and other impositions upon
(e) Economic prosperity and social justice goods carried into or out of, or passing through, the
(f) Promotion of full employment among residents territorial jurisdictions of local government units in the
PAGE 151 PAGE 152
guise of charges for wharfage, tolls for bridges or utilization of resources and to avoid duplication in the roads for the above purposes are limited to cities, Publication Effectivity
otherwise, or other taxes, fees, or charges in any form use of fiscal and physical resources; municipalities, and barangays.
whatsoever upon such goods or merchandise (i) Local budgets shall operationalize approved local Ordinance or Resolution on Local Development Plan and
(f) Taxes, fees or charges on agricultural and aquatic development plans; A public road may not be the subject of lease or contract, Public Investment Programs
products when sold by marginal farmers or fishermen (j) Local government units shall ensure that their as public roads are properties for public use outside the
Follow general rule; Follow that stated in the
(g) Taxes on business enterprises certified to by the Board respective budgets incorporate the requirements of commerce of man. [Dacanay v. Asistio (1992)]
ordinance or resolution;
of Investments as pioneer or non-pioneer for a period their component units and provide for equitable
if none, follow general
of six (6) and four (4) years, respectively from the date allocation of resources among these component units; The closure of public roads under police power is not
rule;
of registration; (k) National planning shall be based on local planning to eminent domain. No grant of damages is awarded.
(h) Excise taxes ensure that the needs and aspirations of the people as [Cabrera v. CA (1991)] All Ordinances with Penal Sanctions
(i) Percentage or value-added tax articulated by the local government units in their
(j) Taxes on the gross receipts of transportation contractors respective local development plans are considered in LEGISLATIVE POWER posted at conspicuous places in Unless otherwise
and persons engaged in the transportation of the formulation of budgets of national line agencies or REQUISITES FOR VALID ORDINANCE
the provincial capitol, or city, provided therein, shall
passengers or freight by hire and common carriers by offices; municipal or barangay hall for a take effect on the day
air, land or water, except as provided in this Code (l) Fiscal responsibility shall be shared by all those General Requirements minimum period of 3 following its publication,
(k) Taxes on premiums paid by way or reinsurance or exercising authority over the financial affairs, Exercised via ordinance by: consecutive weeks; or at the end of the
retrocession; transactions, and operations of the local government (1) Sangguniang Panlalawigan for the province AND period of posting,
(l) Taxes, fees or charges for the registration of motor units; and (2) Sangguniang Panlungsod for the city publication in a newspaper of whichever occurs later;
vehicles and for the issuance of all kinds of licenses or (m) The local government unit shall endeavor to have a (3) Sangguniang Bayan for the municipality general circulation, except in the
permits for the driving thereof, except tricycles balanced budget in each fiscal year of operation. [Sec. (4) Sangguniang Barangay for the barangay case of barangay ordinances.
(m) Taxes, fees, or other charges on Philippine products 305, LGC] AND
actually exported, except as otherwise provided herein Constitutional Requirements gist of such tax ordinance shall
(n) Taxes, fees, or charges, on Countryside and Barangay CLOSURE AND OPENING OF ROADS [SEC. 21, LGC] (1) Not contrary to the Constitution and statute be published in a newspaper of
Business Enterprises and cooperatives duly registered SCOPE – WITHIN JURISDICTION OF THE LGU (2) Not unfair or oppressive general circulation within the
under R.A. No. 6810 and the Cooperative Code, (1) Local roads (3) Not partial or discriminatory province; if none, posting in all
respectively (2) Alleys (4) Not unreasonable municipalities and cities of the
(o) Taxes, fees or charges of any kind on the National (3) Parks (5) May regulate, but not prohibit trade province
Government, its agencies and instrumentalities, and (4) Squares (6) Must be general and consistent with public policy. Tax Ordinances
local government units [Sec. 133, LGC] [Tatel v. Municipality of Virac (1992)]
FOR TEMPORARY CLOSURE Within 10 days after their Beginning of the quarter,
EXEMPTION OF THE NATIONAL GOVERNMENT FROM TAXATION (1) Via ordinance Presided by: approval, published in full for 3 if otherwise, the same
Sec. 133 of the LGC provides a limitation on the power of (2) May be done due to: (1) Vice-governor or vice-mayor or punong barangay will consecutive days in a newspaper shall be considered as
an LGU to levy taxes, fees, or charges on the national (a) Actual emergency vote only in case of a tie because he is not a member of of local circulation; if none. the falling at the beginning
government, its agencies and instrumentalities, unless (b) Fiesta celebrations the Sanggunian. [Perez vs. Dela Cruz (1969)] same may be posted in at least of the next ensuing
otherwise provided. Sec. 234 of the LGC on the other hand, (c) Public rallies (2) The incumbent local chief executive acting as the chief 2 conspicuous and publicly quarter
grants to LGUs the power to impose real property tax on (d) Agricultural or industrial fairs executive may not preside over the sessions of the accessible places
properties of the Republic of the Philippines and its (e) Undertaking of public works and highways, Sanggunian. Why? To ensure better delivery of public
political subdivisions when its beneficial use is granted to a telecommunications, and waterworks projects services and provide a system of checks and balances Approval and Veto of Ordinances
taxable person. (3) Duration of closure must be specifically stated in the between the executive and legislative. [Gamboa v. Approval: Affix his signature on each and every page
order of closure Aguirre, supra]
FUNDAMENTAL PRINCIPLES ON THE FINANCIAL AFFAIRS OF AN LGU (4) If for the purpose for athletic, cultural, or civil activities; The signature of the local chief executive in the approval of
(a) No money shall be paid out of the local treasury except these must be officially sponsored, recognized, or In case of inability of the above: members present and an ordinance or resolution is not a mere ministerial act, as
in pursuance of an appropriations ordinance or law; approved by the local government constituting a quorum shall elect from among themselves it requires the exercise of analysis and judgment. This is
(b) Local government funds and monies shall be spent a temporary presiding officer who shall certify within 10 part of the legislative process. [Delos Reyes v.
solely for public purposes; FOR PERMANENT CLOSURE days from the passage of the ordinances enacted and Sandiganbayan (1997)]
(c) Local revenue is generated only from sources expressly (1) Via ordinance approved by at least 2/3 of all members resolutions adopted by the sanggunian in the session over
authorized by law or ordinance, and collection thereof of the Sanggunian which he temporarily presided [Sec. 49, LGC] Disapproval: The local chief executive may veto and
shall at all times be acknowledged properly; (2) Such ordinance must have provisions for the ordinance on the ground that it is ultra vires or prejudicial
(d) All monies officially received by a local government maintenance of public safety therein Publication and Effectivity of Ordinances to public welfare, stating his reasons in writing
officer in any capacity or on any occasion shall be (3) Such property withdrawn may be used or conveyed for Publication Effectivity (1) may be exercised only once
accounted for as local funds, unless otherwise provided any purpose for which other real property belonging to (2) cannot be exercised by the punong barangay
by law; the local government may be lawfully used or conveyed General Rule (3) power to veto any particular item or items of
(e) Trust funds in the local treasury shall not be paid out (4) When necessary, an adequate substitute for the public (a) appropriations ordinance
posted in a bulletin board at the 10 days after posting;
except in fulfillment of the purpose for which the trust facility that is subject to closure should be provided (b) ordinances or resolutions adopting the local
entrance of the provincial
was created or the funds received; (5) If a freedom park is permanently closed, there must be development plan or public investment program
capitol or city, municipal, or
(f) Every officer of the local government unit whose duties a provision for its transfer or relocation to a new site (c) ordinances directing the payment of money or creating
barangay hall, as the case may
permit or require the possession or custody of local liabilities
be, and in at least 2 other
funds shall be properly bonded, and such officer shall FOR CLOSURE BY CITIES, MUNICIPALITIES, AND BARANGAYS (4) the ordinance is returned with objections to the
conspicuous places
be accountable and responsible for said funds and for (1) Via ordinance Sanggunian within 15 days to the Sangguniang
the safekeeping thereof in conformity with the (2) May temporarily close and regulate the use of any local Highly Urbanized and Independent Component Cities Panlalawigan, or within 10 days to the Sangguniang
provisions of law; street, road, or any other public place Panlungsod/Bayan
(g) Local governments shall formulate sound financial (3) For shopping malls, Sunday, flea, or night markets, or Main features of the ordinances, General rule;
-may be overridden by the Sanggunian upon a 2/3 vote of
plans, and local budgets shall be based on functions, shopping areas for the sale of goods, merchandise, in addition to posting, shall be
all its members
activities, and projects, in terms of expected results; foodstuffs, and commodities published once in a newspaper
(h) Local budget plans and goals shall, as far as of local circulation; if none, in a
practicable, be harmonized with national development Note: All LGUs may temporarily and permanently close newspaper of general
plans, goals, and strategies in order to optimize the their local roads, but the regulation and closure of local circulation;
PAGE 153 PAGE 154

Review of Ordinances/ Resolutions (2) Open to the public, unless a closed-door session shall be cancelled. However, those against Proponents shall have 90 days in case of provinces and
Component Cities and Sangguniang Barangay ordered by majority of the members present; such action may, if they so desire, apply for cities, 60 days in case of municipalities, and 30 days in
Municipalities initiative. case of barangays, from notice to collect the required
Minimum Sessions number of signatures
By Whom Once a week for the Sang. Panlalawigan, Panlungsod, and Any proposition or ordinance approved
Bayan; Twice a month for the Sangguniang Barangay; through the system of initiative and
Sangguniang Panlalawigan Sangguniang
referendum shall not be repealed, modified,
Panlungsod/Bayan
Special Sessions: or amended by the sanggunian concerned
When (1) May be called the local chief executive or by majority of Limitations within six (6) months from the date of the The petition shall be signed before the Election
the Sanggunian; upon approval thereof and may be amended, Registrar, or his designated representative, in the
Within 3 days from approval, Within 10 days from (2) Written notice to all the members personally at least 24 Sanggunians modified, or repealed by the sanggunian presence of a representative of the proponent, and a
forwarded by Secretary of approval, forwarded by hours before the special session is held; within three (3) years thereafter by a vote of representative of the regional assemblies and local
Sang; Sanggunian; (3) If matters not in the notice are to be discussed during three-fourths (3/4) of all its members. legislative bodies concerned in a public place in the LGU
What the special session, a 2/3 vote of those present is Provided that in case of barangays, the
required; period shall be eighteen months.
Ordinances/Res. on local All barangay ordinances;
development plans and Full Disclosure of Financial and Business Interests of Local Referendum
public investment programs Sanggunian Members Legal process whereby the registered voters of the local If the required number of signatures is obtained, the
How Reviewed When: Upon assumption of office, before participation in government unit may approve, amend, or reject any COMELEC shall then set a date for the initiative for
the deiberations on an ordinance or resolution, and when ordinance enacted by the Sanggunian. approval of the proposition within 60 days from the date
Sang. Panlalawigan shall The sanggunian concerned taking a position or priviledge speech that may affect his of certification by the COMELEC in case of provinces and
examine and transmit to the shall review such; interests; Initiative is resorted to (or initiated) by the people directly cities, 45 days in case of municipalities, and 30 days in
Prov. Atty. for comments either because the law-making body fails or refuses to case of barangays [Sec. 122, LGC]
and recommendations How: In writing and submitted to the Secretary of the enact the law ordinance, resolution, or act that they desire
sanggunian or the secretary of the committee of which he or because they want to amend or modify one already
Reasons for Rejection is a member; existing. CORPORATE POWERS
If beyond the power Whether consistent with law TO SUE AND BE SUED
conferred upon the and the city and municipal What: Any business, financial, or professional relationship In a local referendum, the law-making body submits to the
th As a general rule, local government unit, as a corporation,
Sanggunian concerned ordinances; or relation by affinity/consanguinity up to the 4 degree registered voters of its territorial jurisdiction, for approval shall have the power to sue and be sued. This applies to all
affected by any ordinance or sanggunian which may result or rejection, any ordinance or resolution which is duly
Period to Review acts of the LGU in its corporate and proprietary capacity.
in a conflict of interest. enacted or approved by such lawmaking authority. Said [Sec. 22, LGC]
30 days; if no action after 30 30 days; if no action after 30 referendum shall be conducted under the control and
days, deemed consistent days, deemed approved “Conflict of Interest” refers in general to one where it ma y direction of the COMELEC.
be reasonably deduced that a member of the sanggunian Corporate (Proprietary)
with law and valid Governmental Powers
may not act in the public interest due to some private, While initiative is entirely the work of the electorate, Powers
pecuniary, or other personal considerations that may tend referendum is begun and consented to by the law-making Exercised in administering Exercised for the special
Internal Rules to affect his judgment. body. Initiative is a process of law-making by the people the powers of the state and benefit and advantage of
Internal Rules of Procedure
st themselves without the participation and against the
(1) Adopted/updated on the 1 regular session following promoting public welfare the community
LOCAL INITIATIVE AND REFERENDUM wishes of their elected representatives, while referendum
the election of the members of the Sanggunian and Local Initiative consists merely of the electorate approving or rejecting
shall be within 90 days from such
Legal process whereby the registered voters what has been drawn up or enacted by a legislative body. Cannot be sued without Impliedly consents to
(2) Provides for:
(a) Organization of the Sanggunian and the election of Defined of a LGU may directly propose, enact, or consent for injuries it being sued by entering into
amend an ordinance. Procedure
its officers caused private contracts
(b) Creation of Standing Committees All registered voters of the provinces, cities, Not less than 1,000 registered voters in case of
(c) Order and calendar of business for each session Exercised by provinces and cities, 100 in case of municipalities, and
municipalities, and barangays.
(d) Disciplinary rules for members 50 in case of barangays, may file a petition with the local Officers or agents acting Officers and agents are
Petition proposing the adoption, enactment, legislative body, respectively, proposing the adoption, within official duties are not liable for negligence/ torts
Quorum repeal, or amendment of an ordinance filed enactment, repeal, or amendment, of any law, ordinance liable unless they acted while within scope of
The presence of a quorum is required to transact official with the sanggunian concerned by not less or resolution willfully and maliciously employment.
business; a majority of all members of the Sanggunian Procedure than
who have been elected and qualified. [Sec. 53, LGC] 1,000 – in case of provinces and cities
100- in case of municipalities Respondeat superior Respondeat superior
Only qualification is material in the counting of a quorum. 50- in case of barangays doesn’t apply applies
The filing of a leave of absence does not affect the If no favorable action thereon is made by local legislative
15 days after the Certification by the
member's material qualification or election, hence quorum body within 30 days from its presentation, the
Effectivity COMELEC that the proposition is approved
shall be based on the total number of members without proponents through their duly authorized and registered
by a majority of the votes cast TO ACQUIRE AND SELL REAL PROPERTY
regard to the filing of a leave of absence. [Zamora v. representative may invoke their power of initiative, giving
notice thereof to the local legislative body concerned If the property is owned by the municipality in its public and
Caballero (2004)] (1) The power of local initiative shall not be
exercised more than once a year. governmental capacity, the property is public and Congress
has absolute control over it. If the property is owned in its
It is legally permissible, as exceptions to the general (2) Initiative shall extend only to subjects or
private or proprietary capacity, then it is patrimonial and
provisions covered by the city charters and the LGC, that matters which are within the legal powers of
Congress has no absolute control and the municipality
the vote requirement be specifically provided for instead of Limitations the sanggunians to enact.
2 or more propositions may be submitted in an initiative cannot be deprived of it without due process and payment of
the usual majority vote. [Casiño v. CA (1991)] (3) If at any time before the initiative is held,
just compensation. [Rabuco v. Villegas (1974)]
the sanggunian concerned adopts in toto
Sanggunian Sessions the proposition presented and the local chief
(1) First session following the election, the Sanggunian executive approves the same, the initiative
shall fix the day, time, and place of its regular sessions;
PAGE 155 PAGE 156
TO ENTER INTO CONTRACTS which it has the general power to contract [Cebu v. IAC ON VIOLATION OF LAW
Requisites The obligation imposed by article 2176 is demandable not (1987)] When the Mayor refused to abide by a TRO issued by the
(1) Entered into by the the local chief executive in behalf of only for one's own acts or omissions, but also for those of court, he may be held in contempt. [Moday v. CA (1997)]
the LGU persons for whom one is responsible. Exception: the LGU may not be estopped in order to
(2) Prior Authorization by Sanggunian concerned xx validate a contract which the LGU is not authorized to When the LGU does not pay the statutory minimum wage
(3) Legible copy of contract posted at a conspicuous place The State is responsible in like manner when it acts make EVEN IF it has accepted the benefits thereunder [San (mandated by law) even if there is lack of funds. [Racho v.
in the through a special agent; but not when the damage has Diego v. Mun. Of Naujan (1960)] Ilagan, Isabela (1968)]
(a) provincial capitol or been caused by the official to whom the task done properly
(b) city, municipal, barangay hall pertains, in which case what is provided in article 2176 shall A private individual who deals with a LGU is imputed with PERSONAL LIABILITY OF PUBLIC OFFICIAL
be applicable. constructive knowledge of the extent of the power or General Rule: The public official is personally liable if he
Authority to Negotiate and Secure Grants xx authority of the LGU to enter into contracts. Thus, acts beyond the scope of his powers OR if he acts with bad
Who may negotiate: Local Chief Executive (upon authority The responsibility treated of in this article shall cease when ordinarily, the doctrine of estoppel does not lie against the faith.
of Sanggunian) the persons herein mentioned prove that they observed all LGU.
the diligence of a good father of a family to prevent Illustrations:
What are negotiated: damage. [Art. 2180, Civil Code] ON TORT Mayor exceeding authority in vetoing a resolution passed
(1) Financial grants or donations in kind in support of basic If in the performance of a governmental function, the LGU by the Sanggunian [Pilar v Sangguniang Bayan ng Dasol
services or facilities is NOT liable (1984)]
(2) From local and foreign assistance agencies
Provinces, cities and municipalities shall be liable for The prosecution of crimes, even if injury occurs [Mendoza v.
damages for the death of, or injuries suffered by, any - Note that under NCC27, a public servant is personally liable
Approval by national agency concerned de Leon (1916)]
General rule: No necessity of securing clearance from person by reason of the defective condition of roads, for damages for his refusal or neglect to perform his official
national agency streets, bridges, public buildings, and other public works If in the performance of a proprietary function, the LGU is duty.
under their control or supervision. [Art. 2189, Civil Code] liable
Exception: If with national security implications When the officials incorrectly ordered the construction of a
(1) Shall be approved by national agency concerned Political/Governmental Acts Corporate/Proprietary Acts The improper grant of a ferry service franchise [Mendoza v. drug rehabilitation center [Angeles v. CA (1996)]
(2) Failure to act on request for approval within 30 days de Leon (1916)]
from receipt: deemed approved Liability When officials illegally dismiss an employee [Rama v. CA
LGU generally not liable Can be held liable ex Note: Municipal corporations’ liability to private persons (1987)]
Reporting duty: local chief executive shall report to both unless: contractu or ex delicto; for the wrongful exercise of the corporate powers is the
Houses of Congress and the President (1) Statute provides same as that of a private corporation or individual When the official defies an order of reinstatement of an
(1) Nature otherwise; [Mendoza v. de Leon (1916)] illegally dismissed employee [Correa v. CFI (1979)]
(2) Amount (2) damages due to
(3) Terms defective condition of Deaths caused by a collapsed stage in a town fiesta [Torio The Mayor pays for the back salaries of an illegally
(4) Within 30 days upon signing of grant agreement or roads, streets, buildings, v. Fontanilla (1978)] dismissed employee [Nemenzo v. Sabillano (1968)]
deed of donation [Sec. 23, LGC] and other public works
(Art. 2189, Civil Code) Back pay or wages of employees illegally dismissed, The Governor pays for moral damages for refusing the
Ultra Vires Contracts (3) damages due due to including those involving primary governmental functions reinstatement of an employee [San Luis v. CA (1989)]
An LGU can only legitimately exercise powers of failure to render aid or (e.g. policemen) [Guillergan v. Ganzon (1966)]
government only within the limits of the authority granted protection in case of A public officer, whether judicial, quasi-judicial or
to it, or else its acts are ultra vires. danger to life or BY EXPRESS PROVISIONS OF LAW executive, is not personally liable to one injured in
property (Art. 34, Civil ARTICLE 2189, CC consequence of an act performed within the scope of his
Illustrations: Code) official authority, and in line of his official duty. [Tuzon v.
A public street is property for public use hence outside the When a person falls in an open manhole in the city streets. CA (1992)]
commerce of man. Being outside the commerce of man, it Defense [Manila v. Teotico (1968)]
may not be the subject of lease or other contract. The city The holding of a town fiesta is a proprietary function,
No valid defense for non- Defense of due diligence in though not for profit, for which a municipality is liable for
government, contrary to law, has been leasing portions of When a person steps on a rusted nail in a flooded public
performance the selection and supervision damages to 3rd persons ex contractu or ex delicto;
the streets. Such lease or license is null and void for being market. [Jimenez v. Manila (1987)]
of its officers (a) that under the principle of respondeat superior the
contra to law. [Dacanay v. Asistio (1992)]
Personal Liability of Officers When accidents are caused by defective roads even if the principal is liable for the negligence of its agents acting
road does not belong to the LGU as long as it exercises within the scope of their assigned tasks; and
control or supervision over said road. [Guilatco v. Dagupan (b) that the municipal councilors have a personality distinct
Officers or agents acting Officers and agents are liable and separate from the municipality [Torio v. Fontanilla
Liability of LGUs within official duties are not for negligence/ torts while
(1989)]
(1978)]
liable unless they acted within scope of employment. Damages suffered through accidents in national roads
Local government units and their officials are not exempt willfully and maliciously under the control and supervision of an LGU (cause is Hence, as a rule they are not co-responsible in an action
from liability for death or injury to persons or damage to unsafe road conditions, especially when there is gross for damages for tort or negligence unless they acted in bad
property. [Sec. 24, LGC] negligence). [Municipality of San Juan v. CA (2005)] faith or have directly participated in the commission of the
wrongful act.
Illustrations Also exemplary damages may be granted when public
When a member of a city or municipal police force refuses officials acted with gross negligence. [Quezon City v.
or fails to render aid or protection to any person in case of ON CONTRACT Dacara (2005)]
danger to life or property, such peace officer shall be General Rule: The LGU is liable only for contracts that are
primarily liable for damages, and the city or municipality intra vires. ARTICLE 2180, CC
shall be subsidiarily responsible therefor. The civil action When the State acts through a special agent [Merritt v.
herein recognized shall be independent of any criminal The Doctrine of Implied Municipal Liability provides that an Government (1916)]
proceedings, and a preponderance of evidence shall suffice LGU may become obligated upon an implied contract to
to support such action. [Art. 34, Civil Code] pay reasonable value of the benefits accepted by it as to
PAGE 157 PAGE 158

Settlement of Boundary The power of provincial boards to settle boundary disputes

is limited to implementing the law creating a municipality.
Disputes Thus, provincial boards do not have the authority to

approve agreements which in effect amend the boundary
Sanggunian Member becomes vacant [Farinas v. Barba (1996)]
If prior member not a member of
If prior member was
stated in the creating statute [Municipality of Jimenez v. Position Appointing Authority member of a political
Baz (1996)] any political party
Boundary disputes between and among local government party
units shall, as much as possible, be settled amicably. To Nomination and
this end: [Sec. 118, LGC] The conduct of plebiscites, to determine whether or not a Certification of the
barangay is to be created, should be suspended or Recommendation of the
Sangguniang Panlalawigan political party of the
cancelled in view of a pending boundary dispute between Sangguniang Panlalawigan
Boundary dispute Where: Settled by: member who caused the
between: two local governments. Precisely because territorial President through vacancy issued by the
2 or more Same city or Sangguniang jurisdiction is an issue raised in the pending boundary Sangguniang Panlungsod (of highly the Executive highest official of the
barangays municipality Panlungsod or dispute, until and unless such issue is resolved with finality, Secretary Recommendation of the political party
urbanized and independent
Sangguniang to define the territorial jurisdiction of the proposed Sangguniang Panlungsod
component cities)
Bayan barangays would only be an exercise in futility. [City of SECTION 45 (b)
2 or more Same Sangguniang Pasig v. COMELEC (1999)]
municipalities province Panlalawigan Nomination and
Municipalities or Different Jointly referred to Certification of the
component cities province sanggunians of the Recommendation of political party of the
Sangguniang Panlungsod (of
provinces
concerned
Succession of Elective component cities)
Sangguniang Panglungsod member who caused the
vacancy issued by the
Component city or
Municipality vs.
Jointly referred to
respective
Officials Governor
Recommendation of
highest official of the
political party
Sangguniang Bayan
Highly urbanized Sanggunians of the Sangguniang Bayan
city parties SUCCESSION IN PERMANENT VACANCIES SECTION 45 (b)
Or PERMANENCY OF VACANCY
Between 2 or more Permanent Vacancy Occurs when an elective local official: Recommendation of
[Sec. 44, LGC] Sangguniang Barangay City or Municipal
highly urbanized Sangguniang Barangay
(1) fills a higher vacant office Mayor
cities
(2) refuses to assume office
In the event the Sanggunian fails to effect an amicable (3) fails to qualify General Rule: The appointee under Sec. 45 must be a Exception: The power to appoint/suspend/dismiss
settlement within 60 days from the date the dispute was (4) dies nominee of the political party under which the sanggunian employees can be exercised only if the period of incapacity
referred thereto, it shall issue a certification to that effect. (5) is removed from office member (whose elevation to the position next higher in exceeds 30 working days; or if the successor is appointed
Thereafter, the dispute shall be formally tried by the (6) voluntarily resigns rank created the vacancy) had been elected. in writing, if the authorization specifies such powers to the
sanggunian concerned which shall decide the issue within (7) otherwise permanently incapacitated from discharging successor.
60 days from the date of the certification referred to above. the functions of his office Conditions sine qua non: There must be a nomination and
certificate of membership from the highest official of the If the local chief executive is traveling within the country
When the dispute between two LGUs do no fall under POSITION OF LOCAL CHIEF EXECUTIVE BECOMES VACANT political party or else the appointment is: but outside his territorial jurisdiction for a period not
those enumerated in Sec. 118 of the LGC, BP 129 Sec. 19 is Vacant Position Successor (1) null and void ab initio; and exceeding 3 consecutive days, he may designate in writing
applicable: “Regional Trial Courts shall exercise exclusive (2) a ground for administrative action against the the officer-in-charge.
original jurisdiction in all cases not within the exclusive Permanent Vacancy responsible official.
jurisdiction of any court, tribunal, person, or body Governor or Mayor Vice Governor ; Vice Mayor General Rule: The local chief executive cannot authorize
exercising judicial or quasi-judicial functions.” The RTC If sanggunian member who caused vacancy does not any local official to assume the powers/duties/functions of
exercises original jurisdiction over the settlement of a Governor, Vice-Gov, Mayor, Highest-ranking belong to any political party, the local chief executive shall his office, other than the vice-governor, city/municipal
boundary dispute between a municipality and an Vice-Mayor Sangguinang member appoint a qualified person, upon recommendation of the vice-mayor, or highest ranking sangguniang barangay
independent component city. [Municipality of Kananga v. Permanent Inability sanggunian. member.
Madrona (2003)]
Highest-ranking Second highest-ranking
The appointee under Sec. 45 serves the unexpired term of The authorization shall specify the powers and functions
Sangguniang Member (as Sangguniang Member
APPEAL [SEC. 119, LGC] the vacant office. that the officer-in-charge shall exercise.
the successor of the Gov, (subsequent vacancies
When: Within the time and manner prescribed by the Rules Exception: Sangguniang barangay.
Vice-Gov, Mayor, Vice-M) filled according to their
of Court Exception: The power to appoint, suspend and dismiss
rank)
If the vacancy pertains to barangay or youth representation employees.
Where: Proper Regional Trial Court having jurisdiction over Permanent Vacancy in the sanggunian, the vacancy is automatically filled by
the area in dispute. the official next in rank of the organization concerned. General Rule: If the local chief executive fails/refuses to
Punong Barangay Highest-ranking
Who: Any party issue the authorization, the vice-governor, city/municipal
Sangguniang Barangay
Member TEMPORARY VACANCIES vice-mayor, or highest ranking sangguniang barangay
The Regional Trial Court shall decide the appeal within Tie between highest Temporary Vacancy Occurs when the local chief executive is member has right to assume the powers, duties, and
one (1) year from the filing thereof. Pending final resolution ranking Sangguninan due to: functions of the office on the 4th day of absence.
of the disputed area prior to the dispute shall be Member then draw lots (1) leave of absence
(2) traveling abroad Exception: The power to appoint/ suspend/dismiss
maintained and continued for all legal purposes.
(3) suspension from office employees.
MAINTENANCE OF THE STATUS QUO Extent of Duty exercised by Temporary Successor
Pending final resolution of the dispute: status of the Office where Temporary Who Temporarily Succeeds
General Rule: The successor shall automatically exercise Vacancy Occurs into Office
affected area prior to the dispute shall be maintained and the powers and perform the duties and functions of the
continued for all purposes. [Sec. 18, IRR of the LGC] local chief executive. Governor Vice-Governor,
automatically
PAGE 159 PAGE 160
Office where Temporary

Vacancy Occurs
Who Temporarily Succeeds
into Office
Discipline of Elective Officials grade of 27 or higher) paid full salary that accrued during such suspension;
(2) Accorded full opportunity to appear and defend
himself, to confront witnesses, and require attendance
Mayor Vice-Mayor, automatically Concurrent Jurisdiction [Sec. Cases cognizable by regular
GROUNDS OF DISCIPLINARY ACTION of witnesses and production of evidence; [Sec. 64-65,
61, LGC] courts and other
(a) Disloyalty to the Republic of the Philippines; LGC]
Punong Barangay Highest-ranking investigative agencies of the
Sanggunian Member, (b) Culpable violation of the Constitution; government;
(c) Dishonesty, oppression, misconduct in office, gross UNDER THE OMBUDSMAN [SEC. 24, RA 6770]
automatically
negligence, or dereliction of duty; Grounds for Preventive Suspension
Local Chief Executive is 1) The person designated in The Ombudsman exercises concurrent jurisdiction over The Ombudsman or his Deputy may preventively suspend
(d) Commission of any offense involving moral turpitude or
travelling within the country writing by the local chief administrative cases against elective officials occupying any officer or employee under his authority pending an
an offense punishable by at least prision mayor;
but is outside the territorial executive positions below salary grade 27. Even if filed in the investigation,
(e) Abuse of authority;
jurisdiction for a period not 2) Vice-Governor, Vice- Ombudsman and the sanggunian concerned, identical (1) if in his judgment the evidence of guilt is strong, and
(f) Unauthorized absence for fifteen (15) consecutive
exceeding three consecutive Mayor, or highest-ranking complaints will not violate the rule against forum shopping (2) any of the following are present:
working days, except in the case of members of the
days Sanggunian Member on the because the complaints are in the nature of an (a) the charge against such officer or employee involves
sangguniang panlalawigan, sangguniang panlungsod,
th
4 day of absence, if local administrative case. dishonesty, oppression or grave misconduct or
sangguniang bayan, and sangguniang barangay;
chief executive fails or (g) Application for, or acquisition of, foreign citizenship or neglect in the performance of duty;
refuses to designate a In administrative cases involving the concurrent jurisdiction (b) the charges would warrant removal from the
residence or the status of an immigrant of another
successor; of two or more disciplining authorities, the body in which service; or
country; and
the complaint is filed first, and which opts to take (c) the respondent's continued stay in office may
(h) Such other grounds as may be provided in this Code
cognizance of the case, acquires jurisdiction to the prejudice the case filed against him.
The creation of a temporary vacancy in the office of the and other laws. [Sec. 60, LGC]
exclusion of other tribunals exercising concurrent
Governor creates a corresponding temporary vacancy in jurisdiction. [Office of the Ombudsman v. Rodriguez (2010)] Length of Preventive Suspension
the office of the Vice Governor whenever the latter acts as Any attempt to enforce and disapproved Until the case is terminated by the Office of the Ombudsman
Governor by virtue of such temporary vacancy. This event ordinance/resolution on local development plans or public Who is salary grade 27 and above? [Sec. 443-486, LGC] but not more than six (6) months,
constitutes an inability on the part of the presiding officer investment programs, shall be sufficient ground for the (1) without pay,
suspension or dismissal of the officer/employee (2) when the delay in the disposition of the case by the
(Vice Gov) to preside during the SP sessions; which thus
concerned. [Sec. 58, LGC] Municipalities Munipical Mayor
calls for the operation of the remedy set in ART 49 (b) of Ombudsman is due to the fault, negligence or petition
the LGC on the election of a temporary presiding officer. City Mayor, Vice-Mayor, and Sanggunian of the respondent, the period of such delay shall not be
JURISDICTION counted in computing the period of suspension herein
[Gamboa v. Aguirre (1999)] Cities Panglungsod members of highly-
ADMINISTRATIVE COMPLAINTS [Sec. 61, LGC] provided.
urbanized cities
By Whom: By means of a verified complaint; by any private
Termination of Temporary Incapacity individual or government official or employee, or motu Governor, Vice-Governor, and Sanggunian The suspension issued by the Ombudsman is not limited
Upon submission to the sanggunian of a written proprio by the Office of the President or the government Provinces
Panlalawigan members. by the LGC. Unlike the Sandiganbayan and the Office of
declaration that he has reported back to office agency duly authorized by law; [AO 23, as amended] the President/Sanggunians, the Ombudsman is endowed
PREVENTIVE SUSPENSION with unique safeguards to ensure immunity from political
If the temporary incapacity is due to legal causes, he must WHERE FILED pressure. [Miranda v. Sandiganbayan (2005)]
UNDER THE LGC
also submit the necessary documents showing that the
legal causes no longer exist. Elective Local Official of Complaint filed at By whom imposed: Upon an elective local official of: Preventive Suspension under Preventive Suspension
Province, highly urbanized Office of the President RA 6770 under the LGC
Leaves of Absence province, highly urbanized city, or
city, independent component The President
Local Official LoA Approved by independent component city;
city, or component city (1) the evidence of guilt is (1) there is reasonable
Governors and mayors of The President or his duly The governor Component city, or municipality strong; AND ground to believe
Municipality Sangguniang
highly-urbanized cities or authorized representative Panglalawigan, (2) that any of the ff. are that the respondent
independent component The Mayor Barangay; present: has committed the
cities Barangay Sangguniang Panglungsod (a) the charge against act or acts
or Bayan the officer or complained of
Vice-Governors, The local chief executive When Imposed: Any time the issues are joined, when the employee should (2) the evidence of
City/Municipal Vice-Mayors evidence of the guilt is strong and that there is great involve dishonesty, culpability is strong
If penalty is removal
City/Municipal Mayors of The Governor Must be by order of the proper court. The Sanggunians probability that the continuance in office of the respondent oppression or grave (3) the gravity of the
component cities and cannot order the removal of an erring elective official from could influence the witnesses or threaten the misconduct or offense so warrants;
municipalities office, as the courts are exclusively vested with this power safety/integrity of the records or evidence; neglect in the or
under Sec. 60 of the LGC. performance of duty; (4) the continuance in
Sanggunian Panlalawigan, The Vice-Governor or Vice- Rules on Length of Preventive Suspension (b) the charges should office of the
Panglungsod, and Bayan Mayor If the acts allegedly committed by the official are of a grave (1) Not longer than 60 days; warrant removal respondent could
Members and their nature and, if found guilty, would merit the penalty of (2) Cannot be imposed 90 before an election; if imposed from office; or influence the
employees removal from office, the case should be filed with the before said period but extends to such, automatically (c) the respondent’s witnesses or pose a
regional trial court. If it is found that the penalty will be lifted upon start of the 90 day period; continued stay in threat to the safety
Punong Barangays The City/Municipal Mayor office would and integrity of the
lower than removal, the court still retains its jurisdiction. (3) Cannot be suspended for more than 90 days within a
Sanggunian Barangay The punong barangay [Sangguniang Barangay of Don Mariano Marcos v. Martinez single year on the same grounds existing and known at prejudice the case records and other
Members (2008)] the time of the first suspension; filed against him evidence
(4) Once lifted, official deemed reinstated without Maximum period: 6 mos. Maximum period: 60
If the application for LoA is not acted upon within 5 OMBUDSMAN JURISDICTION prejudice to the continuance of the proceedings days
working days after receipt, the application is deemed against him; [Sec. 62-63, LGC]
Primary Jurisdiction [Sec. 15, Acts or omissions of a public
approved. [Sec. 46, LGC] RA 6770] officer or employee in cases UNDER THE SANDIGANBAYAN
Effect/ Right of Pending Preventive Suspension The suspension pendente lite imposed by the
cognizable by (1) No salary paid during period of suspension, but if
the Sandiganbayan (Salary Sandiganbayan is mandatory under RA 3019 upon the
subsequently exonerated and reinstated, he shall be filing of a valid information against the erring official. The
PAGE 161 PAGE 162
purpose of such suspension is not only to prevent the (4) Fine not exceeding 6 months pay Election on recall (1) Barangay, city, or municipal
accused from hampering or influencing the investigation, What is important is that the suspension imposed for (5) Reprimand officials: not later than 30 days
but also to allow the prosecution opportunity to gather each administrative offense did not exceed six months. (6) Otherwise discipline subordinate official and employees from completion
evidence under conditions which would ensure non- [Salalima v. Guingona (1996)] under his jurisdiction. [Sec. 87, LGC] (2) Provincial officials: not later
intervention and non-interference. [Bunye v. Escareal than 45 days from completion
(1993)] RESIGNATION OF APPOINTIVE OFFICIALS Effects to official Not allowed to resign while recall
Although a resignation is not complete without an sought to be process is in progress
The suspension is not automatic, but requires the
determination of the presence of a valid information. Upon Administrative Appeal acceptance thereof by the proper authority, an office may
still be deemed relinquished through voluntary
recalled Automatically considered
candidate and is entitled to be
as
determination of validity, it is the court's ministerial duty to abandonment which needs no acceptance.
issue an order of preventive suspension. The length of the PERIOD FOR APPEAL voted upon.
suspension cannot be infinite nor unreasonable, such is 30 days from reciept of the decision; On Resignation: Under established jurisprudence, Effectivity of recall Upon election and proclamation of
limited by the applicable law governing the accused. For resignations, in the absence of statutory provisions as to a successor. If the official sought to
elective local officials, the LGC provides a limit of 60 days; TO WHOM APPEALABLE whom they should be submitted, should be tendered to be recalled receive the highest
for public officers under the Civil Service Code, the limit is the appointing person or body. (In the CAB, BP 337 did not number of votes, confidence in him
90 days. [Segovia v. Sandiganbayan (1999)] Decision from Appeal to provide to whom Sangguniang Bayan members should
is affirmed and he shall continue in
Sangguniang Panglungsod Sangguniang Panlalawigan submit their resignation letters). Private respondent,
REMOVAL therefor, should have submitted his letter of resignation to office.
of component cities, and Limitations on Local elective official may be
An elective local official may be removed by order of the the President or to his alter ego, the DILG Secretary.
Sangguniang Bayan
proper court. [Sec. 60, LGC] Recall subject of a recall election only
Sangguniang Panlalawigan Office of the President On Abandonment: Abandonment is “voluntary once during his term of office for
The penalty of removal from office as a result of and Sangguniang relinquishment of an office by the holder, with the loss of confidence.
administrative investigation shall be considered a bar to Panglungsod of highly intention of terminating his possession and control No recall shall take place within
the candidacy of the respondent for any elective position. urbanized cities/indepedent thereof.” It is a species of resignation. Two elements must
one year from the date of the
[Sec. 66(c), LGC] component cities concur:
(1) Intention to abandon official’s assumption to office or
[cf. effect of penalty of suspension] Office of the President Final and executory; (2) Overt or external act by which the intention is carried one year immediately preceding a
into effect [Sangguniang Bayan of San Andres v. CA (1998)] regular local election.
EFFECT OF APPEAL
Proper court order (Asked in 2000)
Shall not prevent a decision from being final and
Local legislative bodies and/or the Office of the President executory. Respondent is considered to have been placed The law states “upon petition of at least 25% of registered
cannot validly impose the penalty of dismissal or removal Requisites to constitute Essential elements of voters” and not “signed by 25% of the registered voters.”
under preventive suspension during the pendency of the
from service on erring local elective officials. It is clear from appeal in the event he wins, and shall be paid his salary resignation: abandonment: The petition must be filed not by one person but at least by
Sec. 60 of LGC that an elective local official may be that accrued during the pendency of the appeal. 25% of the total number of registered voters.
removed from office on the grounds enumerated above (1) Intention to relinquish a (1) Intent to abandon
only by order of the proper court. The phrase “decision is final and executory” means that part of the term (2) Overt act by which the While the initiatory recall petition may not yet contain the
the Sanggunian decision is immediately executory, but still (2) Act of relinquishment intention is to be carried signatures of at least 25% of the total number of registered
Art. 124 (b), Rule XIX of the Rules and Regulations subject to appeal to the Office of the President or the (3) Acceptance by the proper into effect voters, the petition must contain the names of at least 25%
Implementing the LGC, which states that “an elective local Sangguniang Panlalawigan respectively. [Don v. Lacsa authority of the total number of registered voters in whose behalf
official may be removed from office by order of the proper (2007)] only one person may sign the petition in the meantime.
court or the Disciplining Authority whichever first acquires RECALL [Angobung v. COMELEC (1997)]
jurisdiction to the exclusion of the other” is void for being DOCTRINE OF CONDONATION REQUISITES [SECTION 69-75, LGC AND REPUBLIC ACT NO.
repugnant to Sec. 60, LGC. 9244] PROCEDURE [SEC. 70, LGC]
A public official cannot be removed for administrative
misconduct committed during a prior term, since his re- Ground for recall: Loss of confidence Petition by a registered voted in the LGU concerned to
But if it’s appointive, the OP may remove. [Pablico v. election to office operates as a condonation of the officer's Right given to: Registered voters of a LGU to which the COMELEC, supported by the necessary amount of
Villapando (2002)] previous misconduct to the extent of cutting off the right to the local elective official subject to registered voters.
remove him therefor. The foregoing rule, however, finds no recall belongs
Petitioners contest the administrative action as being application to criminal cases, as these are violations
violative of Sec. 60, which mandates that an elective Commencement of By a Petition of a registered voter
against the state itself. [Aguinaldo v. Santos (1992)]
local official may be removed from office only by order of recall process: supported by
the court, since the duration of the suspension being 12- (1) 25% of registered voters if LGU Within 15 days from filing of the petition, the COMELEC
Subsequent re-election cannot be deemed a condonation must certify the sufficiency of the required number of
20 months exceeded their remaining terms. The if there was already a final determination of his guilt before has population not more than
suspension was allegedly tantamount to a removal. signatures. Failure to obtain the required number shall
the re-election. [Reyes v. COMELEC (1996)] 20,000 result in the automatic nullification of the petition.
(2) 20% of registered voters if LGU
An administrative offense means every act or conduct or DISCIPLINE OF APPOINTIVE OFFICIALS has voting population of
omission which amounts to, or constitutes, any of the The power to discipline is specifically granted by the 20,000 to 75,000. In no case
grounds for disciplinary action. The offenses for which Revised Administrative Code to heads of departments, shall petitioners be less than
suspension may be imposed are enumerated in Section agencies, and instrumentalities, provinces, and cities. The Within 3 days from certification of sufficiency, COMELEC
5,000.
60. appointing authority is generally the disciplinary authority. shall
(1) provide the official subject of recall with a copy of the
has voting population of
Assuming for the moment that the Office of the DISCIPLINARY JURISDICTION petition
75,000 to 300,000. In no case
President is correct in its decisions in each of the subject Except as otherwise provided, the local chief executive may (2) cause its publication for 3 weeks in a national
shall petitioners be less than
four administrative cases: impose: newspaper and a local newspaper of general circulation
15,000.
(1) Removal from service (3) cause its posting for 10 to 20 days at conspicuous
It committed no grave abuse of discretion in imposing (2) Demotion in rank places
has voting population of more
the penalty of suspension, although the aggregate (3) Suspension for not more than 1 year without pay than 300,000. In no case shall
thereof exceeded six months and the unexpired portion (a) If less than 30 days, unappealable petitioners be less than
of the petitioners’ term of office. (b) If 30 days or more, appealable to the CSC 45,000.
PAGE 163 PAGE 164
COMELEC verifies and authenticates the signatures. (1) Reckoned from the 1994 barangay elections the persons belonging under the same classification are for a term more than what is allowed by law [Latasa v.
(2) Voluntary renunciation of office for any length of time similarly treated, the equal protection clause of the COMELEC (2003)]
shall not be considered as an interruption [Sec. 2] Constitution is, thus, not infringed. [Fariñas v. Executive
Secretary (2003)] EFFECT OF PREVENTIVE SUSPENSION
COMELEC announces the acceptance of candidates for RA 9006: FAIR ELECTION ACT (2001) Strict adherence to the intent of the three-term limit rule
the recall election, the official subject of the recall being An elective official running for any office other than the one LIMITATION OF CONSECUTIVE TERMS demands that preventive suspension should not be
automatically included in the list. which he is holding in a permanent capacity, is no longer No local elective official shall serve for more than three (3) considered an interruption that allows an elective official’s
considered ipso facto resigned from his office upon the consecutive terms in the same position. stay in office beyond three terms. A preventive suspension
filing of his certificate of candidacy. [Sec. 14] cannot simply be a term interruption because the
WHAT CONSTITUTES A TERM OF OFFICE suspended official continues to stay in office although he is
COMELEC shall set the election within 30 days upon Note: Sec. 14 of RA 9006 expressly repealed Sec. 67 of BP To recapitulate, the term limit for elective officials must be barred from exercising the functions and prerogatives of
completion of the above procedure, LGC in barangays, 881 or the Omnibus Election Code which states that “any taken to refer to the right to be elected as well as the right the office within the suspension period. The best indicator
cities, and municipalities; or within 45 days in provinces. elective official, whether national or local, running for any to serve in the same elective position. Consequently, it is of the suspended official’s continuity in office is the
office other than the one which he is holding in a not enough that an individual has served three consecutive absence of a permanent replacement and the lack of the
permanent capacity, except for President and Vice- terms in an elective local office, he must also have been authority to appoint one since no vacancy exists.
LIMITATIONS ON RECALL
President, shall be considered ipso facto resigned from his elected to the same position for the same number of times
(1) Any elective official may be the subject of recall election office upon the filing of his certificate of candidacy.” before the disqualification can apply. To allow a preventively suspended elective official to run
only once during his term of office for loss of Section 14 of RA 9006 did not repeal Section 66 of the for a fourth and prohibited term is to close our eyes to this
confidence. Omnibus election Code, leaving intact Section 66 thereof 2 Conditions for the application of the disqualification [Borja reality and to allow a constitutional violation through
(2) No recall election shall take place within 1 year from the which imposes a limitation to appointive officials and v. COMELEC (1998)]: sophistry by equating the temporary inability to discharge
assumption of office of the official concerned, nor considers them ipso facto resigned from office upon filing (1) Elected for three consecutive times the functions of office with the interruption of term that the
within 1 year immediately preceding the date of a of their certificate of candidacy (2) Fully served three consecutive terms constitutional provision contemplates. [Aldovino v.
regular election. COMELEC (2008)]
By the repeal of Section 67, an elective official who runs for RULES FOR “FULLY SERVED” TERM
The phrase “regular local election” refers to an election office other than the one which he is holding is no longer (1) Voluntary renunciation of the office for any length of
where the office held by the local elective official sought to considered ipso facto resigned therefrom upon filing his time shall not be considered as an interruption in the
be recalled will be contested and be filled by the certificate of candidacy. Elective officials continue in public continuity of service.
electorate. [Paras v. COMELEC (1996)] office even as they campaign for reelection or election for (2) The conversion of a municipality to a city without
another elective position. On the other hand, Section 66 interruption of the term of an elective official is not
Sec. 74 speaks of limitations on “recall” which, according has been retained; thus, the limitation on appointive considered an interruption in the continuity of service.
to Sec. 69 is a power which shall be exercised by the officials remains - they are still considered ipso [Latasa v. COMELEC (2003)]
registered voters of a local government unit. Since the facto resigned from their offices upon the filing of their (3) Election via a recall election does not satisfy a “fully-
voters do not exercise such right except in an election, it is certificates of candidacy. served” term. [Lonzanida v. COMELEC (1999)]
clear that the initiation of recall proceedings is not (4) The imposition of preventive suspension should not be
prohibited within the one-year period provided in Substantial distinctions clearly exist between elective considered an interruption that allows an elective
paragraph (b). officials and appointive officials. The former occupy their official to stay in office for more than 3 terms. [Aldovino
office by virtue of the mandate of the electorate. They are v. COMELEC (2008)]
The phrase “immediately preceding a regular local election” elected to an office for a definite term and may be removed
in Sec. 74(b) refers to the day of regular election not the therefrom only upon stringent conditions. On the other EFFECT OF JUDICIAL DECLARATION THAT THE OFFICIAL’S
election period which is normally at least 45 days hand, appointive officials hold their office by virtue of their PROCLAMATION IS VOID
immediately preceding the day of the election. [Claudio v. designation thereto by an appointing authority. Some His assumption of office in 1995 cannot be deemed to have
COMELEC (2000)] appointive officials hold their office in a permanent been by reason of a valid election. Also, he did not fully
capacity and are entitled to security of tenure while others serve the 1995-98 mayoral term by reason of involuntary
serve at the pleasure of the appointing authority. relinquishment of office as he was ordered to vacate his
post before the expiration of the term. Although he served
Another substantial distinction between the two sets of the greater portion of the said term, he should not be
Term Limits officials is that under Section 55, Chapter 8, Title I,
Subsection A. Civil Service Commission, Book V of the
considered disqualified because he did not serve three full
consecutive terms. [Lonzanida v. COMELEC (1999)]
LENGTH OF TERM Administrative Code of 1987 (Executive Order No. 292),
FOR ELECTIVE LOCAL OFFICIALS, EXCEPT BARANGAY OFFICIALS
appointive officials, as officers and employees in the civil EFFECT OF RECALL ELECTIONS
(1) 3 years, starting from noon of June 30, 1992 service, are strictly prohibited from engaging in any An official has served for three consecutive terms. He was
(2) all local officials first elected during the local elections partisan political activity or take part in any election except elected in the recall election for the term of his
immediately following the ratification of the 1987 to vote. Under the same provision, elective officials, or predecessor. There was no violation of the 3-term rule.
Constitution shall serve until noon of June 30, 1992. officers or employees holding political offices, are
obviously expressly allowed to take part in political and The Constitution does not require that the interruption be
FOR ELECTIVE BARANGAY OFFICIALS AND MEMBERS OF THE
electoral activities. a full term of 3 years. The clear intent of the framers of the
SANGGUNIANG KABATAAN law is that interruption for any length of time is sufficient
3 years, which shall begin after the regular election of By repealing Section 67 but retaining Section 66 of the to break an elective local official’s continuity of service.
barangay officials on the second Monday of May 1994. Omnibus Election Code, the legislators deemed it proper [Socrates v. COMELEC (2002)]
to treat these two classes of officials differently with
RA 9164: SYNCHRONIZED BARANGAY AND respect to the effect on their tenure in the office of the EFFECT OF CONVERSION OF THE LGU
SANGGUNIANG KABATAAN ELECTIONS (2002) filing of the certificates of candidacy for any position other The mayor of a municipality held his post for three terms.
Term of office of barangay and sangguniang kabataan than those occupied by them. During his last term, the municipality became a city and he
officials: 3 years was declared hold-over mayor by the charter. The said
Since the classification justifying Section 14 of Rep. Act No. mayor should not be allowed to run again. If he were
No barangay elective official shall serve for more than 3 9006, i.e., elected officials vis-a-vis appointive officials, is allowed to do so, he would have served the same people
consecutive terms in the same position anchored upon material and significant distinctions and all
PAGE 165 PAGE 166

UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
Concepts (2) Law on genocide

(3) Principle of Self-Determination
(4) Prohibition against apartheid
FORMAL SOURCES V. MATERIAL SOURCES (5) Crimes against humanity
FORMAL SOURCES MATERIAL SOURCES (6) Prohibition against slavery and slave trade
(7) Piracy [Brownlie, Magallona]
The methods and It supplies the substantive
procedures for the creation evidence of the existence of In the 2012 case Questions Concerning the Obligation to
of rule of general the norms. Prosecute or Extradite [Belgium v. Senegal (2012)], the ICJ
application which are affirmed the obligation of states parties to the Convention
legally binding upon against Torture and Other Cruel, Inhuman or Degrading
States. Treatment or Punishment (CAT) to either prosecute
It confers the force of law It supplies the substance of alleged perpetrators or extradite them to another country
upon a norm. the rule. with jurisdiction for prosecution (the Grotian aut dedere,
aut punire principle).
LEX LATA v. LEX FERENDA
LEX LATA LEX FERENDA The case involved Hissène Habré, the former president of
What the law is; “the The progressive Chad, who stands charged in Belgian courts for torture,
current law” development of international war crimes, and crimes against humanity against
law; “what the law should thousands of victims during his term in office from 1982–
be” 1990. Habré, who has been residing in Senegal as a
political asylee since he was ousted from power two
OBLIGATIONS ERGA OMNES decades ago, was being sought for extradition by Belgium.
An international obligation owed to the “international The ICJ in this case observed that t “the prohibition on
community” as a whole and is demandable of any state. torture is part of customary international law and has
An international obligation of such character and become a peremptory norm (jus cogens).” However, the
importance that their violation by any State allows any obligation to prosecute alleged perpetrators of torture only
other State to invoke the violators liability, even if only one arises after the Convention has entered into force for that
state or only a few states incurred direct material damage. state party. The ICJ said, after noting that a number of
It usually has to do with issues on standing before a court complaints regarding serious offenses committed by
or tribunal. Other scholars further make a distinction Habré after that date for which Senegal is obligated to
between obligations erga omnes omnium, which is strictly prosecute, said Belgium is entitled to invoke Senegal’s
speaking, the obligation owed to the international compliance with the Convention beginning in 1999; in fact,
community as a whole, and erga omnes partes, which Beligum has been requesting Senegal’s compliance since
pertains to obligations owed by states under a multi- 2000 when the first complaint against Habré was filed in
lateral treaty. However, it may also be the case that a Senegal.
multi-lateral treaty partakes of both sets of obligations,
inasmuch as the same merely restates norms already held The ICJ, in this landmark decision, affirms that member-
as binding under customary international law [cf. North states to the CAT may demand performance of obligations
Sea Continental Shelf Cases (1969), Nicaragua v. US (1984), under the the same, even if the alleged torture occurred
Kuroda v. Jalandoni (1949] before the applicant state joined the Convention and even
if the alleged torturer or victims have no connection with
BARCELONA TRACTION LIGHT AND POWER CO. CASE the applicant state. The ruling therefore allows the
(1970): The grant of standing to sue because of violations enforcement of universal jurisdiction for torture. Thus it
of erga omnes obligations is premised on the idea that the held that “States parties to the Convention have a
maintenance of some norms are of interest to the entire common interest to ensure . . . that acts of torture are
world community, their violation being an injury to the prevented and that, if they occur, their authors do not enjoy
interest of not only the state directly offended, but also of impunity, ” stressing that these obligations partake of the
all states. nature of ‘obligations erga omnes partes’ in the sense that
each State party has an interest in compliance with them
ILLUSTRATIONS: in any given case.” Thus, any state party may make a claim
(1) Outlawing of acts of aggression and of genocide for the cessation of any breach by another state party,
(2) Principles and rules concerning the basic rights of the whether or not the applicant state has any connection at
human person, including protection from slavery and all to the victims.
racial discrimination [Barcelona Traction Case (1970)]
(3) The right to self-determination [East Timor case (1994), In the 2007 case of Application of the Convention on the
the Wall Opinion case] Prevention and Punishment of the Crime of Genocide
[Bosnia and Herzegovina v. Serbia and Montenegro (2007)],
JUS COGENS the ICJ finally erased all doubts as to the existence of a
A preemptory norm which States cannot derogate or duty to prevent genocide separate from the duty to punish
deviate from in their agreements. It is a mandatory norm its perpetrators under the Genocide Convention.
and stands on a higher category than a jus dispositivum
norm which States can set aside or modify by agreement. In the controversial Vinuya (2010) case, the Philippine
Supreme Court dismissed a petition by the Malaya Lolas -
Illustrations: a group of Filipino Comfort Women – seeking state
(1) The prohibition against the use of force under the U.N. espousal of their claims against Japan.
Charter [Nicaragua Case]
PAGE 167 PAGE 168
Towards the end of its Judgment of April 28, 2010, the parties to the dispute so agree. This means simply that the Pacta sunt servanda: A state party to a treaty is bound to
Supreme Court expressed its great sympathy for court may reach a fair compromise in balancing the DUALIST VIEW: International law and municipal law are comply with the obligations it assumed under such treaty
Petitioners, saying its members “cannot begin to interests of the parties. separate systems. Only those problems affecting in good faith. [Art. 26, VCLOT]
comprehend the unimaginable horror they underwent at Judgment will not be on the basis of the sources of international relations are within the scope of international
the hands of the Japanese soldiers.” And then it goes on to international law, as listed in Art. 38(1) of the ICJ Statute, law. Pacta tertiis nec nocet nec prosunt: Treaty Obligation is
say that it is “deeply concerned” that – in “apparent but on the grounds of fairness and justice. The court may based on consent. No state may be bound by a treaty
contravention of fundamental principles of law” – the have to rely on its own understanding of the broader Thus, before an international norm can have an effect within obligation unless it has so consented. [Art. 34, VCLOT]
Malaya Lolas “appear to be without a remedy to challenge context of equity and outside the accepted norms of law a municipal legal system, that norm must be transformed,
those that have offended them before appropriate fora.” under Art. 38(1). or adopted into the municipal system through a positive NOTE: As a general rule, treaties do not bind non-parties
The High Court had rejected the Petitioner’s claim that act by a State organ. (Exception: Customary International to the treaty.
rape and other sexual crimes committed against them But in the North Sea Continental Shelf cases, the ICJ found Law and General Principles of International Law)
were already prohibited as violations of jus cogens norms a situation where the Parties were under an obligation to Treaties shall be further discussed on the Chapter on the Law
during World War II. act in such a way that in the particular case, and taking all MONIST-NATURALIST VIEW: PIL is superior to municipal law, of Treaties.
the circumstances into account, equitable principles were and that both systems are but a part of a higher system of
In their pending Motion for Reconsideration, the applied, which meant that its decision on the applicability natural law. CUSTOMARY INTERNATIONAL LAW
Petitioners argue that early on, there has developed as a of the equitadistance principle in the delimitations DEFINITION: Norms of international law are those that result
binding customary norm in international law an absolute proceeding was not founded on ex aequo et bono. It said COORDINATIONIST VIEW: International law and municipal from a general and consistent practice of states which they
prohibition on rape. Before San Francisco Peace Treaty in thus: “[i]t was precisely a rule of law that called for the law operate in different spheres, but municipal law is follow under a sense of legal obligation. For custom to
1951, it was already penalized as a war crime and as a application of equitable principles, and in such cases as (generally) obliged to be in conformity with international exist, it requires the concurrence of 2 elements: State
crime against humanity in the 1949 Geneva Conventions, the present ones the equidistance method could law. Practice and Opinio juris.
as a crime against humanity in German Courts that tried unquestionably lead to inequity.”
war criminals of World War II and as a war crime in the Unlike treaties, customary norms are legally binding upon
International Military Tribunal in the Far East that tried states regardless of whether they consent, subject to the
Japanese war criminals of World War II. In fact, they assert
Sources Persistent Objector rule.
that right after World War I, a Preliminary Conference at
Versailles created a Commission on Responsibility of the International and National ELEMENTS:
PRIMARY SOURCES [ARTICLE 38, ICJ STATUTE]
Authors of War and on Enforcement of Penalties.
Law (1) International Conventions, whether general or
(1) State Practice
For custom to exist, the customary practice must be both
Too, the 15-member Commission – of which Japan was particular, establishing rules expressly recognized by consistent and general
part – submitted a report to the Conference on the Municipal or National Law deals with the conduct or status the contracting states (Treaties); (a) Consistency requires substantial uniformity, and not
responsibility of belligerent states in which it included a list of individuals, corporations, and other ‘private’ entities (2) International Custom, as evidence of a general custom necessarily complete uniformity in practice.
of punishable war crimes as violations of the laws and within states. Public International Law may be accepted as law; (b) Generality likewise does not require universality.
customs of war. These included, among other crimes, (1) distinguished from it in that it prescribes rules and (3) General Principles of Law recognized by civilized nations;
rape, (2) abduction of girls and women for the purpose of processes that govern the relations of states with each The absence of protest could be considered evidence of the
enforced prostitution, (3) deportation of civilians, (4) other, and the rights of other entities insofar as they SUBSIDIARY SOURCES binding nature of customary practice. [Akehurst]
internment of civilians under inhuman conditions and and implicate the community of states. (1) Judicial Decisions; and
(5) forced labor of civilians in connection with the military (2) Teachings of the most highly qualified publicists of the Acts Evidencing State Practice:
operations. RELATIONSHIP OF PUBLIC INTERNATIONAL LAW various nations. [Art. 38, ICJ Statute] (1) Diplomatic correspondence
WITH MUNICIPAL LAW (a) Treaties, Customs and General Principles (Primary (2) Policy statements
The Philippine Supreme Court’s decision sparked a Although distinct, PIL and Municipal are interrelated: Sources) create law; while court decisions publicists’ (3) Press releases
massive controversy when significant portions of it were teachings constitute evidence of what is the law. (4) Opinions of official legal advisers
discovered to have been lifted from various sources THE ROLE OF INTERNATIONAL LAW WITHIN THE NATIONAL LEGAL (b) With respect to the three primary sources, the order (5) Official manuals on legal decisions (executive decisions
without proper attribution. In addition to the plagiarism – ORDER the enumeration does not provide a hierarchy in all and practices; government comments on drafts by the
which is a word for word lifting of pages from the three Norms or principles of international law may be cases. ILC)
articles without the proper attribution – it appears that incorporated or transformed into national law and applied (6) International and national judicial decisions
these stolen passages were also twisted to support the or enforced within the territorial jurisdiction of a State as NOTE: Although treaties are mentioned first, they are not (7) Recitals in treaties and international instruments
court’s erroneous conclusion that the Filipina comfort part of “the law of the land.” ipso facto superior to customs and general principles. (8) Practice of international organs [Harris]
women of World War Two have no further legal remedies. (1) Incorporation – norms of international law are deemed
part of national law TREATY AS SOURCE OF LAW UN General Assembly Resolutions are generally just
All three plagiarized articles by foreign authors –an article (2) Transformation – defines the requisite act which must DEFINITION OF TREATY recommendations. They have no binding effect under the
published in 2009 in the Yale Law Journal of International be fulfilled before they become part of national law An international agreement concluded between States in Charter, save in limited fields like budgetary concerns.
Law, a book published by the Cambridge University Press written form and governed by international law, whether However, such resolutions may nonetheless be an evidence
in 2005, and, an article published in 2006 in the Western THE ROLE OF NATIONAL LAW IN THE INTERNATIONAL LEGAL embodied in a single instrument or in two or more related of state practice that is relevant in the development of
Reserve Journal of International Law – argue otherwise. REGULATION instruments and whatever its particular designation" custom.
A State cannot invoke its own national law to resist an [Art.2(1), Vienna Convention on the Law of Treaties (VCLOT)]
A Motion for Reconsideration and a Supplemental Motion international claim or excuse itself from breach of duty Opinio juris sive necessitatis
for Reconsideration subsequently filed by lawyers on under international law [Polish Nationals in Danzig Case; Under the VCLOT, the term “treaty” includes all The belief on the part of States that a particular practice is
behalf of the Malaya Lolas highlighting the alleged VICLOT; Draft Article on State Responsibility, Art. 6] agreements between states, regardless of how they are required by law, and not because of courtesy or political
plagiarism and twisting of sources are pending with the called. Thus, for purposes of international law, treaties, expediency. It is the existence of opinio juris that
Court. The Malaya Lolas, in their Supplemental Motion for THEORETICAL VIEWS ON THE RELATIONSHIP executive agreements, exchanges of notes, etc. are all distinguishes binding custom from mere usage, from
Reconsideration said the High Court’s ruling, penned by BETWEEN PIL AND MUNICIPAL LAW – [CARTER AND treaties. comity, and from courtesy or protocol.
Justice Mariano Del Castillo, "made it appear that these TRIMBLE]:
sources support the assailed judgment's arguments for MONIST VIEW: International and municipal legal systems are Note: Philippine law makes a distinction between treaties Opinio juris means that general practice embodied in a
dismissing instant petition when, in truth, the plagiarized fundamentally part of one legal order. This view considers and executive agreements. Although they are equally rule must have been done out of a recognition that it is a
sources even make a strong case for the petition's claims." international law to be superior, with municipal law being binding, only treaties require the concurrence of the legal norm and therefore obligatory. [North Sea
a mere subset of international law. Senate to be effective. [Sec. 21, Art. VII, 1987 Constitution] Continental Shelf Case, ICJ Reports, 1969]
CONCEPT OF EX AEQUO ET BONO
Literally meaning “what is equitable and good”, it is a Thus, international norms are applicable within municipal
standard that a court may apply to decide a case when the system seven without some positive act of the State.
PAGE 169 PAGE 170
Note: It is not a “maxim,” it is an element required in order formation, by such persistent objection the norm will not they can be used to prove a fact to the satisfaction of the Eastern Greenland case (1931-33): The ICJ held that
for custom to crystallize into a binding norm in be applicable as against that State. [Magallona] court. [Nicaragua v. US Case (62—63)] Denmark not only had a superior claim over the contested
international law. territory, but that Norway was further bound by the Ihlen
The ten-mile rule [in the delimitation of territorial waters Circumstantial evidence is admitted as indirect evidence in Declaration not to oppose Denmark’s claim. The Ihlen
Scope: cross bays] would appear to be inapplicable as against all systems of law and its use is recognized by international Declaration is a statement made by the Norwegian Foreign
Custom may be: Norway, inasmuch as she has always opposed any attempt decisions. Such circumstantial evidence, however, must Minister, Nils Claus Ihlen, on the topic of Denmark's
(1) General binding upon all or most states or to apply it to the Norwegian coast. [Anglo-Norwegian consist of a series of facts or events that lead to a single sovereignty over Greenland, which Mr. Ihlen declared
(2) Particular binding between only two or among a few Fisheries Case (1951)] conclusion. [Corfu Channel Case (1949)] verbally to the Danish Minister that “the plans of the Royal
states. [Danish] Government respecting Danish sovereignty over
DUALITY OF NORMS Substantive – duty to make reparations, principle of the whole of Greenland would be met with no difficulties
In cases it has decided, the ICJ has indeed recognized the It is possible for a norm of international law to exist both as reciprocity, pacta sunt servanda, separate corporate on the part of Norway.”
possibility of regional custom (Asylum Case) and of bilateral a customary norm and a conventional norm (ex. The personality [Barcelona Traction Case (1970)]
custom. [Right of Passage over Indian Territory Case] Prohibition against the Use of Force). Such norms are said Also in the Nuclear Test cases (1974), France declared that
to be of dual character. The Standard of “Full” Reparations: Every breach of an it would cease atmospheric nuclear tests. This signaled
No particular length of time is required for the formation of engagement (international obligation) entails the that there had ceased to be a dispute, since it had bound
customary norms. What becomes necessary is such length Norms of dual character come into being through any of obligation to make reparation. The amount of reparation itself to do what Australia and New Zealand wanted.
of time as to make manifest the existence of the two the following ways: required is that amount which is necessary to bring the
elements of custom. [North Sea Continental Cases (1969), (1) A treaty provision may simply restate a customary norm injured party back to the situation had the wrong not
Magallona] (as is true of many of the provisions in the VCLOT; occurred. [Chorzow Factory Case (1927)]
NORMS OR PRINCIPLES OF CUSTOMARY INTERNATIONAL LAW AS

(2) A treaty provision may constitute evidence of custom;
(3) A treaty provision may crystallize into a customary Jurisdictional Principles – The power of a tribunal to Subjects
IDENTIFIED BY THE PHILIPPINE SUPREME COURT AS FORMING norm. determine the extent of its own jurisdiction (competence de
PART OF PHILIPPINE LAW la competence). Subjects of International Law refer to entities:
(1) Rules and principles of land warfare and of For a treaty provision to crystallize into custom, the (1) capable of possessing international rights and duties;
humanitarian law under the Hague Convention and the provision must be norm-creating. The treaty must be law- NOTE: International tribunals have not been consistent in and
Geneva Convention [Kuroda v. Jalandoni (1949)] making, creating legal obligations which are not dissolved their manner of determining whether a principle in (2) having the capacity to maintain these rights by bringing
(2) Pacta sunt servanda [La Chemise Lacoste v. Fernandez by their fulfillment. municipal law constitutes a general principle. In some international claims [Reparations for Injuries Advisory
(1984)] instances they have examined different legal systems; in Opinion (1949)]
(3) Human Rights as defined under the Universal The number of parties, the explicit acceptance of rules of others, they merely declared a principle in municipal law as
Declaration of Human Rights [Reyes v. Bagatsing law, and, in some cases, the declaratory nature of the constituting a general principle of international law. A State is a quintessential example of a subject of
(1983)] provisions produces a strong law-creating effect at least as international law.
(4) The principle of restrictive sovereign immunity [Sanders great as the general practice considered sufficient to SUBSIDIARY SOURCE: JUDICIAL DECISIONS
v. Veridiano (1988)] support a customary rule. [Brownlie] International law does not follow the rule on stare decisis. By contrast, an Object of International Law is the person or
(5) The principle in diplomatic law that the receiving State Art. 59 of the ICJ State (which Art.38(1)(d) makes reference thing in respect of which rights are held and obligations
has the special duty to protect the premises of the The customary norm retains a separate identity even if its to) expressly limits the effect of a decision only to the are assumed by the subject. It is, therefore, not directly
diplomatic mission of the sending State [Reyes v. content is identical with that of a treaty norm. Thus, a state parties to the case. governed by the rules of international law. Its rights may
Bagatsing (1983)] that cannot hold a state responsibility for a breach of a be asserted and its responsibilities imposed indirectly,
(6) The right of a citizen to return to his own country treaty obligation can still hold the erring state responsible Be that as it may, decisions of international tribunals through the instrumentality of an intermediate agency (the
[Marcos v. Manglapus (1989)] for the breach of the identical customary norm. [Nicaragua exercise considerable influence as impartial and well- subject).
(7) The principle that “a foreign army allowed to march v. US Case (1984)] considered statements of the law by (qualified) jurists
through friendly country or to be stationed in it, by made in light of actual problems. Decisions of For example, individuals are objects in respect of which
permission of its government or sovereign, is exempt GENERAL PRINCIPLES OF LAW international tribunals constitute evidence of the state of human rights obligations are imposed upon States. When
from criminal jurisdiction of the place”. [Raquiza v. Refer to those general principles in municipal law the law. [Brownlie] an individual’s human rights is violated by another State,
Bradford (1945)] (particularly those of private law) that may be appropriated the aggrieved person’s State of nationality may “espouse”
(8) The principle that judicial acts not of a political to apply to the relations of states. [Oppenheim] SUBSIDIARY SOURCE: PUBLICISTS his claim and invoke the erring state’s responsibility (see:
complexion of a de facto government established by Writings of highly qualified publicists likewise constitute Discussion on Diplomatic Protection in Chapter 5, Part V).
the military occupant in an enemy territory, is valid Unlike custom, it does not require to be supported by state evidence the state of the law. The problem, though, is that
under international law. [Montebon v. Director of practice that is consistent and virtually uniform; it being some publicists may be expressing not what the law is (lex The distinction between subject and object is found in
Prisons (1947)] sufficient that such principle is found in a number of legal lata), but what they think the law should be or will be (lex traditional international law, when states had the
(9) The principle that private property seized and used by jurisdictions. [Roque] ferenda). monopoly as far as law-making is concerned. Scholars like
the enemy in times of war under circumstances not Higgins however posit that the distinction is not helpful as
constituting valid requisition does not become enemy Illustrations: OTHER SOURCES increasingly the international legal order features non-
property and its private ownership is retained, the Principles in Roman Law – estoppel, res judicata, res inter (1) Ex Aequo et Bono the court may apply this standard state actors like civil society organizations pushing the
enemy having acquired only its temporary use. [Noceda alios acta, prescription. of “what is equitable and good” to decide a case when boundaries of law-making at the international level.
v. Escobar (1950)] the parties to the dispute so agree. Hence she prefers to refer to entities engaged in
(10) The principle that a State has the right to protect itself When Thailand did not object to, and has in fact benefited (2) Equity  refers to the application of standards of international legal processes as “actors” in international
and its revenues, a right not limited to its own territory from, the Treaty of 1904 for 50 years, it is deemed to have justice that are not contained in the letter of existing law.
but extending to the high seas [Asaali v. Commissioner accepted said treaty. It is thereby precluded from law. It has often been applied in cases involving
(1968)] questioning Annex I thereof, which showed that the territorial disputes and maritime delimitations. Today, individuals, in key areas, already have standing to
(11) Albeit an erroneous understanding of the elements Temple of Preah Vihear was within Cambodian territory (3) Unilateral Declarations declarations made by way of bring suits on their own, as in the field of international
that make a customary norm of international law, the [Temple of Preah Vihear Case (1962)] unilateral acts, concerning legal or factual situations, criminal law and international human rights law.
Supreme Court has held in Mijares v. Rañada (2005)– a may have the effect of creating legal obligations.
case involving claims against the Marcos estate – that Procedural Rules – the use of circumstantial evidence, STATES
the enforcement of a foreign judgment is customary in hearsay evidence (press reports). Nothing in the nature of a quid pro quo, nor any A group of people, more or less numerous, permanently
nature subsequent acceptance, nor even any reaction from other living in a definite territory, under an independent
Press reports can be used to corroborate the existence of a states is required for such declaration to take effect. Verily, government organized for political ends and capable of
PRINCIPLE OF PERSISTENT OBJECTOR fact; and, when they demonstrate matters of public unilateral declarations bind the State that makes them. entering into legal relations with other states [Art. 1,
When a State has continuously objected to a new knowledge which have received extensive press coverage, Montevideo Convention on the Rights and Duties of States
customary norm at the time when it is yet in the process of (1933)]
PAGE 171 PAGE 172
(3) Government established as an independent government claims and feudal pre-colonial titles are mere relics of
There is no accepted definition of what the state is in The requisites for acquiring territorial soreveignty by by inhabitants of a country who rise in insurrection another international legal era, one that ended with the
international law. The Montevideo Convention merely prescription are. — (1) Possession that must be exercised against the parent state. setting of the sun on the age of colonial imperium.”
enumerates what are the elements by which one may say titre de souverain; (2) Peaceful and uninterrupted; (3)
that a state exists. Public; and (4) Endure for a certain length of time Independence or Sovereignty This is strong language, with the tenor of definitiveness.
[Johnson] Refers to the capacity to enter into relations with other The ICJ's pronouncements in Barcelona Traction, East
States remain the most important actors in international states. A state must be free from outside control in Timor and Wall Opinion cases have indeed acknowledged
law. It possesses objective or erga omnes personality, not (4) Accession or accretion – the natural process of land conducting foreign and internal affairs. It has, however, the binding nature of this by now well-recognized principle
merely by virtue of recognition on the part of particular formation resulting in the increase of territory (original) been advanced that the fact that a State “may be acting of self-determination. The question for the Philippines,
states. under the direction of another State” is not of concern to however, is whether the factual characterization by Judge
Government international law. [Salonga] Franck of the exercise by the people of North Borneo of
Objective (general) international personality – exists Government is the physical manifestation of a state. this right is borne by historical reality.
wherever the rights and obligations of an entity are Government must be organized, exercising control over The practice of states has been to ignore—so far as the
conferred by general international law, e.g. states and capable of maintaining law and order within its issue of statehood is concerned—various forms of political First, from the very beginning, the Philippines committed
territory. and emotional blackmail and interference directed against itself to welcome the creation of the new state of Malaysia
Special (particular) international personality – exists where the weaker members of the community." subject to the final outcome of its claim over Sabah. This is
an entity is established by particular States for special Note: Under the Rules on Succession of States, even clearly supported by the following:
purposes changes of entire governments do not affect the identity Thus, it is sufficient for a State to possess external
and personality of the state. Once statehood is appearance of capacity to enter into international relation. The Report and Recommendations of the Conference of
REQUISITE ELEMENTS: established, neither invasion nor disorder alone can [Brownlie] Foreign Ministers of the Federation of Malaya, the
People remove its character as a state. [Brownlie] Republic of Indonesia and the Republic of the Philippines
The term “people” refers to an aggregate of individuals of The issue of statehood, or of the criteria of possession of to their respective Heads of Government, dated 1 June 963.
both sexes who live together as a community despite racial “Effective” Government the status of a state under international law –traditionally What is important in this document, especially Para. 12,
or cultural differences. Although no minimum number is Although an effective government is the best evidence of defined as “effectiveness”- is closely linked to the concept states that both Malaysia and Indonesia recognized the
provided, they should be permanent, and sufficient to the existence of a State, an effective government is not of sovereignty, although the latter is not itself a criterion Philippine position that it had a right to pursue its claim
maintain and perpetuate themselves. always strictly necessary [Brownlie]. for statehood but is, in international law, the “totality of according to international law and the peaceful settlement
international rights and duties recognized by international of disputes and all three agreed that the inclusion of
Territory The requirement of effective government is not strictly law” as embodied in an independent territorial unit that is North Borneo in the federation would not prejudice either
State territory is that defined portion of the surface of the applied when the State, already long-existing, happens to the State. the claim or any right arising from it.
globe which is subjected to the sovereignty of the State. undergo a period of civil strife or internal chaos due to
[Oppenheim] natural disaster or invasion. In other words, an entity endowed with statehood has The Manila Accord of 31 July 1963, signed by President
sovereignty, but sovereignty itself is not a precondition but Macapagal, President Sukarno and Prime Minister Tunku
A state must exercise control over a certain area. It need Thus, with the collapse of their governments, Afghanistan only an attribute, or “an incident or consequence of Abdul Rahman, adopted in toto the report of the Foreign
not be exactly defined by metes and bounds, so long as and Somalia were deemed failed states, but they remained statehood, namely the plenary competence that States Ministers earlier referred to.
there exists a reasonable certainty of identifying it. No states. prima facie possess.”
minimum land area is required. The Joint Statement of 5 August 1963 by the Three Heads
Further, some states were deemed states even before their In its advisory opinion in Accordance with International of Government, especially its para. 8, which referred to the
Modes of acquiring territorial sovereignty governments were "very well organized" (ex. Poland, Law of the Unilateral Declaration of Independence In Manila Accord, and reiterated their joint view that they
(1) Occupation of a territory not subject to the sovereignty Burundi, and Rwanda). Respect of Kosovo, the ICJ dealt for the first time with the agreed to seek a just and expeditious solution to the
of any other state (original); this refers not to mere question of the legality of a unilateral declaration of dispute between the British government and the
discovery but effective exercise of sovereignty over a Governments de facto & de jure independence brought to it by the General Assembly. This Philippines over Sabah through negotiations, conciliation,
territory which is terra nullius A government de jure is a government from law, that is, one case arose from the 2008 Kosovo declaration of arbiration or judicial settlement, or other peaceful means
with a color of legitimacy. independence amidst conflicting claims of resolving the issue. In addition, they affirmed that they
Effective occupation means continued display of authority between Serbia and the Republic of Kosovo established by take cognizance of the Philippine claim to Sabah "after the
which involves 2 elements each of which must be shown to A government de facto is one that governs without a the said declaration. The ICJ, in an advisory opinion that establishment of the Federation of Malaysia as provided
exist: (a) the intention and will to act as sovereign [animus mandate of law. So long as it is in place, it may command received mixed reactions, declared that "the declaration of under para. 12 of the Manila Accord, that is, the inclusion
occupandi], and (b) some actual exercise or display of such obedience from the inhabitants of the occupied area. The de independence of the 17 February 2008 did not violate of Sabah in the Federation of Malaysia does not prejudice
authority. [Eastern Greenland Case (1931-33)] facto ruler may suspend laws and enact new ones. general international law because international law either the claim or any right thereunder."
contains no 'prohibition on declarations of independence.'"
Animus occupandi must be demonstrated and evidenced Note: The establishment of a de facto government does not Yet it stopped short of saying what the legal implications In 1966, when relations between them normalized,
by some administrative or political acts in relation to the by itself abolish all laws and structures established by the were of the same declaration. Malaysia and the Philippines, in a joint Communique of 3
territory in question and such acts must be under titre de deposed government. Only “laws of political nature June 1966, "agreed to abide by the Manila Accord of 31 July
souverain (title of sovereignty). affecting political relations” are suspended ipso facto; laws Notes on Sabah and the question of self-determination: 1963 and with the Joint Statement accompanying it, for the
that enforce public order and regulate social and In his separate opinion to the Sovereignty over Pulau Ligitan peaceful settlement of the Philippine claim to Sabah." they
To constitute effective occupation, exercise of sovereignty commercial life remain in effect unless they are changed and Pulau Sipadan (Indonesia/Malaysia) case before the ICJ further agreed that to the need to sit together to clarify the
must be peaceful, actual, continuous and sufficient to by the de facto sovereign. Conversely, the re- in 2002, ad hoc judge Thomas Franck had this to say, in claim and reach a satisfactory resolution to the issue.
confer valid title to sovereignty. establishment of the de jure government does not void the his rejection of the Philippine intervention:
acts of the preceding de facto government. And then, following the proclamation of the creation of the
(2) Cession – the transfer of territory from one state to Accordingly, in light of the clear exercise by the people of Federation of Malaysia on 16 September 1963, Manila and
another by treaty (derivative); only bilateral mode of Three kinds of de facto government: North Borneo of their right to self-determination, it cannot Kuala Lumpur engaged in a series of exchages of Joint
acquisition (1) Government de facto in the strict legal sense is that matter whether this Court, in any interpretation it might Communiques, aides memoirs, Notes Verbale or
which usurps – either by force or the will of the majority give to any historic instrument or efficacy, sustains or not diplomatic notes, all expressing the sense that both parties
The validity of cession depends on the valid title of the – the legal government and maintains and control the Philippines claim to historic title. Modern international have remained committed to the terms of the Manila
ceding state; the cessionary state cannot have more rights against it; law does not recognize the survival of a right of sovereignty Accord of 1962. These exchanges ran from 1964 to 1968.
than what the ceding state possessed. [Magallona] (2) Government by paramount force is that which results based solely on historic title; not, in any event, after an
from the occupation of a state or a part thereof by exercise of self- determination conducted in accordance It is important to note that these are not mere unilateral
(3) Prescription – title is acquired by through continuous invading forces in time of war; and with the requisites of international law, the bona fides of declarations but are tripartite and bilateral documents
and undisturbed exercise of sovereignty over a period which has received international recognition by the that are binding upon the signatories under international
of time (derivative) political organs of the United Nations. Against this, historic law. In the case of the Joint Statement, they all agreed that
PAGE 173 PAGE 174
the Philippines will continue to pursue it claim even after Indeed, the Philippines is not claiming all of Sabah or Justice Macaskie here has two aspects of the question in (1) The determination of statehood as a question of law
the inclusion of Sabah in the Malaysian Federation. In the contesting its political legitimacy. We are simply claiming a mind. First, he recognizes that there are rights to which may have evidential effect before a tribunal, and
case of the 1966 joint Communique, Malaysia without a piece of territory in North Borneo on the basis of a clear sovereignty which now pertain to the Government of the (2) A condition of the establishment of formal, optional,
doubt, by its consent to it, forfeited any advantage it might chain of title. At its heart is the claim that the1878 contract Philippines and there are proprietary rights that accrue to and bilateral relations, including diplomatic relations
have acquired through the UN ascertainment of 1963. entered into between the Sultan of Sulu and the the heirs of the Sultan of Sulu. This distinction may and the conclusion of treaties; also described by some
prospectors Dent and Overbeck is one of lease and not of provide an alternative that could be most beneficial to all jurists as constitutive.
From the very beginning, the Philippines has demanded transfer of sovereignty. concerned, that is, given the difficulties of raising a full
that any referendum in Sabah on the question of its sovereignty claim, it is perhaps more practical for the Declaratory View v. Constitutive View
inclusion in the Malaysian Federation be authentic and This lease contract was later passed on by the prospectors Philippines to pursue the proprietary aspect to it. The Declaratory View (Prevailing View) posits that
bonafide, and under circumstances that ensured the free to the British North Borneo Company (BNBC), which in In the MOA-AD case, the Philippine Supreme Court held recognition is a mere declaration or acknowledgement of
and enlightened expression of the Sabahan's will. turn, sold its rights under the contract to the British that the right to self-determination does not automatically an existing state of law and fact, legal personality having
Crown. As in international law, sovereignty can only be mean the right of secession. been previously conferred by operation of law.
But the so-called Sabah referendum was anything but a ceded to sovereign entities or to inviduals acting for any
representative referendum. Only the election of local sovereign entity Overbeck and Dent did not have the power Referencing the Canadian Supreme Court’s holding in the The Constitutive View (Minority View) posits that the
officials was concerned in the proceedings. The question of to pass on to BNBC sovereignty over the properties of the Quebec case, the High Court discussed the distinction political act of recognition is a precondition to the
whether the people of Sabah wished to remain with Sultanate of Sulu over portions of North Borneo, they between Internal self-determination and External Self- existence of legal rights of a state. In its logical extreme,
Malaysia or to join the Philippines was not at all asked in being neither sovereign entities nor individuals acting for Determination: this is to say that the very personality of a state depends on
the ballots issued to voters. any sovereign entity. (1) Through internal self-determination – the state the political decision of other states. [Brownlie]
recognizes a people's pursuit of its political, economic,
Moreover, much to the embarassment of UN officials, In fact, in 1903, the BNBC would sign with the Sultanate of social and cultural development within the framework Important Doctrines:
Malaysia announced the date of the creation of the Sulu a confirmatory Deed to the origina terms of the 1878 of an existing state. Wilson/Tobar Doctrine (Asked 1 time in the Bar) – precludes
federation even before the results of the so-called lease. From 1878 to just before the1946 Cession, the British (2) A right to external self-determination (which in this case recognition of government established by revolution, civil
referendum could be released, as if it had already been Crown has always recognized the 1878 contract as no more potentially takes the form of the assertion of a right to war, coup d’etat or other forms of internal violence until
predetermined. than a lease. The British Foreign Minister, Lord Granville, unilateral secession) arises in only the most extreme of freely elected representatives of the people have organized a
assuring the Spaniards that the BNBC is not acquiring cases and, even then, under carefully defined constitutional government [US President Woodrow Wilson,
In the wake of the Lahad Datu incident, the Malaysian dominion and sovereignty in North Borneo, stated thus: circumstances. 1913 and Ecuadorian FM, 1907]
government made the claim that two-thirds of the people
of Sabah agreed to be part of Malaysia in 1962. The Crown assumes no dominion or sovereignty over the What are the exceptions that give rise to a right to external Stimson Doctrine – precludes recognition of any
territories occupied by the company nor does it purport self-determination? government established as a result of external aggression
Sabah opposition leaders like Jeffrey Kitingan however to grant to the Company any powers of government (1) Vienna Declaration and UN Declaration of Friendly [US Sec. of State Henry Stimson (1932)]
dispute this, arguing that what actually took place was a thereover; it merely confers upon the persons associated Relation of states: massive violation of human rights
referendum of less than four percent of the people. If at all, the status and incidents of a body corporate and and deprivation of political representation can be a Estrada Doctrine (Asked 1 time in the Bar) – dealing or not
Kitingan's statement confirms the Philippines' position recognize the grants of territory and the powers of basis for right to secession. dealing with the government established through a political
from the very beginning. government made and delegated by the Sultan in whom (2) if a decision to secede is "freely determined by a upheaval is not a judgment on the legitimacy of the said
the sovereignty remains vested. people;" that is to say, by a cross-section of the entire government [Mexican Minister Genaro Estrada (1930)]
Moreover, he also argues that all the relevant parties, population of the state to be divided and not only the
including the Sabahans, should find a peaceful solution to The British Foreign Minister would go on to say the BNBC inhabitants of the region wishing to secede [Quebec Effects of recognition:
the dispute under the ambit of Great Britain and the was merely an administrator. To the same effect, the case (1998)]. (1) Diplomatic relations
United Nations. In any case, today's adamant refusal by Prime Minister, Mr. William Gladstone, in the debates in (3) and if, following armed conflict, national boundaries are (2) Right to sue in courts of recognizing state
Malaysian authorities to consider a joint submission with the House of Commons, gave an important speech. Thus redrawn as part of the peace treaty. (3) Right to possession of properties of predecessor in the
the Philippines on the Sabah question to an international Malaysia acquired no more than a derivative title from the recognizing state
tribunal is a complete turnaround from its previous British crown, which could not be any better than what the Prof. Johan Van Der Vyver: (4) All acts of the recognized state or government are
position on the matter. They cannot however, deny BNBC acquired from Overbeck and Dent. “Self-determination of peoples is thus a matter of national validated retroactively, preventing the recognizing
documents to which Malaysia was a willing party and that independence in the case of peoples subject to colonial rule state from passing upon their legality in its own court.
are binding under international law. And Malaysia's continuing payment of pajak to the heirs of or foreign domination, participation in the political
the Sultan of Sulu, on the basis of the 1939 probate of the processes of a country in cases where the people concerned INTERNATIONAL ORGANIZATIONS
In the Sipadan and Ligitan case (2002), the ICJ denied the will of Sultan Jamalul Kiram by North Boreo Chief Justice have been denied such participation on a discriminatory The status and powers of an IO is determined by
Philippine bid to be allowed to intervene, saying it did not Macaskie, in the amount of 5, 300 dollars annualy, further basis, and sphere sovereignty of peoples that uphold a agreement and not by general or customary international
show any specific legal interest in the dispute. However, affirm the Philippine position. strong (sectional) group identity within a political law.
what proved important to the Philippines is the declaration community. Not one of these manifestations of self-
by the ICJ that it recognizes the existence of the Philippine The Chief Justice, in his decision dated 18 December 1939, determination amounts to the disruption of national IO’s are considered subjects of international law “if their
position on Sabah, as well as the positions taken by thus said: borders of a territorially defined political community.” legal personality is established by their constituent
Indonesia and Malaysia on it. instrument (charter).”
It is abundantly plain that the succesors in Sovereignty In Quebec, the Canadian Supreme Court thus held that:
This was the very first time the Philippines was able to of the Sulta of Sulu are the Goverment of the Philippine the decision rests with a cross-section of the entire Further, its constituent rights and duties, or capacities and
articulate its claim to Sabah before an international islands, but Mr. De Leon contends that the decsion of population of the state to be divided and not only the immunities, are limited to those set forth in the treaty
tribunal, although the Court ruled that its claim was not at the Philippine courts in the administration suit relating inhabitants of the region wishing to secede. creating the international organization. Thus, legal
issue in the proceedings. What exactly is this claim by the to the late Sulta's estate precludes that govenrment personality in this context is a relative concept. [Magallona]
Philippines? from assertingg any claim to the cession monies. In my RECOGNITION
view, this is correct. The Philippine government allowed An act by which a state acknowledges the existence of PRECONDITIONS FOR INTERNATIONAL PERSONALITY
As we argued in the Case Concerning Sovereignty Over Sultan Jamalul Kiram to enjoy cession monies as a another state, government or belligerent community and (1) It must constitute a permanent association of states,
Pulau Ligitan and Pulau Sipadan (Indonesia/Malaysia) ours private person sine 1915; they have made no claim on his indicates willingness to deal with the entity as such under with lawful objects, equipped with organs;
“is a territorial claim on a portion of Sabah which properly death and by a judgment of a Philippine court international law. (2) There must be a distinction, in terms of legal powers
belongs to the Philippines on the basis of a sound title jure recognized the right of the private heirs ofthe Sultan to and purposes, between the organization [and] its
gentium and which Malaysia is improperly occupying on receive the cession monies. ( based on the Maxwell- As a public act of state, recognition is an optional and member states; and
the basis of a faulty title which had been transferred to it Gibson translation of 1878) political act and there is no legal duty in this regard. (3) It must have legal powers that it may exercise on the
by a prior faulty title holder." international plane and not solely within the national
Legal functions of recognition systems of one or more states.
The typical act of recognition has 2 legal functions:
PAGE 175 PAGE 176
CAPACITY TO BRING A CLAIM FOR REPARATION He is immune from criminal and civil jurisdiction, except The service of writs, summons, orders or processes within
An IO such as the United Nations (UN) must be deemed to when he himself is the plaintiff, and is not subject to tax or the premises of mission or residence of the envoy is
have such powers which, though not expressly granted in exchange or currency restrictions. prohibited. Even if a criminal takes refuge within the
its Charter, are conferred upon it by necessary implication as premises, the peace officers cannot break into such
being essential to the performance of its duties. THE FOREIGN OFFICE PERSONAL INVIOLABILITY premises to apprehend the same.
The body entrusted with the conduct of actual day-to-day Personal inviolability consists of 2 aspects: The fugitive should, however, be surrendered upon
Thus, though the UN Charter did not expressly clothe the foreign affairs. (1) The duty of the receiving State to refrain from exercising demand by local authorities, except when the right of
UN with the capacity to bring an international claim for its sovereign rights, in particular law enforcement asylum exists.
reparations, the UN nevertheless possessed functional It is headed by a Secretary or a Minister who, in proper rights against the diplomat; and
personality. [Reparations for Injuries Advisory Opinion, ¶147] cases, may make binding declarations on behalf of his (2) The duty to treat him with due respect and protect his RIGHT OF OFFICIAL COMMUNICATION
government. [Legal Status of Eastern Greenland Case person, freedom or dignity from physical interference The envoy is entitled to fully and freely communicate with
IO’s are deemed to have powers not expressly granted in (1933)] by other persons. his government.
their charters where these unstated powers are either: The receiving State shall treat him with due respect and (1) The receiving state shall permit and protect free
(1) implicitly bestowed in their charters or THE DIPLOMATIC CORPS take all steps to prevent any attack on his person, communication on the part of the mission for all official
(2) necessary to effect powers expressly granted. Refers to the collectivity of all diplomatic envoys accredited freedom or dignity. [Art. 29, VCDR] purposes.
to a State. (2) The mission may employ all appropriate means to send
INDIVIDUALS The diplomatic representative shall not be liable to any and receive messages by any of the usual modes of
While States have traditionally been deemed to be subject It is composed of: form of arrest or detention. communication or by diplomatic courier, which shall
of international law, individuals have likewise become in (1) Head of Mission – classified into: enjoy inviolability;
some degree subjects of that law. However, individuals (a) Ambassadors or nuncios – accredited to Heads of In the Hostage Case, however the ICJ held the diplomatic (3) The official correspondence of the mission is inviolable;
may assume the status of subjects of international law only State, and other heads of mission of equivalent envoy, however, may be arrested temporarily in case of and
on the basis of agreement by states and in specific context, rank; urgent danger, such as when he commits an act of violence (4) The diplomatic bag shall not be opened or detained.
not in accordance with general or customary IL. (b) Envoys, Ministers and Internuncios – accredited to which makes it necessary to put him under restraint for the [Art. 27, VCDR]
Heads of State; purpose of preventing similar acts [Case Concerning the US
Illustrations: (c) Charges d’affaires – accredited to Ministers of Diplomatic and Consular Staff in Tehran, ICJ Reports, 1980] IMMUNITY FROM LOCAL JURISDICTION
(1) Art. 187(c), (d) and (e), UNCLOS: The jurisdiction of the Foreign Affairs. As to criminal jurisdiction
Sea-Bed Disputes Chamber of the ITLOS extends to (2) Diplomatic Staff – those engaged in diplomatic INVIOLABILITY OF PREMISES AND ARCHIVES A diplomatic agent enjoys immunity from criminal
disputes between parties to contracts relating to the activities and are accorded diplomatic rank. Consist of 2 elements: jurisdiction of the receiving State. [Art. 31, VCDR]
exploitation of the Area. Parties to such contracts may (3) Administrative and Technical Staff – those employed in (1) The duty of the receiving State to refrain from entering
be natural or juridical persons. the administrative and technical service of the mission. the premises, except with the consent of the head of He may not be arrested, prosecuted, prosecuted or
(2) Claims Settlement Declaration of 1981 between US and (4) Service Staff – those engaged in the domestic service of the mission; and punished for any offense he may commit, unless his
Iran: Direct access to the Iran-US Claims Tribunal is the mission [Nachura] (2) The “special duty of the receiving state to protect the immunity is waived.
given to individuals for the settlement of their claims premises against any intrusion or damage and to
involving more than $250,000 either against Iran or NOTE: In the Philippines, the President appoints (Sec. 16, prevent any disturbance of the peace of the mission or Note: This privilege, however, only exempts a diplomatic
the US. Art.VII, Constitution), sends and instructs the diplomatic impairment of its dignity. agent from local jurisdiction; it does not import immunity
(3) Mixed Claims Tribunals established in the Treaties of and consular representatives. from legal liability.
Peace concluded at the end of WWI: Individuals Note: The principle of inviolability continues to apply even
enjoyed locus standi in actions against States relating Functions and Duties: if diplomatic relations are broken off, or if a mission is As to civil and administrative jurisdiction
to contracts, debts, and property adversely affected by (1) Represent the sending State in the receiving State; permanently or temporarily recalled. In that case, the The diplomatic agent also enjoys immunity from the civil
the war. (2) Protect in the receiving State the interests of the receiving state must respect and protect the premises of and administrative jurisdiction of the receiving State, even
(4) London Agreement of the International Military sending State and its nationals, within the limits the mission, together with its property and archives. [Art. with respect to his private life. [Art. 31, VCDR]
Tribunal at Nuremberg: In crimes against peace, war allowed by international law; 45, VCDR]
crimes and crimes against humanity, international law (3) Negotiate with the government of the receiving State; But there are exceptions:
imposes duties and liabilities upon individuals as well (4) Ascertain, by all lawful means, the conditions and What does the “premises of the mission” include? (1) A real action relating to private immovable property
as upon States. developments in the receiving State and reporting the In the first place, it means “the buildings or parts of the situated in the territory of the receiving state, unless he
(5) Art. VI of the Convention on the Prevention and same to the sending State; buildings and the land ancillary thereto, irrespective of holds it in behalf of the sending state for the purposes
Punishment of the Crime of Genocide: “Parties charged (5) Promote friendly relations between the sending State ownership, used for the purposes of the mission including of the mission.
with genocide” refers to individuals whose and receiving State, and developing their economic, the residence of the head of the mission. (2) An action relating to succession in which the
responsibility is thus under international law. cultural and scientific relations [Art. 3(1), VCDR] diplomatic agent involved as executor, administrator,
(6) If diplomatic relation is severed, entrust the protection The mission need not be the owner of the premises heir or legatee as a private person and not on behalf of
of its nationals to the diplomatic mission of a third The expression “premises of the mission” includes the the sending state.
State acceptable to the receiving State [Art. 45, VCDR] buildings for the purposes of the mission, whether they are (3) An action relating to any professional or commercial
Diplomatic and Consular Law (7) May protect the interest of a third State by agreement
with the receiving State, if there is no diplomatic
owned by the Sending state or by a third party acting for its
account or are leased and are rented. [ILC Yearbook, vol II,
activity exercised by the diplomatic agent in the
receiving state outside his official functions. [Art. 31(1),
relations between the third State and the receiving p.95, 1958] VCDR]
Diplomatic Intercourse, also referred to as the Right of State [Art. 46, VCDR] His properties are not subject to garnishment, seizure for
Legation, is the right of the State to send and receive The premises occupied by a diplomatic mission, including debt, execution and the like.
diplomatic missions, which enables States to carry on DIPLOMATIC IMMUNITIES AND PRIVILEGES (ASKED 9 the private residence of the diplomatic agent, are inviolable.
friendly intercourse. TIMES IN THE BAR) [Art. 30, VCDR] The diplomatic agent also cannot be compelled to testify,
THEORETICAL BASIS OF DIPLOMATIC PRIVILEGES AND IMMUNITIES not even by deposition, before any judicial or
AGENTS OF DIPLOMATIC INTERCOURSE (1) Extraterritoriality theory – the premises of the Note: Such premises cannot be entered or searched, and administrative tribunal in the receiving State without the
HEAD OF STATE diplomatic mission represent a sort of extension of the neither can the goods, records and archives be detained by consent of his government.
The head of State represents the sovereignty of the State, territory of the sending State local authorities even under lawful process. The envoy
and enjoys the right to special protection for his physical (2) Representational theory – the diplomatic mission must consent to such entry, except in extreme cases of Who are the persons entitled to immunity from jurisdiction?
safety and the preservation of his honor and reputation. personifies the sending State necessity (ex. When there is imminent danger that a crime (1) Diplomatic agent
(3) Functional necessity theory – privileges and immunities of violence is to be perpetrated in the premises; when the (2) Members of the family of the diplomatic agent forming
Upon the principle of exterritoriality, his quarters, archives, are necessary to enable the diplomatic mission to premises are on fire). part of his household, who are not nationals of the
property and means of transportation are inviolate. perform its functions receiving State
PAGE 177 PAGE 178

(3) As to criminal jurisdiction, members of the (3) Members of the service staff of the diplomatic mission, Territorial sovereignty, as has already been said, involves and (c) of the Convention, which give consular officers the
administrative and technical staff of the diplomatic who are not nationals of or permanent residents in the the exclusive right to display the activities of a State. This right to communicate with nationals of the sending state
mission, as well as members of their families forming receiving state, with respect to ‘emoluments they right has as corollary a duty: the obligation to protect and to have access to them, and give consular officers the
part of their respective households, who are not receive by reason of their employment’ within the territory the rights of other States, in particular right to visit a national of the sending state who is in
nationals of or permanent residents in the receiving (4) Private servants of members of the mission if they are their right to integrity and inviolability in peace and in war, prison, custody or detention. The World Court also held
state. But as to civil and administrative jurisdiction, not nationals or permanent residents of the receiving together with the rights which each State may claim for its that under the same article, the brothers had individual
immunity shall not extend to “acts performed outside state, with respect to ‘emoluments they receive by nationals in foreign territory. Without manifesting its rights that may be invoked before it by Germany.
the course of their duties’; and reason of their employment’. [Art. 37, VCDR] territorial sovereignty in a manner corresponding to
(4) Members of the service staff of the diplomatic mission, circumstances, the State cannot fulfil this duty. Territorial In the Avena case, Mexico sued the United States before
who are not nationals of or permanent residents in the Duration of Immunities and Privileges sovereignty cannot limit itself to its negative side, i.e. to the ICJ over the latter’s alleged failure to comply with the
receiving state, with respect to ‘acts performed in the These privileges are enjoyed by the envoy from the excluding the activities of other States; for it serves to Vienna Convention in 54 different cases involving Mexican
course of their duties’. [Art. 37, VCDR] moment he enters the territory of the receiving State, and divide between nations the space upon which human nationals who had been convicted and sentenced to death
shall cease when he leaves the country. With respect to activities are employed, in order to assure them at all by American courts. On March 31, 2004, the ICJ issued its
EXEMPTION FROM TAXES AND CUSTOMS DUTIES official acts, immunity shall continue indefinitely. points the minimum of protection of which international ruling in the case, holding that the United States.
Exemption from taxation has 2 aspects, one, pertaining to law is the guardian.
the sending state and another, pertaining to the Waiver of Immunities
diplomatic agent. Diplomatic privileges may be waived. Such waiver may be The ICJ held that the United States had breached its
In other words, the fact that one has sovereign claims over obligations under the Vienna Convention thus:
made only by the government of the sending State if it a piece of territory does not entitle it to wanton ill-
As to the sending state concerns the immunities of the head of the mission. In treatment of foreigners found within that territory, even
Exemption applies to “premises of the mission” whether other cases, the waiver may be made either by the assuming for the sake of argument that these foreigners (1) by failing to inform, without delay, 51 Mexican nationals
owned or leased, with respect to “all national, regional or government or by the chief of the mission. are alleged to have committed acts inimical to the of their rights under the Vienna Convention;
municipal dues and taxes”. [Art 23, VCDR] interests of the state. (2) by failing to inform, without delay, the appropriate
CONSULAR RELATIONS Mexican consular post of the detention of 49 Mexican
As to Diplomatic agents Consuls are State agents residing abroad for various nationals, thereby depriving Mexico of the right to
Are exempt from all dues and taxes, whether personal or purposes but mainly: In both the La Grand (2001) and Avena (2004) Cases, the render assistance to its nationals;
real, national, regional or municipal. [Art. 34, VCDR] (1) in the interest of commerce and navigation, International Court of Justice (ICJ) has laid down the (3) by depriving Mexico of the right to communicate with,
(2) issuance of visa (permit to visit his country), and positive duty of states to accord consular privileges to and have access to, 49 Mexican nationals in a timely
NOTE: He is also exempt from all customs duties of articles (3) such other functions as are designed to protect sending states whose nationals have run into trouble in the manner;
for the official use of the mission and those for the nationals of the appointing State. jurisdiction of the receiving states, pursuant to Art. 36 of (4) by depriving Mexico of the right to arrange for legal
personal use of the envoy or members of the family the Vienna Convention,. representation of 34 Mexican nationals in a timely
forming part of his household, including articles intended RANKS manner; and
for his establishment. Consul General: heads several consular districts, or one The right of a state to claim rights for its nationals abroad (5) by not permitting the review and reconsideration, in
exceptionally large consular district is referred to as “diplomatic protection”. Here, the duty of light of the rights set forth in the Vienna Convention, of
Baggage and effects are entitled to free entry and are Consul: in charge of a small district or town or port the state is to ensure that states treat their nationals the convictions and sentences of three Mexican
usually exempt from inspection. Vice Consul: assists the consul abroad in a manner that complies with human standards nationals currently awaiting execution.
Consular agent: one entrusted with the performance of recognized under the International Covenant on Civil and
Exception to Tax Exemption: certain functions by the consul Political rights, among others documents. Court held by way of providing a remedy to Mexico that the
As to sending state United States must provide "by means of its own choosing,
Exemption does NOT include dues or taxes which FUNCTIONS Art. 36 (1)(b) states thus: review and reconsideration of the convictions and
represent payment for specific services rendered. [Art. Consular functions include the following: If he so requests, the competent authorities of the sentences of the Mexican nationals." It added that to
23(1), VCDR] (1) Protecting the interests of the sending state in the receiving State shall, without delay, inform the consular satisfy the Court's judgment, the US must take into
territory of the receiving state; post of the sending State if, within its consular district, a account the rights set forth in Article 36 as well as the
As to diplomatic agents: (2) Protecting and assisting the nationals of the sending national of that State is arrested or committed to prison or relevant portions of the Court's opinion on this issue. The
(1) Indirect taxes incorporated in the price of goods state; to custody pending trial or is detained in any other manner. Court indicated that review and reconsideration must be
purchased or services availed (3) Furthering the development of commercial, economic, Any communication addressed to the consular post by the effective and must provide "a procedure which guarantees
(2) Dues and taxes on private immovable property situated cultural and scientific relations between the sending person arrested, in prison, custody or detention shall also that full weight is given to the violation of the rights set
in the receiving State state and the receiving state and promoting friendly be forwarded by the said authorities without delay. The forth in the Vienna Convention, whatever may be the
(3) Estate, succession or inheritance taxes levied by the relations between them; said authorities shall inform the person concerned without actual outcome of such review and reconsideration." In the
receiving State (4) Ascertaining by all lawful means the conditions and delay of his rights under this subparagraph. end, the ICJ denied Mexico's request to hold that a Vienna
(4) Dues and taxes on private income sourced within the developments in the commercial, economic, and Convention violation must automatically result in the
receiving State cultural and scientific life of the receiving state, partial or total annulment of conviction or sentence.
(5) Capital taxes on investments in commercial ventures in reporting thereon to the government of the sending In the La Grand case, the facts were: Walter La Grand and
the receiving State state, and giving information to persons interested; his brother, who were German nationals residing in the
United States, were arrested and sentenced to death in NECESSARY DOCUMENTS
(6) Charges levied for specific services rendered (5) Issuing passports and travel documents to nationals of The following documents are necessary for the assumption
(7) Registration, court or record fees, mortgage dues and the sending state and visas and travel documents to Arizona in 1982 in connection with armed robbery and
murder. However, they were not informed of their rights of Consular functions:
stamp duty, with respect to immovable property. [Art. persons wishing to travel to the sending state; (1) Letters Patent (letter de provision) – the letter of
34, VCDR] (6) Acting as notary, civil registrar and similar under the Vienna Convention on Consular Relations, a
multilateral treaty to which both Germany and the United appointment or commission which is transmitted by
administrative capacities; and the sending state to the Secretary of Foreign Affairs of
Who are entitled to exemption from taxation in addition to (7) Exercising rights of supervision and inspection States are states parties.
the country where the consul is to serve.
the diplomatic agent? pertaining to the sending state as flag state and state (2) Exequatur – the authorization given to the consul by the
(1) Members of the family of the diplomatic agent forming of registry of aircraft. Their court-appointed counsel did not raise the issue of sovereign of the receiving State, allowing him to
part of his household, who are not nationals of the non-compliance with the Vienna Convention of the United exercise his function within the territory.
receiving State According to the Swiss arbitrator Max Huber in the Las States in the brothers’ case, either at the court of origin or
(2) Members of the administrative and technical staff of Palmas case, one state's sovereignty over its territory on appeal. The matter was only raised in a federal habeas IMMUNITIES AND PRIVILEGES
the diplomatic mission, as well as members of their comes with the concomitant obligations towards the rights corpus petition, by which time it was already too late. Freedom of communication;
families forming part of their respective households, of other States: (1) The receiving state shall permit and protect freedom of
who are not nationals of or permanent residents in the On the merits, the ICJ ruled that the US had breached its information on the part of the consular post for all
receiving state. obligations to Germany under article 36, paragraphs (1)(a) official purposes;
PAGE 179 PAGE 180
(2) In communicating with the government, the diplomatic Scope of personal inviolability of consular officials Article 2(1) of the Vienna Convention on the Law of Treaties departmental heads. The technique of exchange of notes
missions and other consular posts of the sending state, (a) They are not liable to arrest or detention pending trial, (Vienna Convention) defines a treaty as follows: is frequently resorted to, either because of its speedy
the consular post may employ all appropriate means, except in case of a grave crime and pursuant to a [A]n international agreement concluded between States procedure, or, sometimes, to avoid the process of
including diplomatic or consular bags and messages in decision of a competent judicial authority. in written form and governed by international law, legislative approval.
code or cipher; (b) They shall not be committed to prison nor be subject to whether embodied in a single instrument or in two or
(3) The official correspondence of the consular post shall any other form of restriction to personal freedom, more related instruments and whatever its particular The Supreme Court held that "treaties, agreements,
be inviolable; except in the case of grave crime pursuant to a decision designation. conventions, charters, protocols, declarations, memoranda
(4) The consular bag shall neither be opened nor detained. of competent judicial authority, or in the execution of a In Bayan Muna v. Romulo (2011), this Court held that an of understanding, modus vivendi and exchange of notes"
final judicial decision. [Sec. 41, VCCR] executive agreement is similar to a treaty, except that all refer to "international instruments binding at
the former (a) does not require legislative concurrence; international law." Both the 1969 Vienna Convention and
But, may the receiving state request that the consular bag be Are consular officers and employees entitled to immunity (b) is usually less formal; and (c) deals with a narrower the 1986 Vienna Convention do not distinguish between
opened? from the jurisdiction of administrative and judicial range of subject matters. the different designations of these instruments. Instead,
YES, if the authorities have serious reasons to believe that authorities in the receiving state? Despite these differences, to be considered an executive their rules apply to all of those instruments as long as they
the bag contains something other than correspondence, YES, but this immunity shall not apply to a civil action agreement, the following three requisites provided meet the common requirements.
documents or articles “intend exclusively for official use”. either: under the Vienna Convention must nevertheless concur: Agreements concluded by the President which fall short of
(a) arising out of a contract by a consular officer or (a) the agreement must be between states; (b) it must treaties are commonly referred to as executive agreements
If the request is accepted – the bag may be opened in the employee, which he did not conclude expressly or be written; and (c) it must governed by international law. and are no less common in our scheme of government
presence of the authorized representative of the sending impliedly as an agent of the sending state; or The first and the third requisites do not obtain in the than are the more formal instruments: treaties and
state. (b) by a third party for damage arising from an accident case at bar. conventions. They sometimes take the form of exchange of
caused by vehicle, vessel or aircraft in the receiving notes and at other times that of more formal documents
If the request is refused – the bag shall be returned to its state. [Art. 43, VCCR] First, the Supreme Court said that CNMEG, the Chinese denominated "agreements" or "protocols".
place of origin. [Art. 35, VCCR] contractor, is neither a government nor a government
agency, noting that Contract Agreement was not REQUISITES FOR VALIDITY
Inviolability of archives; concluded between the Philippines and China, but (1) Treaty Making Capacity
Inviolability is unconditional. They shall be inviolable at all
times and wherever they may be. [Art. 33, VCCR] Treaties between Northrail and CNMEG. Indeed, By the terms of
the Contract Agreement, Northrail is a government-owned
Possessed by all states as an attribute of sovereignty.
International organizations also possess treaty-making
or -controlled corporation, while CNMEG is a corporation capacity, although limited by the organization’s
Inviolability of premises; A 'treaty' is: duly organized and created under the laws of the People’s purpose.
What is the scope of the inviolability of consular premises? (1) an international agreement Republic of China. Thus, both Northrail and CNMEG (2) Competence of the Representative/Organ Making the
(1) Authorities of the receiving state shall not enter that (2) concluded between States entered into the Contract Agreement as entities with Treaty
part of the consular premises exclusively used for (3) in written form and personalities distinct and separate from the Philippine and Generally exercised by the head of state.
consular work, except with the consent of the head of (4) governed by international law, Chinese governments, respectively. Full Powers
the consular post, his designee, or the head of the (5) whether embodied in a single instrument or in two or Refers to the authority of a person to sign a treaty or
diplomatic mission; but consent of the consular head more related instruments and Second, neither can it be said that CNMEG acted as agent convention on behalf of a state.
“may be assumed in case of fire or other disaster (6) whatever its particular designation [Art.2(1), Vienna of the Chinese government. The fact that the Chinese Plenipotentiary
requiring prompt protective action; Convention on the Law of Treaties or VCLOT] Ambassador to Manila, in his letter dated 1 October Persons other than the head of state, head of
(2) The receiving state has the special duty to take all 2003, described CNMEG as a "state corporation" and government or foreign minister must produce such
appropriate steps to protect the consular premises Under the VCLOT, the term “treaty” includes all declared its designation as the Primary Contractor in the instrument in order to sign a treaty binding their
against intrusion or damage and to prevent any agreements between states, regardless of how they are Northrail Project, did not mean it was to perform government. Such a person is called a plenipotentiary.
disturbance of peace of the consular post or called. Thus, for purposes of international law, treaties, sovereign functions on behalf of China. That label was only (3) Parties Must Freely Give Consent: If consent was given
impairment of its dignity executive agreements, exchanges of notes, etc. are all descriptive of its nature as a state-owned corporation, and erroneously, or it was induced by fraud, the treaty shall
(3) Consular premises, their furnishings, the property of the treaties. Note, however, that Philippine law makes a did not preclude it from engaging in purely commercial or be voidable.
consular post and its means of transport shall be distinction between treaties and executive agreements. proprietary ventures. (4) Object and Subject Matter Must be Lawful
immune from any form of requisition “for purposes of Both are equally binding, but only treaties require the (5) Ratification in Accordance with the Constitutional
national defense or public utility”. concurrence of the Senate to be effective. Finally, the Contract Agreement itself expressly stated that Process of the Parties Concerned
(4) In case of consular premises, their furnishings, the is to be governed by Philippine law, while as defined in the
property of the consular post and its means of Treaty Executive Agreements VCLOT, a treaty or an executive agreement is governed by THE TREATY-MAKING PROCESS
transport are expropriated for national defense or international law. NEGOTIATION
public utility, “all possible steps shall be taken to avoid Subject Matter
State representatives discuss the terms and provisions of
impending the performance of consular functions, and (1) Political Issues (1) Transitory effectivity
But contrast the holding of the Court in Northrail with its the treaty.
prompt, adequate and effective compensation shall be (2) Changes in national (2) Adjusts details to carry
policy out well-established ruling in the earlier case of Abaya v. Ebdane (2007), where
paid to the sending state. [Art. 31, VCCR] the High Court ruled that a loan agreement, coupled with
(3) Involves international national policies and
agreements of a traditions an exchange of notes between two governments,
Consular premises constitutes an Executive Agreement. The Exchange of ADOPTION [ART. 9, VCLOT]
“The buildings or parts of buildings and the land ancillary permanent character (3) Temporary
Notes indicated that the two governments have reached It means that the form and content have been settled by
thereto, irrespective of ownership, used exclusively for the (4) Implements treaties,
an understanding concerning Japanese loans to be the negotiating States. It is preparatory to the
purposes of consular post”. statutes, policies
extended to the Philippines and that these loans were authentication of the text of the treaty and to its
Ratification signature.
aimed at promoting our country’s economic stabilization
Consular Premises have: Requires ratification by Does not require
and development efforts.
(1) Exemption from local jurisdiction for offenses the 2/3 of the Senate to concurrence by Senate to be
committed in the discharge of official functions, but not be valid and effective (Art. binding
An Exchange of Notes is a record of a routine agreement
for other offense except for minor infractions; VII, Sec. 21)
that has many similarities with the private law contract. AUTHENTICATION OF THE TEXT (ART. 10, VCLOT)
(2) Exemption from testifying on official communications The agreement consists of the exchange of two It means that the stage where the definitive text of the
or on matters pertaining to consular functions; In the Northrail case, [China National Machinery &
documents, each of the parties being in the possession of treaty is established as the correct and authentic one.
(3) Exemption from taxes, customs duties, military or jury Equipment Corp. (Group) v. Sta. Maria, et al. (2012)] the
the one signed by the representative of the other. Under
service. Supreme Court held that the Contract Agreement in
the usual procedure, the accepting State repeats the text
(4) Personal inviolability of consular officials question does not partake the nature of an executive
of the offering State to record its assent. The signatories of
agreement on the following discussion:
the letters may be government Ministers, diplomats or
PAGE 181 PAGE 182

EXPRESSION OF CONSENT TO THE BOUND BY THE TREATY [ART. 11, Pimentel v. Executive Secretary (2005) : The power to ratify (c) on the alien woman upon marriage to a national
VCLOT] is vested in the President, subject to the concurrence of the A contracting state may unilaterally withdraw from a treaty Note: An alien woman married to a Filipino shall acquire
Senate. The role of the Senate is limited only to giving or when a vital or fundamental change of circumstance his citizenship only if she herself might be lawfully
withholding its consent, or concurrence, to the ratification. occurs such that the foundation upon which its consent to naturalized. [Yao v. Commissioner of Immigration (1971)]
Although the refusal of a state to ratify a treaty which has be bound initially rested has disappeared. [Art. 62, VCLOT]
REGISTRATION WITH UN been signed in its behalf is a serious step that should not Multiple Nationality – acquired as the result of the
be taken lightly, such decision is within the competence of concurrent application to an individual of the conflicting
Requisites of rebus sic stantibus:
Consent to be bound by the terms of a treaty may be the President alone, which cannot be encroached by SC via (a) Change is so substantial that the foundation of the municipal laws of two or more states claiming him as their
expressed through: a writ of mandamus. SC has no jurisdiction over actions national
treaty has altogether disappeared
(1) Signature, when the negotiator is authorized to sign the seeking to enjoin the President in the performance of his
(b) Change was unforeseen or unforeseeable at the
treaty; official duties. time of the treaty’s perfection Illustrations
(1) A child born in the United States of Filipino parents
Signature alone would be sufficient to bind the state to the (c) Change was not caused by the party invoking the
AMENDMENT OR MODIFICATION OF TREATY
doctrine would be an American national under jus soli and a
obligations under the treaty if: General Rule: Consent of all parties is required. Filipino national under jus sanguinis
(a) the treaty provides that signature shall have that effect; (d) Doctrine was invoked within a reasonable time
(2) A woman marrying a foreigner may retain her own
(b) it is otherwise established that the negotiating States (e) Treaty’s duration is indefinite
Exception: If the treaty itself so allows, two States may (f) Doctrine cannot operate retroactively (it must not nationality under the laws of her state while also
agreed that signature should have that effect; or modify a provision only insofar as their relationship inter se. acquiring the nationality of her husband under the laws
(c) if the State can be shown to have had the intention to adversely affect provisions which have already been
of his state
be bound by the signature (look at full powers of its complied with prior to the vital change)
RESERVATIONS
representative). [Art. 12(1), VCLOT] A unilateral statement made by a state upon entering a Doctrine of indelible allegiance - an individual may be
(10) Outbreak of war between the parties, unless the treaty
treaty whereby it purports to exclude or modify the legal relates to the conduct of war (ex. The Four Geneva compelled to retain his original nationality
(2) Ratification, the formal consent to the treaty given by effect of certain provision/s of the treaty in their application notwithstanding that he has already renounced or forfeited
the Head of State, sometimes in conjunction with the Conventions).
to the reserving state [Art. 19, VCLOT]. it under the laws of a second state whose nationality he
legislature; or (11) Severance of diplomatic relations (if such relationship is
indispensable for the treaty’s application). has acquired
Exceptions: A reservation shall not operate to modify or
Under international law, ratification is necessary when: (12) Jus Cogens Application: Emergence of a new
exclude the provisions of a treaty: A state conferring honorary citizenship upon an individual
(a) the treaty provides for such consent to be expressed by peremptory norm of general international law which
(1) Where the treaty expressly prohibits reservations in renders void any existing, conflicting treaty.
means of ratification; general; HAGUE CONVENTION OF 1930 ON CONFLICT OF NATIONALITY
(b) it is otherwise established that the negotiating States (2) Where the treaty expressly prohibits that specific LAWS
agreed that ratification should be required; reservation being made; or Any question as to whether a person possesses the
(c) The representative of the State has signed the treaty (3) Where the reservation is incompatible with treaty’s nationality of a particular state shall be determined in
subject to ratification [Art.14 (1), VCLOT], that is, when
the intent was to make it subject to ratification.
object and purpose [Reservation to the Genocide
Conventions Advisory Opinion]
Nationality and Statelessness accordance with the law of that state. These laws shall be
recognized by other states so long as they are consistent
with international conventions, international customs and
(3) Exchange of instruments Constituting the Treaty NATIONALITY
INVALID TREATIES The tie that binds and individual to his state, from which he the principles of law generally recognized with regard to
(4) Acceptance (1) If the treaty violates a jus cogens norm of international nationality.
(5) Approval can claim protection and whose laws he is obliged to obey.
law (void); It is membership in a political community with all its
(6) Accession - The method by which a State, under certain (2) If the conclusion of a treaty is procured by threat or use PRINCIPLE OF EFFECTIVE NATIONALITY
conditions, becomes a party to a treaty of which it is not concomitant rights and obligations.
of force (void); Within a third state, a person having more than one
a signatory and in the negotiation of which it did not (3) Error of fact, provided that such fact formed an essential nationality shall be treated as if he had only one. The third
take part Why important in international law
basis of a state’s consent to be bound; state shall recognize conclusively in its territory either the
(7) By any other means agreed by the parties An individual ordinarily can participate in international
(4) If the representative of a state was corrupted to consent nationality of the country in which he is habitually and
relations only through the instrumentality of the state to
by another negotiating state; which he belongs, as when his government asserts a claim principally present or the nationality of the country with
DOCTRINE OF TRANSFORMATION (5) If consent was obtained through fraudulent conduct of which he appears to be in fact most closely connected.
In Philippine Law, treaties have to be transformed in order on his behalf for injuries suffered by him in a foreign
another negotiating state; jurisdiction. This remedy would not be available to a
to be part of Philippine law. (6) If the representative consented in violation of specific The courts of third States...seek to resolve the conflict by
stateless individual.
restrictions on authority, provided: having recourse to international criteria and their
A treaty is “transformed” when a treaty is ratified after it (a) the restriction was notified to the other negotiating prevailing tendency is to prefer the real and effective
has been concurred in by the Senate [Sec. 21, Art.VII, ACQUISITION
States nationality. [Nottebohm Case , Leichtenstein v. Guatemala
Constitution]. After ratification, a treaty shall be deemed as BY BIRTH
(b) prior to the representative expressing such consent; (1955)]
if legislated by our Legislature. (1) Jus soli – nationality of the state where he is born
(7) If consent was given in violation of provisions of internal (2) Jus sanguinis – nationality of his parents
law regarding competence to conclude treaties that is LOSS OF NATIONALITY
La Chemise Lacoste v. Fernandez (1984): Lacoste, a French manifest and of fundamental importance. VOLUNTARY
corporation, sued local counterfeiters before Philippine BY NATURALIZATION
A process by which a foreigner acquires, voluntarily or by (1) Renunciation (express or implied)
courts. When the counterfeiters challenged its legal GROUNDS FOR TERMINATION (2) Request for release
personality to sue before Philippine courts, the Court held operation of law, the nationality of another state
(1) Expiration of the term, or withdrawal of a party in
that the Philippines has ratified international conventions accordance with the treaty; INVOLUNTARY
for the protection of intellectual property, and it would 2 Types of Naturalization
(2) Extinction of a party to the treaty, when the treaty rights (1) Forfeiture as a result of some disqualification or
frustrate the object of these conventions if Lacoste is (1) Direct
and obligations would not devolve upon the successor- (a) by individual proceedings, usually judicial, under prohibited act
barred from filing its claims directly in Philippine courts. state; (2) Substitution of one nationality for another
general naturalization laws
(3) Mutual agreement of parties; (b) by special act of legislature
PHILIPPINE LAW (4) Denunciation or desistance by a party; STATELESSNESS
In the Philippines, the negotiation of treaties and their (c) by collective change of nationality as a result of
(5) Supervening impossibility of performance; The condition or status of an individual who is born without
ratification are executive functions, subject to concurrence cession or subrogation (naturalization en masse)
(6) Conclusion of a subsequent inconsistent treaty; (d) by adoption (in some cases) any nationality or who loses his nationality without
of the Senate. Under Sec. 21, Art. VII, (Treaty Clause) of the (7) Loss of subject matter; retaining or acquiring another. [Cruz]
Constitution, treaties must receive the concurrence of the (2) Derivative – usually subject to stringent restrictions and
(8) Material breach or violation of treaty
Senate before they may be effective. conditions
(9) Fundamental Change of Circumstance (Rebus sic (a) on the wife of the naturalized husband THE UNIVERSAL DECLARATION OF HUMAN RIGHTS:
stantibus) (1) Everyone has the right to a nationality.
(b) on the minor children of the naturalized parent
PAGE 183 PAGE 184
(2) No one shall be arbitrarily deprived of his nationality Note: Under Art. 32, the responsible State may not rely on Satisfaction may consist in an acknowledgement of the law. It also ruled that state assets are also immune from
nor denied the right to change his nationality. the provisions of its internal law as justification for failure breach, an expression of regret, a formal apology or execution in connection with such claim.
to comply with its obligations to make reparations. another appropriate modality.
COVENANT RELATING TO THE STATUS OF STATELESS PERSONS The case arose from a series of Italian domestic court
A stateless person is entitled to, among others, the right to Reparation for the taking of property requires Satisfaction shall not be out of proportion to the injury and decisions awarding civil damages against Germany for
religion and religious instruction, access to courts, compensation. Reparation is due when there is a breach of may not take a form humiliating to the responsible State. forced labor committed during World War II. While
elementary education, public relief and assistance and an obligation. Germany has acknowledged that it committed grave
rationing of products in short supply, as well as treatment breaches of international humanitarian law during the war,
of no less favorable than that accorded to aliens. When an expropriation is legal, the amount of the it nonetheless insisted that claims against it should be
reparation is the logistical value of the property taken at
the time of the expropriation. However, when there is an Jurisdiction of States brought pursuant to its domestic law authorizing payment
of compensation to individuals for these breaches and
State Responsibility unlawful taking, the amount of reparation includes the

intangible assets (loss of profits).
The power of a State under international law to govern
persons and property by its municipal law. This may be
before German courts. However, German courts closed
that option as well, because they held that there can be no
criminal or civil, and may be exclusive or concurrent with compensation for forced labor for individuals held as
DOCTRINE OF STATE RESPONSIBILITY But a state may not be compelled to enforce a concession other States. [Harris] POWs. Germany has insisted that under the Geneva
It is a set of principles for when and how shall become agreement with a private entity through an action for Conventions, POWs may be compelled to work by the
responsible for breaches of international obligation and specific performance: PRINCIPLES OF STATE JURISDICTION detaining power.
who shall be held responsible for such. (1) Territoriality Principle: Jurisdiction is determined by
“The impossibility of restitution and specific performance. reference to the place where the act occurred or was The ICJ ruled in favor of Germany by saying that under
Every internationally wrongful act of a State entails the The claim would not even be realistic; such an action, committed customary international law, the rule remains that a state
international responsibility of that State [Article 1, Draft which has the effect of turning back the clock would upset (2) Nationality Principle: A court has jurisdiction if the is absolutely immune from suits for acts committed by its
Articles on the Responsibility of States for Internationally the current situation too profoundly and would have offender is a national of the forum State military troops in the territory of the claimant state. Thus, it
Wrongful Acts or “Draft Articles”] unforeseeable practical consequences. Furthermore, if (3) Protective Principle: A court is vested with jurisdiction if a ruled a violation of a jus cogens norm, even if was
awarded now and the contract would still be allowed to national interest or policy is injured or violated acknowledged by Germany, cannot trump state immunity
ELEMENTS [ARTICLE 2, DRAFT ARTICLES]: exist indefinitely, the amount would be so great it would be (4) Universality Principle: Jurisdiction is asserted with and does not constitute its waiver. The principle of state
There is an internationally wrongful act of a State when absurd. respect to acts considered committed against the immunity deriving from the principle of sovereign equality
conduct consisting of an action or omission: whole world, like piracy. [People v. Lo-lo and Saraw, of states is much too established in international law to be
(1) Is attributable to the State under international law; and A rule of reason therefore dictates a result which conforms (1922)] set aside, according to the ICJ.
(2) Constitutes a breach of an international obligation of a to international law, evidenced by state practice and the (5) Passive Personality Principle: A court has jurisdiction if
State law of treaties, and to governing principles of English and the victim of the act is a national of the forum State. Roque’s critique: “In ruling in the manner that it did, the
American contract law. The conclusion is thus: when by [S.S. Lotus Case (1927)] ICJ applied an already disregarded notion that
Note: The characterization of an act of a State as exercise of sovereign power a State committed a international law is only about the application of legal
internationally wrongful is governed by international law. fundamental breach of a concession agreement by RESERVED DOMAIN OF DOMESTIC JURISDICTION rules. In fact, bulk of the Court’s opinion was devoted to an
Such characterization is not affected by the repudiating it through a nationalization of the enterprise It is the domain of State activities where the jurisdiction of examination of what the law is, assuming perhaps that
characterization of the same act as lawful by internal law. and its assets in a manner which implies finality, the the State is not bound by international law. The extent of what is may be divorced from why it is law and what it
[Article 3, Draft Articles] concessionaire is not entitled to call for specific this domain depends on international law and varies seeks to accomplish. International law is law only because
performance by the Government of the agreement and according to its development, i.e. when a norm crystallizes states accept it as such. While states may have varying
ACTS THAT ARE ATTRIBUTABLE TO STATES UNDER THE DRAFT reinstatement of his contractual rights, but his sole remedy into custom). reasons why they acknowledge it to be law, the fact
ARTICLES is an action for damages” [BP v. Libya (1973-74]. remains that like all laws, international law forms part of
(1) Conducts of organs of a State [Art. 4] The reservation of this domain, however, is without normative system. It prescribes conduct deemed beneficial
(2) Conducts of persons or entities exercising elements of FORMS OF REPARATION prejudice to the use of enforcement measures under to all of humanity and prohibits conducts that are
governmental authority [Art. 5] Restitution [Art. 35] Chapter VII of the U.N. Charter. otherwise.
(3) Conducts of organs places at the disposal of a State by A State responsible for an internationally wrongful act is
another State [Art. 6] under an obligation to make restitution, that is, to re- DOCTRINE OF STATE IMMUNITY This means that in the application of rules, the Court
(4) Acts done in excess of authority or in contravention of establish the situation which existed before the wrongful It refers to a principle by which a State, its agents, and should have considered what is more beneficial to
instructions [ultra vires acts] [Art. 7] act was committed, provided and to the extent that property are immune from the jurisdiction of another State humanity: the cold application of the principle of sovereign
(5) Conduct directed or controlled by a State [Art. 8] restitution: [Magallona]. This principle is premised on the juridical immunity or the primacy of protecting civilian and POWS in
(6) Conduct carried out in the absence or default of the (1) is not materially impossible; equality of States, according to which a State may not times of armed conflict. While it is true that sovereign
official authorities [Art. 9] (2) does not involve a burden out of all proportion to the impose its authority or extend its jurisdiction to another equality of states is a foundational principle of the law, the
(7) Conduct of an insurrectional or other movements [Art. benefit deriving from restitution instead of State without the consent of the latter through a waiver of same is true also of the principle that that human rights
10] compensation. immunity. For example, domestic courts must thus decline have also ceased to be purely domestic issue.
(8) Conduct acknowledged and adopted by a State as its to hear cases against foreign sovereigns out of deference
own [Art. 11] Compensation [Art. 36] to their role as sovereigns. The fact that the ICJ gave primacy to the principle of
The State responsible for an internationally wrongful act is sovereign immunity from suits ignores why these rules
CONSEQUENCES OF STATE RESPONSIBILITY under an obligation to compensate for the damage caused Absolute Sovereign Immunity- A Sate cannot be sued in a exist in the first place; that is, to protect the interests of
The State responsible for the wrongful act is under the thereby, insofar as such damage is not made good by foreign court no matter what the act it is sued for individuals and not the interest of an artificial being that is
obligation to: restitution. a state. As some have noted, international law protects for
(1) Cease the act if it is still continuing; and Restrictive Sovereign Immunity- A State is immune from instance, the environment—not because the ocean or the
(2) Offer appropriate assurances and guarantees of non- The compensation shall cover any financially assessable suits involving governmental actions (jure imperii), but not air should be protected as such. We do so ultimately
repetition [Art. 30, Draft Articles] damage including loss of profits insofar as it is established. from those arising from commercial or non-governmental because human beings require clean water and air.
activity (jure gestionis).
DUTY TO MAKE REPARATIONS [ART. 31, DRAFT ARTICLES] Satisfaction [Art. 37] True, the Court expressly said that its ruling does not affect
(1) The responsible State is under an obligation to make The State responsible for an internationally wrongful act is In its February 3, 2012 decision in the case of Germany v. the liability of state agents when they themselves commit
full reparation for the injury caused by the under an obligation to give satisfaction for the injury Italy, the International Court of Justice held that the egregious acts. But why should there be a distinction?
internationally wrongful act. caused by that act insofar as it cannot be made good by principle of sovereign immunity from suits is a customary Precisely because a state can only act only though its
(2) Injury includes any damage, whether material or moral, restitution or compensation. norm of international law that holds, unless waived by the agent, there should be no distinction hence between suits
caused by the internationally wrongful act of a State. state concerned. The ICJ stressed that such immunity against the state itself and against its agents.”
applies even if the claim against the state is for violation of
a peremptory norm – a jus cogens norm – in international
PAGE 185 PAGE 186
In the Northrail case [China National Machinery & Comment of the OSG is it manifested that the DFA has an individual, where any of those individuals resides; or (e)
Equipment Corp. (Group) v. Sta. Maria, et al. (2012)]: The endorsed GTZ’s claim, or that the OSG had solicited the in the National Capital Judicial Region. However the Court said the Respondent is responsible for
Supreme Court, on the question of which agency DFA’s views on the issue. The arguments raised by the failing to prevent Serbian forces from committing the
determines whether an entity is immune from suit in OSG are virtually the same as the arguments raised by From all the foregoing, it is clear that CNMEG has agreed genocide in Srebrenica. Consequently, the question arose
Philippine jurisdiction, held that: GTZ without any indication of any special and distinct that it will not be afforded immunity from suit. Thus, the as to whether the Respondent is also liable to pay
perspective maintained by the Philippine government on courts have the competence and jurisdiction to ascertain reparations for damages suffered by the Applicant for its
“The question now is whether any agency of the Executive the issue. The Comment filed by the OSG does not inspire the validity of the Contract Agreement.” failure to abide by its duty to prevent genocide. The Court
Branch can make a determination of immunity from suit, the same degree of confidence as a certification from the said there should be a ‘sufficiently direct and certain causal
which may be considered as conclusive upon the courts. DFA would have elicited.(Emphasis supplied.) May a state’s naval vessel be proceeded against to answer nexus’ between the damage incurred by the Applicant and
This Court, in Department of Foreign Affairs (DFA) v. for the former’s financial liabilities to a third party? In the the Respondent’s breach of the obligation to prevent
National Labor Relations Commission (NLRC), emphasized In the case at bar, CNMEG offers the Certification executed 2012 The “ARA Libertad” Case [Argentina v. Ghana(2012)], genocide. Moreover, such a nexus obtains if it is able to
the DFA’s competence and authority to provide such by the Economic and Commercial Office of the Embassy of the International Tribunal on the Law of the Sea (ITLOS) establish ‘from the case as a whole and with a sufficient
necessary determination, to wit: the People’s Republic of China, stating that the Northrail held that , “in accordance with general international law, a degree of certainty that the genocide at Srebrenica would
Project is in pursuit of a sovereign activity. Surely, this is not warship enjoys immunity” and that “any act which prevents in fact have been averted if the Respondent had acted in
The DFA’s function includes, among its other mandates, the kind of certification that can establish CNMEG’s by force a warship from discharging its mission and duties compliance with its legal obligations.’ To do this, it must
the determination of persons and institutions covered by entitlement to immunity from suit, as Holy is a source of conflict that may endanger friendly relations ask itself ‘whether, and to what extent’ the injury asserted
diplomatic immunities, a determination which, when See unequivocally refers to the determination of the among States”. This is pursuant to Art. 32 of the UNCLOS, by the Applicant is the result of wrongful conduct by the
challenge, (sic) entitles it to seek relief from the court so “Foreign Office of the state where it is sued.” which states that: “Immunities of warships and other Respondent. Its conclusion: a financial award cannot be
as not to seriously impair the conduct of the country's government ships operated for non-commercial purposes done, as no such nexus can be established. However, the
foreign relations. The DFA must be allowed to plead its Further, CNMEG also claims that its immunity from suit With such exceptions as are contained in subsection A and Court ruled that satisfaction in the form of a declaration
case whenever necessary or advisable to enable it to has the executive endorsement of both the OSG and the in articles 30 and 31, nothing in this Convention affects the that the Respondent failed to perform its duty to prevent
help keep the credibility of the Philippine government Office of the Government Corporate Counsel (OGCC), immunities of warships and other government ships genocide under the Convention is in order.
before the international community. When international which must be respected by the courts. However, as operated for non-commercial purposes.”
agreements are concluded, the parties thereto are expressly enunciated in Deutsche Gesellschaft, this Applicant argued that genocide is such a complex crime
deemed to have likewise accepted the responsibility of determination by the OSG, or by the OGCC for that matter, involving so many specific acts that it requires a
seeing to it that their agreements are duly regarded. In does not inspire the same degree of confidence as a DFA reexamination of the effective control test established in
our country, this task falls principally of (sic) the DFA as
being the highest executive department with the
certification. Even with a DFA certification, however, it
must be remembered that this Court is not precluded from Treatment of Aliens the Nicaragua case (the need to establish specific direction
and control by the state of alleged agents who perpetrated
competence and authority to so act in this aspect of the making an inquiry into the intrinsic correctness of such the crime), and proposed instead the “over-all control test”
international arena. (Emphasis supplied.) certification. “ General Rule: An alien cannot claim a preferred position reached in the Tadic case by the International Tribunal on
vis-a-vis the national of the state. the Former Yugoslavia (ICTY). How did the Court address
Further, the fact that this authority is exclusive to the DFA In the same case, the High Court said that an agreement to this?
was also emphasized in this Court’s ruling in Deutsche arbitrate is an implied waiver of immunity: INTERNATIONAL STANDARD OF JUSTICE
Gesellschaft: The standard of the reasonable state and calls for The ICJ said the “over-all control test” was only relevant in
“In the United States, the Foreign Sovereign Immunities compliance with the ordinary norms of official conduct in so far as the question of the characterization of the
It is to be recalled that the Labor Arbiter, in both of his Act of 1976 provides for a waiver by implication of state observed in civilized jurisdictions Yugoslav conflict as an international armed conflict or
immunity. In the said law, the agreement to submit whether or not the conflict has been internationalized; it is
rulings, noted that it was imperative for petitioners to
disputes to arbitration in a foreign country is construed DOCTRINE OF STATE RESPONSIBILITY (WITH not relevant in so far but not to the task of determining
secure from the Department of Foreign Affairs “a as an implicit waiver of immunity from suit. Although SPECIFIC REGARD TO TREATMENT OF ALIENS)
certification of respondents’ diplomatic status and whether a state is responsible for the acts of certain non-
there is no similar law in the Philippines, there is reason A state may be held responsible for state organs involved in that same international armed
entitlement to diplomatic privileges including immunity to apply the legal reasoning behind the waiver in this (1) an international delinquency conflict. The ICJ said applying the new test in a question of
from suits.” The requirement might not necessarily be case…. (2) directly or indirectly imputable to it state responsibility is improper, as the test was employed
imperative. However, had GTZ obtained such certification (3) which causes injury to the national of another state in a case that pertained mainly to individual criminal
from the DFA, it would have provided factual basis for its All disputes or controversies arising from this Contract responsibility, in contrast to the case before it, which
claim of immunity that would, at the very least, establish which cannot be settled between the Employer and the Liability will attach to the state where its treatment of the pertains chiefly to state responsibility: thus to do so would
a disputable evidentiary presumption that the foreign Contractor shall be submitted to arbitration in accordance alien falls below the international standard of justice or stretched it too far, almost to the breaking point, the
party is indeed immune which the opposing party will with the UNCITRAL Arbitration Rules at present in force where it is remiss in according him the protection or connection which must exist between the conduct of a
have to overcome with its own factual evidence. We do and as may be amended by the rest of this Clause. The redress that is warranted by the circumstances. State’s organs and its international responsibility
not see why GTZ could not have secured such certification appointing authority shall be Hong
Kong International Arbitration Center. The place of As early as the 1928 Las Palmas case, international law has
or endorsement from the DFA for purposes of this
arbitration shall be in Hong Kong at Hong Kong recognized that states have concomitant obligations with How? Because under the law on state responsibility, a
case. Certainly, it would have been highly prudential for International Arbitration Center (HKIAC). their rights as sovereigns over their territories. As held by state is responsible only for the acts of its organs and pace
GTZ to obtain the same after the Labor Arbiter had the lone arbitrator Max Huber: “Territorial sovereignty, as the Nicaragua case, for those non-state actors over which it
denied the motion to dismiss. Still, even at this Under the above provisions, if any dispute arises between has already been said, involves the exclusive right to exercised “effective control”; that is, it should have
juncture, we do not see any evidence that the DFA, the Northrail and CNMEG, both parties are bound to submit display the activities of a State. This right has a corollary, a instructions or provided the direction pursuant to which
office of the executive branch in charge of our diplomatic the matter to the HKIAC for arbitration. In case the HKIAC duty: the obligation to protect within the territory the rights the perpetrators of the wrongful act acted.
relations, has indeed endorsed GTZ’s claim of immunity. It makes an arbitral award in favor of Northrail, its of other States, in particular their right to integrity and
CONDITIONS FOR THE ENFORCEMENT OF STATE RESPONSIBILITY:
may be possible that GTZ tried, but failed to secure such enforcement in the Philippines would be subject to the inviolability in peace and in war, together with the rights
Special Rules on Alternative Dispute Resolution (Special which each State may claim for its nationals in foreign (1) Exhaustion of local administrative remedies
certification, due to the same concerns that we have (2) Must be represented in the international claim for
discussed herein. Rules). Rule 13 thereof provides for the Recognition and territory”.
Enforcement of a Foreign Arbitral Award. Under Rules 13.2 damages by his own state
and 13.3 of the Special Rules, the party to arbitration In the 2007 Application of the Convention on the Prevention
Would the fact that the Solicitor General has endorsed GTZ’s wishing to have an arbitral award recognized and enforced Calvo clause – a stipulation by virtue of which an alien
and Punishment of the Crime of Genocide [Bosnia and
claim of State’s immunity from suit before this Court in the Philippines must petition the proper regional trial waives or restricts his right to appeal to his own state in
Herzegovina v. Serbia and Montenegro], the ICJ held that
sufficiently substitute for the DFA certification? Note that court (a) where the assets to be attached or levied upon is connection with any claim arising from a contract with a
the Respondent could not be held responsible under the
the rule in public international law quoted in Holy See located; (b) where the acts to be enjoined are being foreign state and limits himself to the remedies available
Genocide Convention Convention for the conduct of
referred to endorsement by the Foreign Office of the State performed; (c) in the principal place of business in the under the laws of that state
Serbian forces not under its control and direction, (thus
where the suit is filed, such foreign office in the Philippines Philippines of any of the parties; (d) if any of the parties is affirming the effective control test, and not the over-all
being the Department of Foreign Affairs. Nowhere in the
control test favored by the applicant).
PAGE 187 PAGE 188
The propriety of governmental acts should be put to the If there is a prima facie case, a warrant of surrender will be OBLIGATIONS OF THE STATE PARTIES
test of international standards. The treatment of an alien, drawn and the fugitive will be delivered to the state of UNIVERSAL DECLARATION OF HUMAN RIGHTS (UDHR) (1) Under the ICCPR, State Parties undertake to respect
in order to constitute an international delinquency, should origin. The UDHR is the first comprehensive catalogue of human and to ensure to all individuals within their territory the
amount to an outrage, to bad faith, to willful neglect of rights proclaimed by an international organization. rights enumerated therein, without distinction of any
duty, or to an insufficiency of governmental action so far kind, such as race, color, sec, language, religion,
short of international standards that every reasonable and NOTE: The UDHR is not a treaty. It has no obligatory political or other opinion, national or social origin, birth
impartial man would readily recognize its insufficiency. The evaluation process partakes of the nature of a criminal character because it was adopted by the UN GA as or other status.
[Neer Claim (1926)] investigation, having consequences which will result in Resolution 217A (III). As a resolution, it is merely (2) State Parties are required to take the necessary steps to
deprivation of liberty of the prospective extradite. A favorable recommendatory. adopt legislative or other measures that are necessary
EXTRADITION action in an extradition request exposes a person to to give effect to the rights recognized in the ICCPR.
The surrender of a person by one state to another state eventual extradition to a foreign country, thus exhibiting the Despite this, the UNDHR is considered a normative (3) State Parties must ensure that any person whose rights
where he is wanted for prosecution or, if already convicted, penal aspect of the process. instrument that creates binding obligations for all States or freedoms are violate have an effective remedy,
for punishment. [Cruz] because of the consensus evidenced by the practice of notwithstanding that the violation has been committed
The evaluation process itself is like a preliminary States that the Declaration is now binding as part of by persons action in an official capacity.
PD 1086: The removal of an accused from the Philippines investigation since both procedures may have the same international law [Juan Carillo Salcedo, Human Rights, (4) State Parties must ensure that any person claiming
with the object of placing him at the disposal of foreign result – the arrest and imprisonment of the respondent. Universal Declaration]. such remedy shall have his right thereto determined by
authorities to enable the requesting state or government The basic rights of notice and hearing are applicable in competent judicial, administrative or legislative
to hold him in connection with any criminal investigation criminal, civil and administrative proceedings. Non- The UDHR embodies both first and second generation authority, and that they shall enforce the remedy when
directed against him in connection with any criminal observance of these rights will invalidate the proceedings. rights. The civil and political rights enumerated include: granted.
investigation directed against him or the execution of a Individuals are entitled to be notified of any pending case (1) The right to life, liberty, privacy and security of person;
penalty imposed on him under the penal or criminal law of affecting their interests, and upon notice, may claim the (2) Prohibition against slavery; INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL
the requesting state or government. right to appear therein and present their side. [Secretary of (3) The right not to be subjected to arbitrary arrest, AND CULTURAL RIGHTS (ICESCR)
Justice v. Lantion (2000)] detention or exile; The ICESCR, like the ICCPR, is an international covenant
Basis: Treaty between the state of refuge and the state of (4) The right to fair trial and presumption of innocence; and is binding on the respective State Parties. It embodies
origin. AS DISTINGUISHED FROM DEPORTATION (5) The right to a nationality; the second generation of human rights, although it lists
Deportation – is the expulsion of an alien who is considered (6) The right to freedom of thought, conscience and more rights than the UDHR:
FUNDAMENTAL PRINCIPLES undesirable by the local state, usually but not necessarily religion; (1) Right to health;
Extradition is based on the consent of the state of the state to his own state. It is usually a unilateral act of the local (7) The right to freedom of opinion and expression; (2) Right to strike;
of asylum as expressed in a treaty or manifested as an act state and is made in its own interests. (8) Right to peaceful assembly and association; (3) Right to be free from hunger;
of goodwill. (9) The right to take part in the government of his country. (4) Rights to enjoy the benefits of scientific progress;
Principle of speciality – a fugitive who is extradited may be (5) Freedom for scientific research and creativity.
tried only for the crime specified in the request for Economic, social and cultural rights enumerated in the
extradition and included in the list of offenses in the UDHR include:
extradition. International Human Rights (1) The right to social security;
OBLIGATION OF STATE PARTIES
State Parties are required to undertake the necessary steps
(2) The right to work and protection against to the maximum of its available resources, with a view to
Any person extradited, whether he be a national of the Law unemployment; achieving progressively the full realization of the rights
requesting state, of the state of refuge or of another state. (3) The right to equal pay for equal work; enumerated in the covenant by all appropriate means.
Definition (asked 3 times in the bar): Human rights are (4) The right to form and join trade unions;
Political and religious offenders are generally not subject those fundamental and inalienable rights which are (5) The right to rest and leisure. Note: Unlike the ICCPR, the states under the ICESCR
to extradition. essential for life as a human being. They pertain to rights merely agree to take steps to the maximum of its available
of an individual as a human being which are recognized by INTERNATIONAL COVENANT ON CIVIL AND POLITICAL resources.
In the absence of special agreement, the offense must the international community as a whole through their RIGHTS (ICCPR) (ASKED 1 TIME IN THE BAR)
have been committed within the territory or against the protection and promotion under contemporary The ICCPR is an international covenant and is binding on COMMON PROVISIONS IN THE ICCPR AND THE ICESCR
interests of the demanding state. international law. the respective State Parties. The common provisions of the two Covenants deal with
collective rights, namely:
Rule of double criminality: The act for which the extradition CLASSIFICATION OF HUMAN RIGHTS It embodies the first generation of human rights, although it (1) The right of self-determination of peoples;
is sought must be punishable in both the requesting and (1) First generation – consists of civil and political rights; lists more rights than the UDHR: (2) The right of peoples to freely dispose of their natural
requested states. (2) Second generation – consists of economic, social and (1) The right to own property; wealth and resources;
cultural rights; (2) The right to seek in other countries asylum from (3) The right not of peoples not to be deprived of their own
Procedure (3) Third generation – refers to right to development, right prosecution; means of subsistence
Surrender of refugee is sought: to peace, and right to environment. (3) The right of members of ethnic, religious or linguistic
Request for his extradition is presented through groups not to be denied to enjoy their own culture, to Note: These rights are not covered by the UDHR.
diplomatic channels to the state of refuge, with the First generation Second generation profess and practice their own religion, or to use their
necessary papers for identification. own language;
Obligatory Force under International Law (4) The right to compensation in case of unlawful arrest;
strictly (or objectively)
obligatory, whatever the
relatively obligatory: States
are required to
(5) The right to legal assistance in criminal prosecution;
(6) The right against self-incrimination; International Humanitarian
Receipt of the request economic or other
conditions of the states
progressively achieve the
full realization of these
(7) Protection against double jeopardy;
(8) Right to review by higher tribunal in case of criminal Law and Neutrality
obligated rights “to the maximum of conviction;
their available resources” (9) Right of every child to nationality; IHL is the branch of public international law which governs
A judicial investigation will be conducted by the state of Derogation/ Restriction, when allowed (10) Right to protection of a child as required by his status armed conflicts to the end that the use of violence is
refuge to ascertain if the crime is covered by the as a minor; limited and that human suffering is mitigated or reduced
extradition treaty and if there is a prima facie case may only be derogated may be restricted for the (11) Right of persons below 18 years old not to be by regulating or limiting the means of military operations
against the fugitive according to its own laws. in a public emergency general welfare, with or sentenced to death for crimes; and by protecting those who do not or no longer
without an “emergency (12) Right against the carrying out of death sentence on participate in the hostilities.
that threatens the the part of a pregnant woman.
independence or security
of a State Party.”
PAGE 189 PAGE 190

IHL has Two Branches: Article 3 is indifferent to the legal character of such group. support in accordance with the purposes and principles of (6) Combatants and civilian who are captured by authority
(1) Law of The Hague, which establishes the rights and the Charter (1970 Resolution 2625 [XXV]) of the party to a dispute are entitled to respect for their
obligations of belligerents in the conduct of military It must be noted that Article 3 is to be applied as a right to life, dignity, conviction, and other personal
operations, and limits the means of harming the minimum. PRINCIPLES OF INTERNATIONAL HUMANITARIAN rights. They shall be protected against acts of violence
enemy; and LAW or reprisals. [Legality of the Threat or Use of Nuclear
(2) Law of Geneva, which is designed to safeguard military Common Article 3 and Protocol II Combatants: Members of the armed forces of a Party to a Weapons, Advisory Opinion by the ICJ]
personnel who are no longer taking par in the fighting Protocol II develops and supplements common Article 3 conflict [Art. 3(2), Protocol 1]. They have the right to
and people not actively engaged in hostilities (i.e. [Art. 1, Protocol II]. It applies to: participate directly and indirectly in hostilities. [Art 43(2) PRISONERS OF WAR
civilians) (INTERNATIONAL COMMITTEE OF THE RED (1) all armed conflicts which take place in the territory of a Protocol 1] Article 4, Geneva Convention: Prisoners of war are persons
CROSS [“ICRC”]). State Party, belonging to one of the following categories:
(2) between its armed forces and dissident armed forces or Note: Only combatants are allowed to engage in hostilities. (1) Members of the armed forces of a Party to the conflict,
Note: The two branches draw their names from the cities other organized groups including militias or volunteer corps
where each was initially codified. With the adoption of the (3) which, under responsible command, exercise such A combatant is allowed to use force, even to kill, and will (2) Militias or volunteer corps operating in or outside their
Additional Protocols of 1977, which combine both control over a part of its territory not be held personally responsible for his acts, as he would own territory, even if such territory is occupied
branches, that distinction is now of merely historical and (4) as to enable to carry out sustained and concerted be where he to the same as a normal citizen [Gasser] provided:
instructive value (ICRC). military operations and to implement the Protocol. (a) They are being commanded by a person responsible for
Hors de combat: Under Art. 41(2) of Protocol I, a person is his subordinates
CATEGORIES OF ARMED CONFLICT Application of Article 3 and Protocol II hors de combat if he: (b) Have a fixed distinctive sign recognizable at a distance
INTERNATIONAL ARMED CONFLICTS The rules in Article 3 are recognized as customary norms of (1) Is in the power of an adverse party to the conflict; (c) Carries arms openly
An Armed Conflict exists when there is resort to the use of international law, and therefore applicable to all States. (2) He clearly expresses an intention to surrender; or (d) Conducts their operations in accordance with the laws
force However, Protocol II is a treaty and binding only States that (3) He has been rendered unconscious or is otherwise and customs of war
(1) between two states (international armed conflict), or are parties to it. incapacitated by wounds or sickness, and is therefore (3) Members of regular armed forces who profess
(2) between government authorities and an organized incapable of defending himself, provided that in any of allegiance to a government or authority not recognized
armed group, or Its rules, however, may still develop into customary norms these cases, he abstains from any hostile act and does by the Detaining Power
(3) between such groups within the same territory (non- binding on all states, by the general practice of states not attempt to escape. (4) Civilians who accompany the armed forces, provided
international armed conflict) [Prosecutor v. Dusko Tadic coupled with their acceptance of them as law (opinio juris). that they have received authorization from the armed
(1995)] Persons hors de combat shall be protected and treated forces which they accompany
Control-of-Territory humanely without any adverse distinction. Their right to (5) Members of crews of merchant marine and the crews of
Note: Wars of National Liberation have been classified as The test of whether a dissident armed force has control of life and physical and moral integrity shall be respected civil aircraft of the Parties to the conflict
international armed conflicts (ICRC) territory is when such armed force can (1) carry out (6) Inhabitants of a non-occupied territory who on the
sustained and concerted military operations, and whether Protected Persons: They are those who enjoy or are entitled approach of the enemy spontaneously take up arms to
Mere internal disturbances and tensions, or riots or it has (2) the capacity to comply with the provisions of the to protection under the Geneva Conventions. Categories of resist the invading forces, without having had time to
isolated or sporadic acts of armed violence does not Protocol. protected persons include: form themselves into regular armed units, provided
amount to an armed conflict [Tadic] (1) The wounded, the sick, and shipwrecked; they carry arms openly and respect the laws and
In a non-international armed conflict where the dissident (2) Prisoners of War customs of war
Note: Cases of this type are governed by the provisions of armed forces do not exercise such control over territory, (3) Civilians (7) Persons belonging to the armed forces of the occupied
human rights law and the relevant domestic laws. Article 3, and not Protocol II may be applicable. The result territory
is that this situation may give rise to two categories of non- For purposes of protection, civilians are further classified
INTERNAL OR NON—INTERNATIONAL ARMED CONFLICT international armed conflicts: one where only Article 3 as: LAW ON NEUTRALITY
Conventions are the only provision applicable to non- applies, and the other where both Article 3 and Protocol II (1) Civilians who are victims of conflict in countries involved Neutrality is the legal status of a State in times of war, by
international armed conflicts. It defines the following apply. (2) Civilians in territories of the enemy; which it adopts impartiality in relation to the belligerents
obligations: (3) Civilians in occupied territories; with their recognition.
(1) Persons taking no active part in the hostilities, including WAR OF NATIONAL LIBERATION (4) Civilians internees
(a) members of the armed forces who have laid down An armed conflict may be of such nature in which peoples The Hague Convention Respecting the Rights and Duties of
their arms and are fighting against colonial domination and alien TREATMENT OF CIVILIANS Neutral Powers (Oct. 18, 1907) governs the status of
(b) those placed hors de combat, shall in all instances occupation and against racist regimes in the exercise of Fundamental Principles of IHL neutrality by the following rules:
be treated humanely without any adverse their right to self-determination. (1) Parties to an armed conflict, together with their armed (1) The territory of the neutral Power is inviolable;
distinction founded on race, color, religion or faith, forces, do not have unlimited choice of methods or (2) Belligerents are forbidden to move troops or munitions
sex, birth or wealth, or any other similar criteria. This conflict, however, is considered an international armed means of warfare. They are prohibited from employing of war and supplies across the territory of a neutral
(2) With respect to the persons mentioned above, the conflict under Art. 1, par. 3 and 4 of Protocol I. weapons or means of warfare that cause unnecessary Power;
following acts shall remain prohibited: damage or excessive suffering. (3) A neutral power is forbidden to allow belligerents to
(a) Violence to life and person, in particular, murder of Note: Article 2 common to the four Geneva conventions (2) Parties to an armed conflict shall, at all times, use its territory for moving troops, establishing
all kinds, mutilation, cruel treatment and torture; provides that “all cases of declared war or any other armed distinguish between civilian population and the communication facilities, or forming corps of
(b) Taking of hostages; conflict which may arise between two or more of the High combatants (Principle of Distinction). Civilians shall be combatants.
(c) Outrages upon personal dignity, in particular Contracting Parties, even if the state of war is not spared from military attacks which shall be directed (4) Troops of belligerent armies received by a neutral
humiliating and degrading treatment; recognized by one of them.” Hence, the Geneva only against military objectives. Power in its territory shall be interned by away from the
(d) The passing of sentences and the carrying out of conventions and Protocol I govern wars of national (3) Persons hors de combat are those who have been theatre of war;
executions without previous judgment pronounced liberation. injured in the course of hostile battle action and are no (5) The neutral Power may supply them with food, clothing
by a regularly constituted court, affording all the longer able to directly take part in hostilities. They shall or relief required by humanity;
judicial guarantees which are recognized as Wars by peoples against racist, colonial and alien be protected and treated humanely without any (6) If the neutral Power receives escaped prisoners of war,
indispensable by civilized peoples. domination "for the implementation of their right to self- adverse distinction. Their right to life and physical and it shall leave them at liberty. It may assign them a
(3) The wounded and the sick shall be collected and cared determination and independence is legitimate and in full moral integrity shall be respected. place of residence if it allows them to remain in its
for. accord with principles of international law," and that any (4) It is prohibited to kill or injure an enemy who is hors de territory;
attempt to suppress such struggle is unlawful (Resolution combat or who surrenders. (7) The neutral power may authorize the passage into its
The application of provisions above does not affect the 3103 [XXVIII]). (5) The wounded and the sick shall be protected and cared territory of the sick and wounded if the means of
legal status of the parties to the conflict. Hence, an for by the party to the conflict which has them in its transport bringing them does not carry personnel or
insurgent or a rebel group does not assume belligerency When peoples subjected to alien domination resort to power. Protection shall also apply to medical materials of war
status. forcible action in order to exercise their right to self- personnel, establishments, transports and material.
determination, they "are entitled to seek and to receive
PAGE 191 PAGE 192
The Third Geneva Convention (Prisoners of War) allows Q: In an armed conflict, isn’t the use of nuclear weapons Crime Definition/Category Specific Acts Punishable Penalty*
neutral Powers to cooperate with the parties to the armed illegal, pursuant to Article 6, ICCPR, which safeguards the
conflict in making arrangements for the accommodation in right to life? death or serious physical
the former’s territory of the sick and wounded prisoners of A: While it is true that ICCPR protection does not cease in injury, or constitutes
war. times of war, except certain derogations allowed under Art. rape)
4 in times of emergency, what applies in an armed conflict [Section 7]
Interned persons among the civilian population, in is the lex specialis, which is the law on armed conflict (IHL). Other serious violations (1) Internationally directing attacks against the Reclusion Temporal in
particular the children, the pregnant women, the mothers It determines whether the taking of life in times of war has of the laws and customs civilian population as such or against its medium to maximum
with infants and young children, wounded and sick, may be been arbitrary. applicable in armed individual civilians not taking direct part in period and a fine
accommodated in a neutral state in the course of conflict, within the hostilities; ranging from One
hostilities, by agreement between the parties to the RA 9851 - PHILIPPINE ACT ON CRIMES AGAINST INTERNATIONAL established framework (2) Intentionally directing attacks against civilian hundred thousand pesos
conflict. HUMANITARIAN LAW, GENOCIDE, AND OTHER CRIMES AGAINST of intentional law objects, that is, object which are not military (Php 100,000.00) to
HUMANITY (DEC. 11, 2009) objectives; Five hundred thousand
PROTECTING POWER (1) The Philippines renounces war as an instrument of (3) Intentionally directing attacks against pesos (Php
A protecting power is a State or an organization: national policy, adopts the generally accepted buildings, material, medical units and 500,000.00).
(1) not taking part in the hostilities, principles of international law as a part of the law of transport, and personnel using the distinctive Reclusion Perpetua and
(2) which may be a neutral state, the land. emblems of the Geneva Conventions or a fine ranging from Five
(3) designated by one party to an armed conflict with the (2) The state adopts the generally accepted principles of Additional Protocol III in conformity with hundred thousand pesos
consent of the other international law, including the Hague Conventions of intentional law; (Php 500,000.00) to
(4) to safeguard or protect its humanitarian interests in the 1907, the Geneva Conventions on the protection of (4) Intentionally directing attacks against One million pesos (Php
conflict, the performance of which IHL defines specific victims of war and international humanitarian law, as personnel, installations, material, units or 1,000,000.00) shall be
rights and duties. part of the law our nation vehicles involved in a humanitarian imposed - When justified
assistance or peacekeeping mission in by the extreme gravity of
. accordance with the Charter of the United the crime (e.g., results in
Crimes and Penalties Nations, as long as they are entitled to the death or serious physical
protection given to civilians or civilian objects injury, or constitutes
Crime Definition/Category Specific Acts Punishable Penalty* under the international law of armed conflict; rape)
War Crimes or In case of an (1) Willful killing; Reclusion Temporal in (5) Launching an attack in the knowledge that (Section 7)
Crimes against international armed (2) Torture or inhuman treatment, including its medium to maximum such attack will cause incidental loss of life or
International conflict , grave breaches biological experiments; period and a fine injury to civilians or damage to civilian objects
Humanitarian Law of the Geneva (3) Willfully causing great suffering , serious ranging from One or widespread, long-term and severe damage
[Section 4] Conventions of 12 injury to body or health; hundred thousand pesos to the natural environment which would be
August 1949, committed (4) Extensive destruction and appropriation of (Php 100,000.00) to excessive in relation to the concrete and
against persons or property not justified by military necessity Five hundred thousand direct military advantage anticipated;
property protected by and carried out unlawfully and wantonly; pesos (Php (6) Launching an attack against works or
relevant Geneva (5) Willfully depriving a prisoner of war or other 500,000.00). installations containing dangerous forces in
Convention protected person of the rights of fair and Reclusion Perpetua and the knowledge that such attack will cause
regular trial; a fine ranging from Five excessive loss of life, injury to civilians or
(6) Arbitrary deportation or forcible transfer of hundred thousand pesos damage to civilian objects, and causing death
population or unlawful confinement; (Php 500,000.00) to or serious injury to body or health.
(7) Taking of hostages; One million pesos (Php (7) Attacking or bombarding, by whatever
(8) Compelling a prisoner a prisoner of war or 1,000,000.00) shall be means, towns, villages, dwelling or building
other protected person to serve in the forces imposed - When justified which are undefended and which are not
of a hostile power; and by the extreme gravity of military objectives, or making non-defended
(9) Unjustifiable delay in the repatriation of the crime (e.g., results in localities or demilitarized zones the object of
prisoners of war or other protected persons, death or serious physical attack;
against persons taking no active part in the injury, or constitutes (8) Killing or wounding a person in the
hostilities, including member of the armed rape) knowledge that he/she is hors de combat,
forces who have laid down their arms and [Section 7] including a combatant who, having laid down
those placed hors de combat by sickness, his/her arms or no longer having means of
wounds, detention or any other cause defense, has surrendered at discretion…
In case of a non- (1) Violence to life and person, in particular, Reclusion Temporal in (9) Making improper use of a flag of truce, of the
international armed willful killings, mutilation, cruel treatment its medium to maximum flag or the military insignia and uniform of
conflict, serious and torture; period and a fine the enemy or of the United Nations, as well
violations of common (2) Committing outrages upon personal dignity, ranging from One as of the distinctive emblems of the Geneva
Article 3 to the four (4) in particular, humiliating and degrading hundred thousand pesos Conventions or other protective signs under
Geneva Conventions of treatment; (Php 100,000.00) to International Humanitarian Law, resulting in
12 August 1949 (3) Taking of hostages; and Five hundred thousand death, serious personal injury or capture;
(4) The passing of sentences and the carrying pesos (Php (10) Internationally directing attacks against
out of executions without previous judgment 500,000.00). buildings dedicated to religion, education,
pronounced by a regularly constituted court… Reclusion Perpetua and art, science or charitable purposes, historic
a fine ranging from Five monuments, hospitals and places where the
hundred thousand pesos sick and wounded are collected, provided
(Php 500,000.00) to they are not military objectives…
One million pesos (Php (11) Subjecting persons who are in the power of
1,000,000.00) shall be an adverse party to physical mutilation or to
imposed - When justified medical or scientific experiments of any kind,
by the extreme gravity of or to removal of tissue or organs for
the crime (e.g., results in transplantation, which are neither justified by
PAGE 193 PAGE 194
Crime Definition/Category Specific Acts Punishable Penalty* Crime Definition/Category Specific Acts Punishable Penalty*
the medical, dental or hospital treatment of (i) Poison or poisoned weapons;
the person concerned nor carried out in (ii) Asphyxiating, poisonous or other gases,
his/her interest, and which cause death to or and all analogous liquids, materials or
seriously endanger the health of such person devices;
or persons; (iii) Bullets which expand or flatten easily in
(12) Killing, wounding or capturing an adversary the human body…
by resort to perfidy; (iv) Weapons, projectiles and material and
(13) Declaring that no quarter will be given; methods of warfare which are of the
(14) Destroying or seizing the enemy's property nature to cause superfluous injury or
unless such destruction or seizure is unnecessary suffering or which are
imperatively demanded by the necessities of inherently indiscriminate in violation of
war; the international law of armed conflict.
(15) Pillaging a town or place, even when taken Genocide Acts with intent to (1) Killing members of the group; Reclusion Temporal in
by assault; (Section 5(a)) destroy, in whole or in (2) Causing serious bodily or mental harm to its medium to maximum
(16) Ordering the displacements of the civilian part, a national, ethnic, members of the group; period and a fine
population for reasons related to the conflict, racial, religious, social or (3) Deliberately inflicting on the group ranging from One
unless the security of the civilians involved or any other similar stable conditions of life calculated to bring about its hundred thousand pesos
imperative military reasons so demand; and permanent group physical destruction in whole or in part; (Php 100,000.00) to
(17) Transferring, directly or indirectly, by the (4) Imposing measures intended to prevent Five hundred thousand
occupying power of parts of its own civilian births within the group; and pesos (Php
population into the territory it occupies, or the (5) Forcibly transferring children of the group to 500,000.00).
deportation or transfer of all or parts of the another group. Reclusion Perpetua and
population of the occupied territory within or a fine ranging from Five
outside this territory; hundred thousand pesos
(18) Committing outrages upon personal dignity, (Php 500,000.00) to
in particular, humiliating and degrading One million pesos (Php
treatments; 1,000,000.00) shall be
(19) Committing rape, sexual slavery, enforced imposed - When justified
prostitution, forced pregnancy, enforced by the extreme gravity of
sterilization, or any other form of sexual the crime (e.g., results in
violence also constituting a grave breach of death or serious physical
the Geneva Conventions or a serious violation injury, or constitutes
of common Article 3 to the Geneva rape)
Conventions; [Section 7]
(20) Utilizing the presence of a civilian or other Inciting to Genocide Directly and publicly Directly and publicly inciting others to commit Prision mayor in its
protected person to render certain points, [Section 5, b] inciting others to commit genocide. minimum period and a
areas or military forces immune from military genocide. fine ranging from Ten
operations; thousand pesos (Php
(21) Intentionally using starvation of civilians as a 10,000.00) to Twenty
method of warfare by depriving them of thousand pesos (Php
objects indispensable to their survival, 20,000.00).
including willfully impeding relief supplies as [Section 7]
provided for under the Geneva Conventions Other Crimes Acts committed as part (a) Willful killing; Reclusion Temporal in
and their Additional Protocols; Against Humanity of a widespread or (b) Extermination; its medium to maximum
(22) In an international armed conflict, [Section 6] systematic attack (c) Enslavement; period and a fine
compelling the nationals of the hostile party directed against any (d) Arbitrary deportation or forcible transfer of ranging from One
to take part in the operations of war directed civilian population, with population; hundred thousand pesos
against their own country, even if they were in knowledge of the attack (e) Imprisonment or other severe deprivation of (Php 100,000.00) to
the belligerent's service before the physical liberty in violation of fundamental Five hundred thousand
commencement of the war; rules of international law; pesos (Php
(23) In an international armed conflict, declaring (f) Torture; 500,000.00).
abolished, suspended or inadmissible in a (g) Rape, sexual slavery, enforced prostitution, Reclusion Perpetua and
court of law the rights and actions of the forced pregnancy, enforced sterilization, or a fine ranging from Five
nationals of the hostile party; any other form of sexual violence of hundred thousand pesos
(24) Committing any of the following acts: comparable gravity; (Php 500,000.00) to
(i) Conscripting, enlisting or recruiting (h) Persecution against any identifiable group or One million pesos (Php
children under the age of fifteen (15) collectivity on political, racial, national, 1,000,000.00) shall be
years into the national armed forces; ethnic, cultural, religious, gender, sexual imposed - When justified
(ii) Conscripting, enlisting or recruiting orientation or other grounds that are by the extreme gravity of
children under the age of eighteen (18) universally recognized as impermissible the crime (e.g., results in
years into an armed force or group other under international law, in connection with death or serious physical
than the national armed forces; and any act referred to in this paragraph or any injury, or constitutes
(iii) Using children under the age of eighteen crime defined in this Act; rape)
(18) years to participate actively in (i) Enforced or involuntary disappearance of [Section 7]
hostilities; and persons;
(25) Employing means of warfare which are (j) Apartheid; and
prohibited under international law, such as: (k) Other inhumane acts of a similar character
PAGE 195 PAGE 196
Crime Definition/Category Specific Acts Punishable Penalty* sea, the exploitation of its resources, and the exercise of (2) Within its archipelagic waters, the archipelagic state
jurisdiction over maritime regimes. [Magallona] shall recognize traditional fishing rights and other
intentionally causing great suffering, or legitimate activities of immediately adjacent
serious injury to body or to mental or physical It is the branch of PIL which regulates the relations of neighboring states.
health. states with respect to the use of the oceans. (3) The archipelagic state shall respect existing submarine
cables laid by other states and “passing through its
*Accessory Penalty: Forfeiture of proceeds, property and For the purposes of this section, orders to commit BASELINES waters without making a landfall”.
assets derived, directly or indirectly, from that crime, genocide or other crimes against humanity are manifestly The line from which a breadth of the territorial sea and (4) Right of archipelagic sea lanes passage: It is the right of
without prejudice to the rights of bona fide third (3rd) unlawful. [Sec. 12] other maritime zones, such as the “contiguous zone” and foreign ships and aircraft to have continuous,
parties. Plus, corresponding accessory penalties under the the “exclusive economic zone” is measured. Its purpose is expeditious, and unobstructed passage in sea lanes and
RPC, especially where the offender is a public officer. Protection of Witnesses and Victims [Sec. 13 and 14] to determine the starting point to begin measuring air routes through or over archipelagic waters and the
The Philippine court shall take appropriate measures to maritime zones boundary of the coastal state. adjacent territorial sea of the archipelagic state.
Criminal Responsibility protect the safety, physical and physiological well-being,
Principal – if he/she acts: dignity and privacy of victims and witnesses. NORMAL BASELINE – the territorial sea is the low-water line Note: the archipelagic state designates the sea lanes as
(1) Commits such a crime, whether as an individual, jointly along the coast as marked on large-scale charts officially proposals to the “competent international organization”. It
with another or through another person, regardless of As an exception to the general principle of public hearings, recognized by the coastal state. [Art. 5, UN Convention on is the International Marine Organization (IMO) which
whether that other person is criminally responsible; the court may, to protect the victims and witnesses or an the Law of the Sea, or UNCLOS] adopts them through Art. 53(9) of the UNCLOS which
(2) Orders, solicits or induces the commission of such a accused, conduct any part of the proceedings in camera or states that “the Organization may adopt only sea lanes
crime which in fact occurs or is attempted; allow the presentation of evidence by electronic or other STRAIGHT BASELINE– where the coastline is deeply indented and traffic separation schemes as may be agreed with the
(3) In any other way contributes to the commission or special means. or cut into, or if there is a fringe of islands along the coast archipelagic state, after which such state may designate,
attempted commission of such a crime by a group of in its immediate vicinity, the method of straight lines prescribe or substitute them.”
person acting with a common purpose. Such Where the disclosure of evidence or information pursuant joining the appropriate points may be employed in drawing
contribution shall be intentional and shall either: to this Act may lead to the grave endangerment of the the baseline from which the breadth of the territorial sea is Special Issue: Under Art. 1 of the 1987 Constitution, the
(a) be made with the aim of furthering the criminal activity security of a witness for his/her family, the prosecution measured [Art. 7, UNCLOS] archipelagic waters of the Philippines are characterized as
or criminal purpose of the group, where such activity or may, for the purposes of any proceedings conducted prior forming part of “the internal waters of the Philippines.”
purpose involves the commission of a crime defined in to the commencement of the trial, withhold such evidence ARCHIPELAGIC STATES However, under the UNCLOS, archipelagic waters consist
this Act; or or information and instead submit a summary thereof. It is a state made up of wholly one or more archipelagos. It mainly of the “waters around, between, and connecting the
(b) be made in the knowledge of the intention of the group may include other islands. islands of the archipelago, regardless of breadth or
to commit the crime. [Sec. 8(a)] The court shall follow the principles relating to the dimension.”
reparations to, or in respect of, victims, including An archipelago is a group of islands, including parts of
Accomplice - facilitates the commission of a crime defined restitution, compensation and rehabilitation. The court islands, interconnecting waters and other natural features Thus, conversion from internal waters under the
and penalized in this Act by aiding, abetting or otherwise may make an order directly against a convicted person which are so closely related that such islands, waters and Constitution into archipelagic waters under the UNCLOS
assisting in its commission or attempted commission, specifying appropriate reparations to, or in respect of, natural features form an intrinsic geographical, economic gravely derogates the sovereignty of the Philippine state.
including providing the means for its commission. [Sec. victims, including restitution, compensation and and political entity, or which historically have been Remember that sovereignty over internal waters precludes
8(b)] rehabilitation. regarded as such. the right of innocent passage and other rights pertaining
to archipelagic waters under the UNCLOS.
Attempt to commit the crimes specified (in attempted States Jurisdiction Over the Person of the Accused TWO KINDS OF ARCHIPELAGOS:
stage) is also punishable. [Sec. 8(c)] Requirement (any of the following): (1) Coastal — situated close to a mainland and may be Also, under Art. 47 of the UNCLOS, it is not mandatory
(1) The accused is a Filipino citizen; considered part thereof, i.e. Norway upon concerned states to declare themselves as
This Act shall apply equally to all persons without any (2) The accused, regardless of citizenship or residence, is (2) Mid-Ocean — situated in the ocean at such distance archipelagic states; the Philippines did, under its new
distinction based on official capacity. [Sec. 9] present in the Philippines; or from the coasts of firm land, i.e. Indonesia (note: The baselines law, RA 9522 – a legislative act upheld as
(3) The accused has committed the said crime against a Archipelagic State provisions apply only to mid-ocean constitutional by the Supreme Court in Magallona v.
A superior shall be criminally responsible as a principal for Filipino citizen. archipelagos composed of islands, and NOT to a partly Executive Secretary. The result could be disastrous, at
such crimes committed by subordinates under his/her continental state.) least, in Dean Magallona’s view.
effective authority and control as the case may be, as a Philippine authorities may dispense with the investigation
result of his/her failure to properly exercise control over or prosecution if another court or international tribunal is STRAIGHT ARCHIPELAGIC BASELINES INTERNAL WATERS (ASKED 1 TIME IN THE BAR)
such subordinates, where: already conducting the investigation or undertaking the Straight baselines join the outermost points of the These are waters of lakes, rivers, and bays landward of the
(1) That superior either knew… or should have known that prosecution of such crime. Instead, the authorities may outermost islands and drying reefs of an archipelago, baseline of the territorial sea. However, in case of
the subordinates were committing or about to commit surrender or extradite suspected or accused persons in the provided that within such baselines are included the main archipelagic states, waters landward of the baseline other
such crimes; Philippines to the appropriate international court. islands and an area in which the ratio of the water to the than those rivers, bays and lakes, are archipelagic waters.
(2) That superior failed to take all necessary and area of the land, including atolls, is between 1 to 1 and 9 to
reasonable measures within his/her power to prevent No criminal proceedings shall be initiated against foreign 1. Such are called straight archipelagic baselines. NOTE: Internal waters are treated as part of a State's land
or repress their commission or to submit the matter to nationals if they have been tried by a competent court Territorial sea and other maritime zones – the breadth of territory, and is subject to the full exercise of sovereignty.
the competent authorities for investigation and outside the Philippines in respect of the same offense and the territorial sea, the contiguous zone, and the EEZ is Thus, the coastal state may designate which waters to
prosecution. acquitted, or having been convicted, already served their measured from the straight archipelagic baselines. open and which to close to foreign shipping.
sentence. [Sec. 17]
Crimes defined and penalized under RA 9851 do not ARCHIPELAGIC WATERS TERRITORIAL SEA (ASKED 1 TIME IN THE BAR)
prescribe. [Sec. 11] Where to file cases? RTC. The Supreme Court shall These are the waters enclosed by the straight archipelagic These waters stretch up to 12 miles from the baseline on
designate special courts to try cases involving crimes baselines, regardless of their depth or distance from the the seaward direction. They are subject to the jurisdiction
Orders from Superior - The fact that a crime defined and punishable under this Act. [Sec. 18] coast. of the coastal state, which jurisdiction almost
penalized under this Act has been committed by a person approximates that which is exercised over land territory,
pursuant to an order of a government or a superior, It is subject to the sovereignty of the archipelagic state, but except that the coastal state must respect the rights to (1)
whether military or civilian, shall not relieve that person of subject to the right of innocent passage for the ships of all innocent passage and, in the case of certain straits, to (2)
criminal responsibility unless the person was under a legal
obligation to obey orders of the government or the
Law of The Sea states. transit passage.
superior in question, did not know that the order was ARCHIPELAGIC SEA LANES PASSAGE Innocent passage: Navigation through the territorial sea
unlawful, and the order was not manifestly unlawful. The Convention on Law of the Sea (UNCLOS) is the body of Other Rights with Respect to Archipelagic Waters w/o entering internal waters, going to internal waters, or
treaty rules and customary norms governing the use of the (1) Rights under existing agreement on the part of third coming from internal waters and making for the high seas.
states should be respected by the archipelagic state. It must:
PAGE 197 PAGE 198
(1) involve only acts that are required by navigation or by Geographically disadvantaged states (those who have no At any rate, the continental shelf shall not extend beyond Compulsory Procedures that States Parties Can Choose
distress, and EEZ of their own or those coastal states whose 350 nautical miles from the baseline of the territorial sea, From:
*
(2) not prejudice the peace, security, or good order of the geographical situations make them dependent on the or 100 nautical miles from the 2500-meter isobath (or the (1) International Tribunal for the Law of the Sea ;
coastal state. exploitation of the living resources of the EEZ of other point where the waters are 2500 meters deep). (2) International Court of Justice;
*
states) and land-locked states have the right to participate, (3) Arbitral Tribunal ;
*
Transit passage —The right to exercise freedom of on equitable basis, in the exploitation of the surplus of the RIGHTS OF THE COASTAL STATE OVER THE CONTINENTAL SHELF (4) Special Arbitral Tribunal ;
navigation and over flight solely for the purpose of living resources in the EEZ of coastal states of the same sub The continental shelf does not form part of the territory of
continuous and expeditious transit through the straights region or region. the coastal state. The choice of the State Parties must be expressed in a
used for international navigation. The right cannot be written declaration, which is revocable and replaceable.
unilaterally suspended by the coastal state. Note: a coastal state whose economy is overwhelmingly It only has sovereign rights with respect to the exploration
dependent on the exploitation of its EEZ is not required to and exploitation of its natural resources, including the Jurisdiction of Court or Tribunal
Innocent Passage Transit Passage share its resources. mineral and other non-living resources of the seabed and The court or Tribunal has jurisdiction over:
subsoil together with living organisms belonging to the (1) any dispute submitted to it concerning the application
Pertains to navigation of Includes the right of over JURISDICTION OF COASTAL STATE OVER EEZ: sedentary species. or interpretation of UNCLOS
ships only flight (1) establishment and use of artificial islands, installations (2) any dispute concerning the interpretation or application
Requires submarines and Submarines are allowed to and structures, For example, the coastal state has the exclusive right to of an international agreement:
other underwater vehicles navigate in “normal mode” (2) scientific research, authorize and regulate oil-drilling on its continental shelf. (a) related to the purposes of the UNCLOS
to navigate on the surface – i.e. submerged (3) the preservation and protection of marine environment. (b) when such dispute is submitted to it in accordance with
and show their flag. These rights are exclusive in the sense that when the that agreement.
Can be suspended, but Cannot be suspended Under Art. 58 of the UNCLOS, all states enjoy the freedom coastal state does not explore its continental shelf or
under the condition that it of navigation, over flight, and laying of submarine cables exploit its resources, no one may undertake these activities Composition of the International Tribunal for the Law of the
does not discriminate and pipelines in the EEZ of coastal states. without the coastal state’s consent. Sea (ITLOS)
among foreign ships, and It is composed of 21 “independent members elected from
such suspension is The coastal state has the right to enforce all laws and NOTE: In instances where the continental margin is more among persons enjoying the highest reputation for fairness
essential for the protection regulations enacted to conserve and manage the living than 200 nautical miles from the baselines, and hence and integrity and of recognized competence in the field of
of its security, and resources in its EEZ. It may board and inspect a ship, arrest extends beyond the EEZ, the coastal state has the the law of the sea”.
suspension is effective only a ship and its crew and institute judicial proceedings exclusive right to exploit mineral and non-living resources
after having been duly against them. in the “excess area.” The composition shall also be representative of the world’s
published (Art. 25, principal legal systems and of equitable geographical
UNCLOS) Note: In detention of foreign vessels, the coastal state has RIGHTS WITH RESPECT TO CONTINENTAL SHELF VS. EEZ distribution.
In the designation of sea Designation of sea lanes the duty to promptly notify the flag state of the action Continental Shelf EEZ
lanes and traffic separation and traffic separation taken. Jurisdiction of ITLOS
schemes, the coastal state schemes is subject to Duty to No duty Coastal state is Its jurisdiction covers all disputes submitted to it in
shall only take into account adoption by competent Conflicts regarding the attribution of rights and jurisdiction manage obliged to manage accordance with the UNCLOS. It also includes matters
the recommendations of international organization in the EEZ must be resolved on the basis of equity and in and and conserve living submitted to it under any other agreement.
the competent upon the proposal and the light of all relevant circumstances, taking into account conserve resources in the
international organization. agreement of states the respective importance of the interests involved to the living EEZ Applicable Laws in Settlement of Disputes by the ITLOS
bordering the straits. parties as well as to the international community as a resources The Tribunal shall apply the UNLCOS and other rules of
whole. [Art. 59, UNCLOS] Rights of Relate to mineral Have to do with international law not incompatible with the UNCLOS. It
EXCLUSIVE ECONOMIC ZONE (ASKED 1 TIME IN THE the coastal and other non- natural resources of may also decide a case ex aequo et bono (what is equitable
BAR) CONTINENTAL SHELF state as to living resources of both waters super and just) if the parties so agree.
A stretch of area up to 200 miles from its baselines. EXTENDED CONTINENTAL SHELF natural the seabed and the adjacent to the
Within this zone, a State may regulate nonliving and living It is the seabed and subsoil of the submarine areas resources subsoil seabed and those Notes on the Philippine Arbitral Case Over the Chinese
resources, other economic resources, artificial installations, extending beyond the territorial sea of the coastal state of the seabed and Nine-Dash Claim
scientific research, and pollution control. throughout the natural prolongation of its lands territory up subsoil
to Rights of Apply only to Do not pertain to CHINESE NINE-DASH LINE CLAIM
NOTE: Under the UNCLOS, states have the sovereign right (1) the outer edge of the continental margin, or the coastal sedentary species sedentary species This declaration, first made known internationally in 1947,
to exploit the resources of this zone, but shall share that (2) a distance of 200 nautical miles from the baselines of state as to of such living features a map with a series of nine dashes or dotted lines
part of the catch that is beyond its capacity to harvest. the territorial sea where the outer edge of the living resources forming a U-shaped enclosure and covering about 90
continental margin does not extend up to that resources percent of the South China Sea. Included in the Chinese
Resources covered by sovereign rights of coastal states in distance. claim are areas that, under the UNCLOS, would normally
the EEZ include living and non-living resources in the INTERNATIONAL TRIBUNAL FOR THE LAW OF THE pertain to the maritime entitlements of the other states in
waters of the seabed and its subsoil. Continental margin  the submerged prolongation of the SEA (ITLOS) the region, with the Philippines and Vietnam being its
land mass of the continental state, consisting of the most vocal critics.
Note: Coastal states have the primary responsibility to continental shelf proper, the continental slope, and the SETTLEMENT OF DISPUTES
utilize, manage and conserve the living resources within continental rise Peaceful Settlement of Disputes Practically all the coastal states – with the possible
their EEZ, i.e. ensuring that living resources are not Under par. 3, Art. 2 of the UN Charter, States have the duty exception of Indonesia – reject the Chinese Nine-Dash Line
endangered by overexploitation, and the duty to promote LIMITS OF THE CONTINENTAL SHELF to settle disputes by peaceful means. This obligation claim as a legally-definitive maritime boundary for China in
optimum utilization of living resources by determining Juridical or Legal Continental Shelf: 0-200 nautical miles extends to State Parties of the UNCLOS, underscoring the the South China Sea. In 1995, Ali Alatas, then the
allowable catch. from baselines. right of the parties to resort to peaceful means of their own Indonesian Foreign Minister obtained assurances from
choice on which they can agree any time. Beijing that it has no quarrel with Indonesia. This served as
If after determining the maximum allowable catch, the Extended Continental Shelf: 200-350 nautical miles from basis for Indonesia’s exploitation of the Natuna gas fields
coastal state does not have the capacity to harvest the baselines depending on geomorphologic or geological Compulsory Settlement of Disputes with nary a protest from the Chinese.
entire catch, it shall give other states access to the surplus data and information Where no successful settlement can be achieved, or if the
by means of arrangements allowable under the UNCLOS. parties are unable to agree on the means of settlement of
The UNLCOS, however, does not specify the method for When the continental shelf extends beyond 200 nautical a dispute concerning the application of UNCLOS, such
determining “allowable catch.” Hence, states may miles, the coastal state shall establish its outer limits. dispute may be governed by the principle of compulsory
establish illusory levels. settlement, where procedures entail binding decisions.
*
As established under the UNCLOS.
PAGE 199 PAGE 200
In 2009, China formally submitted a map to the UN

showing the areas in the area it claims under the
Philippines educational globes
China’s expansive territorial claims.
indicating
Madrid Protocol and the Paris International and
declaration.
PHILIPPINES TAKES CHINA TO ARBITRATION Convention for the Protection Environmental Law
One observer says the situation is compounded by the lack
of clarity in the territorial and maritime assertions being
In late January this year, the Philippines brought matters
to a head by bringing China to arbitration over the latter’s of Industrial Property The branch of public international law comprising those
made by China through its Nine-Dash Line Nine Dash Line claim. substantive, procedural, and institutional rules which have
1
claim, stressing that “China has chosen to leave the nine- MADRID PROTOCOL as their primary objective the protection of the
dash line ambiguous (with no map coordinates), because As expected, China while insisting on bilateral negotiations The Protocol Relating to the Madrid Agreement environment
the ambiguity gives greater room for manoeuvre.” immediately rejected the arbitration proceedings. This Concerning the International Registration of Marks, or The
raises questions over the viability of arbitration under the Madrid Protocol is one of two treaties comprising the Sustainable development – development that meets the
Growing Chinese naval presence in SCS UNCLOS on the Law of the Sea as a binding procedure. Madrid System for international registration of trademarks needs of the present without compromising the ability of
Since 2012 China has been stepping up its presence in the and it deals more with the procedure for filing than with future generations to meet their own needs (Case
area with new warships – including its very first aircraft Truth to tell, UNCLOS procedures for binding arbitrations substantive rights. Concerning the Gabcikovo-Nagymaros Project)
carrier – and expanded naval patrols and swarms are complicated and tricky. Membership means a state’s
of quasi-governmental fishing vessels. While, just a few acceptance of compulsory and binding dispute mechanism Purpose: It provides a cost-effective and efficient way for US v. Canada (Trail Smelter Case): No state has the right to
months ago, amid much fanfare, China put up a new procedures provided in the treaty. trademark holders -- individuals and businesses -- to use or permit the use of its territory in such a manner as to
administrative structure to govern areas it has occupied ensure protection for their marks in multiple countries cause injury by fumes in or to the territory of another or the
and those it claims, much to the protestations of the other However, the treaty also allows member-states to opt out through the filing of one application with a single office, in properties or persons therein, when the case is of serious
claimants. of these binding dispute mechanisms under Article one language, with one set of fees, in one currency. consequence and the injury is established by clear and
number 298 exceptions, which, among other things, convincing evidence
It has also engaged the Philippines in a standoff over the pertain to disputes concerning military activities, including While an International Registration may be issued, it
Scarborough Shoal (also known to Filipinos as Panatag military activities by government vessels and aircraft remains the right of each country or contracting party PRINCIPLE 21 OF THE STOCKHOLM DECLARATION
Shoal and Bajo De Masinloc), a rock and coral reef engaged in non-commercial service, and disputes designated for protection to determine whether or not United Nations and the principles of international law, the
formation about 220 kilometers off Masinloc town in the concerning law enforcement activities in regard to the protection for a mark may be granted. Once the sovereign right to exploit their own resources pursuant to
Philippine coastal province of Zambales and about 840 exercise of sovereign rights or jurisdiction as well as sea trademark office in a designated country grants protection, their own environmental policies, and the responsibility to
kilometers from the nearest point of the Chinese coast. boundary delimitations, or those involving historic bays or the mark is protected in that country just as if that office ensure that activities within their jurisdiction or control do
The shoal has been tacked to Philippine territory by a titles. had registered it. not cause damage to the environment of other States or of
Treaty between London and Washington in the year 1900 areas beyond the limits of national jurisdiction.
and declared by the Philippines in a 2009 new baselines China has made such an exception in a formal declaration The Madrid Protocol also simplifies the subsequent
law to be an island regime as defined under article on 25 August 2006. management of the mark, since a simple, single BASIC PRINCIPLES:
number 121 of the UNCLOS. procedural step serves to record subsequent changes in Principle of Common but Differentiated Responsibility
For this reason, the Philippines was emphatic in ownership or in the name or address of the holder with (Principle 7, Rio Declaration): States shall cooperate in a
As early as 1913, Manila courts have heard cases of its Notification and Statement of Claims against China, World Intellectual Property Organization's International spirit of global partnership to conserve, protect and restore
shipwrecks in the vicinity. With Philippine permission, the that its arbitral challenge does not cover any of the items Bureau. The International Bureau administers the the health and integrity of the Earth's ecosystem. In view of
shoal was also used for live-fire exercises by the US Navy in the Chinese reservations. Madrid System and coordinates the transmittal of the different contributions to global environmental
while it ran its largest naval facility outside the US requests for protection, renewals and other relevant degradation, States have common but differentiated
mainland at Subic Bay until the early 1990s. The US and Among others things, the Philippines wants the arbitral documentation to all members. responsibilities. The developed countries acknowledge the
the Philippines still maintain a Mutual Defense tribunal to rule on the compatibility of the Nine-Dash Line responsibility that they bear in the international pursuit to
Treaty signed in 1951 and regularly hold joint training Claim with China’s internal waters, territorial sea, or THE PARIS CONVENTION FOR THE PROTECTION OF sustainable development in view of the pressures their
exercises under a Visiting Forces Agreement. exclusive economic zone under the UNCLOS. INDUSTRIAL PROPERTY societies place on the global environment and of the
The treaty was signed in 1883 and it is one of the first technologies and financial resources they command.
Yet China designates the shoal Huangyan Island In other words, the Philippine submission asks whether treaties dealing with intellectual property and its
and asserts historic entitlements over it because it falls properly interpreted, the Chinese declaration complies protection. Precautionary Principle (Principle 15, Rio Declaration): In
inside the Nine-Dash Line claim. with the maritime regimes set under the UNCLOS. In order to protect the environment, the precautionary
2
addition, it also questions Chinese occupation of reefs SUBSTANTIVE PROVISIONS : approach shall be widely applied by States according to
One expert observer argues that Scarborough shoal which are underwater – namely Mischief, McKeenan, National Treatment: requires that each member state grant their capabilities. Where there are threats of serious or
occupies a central place in the Chinese plans to enforce its Gaven and Subi – asking the tribunal to rule that since the same quality and quantity of protection to eligible irreversible damage, lack of full scientific certainty shall
sovereignty claims over what it calls the “Zhongsha these are neither “rocks” nor “islands”under the UNCLOS, foreigners as it grants to its own nationals in respect to the not be used as a reason for postponing cost-effective
Qundao”‘, which consists of Macclesfield Bank, Truro these should be interpreted as part of the Philippine intellectual property enumerated in the Convention. measures to prevent environmental degradation.
Shoal, Saint Esprit Shoal, Dreyer Shoal and Scarborough continental shelf. As for Scarborough Shoal, which consists
Shoal. of six small rocks now conceded as uninhabitable islands,
the Philippines claims it as part of its EEZ.
THE RIGHT OF PRIORIY:
It provides that an applicant eligible for Convention International Economic Law
Except for Scarborough, all banks and shoals of Zhongsha benefits who files a first regular patent or trademark
Qunda are underwater for the most part. Without application in any of the countries of the Union, can then A field of international law that encompasses both the
Scarborough, it is said that the Chinese cannot assert file subsequent applications in other countries of the Union conduct of sovereign states in international economic
ownership over the entirety of Zhongsha Qundao, thus for a defined period of time which subsequent applications relations, and the conduct of private parties involved in
3
making the Nine-Dash Line claim useless. will have an effective filing date as of the first filed cross-border economic and business transactions .
application.
4
In June last year, China established Sansha City on FIELDS : International Economic Law covers, among
Yongxing Island in its southernmost province of Hainan to others, the following:
administer the Spratlys, the Paracels and Macclesfield (1) International Trade Law
Bank, with provision for a deployment of troops there. (2) International Financial Law
(3) Regional Economic Integration
To be sure, China has also resorted to deceptively
innocuous but no less rankling ways, such as printing new 1
United States Patent and Trademark Office, 3
http://www.law.cornell.edu/wex/international_economic_law
4
passports with a map of territories it claims (to include http://www.uspto.gov/trademarks/law/madrid/index.jsp Wenger, http://www.asil.org/iel1.cfm (American Society of
2
land areas India also considers its own ), and Reiss, http://www.lex-ip.com/Paris.pdf International Law)
perhaps, even exporting to unsuspecting bookstores in the
PAGE 201 PAGE 202
UP COLLEGE OF LAW PUBLIC INTERNATIONAL LAW BAR OPERATIONS COMMISSION
(4) International Development Law

(5) International Business Regulation
(6) Intellectual Property law
PAGE 203

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CONSTITUTIONAL LAW 1 VOTING MAJORITIES ....................................................... 14 DISQUALIFICATION FROM OTHER POSITIONS OF OFFICES ......... 35 FILIPINO FIRST ..............................................................

CHECKS AND BALANCES ............................................ 9

LEGISLATIVE PRIVILEGES, INHIBITIONS AND

the Bill of Rights ....................... 54 WARRANTLESS SEARCHES RECOGNIZED BY JURISPRUDENCE .... 61

Writ of Habeas Corpus ...... 84 EXCEPTION ................................................................... 88

Requirements .................... 96 ADMINISTRATIVE CODE ................................................. 103

and Kalikasan ..................... 84 Attainder ............................ 89 POWER TO PRESCRIBE QUALIFICATIONS ................ 96

Self-Incrimination Clause . 86 CREATION OF PUBLIC OFFICE ............................................ 92

EXPANDED APPLICATION ................................................. 86

Political Prisoners ............... 87 ELECTION .................................................................... 93

IMMUNITY FROM SUIT OF THE PRESIDENT .............107

De facto Officers ............... 107 WHAT IT CANNOT DO ..................................................... 112

Termination of Official PERSONNEL ACTIONS ............................................. 113

RESIGNATION ........................................................ 109

REMOVAL ................................................................. 111 TERM LIMITS ........................................................... 116 ELECTION LAW

Political Parties ................. 128

MODES OF CREATION OF QUALIFICATIONS ....................................................125 REGISTRATION .......................................................129

CERTIFIED LIST OF REGISTERED PARTIES.............................129 QUALIFICATIONS .......................................................... 137

Candidacy .......................... 130 PROCLAMATION .....................................................138

(BEI) and Board of GROUNDS ...................................................................143

Canvassers (BOC) .............. 137 DECENTRALIZATION ............................................... 151

Succession of PUBLIC INTERNATIONAL LAW

Elective Officials ................. 161 PERSONAL INVIOLABILITY ............................................... 178

International and National INVIOLABILITY OF PREMISES AND ARCHIVES ........................ 178

RECALL .................................................................. 164

INTERNAL WATERS ................................................ 198

TERRITORIAL SEA .................................................. 198

EXCLUSIVE ECONOMIC ZONE ................................. 199

CONTINENTAL SHELF............................................. 199

Madrid Protocol and the Paris

THE PARIS CONVENTION FOR THE PROTECTION OF

The Constitution (2) Enacted (conventional) v. evolved (cumulative)

presidential approval. COMMITTEE REPORT by proper committee (i.e. HOR

Varieties of Executive Privilege (US):— (1) State secrets

necessary for her to comply with her Constitutional duties,

Constitutional Commissions Scope of the Civil Service

Citizenship (3) Naturalized citizens of Spain who resided in the

citizenship in any manner while the Republic of the

Qualifications of the Governors:

Fundamental Powers of the The legislative determination “as to what is a proper

State exercise of its police powers is not final or conclusive, but is

POLICE POWER The SC upheld the validity of Administrative Orders which

Basis: Police Power- self-preservation and self-protection;

(2) Tribunal must consider the evidence presented.

Due Process NOTED EXCEPTIONS TO DUE PROCESS

Note: RA 8493 provides: a 30-day arraignment within the

Ex Post Facto and Bills Of

RA 1700 which declared the Communist Party of the

EX POST FACTO LAWS

General Principles UNLESS for duties of an inferior or subordinate office

A Person Cannot be Compelled to Accept a Public Office.

Who are NOT Public Officers

PAGE 99 PAGE 100

PAGE 101 PAGE 102

PAGE 103 PAGE 104

PAGE 105 PAGE 106

De facto Officers A de jure office exists; De jure office; Entitled to receive

(3) De Facto Officer’s Official Acts are not subject to

PAGE 107 PAGE 108

LIABILITY OF DE FACTO OFFICERS

PAGE 109 PAGE 110

PAGE 111 PAGE 112

PAGE 113 PAGE 114