POLITICAL LAW REVIEW Qualifications prescribed in the Constitution:

Atty. Carlo Cruz *implicit in all of the qualifications is the

possession of none of the disqualifications
October 16, 2019
Senators 1. Natural born citizen
LEGISLATIVE POWER 2. 35 yrs old on the date of
election
The authority to make laws, and to alter and 3. Resident for at least 2 years
repeal them. before or immediately
preceding the election
It is vested in Congress except to the extent
anywhere in the Ph
reserved to the people by way of initiative and
4. Registered voters
referendum consistent with Sec. 32 of Art. VI
5. Literate- ability to read and
which has been implemented through Republic
write
Act. No. 6735.
District 1. Natural born citizen
The basic principle is that Congress is without Reps 2. 25 yrs old on the date of
restriction as to the subjects which it may election
consider by way of legislation. Anything that is 3. Resident for at least 1 year
traditionally covered by the concept of legislation where they seek to be
can be tackled by the legislature e.g. crimes and election
imposition of penalties and fines, and exceptions 4. Registered voter
thereto. 5. Literate
Party-list I. Constitutional
In the context of separation of powers: The power 1
Reps 1. Natural born citizen
to grant statutory exemptions from the coverage 2. 25 yrs old on the date of
of penal statutes is with Congress. But the matter election
of implementing them is within the realm of the 3. Resident for at least 1 year
executive provided that once a case has been in the Ph
filed based on the penal statute, the case would 4. Registered voter
be under the full custody of the court. Therefore 5. Literate
any claim of immunity from the penal statute
should be with assent of the court that assumed II. Eligibilities and
jurisdiction over the criminal case. disqualifications under
RA 6735
In the senate, there are 24 of them. They are
No part-list nominee can be
provided with staggered terms. Staggered terms
nominated:
are usual in appointive officers to ensure the
independence of the entity to which the rotational
1. Without his express, formal
scheme is applied. In the Senate, the purpose of
and written consent.
staggering of terms is to ensure a continuation of
2. If he had lost in an election
legislative policy such that only 12 of the 24, as
immediately preceding his
designed in the Constitution, up for reelection or
nomination
replacement in every Senatorial election. The
President 1. Natural born citizen
other 12 carry on with their terms to the next
Vice 2. 40 yrs old on the date of
Congress.
President election
3. Resident for at least 10
years before or immediately
preceding the election
anywhere in the Ph
4. Registered voters
5. Literate- ability to read and
write

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Sir does not understand why there are additional which are not mentioned. Nobody has questioned them but
qualifications in the law. Expressio union est exclusio he thinks they are reasonable.
alterius. The express mention of a thing excludes those

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 Supreme 1. Natural born citizen
Court 2. At least 40 upon
Justices appointment
3. At least 15 years engaged in
the practice of law or a judge
of a lower court
Lower Only required to hold minimum
court qualifications
judges 1. Philippine citizen
2. Membership in the bar
3. For collegiate court justices-
natural born citizenship
Congress is competent to add to
these qualifications. In fact, it has
done so already in BP 129.
ü Natural born citizenship
is now prescribed for all
judgeships
Constitutional Commissions
Uniform qualifications:
1. Natural Born Citizenship
2. Age fixed at 35 upon appointment
Uniform disqualifications (none of them may be
appointed to the CONCOM) if:
1. They have participated in the elections
immediately preceding their appointment
2. None of them can be appointed in an
acting or designated capacity
Civil Proven Capacity for public
Service administration
COMELEC College degree holders, majority
of them must be lawyers who
had practiced law for at least 10
years, including the Chairman.
(Meaning 4 of them must be
lawyers)
COA 1. At no time should the
commission be comprised of
members coming only from
one profession. Two
professions are required to
be always represented,
accountancy and law.
2. Practice of their respective
professions for at least 10
years.
Understand that all lower court judges are
required only, under the Constitution, to possess
minimum qualifications, namely Philippine
Citizenship and membership in the Bar. I said
these are minimum qualifications therefore
Congress will be competent to ADD or improve
upon these qualifications. In fact, it has done so
already. The present law, B.P. 129, as amended,
has added additional qualifications and improved
upon existing ones. Natural-born citizenship is
now prescribed for all judgeships.
B.P. 129
Section 15. Qualifications. – No persons shall be
appointed Regional Trial Judge unless he is a
natural-born citizen of the Philippines, at least
thirty-five years of age, and for at least ten years,
has been engaged in the practice of law in the
Philippines or has held a public office in the
Philippines requiring admission to the practice of
law as an indispensable requisite.
I should also mention that insofar as collegiate
court justices are concerned, understand that
they are also lower court judges but there is an
additional constitutional qualification for all
collegiate court justices, and that is natural-born
citizenship. From there, we proceed to the
Constitutional Commissions.
The uniform qualification would be natural-born
citizenship and age: fixed at 35 at the time of their
appointment. That is the only area of similarity,
well there are disqualifications prescribed
uniformly for all of them:
1. None of them may be appointed to the
Constitutional Commissions if they have
participated in any election immediately
preceding their appointment;
2. None of them may be appointed in an
acting or designated capacity.
The differences between the Constitutional
Commissions in terms of qualifications would be
these:
CSC – the commissioners are not required to be
college degree holders. All that is required of
them is that they have proven capacity for public
administration.
COMELEC – Distinguish the above from the
COMELEC commissioners who are all required
to be college degree holders provided that a
majority of them are lawyers (who have practiced
law for at least 10 years), including the chairman.
So 4 of them must be lawyers.
Majority of the lawyers must practice law for 10
years.
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Would it be possible for a lawyer to be appointed
as COMELEC Commissioner without practice of
law for 10 years? Yes, provided he shall not be
counted as part of the required majority.
Is it okay for the COMELEC to be entirely
composed of lawyers? Yes, in fact, that would be
ideal considering that they will be exercising
quasi-legislative and quasi-judicial authority.
COA Commissioners
In so far as COA commissioners are concerned,
the difference is that at no time should that
commission be comprised of members coming
only from one profession. Two professions are
required to be always represented in the COA,
these will be accountancy and law, practicing
their respective professions for 10 years.
Would it be possible that COA is composed of 3
CPA lawyers? Yes.
Ombudsman and Deputy Ombudsman
They are appointed by the President upon the
nomination of the Judicial and Bar Council (JBC).
They are all required to be:
1. Natural born citizens
2. At least 40 years of age
3. 10 years in the practice of law (Ombudsman
only; not applicable to deputy ombudsman)
Qualifications
“AGE AT THE TIME OF THEIR ELECTION”
History: This was by reason of Marcos’ anger.
Espinosa v. Aquino
G.R. No. L-11721, March 26, 1958
In this case, Mr. Benigno “Ninoy” Aquino, when
he ran for the first time for the position in the
senate, he was not yet 35 years old, the age
prescribed for membership in the senate, on the
date of the election. Elections then were held in
November, second Tuesday. But by the time he
was proclaimed, he had already turned 35. His
birthday is Nov. 27. His proclamation as a winning
senator was after Nov. 27.
SC: The age qualification, under the 1935
Constitution, should be possessed on the date of
the proclamation.
This angered Mr. Marcos. Which is why in the
1973 Consitution, replicated in the present
Constitution, that phrase appears. 35 years on
the date of the election.
RESIDENCE and CITIZENSHIP
You do not equate the two. One does not always
go with the other. That is why they are described
as different qualifications.
There are many foreigners here which are
actually permanently residing here, managing
businesses in Boracay, etc. But they remain to be
a citizen of their State. In the same vein, many
Filipinos are green card holders, but that only
means that they are permanently residing there.
They remain Filipinos for at least 5 years before
they actually are naturalized as American
citizens.
In different cases, it depends who the party is. If
you are an Imelda, you are always a resident,
anywhere. If you are Jaloslos, you are not a
resident. Or a Guingona. If you are Sonny
Osmeňa, you are a resident anywhere.
You remember this provision in the Family Code,
which was also present in the Civil Code, to the
effect that when a woman marries her spouse,
she takes on automatically the residence of her
spouse as her new domicile.
Remember the 3 basic principles on residence:
(1) Everyone has a residence;
(2) No one can have 2 residences, or in the
context of political law, domiciles;
(3) If you take on a new residence, you
necessarily abandon the old one.
Here is Imelda, born and bred in Tacloban Leyte.
Birthdays, wakes, every celebration is there. She
has always voted there. But then she married
Ferdinand Marcos who is a resident of Ilocos
Norte, Batac. That provision in the Family Code,
well Civil Code, was invoked against her. It was
not applied to have her considered as NOT a
resident of Tacloban. In essence, the Court said
that the man she married has many residences.
Batac, San Juan Metro Manila, Makati,
Malacanang, etc. They went by the basic rule:
manendi. The animus manendi and animus
revertendi. That is your formula.
In any given problem in this regard, always
determine the intent of the person. For instance,
Raul Roco. Everyone knew he was from QC,
White Plains. Everyone knew he has always lived
in Metro Manila, he studied here, etc. And yet, he
has always been recognized as a resident of
Naga City. It is because of the intent: manendi
and revertendi.
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But here’s my problem here: that principle was
applied to favor Imelda. She was born there, lived
there, studied there, partied there, etc.
Distinguish the case of Imelda Marcos with
Limbona.
Limbona v. COMELEC
G.R. No. 186006, Oct. 16, 2009
She married her husband and when she sought
to run in her former domicile, she was
disqualified. The provision in the Civil Code was
applied against her.
See Art. 68 and 69 of Family Code.
Jalover v. Osmeña
G.R. No. 209286, Sept. 23, 2014
This involved Sonny Osmeña.
The Court referred to the earlier case of Mitra v.
COMELEC which explains why the matter of
residency is prescribed as a qualification for
elective office.
• From the perspective of the candidate –
he must be familiar with the political
terrain, the requirements and problems of
area/ district where he seeks election.
• From the perspective of the constituency
– there must be a vote to assess the
qualifications of the candidate that is only
possible if you were actually domiciled in
the place where he seeks election.
The former senator Osmena was running as
mayor of Toledo City. He did not have a house
there. He went there only for political purposes.
When he would stay there, he would stay at these
apartments or small hotels, etc. He did own
property and on that property was being
constructed a house. But it was not yet built and
he had not yet lived there.
SC sustained his claim that he was a resident
there because of the manendi and revertendi.
Distinguish with Jalosjos v. COMELEC
G.R. No. 209286, June 25, 2013.
Similarly situated with Osmena:
• Political purposes
• Owned a property but house still under
construction
• Stayed at hotels
But Jalosjos was NOT considered as resident.
As a rule, ownership of property is not
necessarily an indication of residence.
• If that were so, then property ownership
may be considered an additional
qualification for an elective officer which
is not allowed.
What I prescribe for my students is that if you will
be facing a problem on residency, it will all
depend on animus manendi and animus
revertendi. This can be applied in the case of the
Cayetano couple. You cannot be wrong if you rely
on animus manendi and animus revertendi.
Natural-Born Citizenship
The basic definition of natural-born citizenship is
prescribed in Article IV of the Constitution.
Article IV – Citizenship
Section 1. The following are citizens of the
Philippines:
1. Those who are citizens of the Philippines at
the time of the adoption of this Constitution;
2. Those whose fathers or mothers are
citizens of the Philippines;
3. Those born before January 17, 1973, of
Filipino mothers, who elect Philippine
Citizenship upon reaching the age of majority;
and
4. Those who are naturalized in the accordance
with law.
Section 2. Natural-born citizens are those who
are citizens of the Philippines from birth without
having to perform any act to acquire or perfect
their Philippine citizenship. Those who elect
Philippine citizenship in accordance with
paragraph (3), Section 1 hereof shall be deemed
natural-born citizens.
The jus sanguinis principle is observed in the
Philippines. According to this principle, a child
follows the nationality or citizenship of the parents
regardless of the place of his or her birth. On the
other hand, the doctrine of jus soli determines
nationality or citizenship on the basis of place of
birth. (Valles v. COMELEC, G.R. No. 137000,
August 9, 2000)
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Manners of Acquiring Natural-Born Filipino
Citizenship
The following are considered natural-born
citizens of the Philippines:
1. Those born of Filipino parents (Section 1
(2), Article IV, 1987 Constitution)
2. Those born of a Filipino mother before
January 17, 1973, who elect Philippine
Citizenship upon reaching the age of
majority (Section 1 (3), Article IV, 1987
Constitution)
3. Those who reacquired their Filipino
natural-born citizenship through
naturalization or repatriation after the
enactment of the 1987 Constitution but
prior to the promulgation of R.A. No.
9225 (See Bengson III v. HRET)
4. Those who reacquired or retained their of
natural-born status pursuant to R.A. No.
9225
5. Foundlings found in the Philippines.
Manner of Election (with respect to paragraph 3
of Section 1, Article IV)
Election of Philippine citizenship merely requires
the taking of the oath of citizenship, making a
statement of election, and the registration of both
the oath and statement in the proper civil registry.
Reacquisition of Natural-Born Citizenship
Prior to R.A. No. 9225
Bengson III v. House of Representatives
Electoral Tribunal, G.R. No. 142840, May 7,
2001
FACTS: Bengson was a natural born Filipino
citizen who enlisted in the United States Marine
Corps and without the consent of the Republic of
the Philippines, took an oath of allegiance to the
United States. As a Consequence, he lost his
Filipino citizenship. Prior to the enactment of R.A.
No. 9225, Bengson returned to the Philippines
and wished to be a Filipino again. He underwent
naturalization proceedings for the purpose of
repatriating himself. Immediately after he was
naturalized back into a Filipino citizenship status,
he filed a certificate of candidacy for member of
the House of Representatives, a position that
requires natural born citizenship.
ISSUE: Did Bengson restore his natural-born
Filipino citizenship by virtue of the naturalization
proceedings?
RULING: Yes. The effect of Bengson’s
naturalization would be to restore him back to his
natural-born citizenship status.
Reacquisition Under Republic Act No. 9225
Under this statute, one who was born a natural-
born Filipino citizen and loses it, shall reacquire
such citizenship after taking the oaths prescribed
in the said law.
Foundlings
A foundling is essentially considered to be the
offspring of citizens of the state or the country
where they are found. (Poe-Llamanzares v.
COMELEC, G.R. No. 221697, March 8, 2016)
That would fit into the definition of a natural-born
citizen.
David v. Agbay is the only case that the Supreme
Court had made the distinction of the concepts of
reacquisition and retention in the context of RA
9225.
This particular law is available only to those to
begin with are natural born citizens/Filipino
citizens. Why is this so? Because the effect of
taking either the first or second, otherwise known
as the renunciation oath, will be to restore the one
who takes that oath back to his original natural
citizenship status.
Example: A Chinese citizen comes to the
Philippines and has himself naturalized as a
Filipino. Then he goes to America. Decides to
have himself naturalized as an American. May he
avail himself of RA 9925 to restore him back to
his Philippine citizenship? The answer is no. If he
were allowed to take that oath, the effect would
be to vest in him natural citizenship.
David v. Albay would be essentially founded on
Sections 2 and 3 of the Dual Citizenship law.
Taken together, there is an interpretation in those
provisions to the effect that one who avails
himself of the oaths or takes the oaths under
9925 shall be deemed never to have lost his
Philippine citizenship.
David v. Agbay
GR No. 199113, March 18, 2015
We tackle the matter to this natural born Filipino.
Who, in 1974, migrated in Canada and after 5
years becomes a naturalized Canadian (1979).
He lost his Philippine citizenship before—and this
brings us to the reckoning point—2003, because
that was the year when R.A. 9225 became
effective. So this natural-born Filipino became a
naturalized Canadian in 1974 long before 2003.
He returned to the Philippines around 2005,
decided to retire there and bought beach property
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with his wife, only to find out later that he cannot
buy that property because it is protected property
by the DENR. He was legally advised to apply for
a Miscellaneous Lease Agreement (MLA) with
the DENR, filled out the form, and in the space
reserved for citizenship, wrote down “Filipino”—
falsification, because at the time he applied, he
was a naturalized Canadian.
When that fact of falsification alerted him of
possible criminal charges, he sought legal advice
again and was told to take the oath under R.A.
9225. The lawyer pointed out that if he took that
oath, he shall be deemed never to have lost his
Philippine citizenship. Therefore, if petitioner
would have taken that oath in 2010, that effect of
restoration to natural-born citizenship, according
to the lawyer, would retroact back to 1974, when
he would have lost it because of naturalization in
Canada. That would only mean that if he signed
that MLA application and indicated that he was
Filipino, he would not have told a lie because of
the retroactive effect.
He was still charged later on, and he sought to
prevent the prosecution by raising that point.
Justice Peralta addressed this particular
contention by saying that at the time petitioner
executed the MLA, the crime of falsification had
already been consummated. There are two
classes of natural-born Filipino citizens who
would have lost their Philippine citizenship in the
context of David v. Agbay:
Two classes of natural born Filipino citizens who
would have lost their Philippine citizenship (in the
context of David v. Agbay):
1. Those who would have lost their natural
born citizenship before 2003.
• Because they lost it while R.A. 9225
was not yet effective, that means
they would have lost it on the basis
of Commonwealth Act No. 63. That
law did not provide for any
restoration of Philippine citizenship
or, much less, a retroactive effect of
such restoration. Hence, CA No. 63
governs the loss of that citizenship
by these people.
2. Those natural born citizens who would
have lost Philippine citizenship after
2003, when R.A. 9225 was already in
place.
• (According to the SC) It is only those
who would have lost Philippine
citizenship after 2003, when R.A.
9225 was already in place, who shall
be considered as having retained
their Philippine citizenship. The
phrase of Section 3 says that you
shall be deemed to not have lost
Philippine citizenship, and that you
are the only ones who would be
covered by the retroactive clause.
• All those who lost their Philippine
citizenship before 2003, when they
take their oath under R.A. 9225,
shall be considered to have
reacquired Philippine citizenship
and that acquisition shall produce
only prospective effect. The
retroactive clause shall not be
applicable to them.
• Those who lost their Philippine
citizenship after 2003, they retain
their Philippine citizenship and the
effect of such restoration of
Philippine citizenship shall retroact
to the date of the loss of their
Philippine citizenship. Hence, the
retroactive clause in R.A. 9225 is
effective only to them.
For example, there is a Filipino who became a
naturalized American citizen in 2005. He is now
not a Filipino and R.A. 9225 was already
effective. Say, five years later he misses the
Philippines and decided to avail of the benefits of
R.A. 9225. He took the (what sir calls as the first
oath) oath under R.A. 9225 in 2010. So, as of
2010, he sworn allegiance again to the Republic
of the Philippines.
He would, again, be a Filipino. The effects of his
restoration to that status shall go back to 2010
where he lost his Filipino citizenship. Stated
otherwise, from 2010 to 2015, when he took the
first oath, he should be considered as having
remained a Filipino citizen.
Let us talk about his oath. There are two of them
prescribed or allowed to taken under R.A. No.
9225. Let's start with what I refer to as the "First
Oath." You will note that it is not a traditional
citizenship oath. While it requires for the one who
takes it to swear allegiance to our republic, it does
not require him to renounce any and all other
foreign citizenships. Before 2003, he becomes a
naturalized American. After 2003, he takes the
first oath under R.A. No. 9225. He swears
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allegiance to the Republic of the Philippines,
therefore, he is restored to Philippine citizenship.
He did not renounce any foreign citizenship, so
he retains that foreign citizenship - dual
citizenship.
He retains that foreign citizenship. As a dual
citizen what they can be first owned under RA
9225 is entitled to own property, real property, is
entitled to practice his profession provided it is in
compliance with the basic requirements
prescribed by professional regulatory board.
Petition for Leave to Resume Practice of
Law, Benjamin Dacanay
(B.M. No. 1678 Dec. 17, 2007)
In so far as lawyers are concerned. A lawyer who
reacquires Filipino citizenship under RA 9225 can
resume his law practice provided he does the
following:
a) the updating and payment in full of the
annual membership dues in the IBP;
b) the payment of professional tax;
c) the completion of at least 36 credit
hours of mandatory continuing legal
education; this is specially significant to
refresh the applicant/petitioner’s
knowledge of Philippine laws and update
him of legal developments and
d) the retaking of the lawyer’s oath which
will not only remind him of his duties and
responsibilities as a lawyer and as an
officer of the Court, but also renew his
pledge to maintain allegiance to the
Republic of the Philippines.
Are they allowed to be registered as voters? Yes,
according to Nicolas-Lewis v. COMELEC (G.R.
No. 162759 August 4, 2006)
This pertains to registration as a voter.
Remember that the qualifications for registration
as a voter is prescribed in Article 5, Section 1:
Article V
Section 1: Suffrage may be exercised by all
citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen
years of age, and who shall have resided in the
Philippines for at least one year, and in the place
wherein they propose to vote, for at least six
months immediately preceding the election.
Nicolas-Lewis v. COMELEC
(G.R. No. 162759 August 4, 2006)
Facts: A natural-born Filipina who married an
American gazillionaire. She became a
naturalized American. She heard about RA 9225
and decided she wanted to be a Filipina again.
She takes her first oath and then she reads the
law and finds out she’s entitled to be registered
as a voter but subject to the requirements under
the Constitution, laws, rules and regulations.
The provision reads: May be registered as a
holder subject to the requirements under the
Constitution, laws, rules and regulations.
What would be the basic qualifications?
Article 5, Section 1
SECTION 1. Suffrage may be exercised by all
citizens of the Philippines not otherwise
disqualified by law, who are at least eighteen
years of age, and who shall have resided in the
Philippines for at least one year and in the place
wherein they propose to vote for at least six
months immediately preceding the election. No
literacy, property, or other substantive
requirement shall be imposed on the exercise of
suffrage.
Nicolas-Lewis v. COMELEC
G.R. No. 162759 August 4, 2006
Article 5 Section 1 which prescribes in addition to
citizenship (to which she is qualified because she
is a dual citizen), in addition to age (to which she
is qualified, 18 or more), but is she qualified under
the residence requirement.
When she applied for registration, the COMELEC
rejected. She was permanently residing abroad.
Therefore, you cannot be a permanent resident
here. Remember the 3 rules:
1. There must be one residence.
2. You cannot have two residences.
3. Taking a new residence, you abandon
the old.
She had abandoned her domicile here when she
took up her permanent residence abroad. She
went up to the Supreme Court from that rejection.
The Court pronounced that she may be
registered here as a holder. SC voted 13-0. There
was not a single dissent.
The Court rationalized this departure from the
strict qualifications prescribed for registration as
a holder in our Constitution. The Court
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generously relying on the earlier case of
Macalintal v. COMELEC (discussed in joint
legislative oversight committee separation of
power concepts).
This was the Overseas Absentee Voters Act
which allowed overseas Filipino to be registered
as voters. That law was done by the Congress
ostensibly, pursuant to Section 2 of Article 5.
Article 5
SECTION 2. The Congress shall provide a
system for securing the secrecy and sanctity of
the ballot as well as a system for absentee voting
by qualified Filipinos abroad.
Section 2, Article 5 contains a command upon
Congress to evolve a system of absentee voting
for “overseas Filipinos.” The law included even
Filipinos who are permanently residing abroad
because these Filipinos abroad were overseas.
Hearing the phrase Filipinos impresses on the
idea of OFWs. These workers when they work
abroad for long-term contracts of 5 or 6 years, do
they remain residents of the Philippines? Of
course! Because they have every intention to
return. They created now with Filipinos who are
permanently residing abroad. (Sir does not
agree) But that was how the SC ruled.
Nicolas-Lewis v. COMELEC
G.R. No. 162759 August 4, 2006
Actual SC Doctrine: As may be noted, there is
no provision in the dual citizenship law - R.A.
9225 - requiring "duals" to actually establish
residence and physically stay in the Philippines
first before they can exercise their right to vote.
On the contrary, R.A. 9225, in implicit
acknowledgment that "duals" are most likely non-
residents, grants under its Section 5(1) the same
right of suffrage as that granted an absentee
voter under R.A. 9189. It cannot be
overemphasized that R.A. 9189 aims, in essence,
to enfranchise as much as possible all overseas
Filipinos who, save for the residency
requirements exacted of an ordinary voter under
ordinary conditions, are qualified to vote.
In Macalintal: It is clear from these discussions of
the … Constitutional Commission that [it]
intended to enfranchise as much as possible all
Filipino citizens abroad who have not abandoned
their domicile of origin. The Commission even
intended to extend to young Filipinos who reach
voting age abroad whose parents’ domicile of
origin is in the Philippines and consider them
qualified as voters for the first time.
It is in pursuance of that intention that the
Commission provided for Section 2 [Article V]
immediately after the residency requirement of
Section 1. By the doctrine of necessary
implication in statutory construction, …, the
strategic location of Section 2 indicates that the
Constitutional Commission provided for an
exception to the actual residency requirement of
Section 1 with respect to qualified Filipinos
abroad. The same Commission has in effect
declared that qualified Filipinos who are not in the
Philippines may be allowed to vote even though
they do not satisfy the residency requirement in
Section 1, Article V of the Constitution.
The Court relying on those extrinsic aids at the
senatorial and congressional debates,
[inaudidble] they also cited debates in the
constitutional commission. Clearly the intention
was for Section 2 to be considered as an
exception to the residence qualifications
prescribed in Section 1. So I repeat, In Nicholas
Lewis, relying on Macalintal v. COMELEC, the
Court said clearly dual citizenship vests any dual
citizen the right to be registered as a voter
regardless of his residence.
You must have sometimes studied the Absentees
Voters Act. May special requirement doon eh. If
the one who seeks registration on the basis of
that law will be allowed to be registered, he must
execute a sworn affidavit of oath to the effect that
he will return to the Philippines within 3 years.
What is that class if not an indication that
residence is important, precisely because the
permanent resident Filipino there is still in
essence required to come back here. Now here
is my point, All of those who register on the basis
of the 2001 law and who has executed that sworn
undertaking, how many of that have returned to
our country? Ano punishment for them imposed
under the law if they fail to return? They will be
deactivated as voters. Our COMELEC is so
efficient, ilan na kaya nadeactivate dun? I’m
telling you class they are still active.
Remember the principle in Nicholas Lewis v.
Comelec, the Court said that if a dual citizen is
residing abroad permanently, he would be
entitled to register as a voter precisely because
of the exceptional clause in Section 2, Article 5.
8

Section 4. Derivative Citizenship - The
unmarried child, whether legitimate, illegitimate
or adopted, below eighteen (18) years of age, of
those who re-acquire Philippine citizenship upon
effectivity of this Act shall be deemed citizenship
of the Philippines.
Here’s the problem: the title of Sec. 4 is derivative
citizenship - can you become a natural born
citizen through derivative mode? No. Precisely,
you are a naturalized Filipino. Therefore, are the
single, legitimate, illegitimate or adopted children
considered as natural born or naturalized citizens
of the Philippines?
To illustrate the problem, let’s go back to that guy
who lost his PH citizenship in 2010 and then he
took the first oath under RA 9225 in 2015. From
that time on, he became a dual citizen, but his
restoration to PH citizenship retroacts to 2010,
which is the time he lost it due to naturalization in
a foreign State. The problem is this: what if in
2011, he had an offspring? Would that offspring
be considered as natural born or naturalized,
given the very limited definition in Section 4? It
might not be a problem today, but someday, that
offspring will eventually turn 40 years old and may
decide to run for President. How then do you
determine his compliance with the qualification
that a candidate for the Presidency must be a
natural born citizen of the Philippines? That is an
issue not addressed in the law. I take the view
that the child is a natural born citizen - it is not the
child’s fault; it was an accidental birth.
Another point, let us say Jepoy who is from
Antipolo, learned that in December 2015 he won
the lotto with a prize of 100M. And because he
idolized Manny Pacquiao, he uses the 100M to
buy the lot next to Manny’s to be his neighbor.
One reason also that he transfers to Makati is
because he learned that Abigail will run for Mayor
of Makati.
Sir’s example: Jepoy lives in Antipolo. He won in
December 2015 in lotto for 100 Million. He buys
property in Forbes Park for 99M and reserves 1M
for himself. He transfers to Makati because he
wants to vote for Abigaile. He establishes his
residence there, the manendi is there. They tend
to abandon Antipolo, and to adopt Makati.
If he applies for registration as a voter in Makati,
he will be rejected because he had not resided in
Makati for at least 6 months.
Now think of the person born in America in 2011.
When he turns 18 on the basis of Nicolas-Lewis,
he will be allowed to register as a voter. He had
never set foot in the Philippines, but he will be
allowed to vote. Meanwhile, Jepoy who had lived
here all his life will not be allowed to vote.
Sir’s opinion: Jepoy will be told that he can still
vote in Antipolo. But that misses the point - Intent!
Is that fair? But that is what the law provides, and
that is how it had been upheld.
Ownership of property, practice of profession,
registration as a voter (okay). May a dual-citizen
be elected or appointed to public office? No.
Relate this essentially to Section 18 of Article 11.
Article XI
Accountability of Public Officers
SECTION 18. Public officers and employees owe
the State and this Constitution allegiance at all
times, and any public officer or employee who
seeks to change his citizenship or acquire the
status of an immigrant of another country during
his tenure shall be dealt with by law.
Section 18 of Article 11 requires for purposes of
public officership to maintain allegiance to the
Republic of the Philippines. Therefore, it implies
the matter of sole allegiance to the Republic of
the Philippines.
Dual citizenship does not arise only by reason of
RA 9225. There are several reasons, highlighted
in the case of Edu Manzano, and of the
Paranaque Congressman.
Edu Manzano was born of Filipino parents in
America. So, Jus Sanguinis, Upon birth, dual
citizen. When he landed first in the Philippines
and ran for Mayor, or Vice Mayor of Makati, he
stated that he is of a natural-born citizenship
status.
The Supreme Court held that although he was
born there of Filipino parents, all his life, he lived
here, he went to church, he worked here, all his
marriages were here. All of these acts indicate
that it all happened here and he effectively
renounced his American citizenship. He even tore
up his American passport in a press conference.
Assuming that he is a solely citizen, but do not
confuse dual allegiance with dual citizenship.
Do not mistake dual allegiance with dual
citizenship because dual citizenship may be
9
accidental. Dual allegiance is always voluntary.
Dual citizenship will always be found on the
ground of loyalty.
CORDOGA v. COMELEC
G.R. No. 176947, Feb. 19, 2009
I cannot grasp the concept of dual citizenship,
much less dual allegiance. The point is, the
ordinary gentleman cannot be loyal to two at the
same time. Kailangan isa lang. Now, he was
considered qualified because he was considered
as a natural born Filipino citizen only, having
effectively renounced his American citizenship.
That was done long before RA 9225. I mentioned
the case of Tambunting, because this case arose
when RA 9225 was already there. So the
contention against Mr. Tambunting was that he
cannot be considered as a natural born Filipino
simply because he had not take either of the
oaths in RA 9225. The SC said that he need not
take an oath under RA 9225 precisely because
like Edu Manzano, who is similarly situated, all of
this acts when collectively taken, constitute a
renunciation of his American citizenship.
Therefore, a possession only of solely natural
born Filipino status.
[The third] situation where dual citizenship arises
is when a Filipina marries an alien. Recall that
under our present charter, a Filipina who marries
an alien retains her Philippine citizenship unless
she loses it upon express renunciation of the
same. What if the laws of the country of her alien
spouse makes her ipso facto a citizen of that
country? She becomes a citizen of that country
while retaining her Philippine citizenship. Hence,
she is a dual citizen.
In a similar way, if the children of that woman
would be considered under the laws of the
country of their stepfather as ipso facto citizens of
that country, they do not lose that Philippine
citizenship as well. Hence, they are dual citizens.
The fourth situation is in the case of RA 9225.
Let us go back to the basic point. May dual
citizens be appointed or elected to public office?
The answer is a categorical no. This is rooted
upon Section 18 of Article 11 as I have already
explained. How then can these dual citizens be
qualified or elected to public office? They must
take the second oath under RA 9225, otherwise
known as the renunciation oath.
Renunciation Oath is the traditional citizenship
oath. It requires the (1) pledging of allegiance to
the Philippines and (2) renunciation of any and all
forms of citizenship. When he takes the second
oath, he is no longer a dual citizen. Now, he is
solely a natural born Filipino, making him eligible
for appointment and election to public office.
Caballero v. Comelec
G.R. No. 209835 | September 22, 2015
Petitioner, born and raised in Batanes Islands,
migrates to Canada and becomes a naturalized
Canadian citizen. Petitioner decides run for
mayor in Batanes. Let’s say he decides to run in
July 2009. He decides to take the renunciation
oath in July. October filing of COC, he files after
taking the renunciation oath in July. Is he eligible?
No, because because at the time of filing he was
a resident of Canada. Remember, for eligibility of
local elective office you have to resident for
atleast a year.
What if he argues that the stamps on his passport
indicates that he has been traveling to and from
the Philippines even after he was naturalized, will
the same count as revertendi? No, because he
became a naturalized Canadian citizen and a
requirement of that is establishing permanent
residence in Canada. He cannot claim to have
permanent residence there, and have domicile
here. Thus, he was qualified in terms of
citizenship, but disqualified in terms of residence.
Note: Dual citizens cannot be appointed and
elected to public office because the Constitution
requires that they maintain continuing sole
allegiance to the Philippines.
So this gentleman, Mr. Hernando he became a
naturalized American but when he saw the
opportunity, he came here. He came home.
Walang problema sa residence. He took on his
domicile here. He established his domicile long
before the election so qualified siya in terms of
residence. Wala rin problema sa citizenship. He
took straight the renunciation oath. One basic
point. I mentioned two oaths. The first oath gives
rise to dual citizenship. The second oath, you are
solely a filipino citizen. Is the first oath under 9225
a pre-requisite for the second oath? The answer
nd
is no. You may go through the 2 oath under
9225. And this is what this gentleman did in
Makiling vs. COMELEC.
10
 Maquiling v. COMELEC
G.R. No. 195649, April 16, 2013
Arnado was a natural born Filipino citizen, but lost
his citizenship upon naturalization as citizen of
United States of America. Sometime on 2008 and
2009, his repatriation was granted and he
subsequently executed an Affidavit of
Renunciation of foreign citizenship. On
November 2009, Arnando filed for a certificate of
candidacy and won the said election. But prior
from his declaration as winner, a pending action
for disqualification was filed by Balua, one of the
contenders for the position. Balua alleged that
Arnando was not a citizen of the Philippines, with
a certification issued by the Bureau of
Immigration that Arnando’s nationality is USA-
American and a certified true copy of computer-
generated travel record that he has been using
his American passport even after renunciation of
American citizenship. A division of the COMELEC
ruled against Arnando but this decision was
reversed by the COMELEC en Banc stating that
continued use of foreign passport is not one of the
grounds provided for under Section 1 of
Commonwealth Act No. 63 through which
Philippine citizenship may be lost. Meanwhile,
Maquiling petition that should be declared winner
as he gained the second highest number of votes.
SC: The use of foreign passport after renouncing
one’s foreign citizenship is a positive and
voluntary act of representation as to one’s
nationality and citizenship; it does not divest
Filipino citizenship regained by repatriation but it
recants the Oath of Renunciation required to
qualify one to run for an elective position which
makes him dual citizen. Citizenship is not a
matter of convenience. It is a badge of identity
that comes with attendant civil and political rights
accorded by the state to its citizens. It likewise
demands the concomitant duty to maintain
allegiance to one’s flag and country. While those
who acquire dual citizenship by choice are
afforded the right of suffrage, those who seek
election or appointment to public office are
required to renounce their foreign citizenship to
be deserving of the public trust. Holding public
office demands full and undivided allegiance to
the Republic and to no other. It is a continuing
requirement that must be possessed not only at
the time of appointment or election or assumption
of office but during the officer's entire tenure.
Once any of the required qualifications is lost, his
title may be seasonably challenged. Therefore,
the Court held Arnando disqualified for any local
elective position as provided by express
disqualification under Section 40(d) of the Local
Government Code. Popular vote does not cure
this ineligibility of the candidate. Otherwise,
substantive requirements set by the Constitution
are nugatory.
Furthermore, there is no second-placer to speak
of because as reiterated in the case of Jalosjos v.
COMELEC, when the ineligibility was held to be
void ab initio, no legal effect is produced. Hence
among the qualified candidates for position,
Maquiling who garnered the highest votes should
be declared as winner.
So he ran. Eligible siya. In the polls of the
campaign, he continued using his American
passport 4 or 5 times. This was established. The
Comelec disqualified him. The COMELEC
considered his continued use of his American
passport as a recantation of the renunciation
oath. If there were a recantation of the
renunciation oath, what would be the citizen
statues of someone who has taken it? He reverts
back to the citizen status that he had before the
renunciation oath. This case of Arnaldo.
Naturalized American siya. He went straight to
renunciation oath. Recanted. So he became a
naturalized American. If in the meantime he took
the first oath and then he is considered to have
recanted the renunciation oath, then he goes
back to becoming a dual citizen. That’s how it
works. The COMELEC’s disqualification was
upheld. Disqualified siya. Tama ang Comelec.
The renunciation oath is recanted. Here is our
problem. He ran for that 2010 to 2013 election.
He won.
The COC that was the subject of Maquiling v.
Comelec was his COC for the 2010 election
which he filed in 2009. He came to learn about
Maquiling v. Comelec on Apr. 15, 2013. By then,
he was already running for reelection. For which
nd
reason, he filed his 2 COC for his reelection day
in October of 2012.
Note: When he filed in October 2012, of course
he didn’t know yet that he will be finally
disqualified because the decision was
promulgated on April 2013.
It meant that his 2012 COC was also void ab
initio. This was again invoked against him when
he was reelected for the 2013-2016 term. This
was the case of Arnado v. Comelec. He was
disqualified when the 2013-2016 term was about
to end.
11
Recap:
(d) solicited, received or made any contribution
It was only in April 2013 that he was finally prohibited under Sections 89, 95, 96, 97 and
considered to have recanted his renunciation of 104; or
which served to disqualified him from the 2010- (e) violated any of Sections 80, 83, 85, 86 and
2013 election 261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from
nd
In Arnado v. Comelec, when he filed his 2 COC, continuing as a candidate, or if he has been
he was still considered NOT a natural-born elected, from holding the office. Any person
citizen, although he came to know it about only 5 who is a permanent resident of or an
months later, he is again disqualified with respect immigrant to a foreign country shall not be
nd
to the 2 COC. qualified to run for any elective office under
this Code, unless said person has waived
Point of this case: his status as permanent resident or
He ran again for the 2016-2019 term. immigrant of a foreign country in
accordance with the residence requirement
Q: May someone whose renunciation has provided for in the election laws.
been decreed as recanted, may take it again? Sec. 78. Petition to deny due course to or cancel
Therefore, reacquire PH citizenship? a certificate of candidacy. - A verified petition
A: YES. There is nothing prohibiting that act. For seeking to deny due course or to cancel a
nd
a 2 reelection bid, for the 2016-2019 term, sana certificate of candidacy may be filed by the
naman nagrenunciation oath siya before he filed person exclusively on the ground that any
rd
his 3 COC. material representation contained therein as
required under Section 74 hereof is false. The
This is the unfortunate case of Mayor Arnando. petition may be filed at any time not later than
With respect to his second re-election bid, he was twenty-five days from the time of the filing of the
arrested because of illegal possession of firearms certificate of candidacy and shall be decided,
and murder. He continued his term because mere after due notice and hearing, not later than fifteen
arrest and prosecution does not disqualify a days before the election.
candidate. He would have to be convicted.
Q: If he had taken renunciation oath again, he SEC. 68 SEC. 78
would serve fully the 2016-2019 term. How many As to Petition for Petition to
more terms he is eligible? Title Disqualification Deny Due
Course or
A: 2, because the first two terms, he was ousted, to Cancel a
there was an involuntary interruption. Certificate
of
Candidacy
Section 68 and Section 78 of the Omnibus
Election Code
As to Can be filed Can be filed
Sec. 68. Disqualifications. - Any candidate who, Deadline anytime from filing anytime
in an action or protest in which he is a party is of the COC up to within 25
declared by final decision of a competent court proclamation. days from
guilty of, or found by the Commission of having the filing of
(a) given money or other material consideration
You can file it before COC.
proclamation but it will be
to influence, induce or corrupt the voters or decided matagal. It
public officials performing electoral usually happens that the
functions; decision or adjudication
here would be at the time
(b) committed acts of terrorism to enhance his that the disqualified
candidate would have
candidacy; already been an
(c) spent in his election campaign an amount in incumbent officer, in
which case he would be
excess of that allowed by this Code; de jure unless mentioned
in that.

12

 Aratea v. COMELEC
G.R. No. 195229 October 9, 2012
(Important Election Law Case)
Justice Carpio said that the deadline for Sec 78
petition would be within 25 days from the filing of
the COC but not later than 5 days from the
deadline for the filing of COCs.
For example: The period for filing COCs is from
October 1 – 5. If we were to follow section 78
therefore the deadline for filing a sec 78 petition
should be up to October 30 (25 days after the
filing of the subject COC which was filed October
5 but if we were to follow the requirement added
in Aratea, the deadline would be up to October 10
because it was stated “but not later than 5 days
from the deadline of filing the COCs.”
Sir: This is what you do. You disregard that
additional requirement. Why? Because it had
long ago been declared unconstitutional for being
ultra vires, it was only the COMELEC which
added that. This is Fermin v. Comelec, Loong v.
COMELEC and another one. Justice Carpio
might have overlook this ruling. DISREGARD the
additional requirement.
Sir: I asked Chairman Brillantes about it, on why
it is still retained in the COMELEC rule 7 although
it has already been declared as unconstitutional.
His response was that it was only for the lawyers
to think that it is already the deadline and so the
cases filed in comelec would be lessened.
(“Hayaan mo nalang yan dyan, di naman yan
alam ng abogado, pag nakita nila yan dyan, iisipin
nila deadline na so kokonti kaso namin”)
Sec. 68. Disqualifications. - Any candidate who,
in an action or protest in which he is a party is
declared by final decision of a competent court
guilty of, or found by the Commission of having
(a) given money or other material consideration
to influence, induce or corrupt the voters or public
officials performing electoral functions; (b)
committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an
amount in excess of that allowed by this Code; (d)
solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104;
or (e) violated any of Sections 80, 83, 85, 86 and
261, paragraphs d, e, k, v, and cc, subparagraph
6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding
the office. Any person who is a permanent
resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office
under this Code, unless said person has waived
his status as permanent resident or immigrant of
a foreign country in accordance with the
residence requirement provided for in the election
laws.
As to grounds, there are only two grounds for a
Sec 68 petition:
1. Collective Ground: Commission of
election offenses (e.g. vote buying,
overspending, illegal campaigning,
premature filing etc)
2. Permanent Residence abroad
In Fermin v Comelec, a third ground was added
by Comelec, which is the “non-registration as a
voter”. Again this is ultra vires, unconstitutional.
Fermin v COMELEC
G.R. No. 179695, December 18, 2008
Facts: Fermin was a voter of Brgy. Payan,
Kabuntalan. He asked for the transfer of his
registration records to Brgy. Indatuan where he
claims to be a resident for 1 yr and 6 mo. Then
North Kabuntalan was created (to which Brgy
Indatuan became a component of). Fermin ran as
Mayor of North Kabuntalan. A disqualification
case was filed against him for not having the
required residency. Fermin says that his change
of residence even prompted him to apply for the
transfer of his voter's registration record from
Barangay Payan to Barangay Indatuan.
Moreover, the one-year residency requirement
under the law is not applicable to candidates for
elective office in a newly created municipality,
because the length of residency of all its
inhabitants is reckoned from the effective date of
its creation.
Held: The mere filing of a petition and the
allegation that a candidate does not reside in the
locality is not enough to effect the cancellation of
his CoC. Also, the court said that the other
provisions of law referring to "disqualification" do
not include the lack of the one-year residency
qualification as a ground. The petition does not
state any of these grounds for disqualification so
it cannot be categorized as a "Section 68"
petition.
13

Sec. 78. Petition to deny due course to or
cancel a certificate of candidacy. - A verified
petition seeking to deny due course or to cancel
a certificate of candidacy may be filed by the
person exclusively on the ground that any
material representation contained therein as
required under Section 74 hereof is false. The
petition may be filed at any time not later than
twenty-five days from the time of the filing of the
certificate of candidacy and shall be decided,
after due notice and hearing, not later than fifteen
days before the election.
Sec 78 Petition
Ground: Deliberately making a false material
misrepresentation as to eligibility
The keyword here is “deliberately”. It must be
felonious, criminal and with intent to deceive and
defraud. The misrepresentation must be material
and if not material to the eligibility, then it cannot
stand as a ground.
What has been acknowledged in jurisprudence
as conditions supportive of this ground? Here are
some cases:
In the case of the Villafuertes in Camarines. This
case was about a grandfather and his grandson
both vying to be governor.
The lolo sued his grandson contending that the
name he indicated in his Certificate of Candidacy
is not the same as his name in his certificate of
live birth. Misrepresentation daw. Sabi ng
Supreme Court that's not material. Eligibility is not
affected by the name.
Misrepresentation as to Citizenship
Citizenship? Of course it is a ground.
You claim to be a natural-born citizen, but you are
not, then you are ineligible/disqualified under
Section 78.
Misrepresentation as to Age.
Here is a senatorial candidate who lists in his
Certificate of Candidacy the fact that she is 51
years old but she is actually 64. Can she be
disqualified on the basis of Section 78? Would
that have been deliberate? Of course,
deliberately misrepresented us to her age. But
would it be material? The age qualification is not
defined. So 51 or 61, she would have been
qualified.
But can age be a material misrepresentation?
Yes. For instance, you claim you are 21 and
therefore eligible to run for councilor but you are
not. That is a misrepresentation.
Misrepresentation as to Residence
Can there be a misrepresentation as to
residence? Of course. You claim to be a resident
but you are not, then you may be disqualified
under Section 78.
You claim to be a resident of this municipality
where you seek to be a mayor. It turns out you
are a permanent a Green Card holder and
therefore a permanent resident abroad (in the
United States). What should he file, Section 68 or
78? You can file either. You can choose. (But
later on because you are my students you will
choose 78. I will tell you later why it's better to
choose 78)
Misrepresentation as to Registration as a
Voter
Can there be a misrepresentation as to
registration as a voter? Yes. That's a
qualification. Sabi mo botante ka tapos hindi ka
registered, disqualified.
These are subjective qualifications.
Let's go to other cases.
Disqualification as Accessory Penalty
You claim to be eligible, but you are actually
laboring under an accessory penalty of perpetual
absolute disqualification by reason of your
conviction in a qualified seduction case. That's
misrepresentation.
Disqualification COMELEC Cases
The candidate claims to be eligible but he has just
served 3 consecutive terms, = ineligible,
disqualified under Sec. 78.
Section 3. The Commission on Elections may
sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to
expedite disposition of election cases, including
pre-proclamation controversies. All such election
cases shall be heard and decided in division,
provided that motions for reconsideration of
decisions shall be decided by the Commission en
banc.
Sec. 3 of Art. IX-C if you are going to take a quasi-
judicial matter to the attention of Comelec, at the
14
first instance, it should be tackled by any Division
and not En Banc. The quasi-judicial authority of
the EnBanc is only by way of an appeal triggered
by a Motion for Reconsideration from the
adjudication of either Division.
Jalosjos v. COMELEC
GR No. 205033, Jun 18, 2013
Facts: Jalosjos was being disqualified under Sec.
78 on the basis of the misrepresentation
regarding his accessory penalty. COMELEC
EnBanc meets and receives a report, a letter, to
the effect that Jalosjos is disqualified on the basis
of the 78 petition before a Division of the
COMELEC. Jalosjos was perpetually
disqualified. COMELEC EnBanc motu propio
cancelled his Certificate of Candidacy of Jalosjos.
Jalosjos challenged this act by the EnBanc.
Issue: Whether the disqualification done by the
COMELEC is valid? Yes.
Ratio: The COMELEC claimed that when it
disqualified Jalosjos by cancelling his Certificate
of Candidacy, they were exercising their
administrative functions and not their quasi-
judicial function. The SC sustained the
COMELEC. The disregard by the Division
proceedings was justified because the
COMELEC disqualified on the basis of its
administrative functions. he COMELEC's denial
of due course to and/or cancellation of a CoC in
view of a candidate's disqualification to run for
elective office based on a final conviction is
subsumed under its mandate to enforce and
administer all laws relating to the conduct of
elections.
A few years earlier we have the case of Cerafica
v. COMELEC.
Cerafica v. Comelec
G.R. No. 205136, 2 Dec. 2014
A girl who is not yet 21 y/o filed a CoC to run for
City Councilor. [Sir’s joke: She posted her CoC
on social media, and a friend commented to her
post saying “Gaga, di ka pa 21.”] She withdrew
her CoC and was substituted by a friend,
Cerafica, who was of age. Comelec en banc
convened and denied the substitution. The basic
precept here is that there can be a valid
substitution if there is a valid CoC. The Comelec
en banc said that the CoC is invalid because the
girl made a misrepresentation about her age.
When Cerafica questioned the decision of
Comelec, the Comelec raised the defense that it
was acting on its administrative functions and not
on quasi-judicial functions. The Supreme Court
did not sustain the defense of Comelec. The
Supreme Court said there should have been a 78
petition that was filed before a substitution can be
validly decided upon by the Comelec en banc.
What are the differences between Jalosjos and
Cerafica?
In Jalosjos, the basis is an accessory penalty for
qualified seduction. The conviction is a judicial
notice and need not be proved.
In Cerafica, the matter of age is not a judicial
notice and must be proved. Therefore, it requires
a prior proceeding before the Comelec is allowed
to act.
Ty-Delgado v. HRET
G.R. No. 219603, 26 Jan. 2016
There is this person who was convicted of libel, a
crime involving moral turpitude. Three years after
his service of sentence, he filed a CoC. Should
he be allowed to run? No. For a convict to be able
to file a CoC, he must wait for five years after he
had served his sentence. A 78 Petition is proper
in questioning his eligibility.
Engle v. COMELEC
GR 215995, (Jan. 19, 2016)
James Engle was running for vice mayor of
Babatngon, Leyte. He submits a Certification of
Nomination and Acceptance (CONA). In the
course of the campaign, he dies. His wife,
Marcelina Her opponent, Menzon filed a petition
to deny due course to the COC on the ground of
failure to submit on time the Chapter President’s
authorization to sign Engle’s (husband’s) CONA.
Engle, substituted him and submits a similar
CONA. The original CONA was investigated by
the law department of the COMELEC
(substantially the same CONA submitted by the
wife). Wife won and was proclaimed. Law
department of the COMELEC handed down the
findings of invalidity of the CONA.
WN the COMELEC can disqualify Engle on the
basis of the defective CONA. NO.
The requirements for COC are presecribed in
sec. 74 of the Omnibus Election Code.
Everything- name, age, everything pertinent to
the matter of eligibility. There are substantial and
formal requirement. CONA is among the formal
requirements.
15
If the COC is challenged on the basis of a formal
defect and the adjudication against the COC is
handed down before proclamation, the
adjudication is fatal to the COC. In other words, it
could be invoked to disqualify the candidate. But
if the adjudication invalidating the COC on formal
defects were to be adjudicated upon after the
proclamation, the adjudication is to be
disregarded to give way to the sovereign will.
Election rules regarding matters of form are
mandatory only before the elections and directory
after the elections.
Note: Formal defects, eg. Notarization. NOT
citizenship.
I include this case to make a point. Hindi nga
nadisqualify yung kandidato but the matter of
misrepresentations as to CONA, it can be a
ground for a 78 petition.
Fugitives From Justice
Two cases involving candidates who claim to be
eligible but it turns out that there were allegations
that they are fugitives from justice. Fugitives from
justice would not only include those that evade
prosecution but also to those who evade
punishment. After proceedings, the Court found
that they are not really fugitives from justice. But
here is the point, being a fugitive from justice can
be a material misrepresentation.
Those are all the cases that would be by way of
support or explanation on how a 78 petition can
proceed.
Blanco v. COMELEC
G.R. No. 180164, June 17, 2008
Election offenses are dual character. It can be an
administrative election offense; it can be a
criminal election offence. 68 is an administrative
election offense. But these elections offenses can
give rise to both administrative and criminal
liability.
Blanco was caught vote-buying. He was
disqualified for that election. Subsequently, when
he ran again, that disqualification in the previous
election was invoked against him in an effort to
disqualify him for the second election.
SC said that that was an administrative
disqualification and is applicable only for that
certain election. If that disqualification was
pursued via a criminal case, and there would be
a conviction, then the penalty of disqualification,
that penalty can be invoked for all subsequent
elections.
Effects of disqualification of 68 and 78
68 78
Considered as a bona Certificate of
fide candidate up to the candidacy is void ab
point of time of initio
disqualification.
For 68: Valid siya as a candidate until the time he
is disqualified, out na siya. If he would already be
serving at the time of his disqualification, then he
would have served as de jure officer. Not de
facto.
For 78: Produces no effect whatsoever. The
same effect shall arise from the disqualification
under Section 69: Nuisance candidacies.
Sec. 69. Nuisance candidates. – The
Commission may motu propio or upon a verified
petition of an interested party, refuse to give due
course to or cancel a certificate of candidacy if it
is shown that said certificate has been filed to put
the election process in mockery or disrepute or to
cause confusion among the voters by the
similarity of the names of the registered
candidates or by other circumstances or acts
which clearly demonstrate that the candidate has
no bona fide intention to run for the office for
which the certificate of candidacy has been filed
and thus prevent a faithful determination of the
true will of the electorate.
A nuisance candidate’s COC shall also be void
ab initio.
Election law principle
GR: A vote for a nuisance candidate shall not
be considered as stray but shall be counted in
favor of the bona fide candidate.
Question: Does that rule still apply today
considering the automation of elections? YES
(Dela Cruz v. Comelec, citing Martinez v.
Comelec)
Despite the automation of our elections, the vote
for a nuisance candidate would still be considered
as not stray but shall be counted in favor of the
bona fide candidate.
Explanation: This declaration of nuisance
candidacy usually come at a time when the
ballots have already been printed. The name of
the nuisance candidate is already there.
Therefore, the potential for confusion is already
there. Therefore, that rule remains.
16
Ex: That rule, however, does not apply in
cases involving nuisance candidates with
respect to multi slot positions or offices.
(Aquino v. Comelec)
For example, the position of sangunian,
konsehal, provincial board of directors (Bokal).
Federico vs. COMELEC
G.R. No. 199612, January 22, 2013
Facts: This shows how substitution works.
Governor Sanchez was running for governor
again in Batangas, his wife Mrs. Sanchez for
municipal mayor. There are two deadlines as
prescribed by the COMELEC in substitution.
1. December to those COCs filed in
October
Three grounds for substitution are
allowed:
a. Death
b. Disqualification
c. Withdrawal by the candidate of
his COC
2. Midday of noon of election day
Only two grounds allowed by the
COMELEC:
a. Death
b. Disqualification
Governor Sanchez, a few days before election
day, was killed. Mrs. Sanchez, therefore,
withdrew her COC for municipal mayor because
she cannot run for two positions. She substituted
her husband. Federico substituted Mrs. Sanchez
for the municipal mayor position.
Ruling: There were two substitutions. The first
was valid because the ground was death of the
candidate. The second was invalid because the
ground was withdrawal of the COC by the
candidate. This ground is no longer allowed in the
second deadline.
Tagolino vs. HRET
G.R. No. 202202, March 19, 2013
Facts: This is the case of Richard and Lucy
Gomez. Richard ran for Congressman in Ormoc,
claiming to be a resident but he was not. He was
disqualified and was substituted by Lucy. Lucy
won. She served for about 2 years and 10
months. That’s when the decision of Tagolino vs.
HRET was handed down.
Ruling: The substitution was invalid because the
COC of Richard was void ab initio on the basis of
Section 78.
Tagolino v. HRET (Gomez case)
G.R. No. 202202, March 19, 2013
This was handed down saying that the
substitution was invalid because the certificate of
candidacy of Gomez was void ab initio on the
basis of 78.
Final area of distinction, as to who takes of over.
In a 68 disqualification, in the context of local
elections/ local elective office.
Ejercito v. COMELEC
G.R. No. 212398, November 25, 2014
The case Ejercito (el presidente) who was
disqualified for over spending. The basic rule in
Ejercito v. COMELEC, overspending is
assessed not only in the basis of the personal
expenses of the candidates. It is aggregated with
all the contributions and actually spent.
Recall that when he was disqualified in the case,
who took over? It was the vice-governor.
Successional rules were applied because
precisely he was a de jure officer.
In a 78 petition, who takes over? If the proclaimed
winning candidate is disqualified on a 78 petition
who takes over? Second placer?
For clarification, what is a second placer?
Topacio v. Paredes, Labo v. Comelec, Vivaldo
v. Comelec (don't take this down, I'm just
impressing you)
A second placer is not just a second placer. He
had been rejected by the electorate. Therefore,
the second placer rule tells us that the second
placer does not deserve or is not qualified to be
proclaimed, instead, if the winning candidate is
disqualified. Why? Because he was rejected. The
only time the second placer would be eligible to
be proclaimed in lieu of the disqualified winning
candidate would be if the electorate knew of the
disqualification of the winning candidate and such
knowledge was of such notoriety that the
electorate can be considered as having wasted
its vote. That's the only time that the second
placer can be actually be proclaimed instead. So
you do not say the second placer.
I ask again, who takes over in a 78 petition?
17
PROCLAIMED WINNING CANDITATE v. held that the COMELEC cannot adjudicate a 78
SECOND PLACER petition. However, it must be noted that in the
case of Poe-Llamanzares, the SC clearly stated
The proclaimed wining candidate COC is that if the 78 petition were founded on self-
invalidated, void ab initio à meaning he was evident facts which are of unquestionable
NEVER a candidate at all. veracity, all of which are based on self-
So, the second placer is ACTUALLY the first confessions, then 78 petitions can proceed with
placer because the proclaimed winning was the COMELEC.
never a candidate at all. Q – Is there a petition declaring one as a
So that’s just it. registered voter in court? There is none. So,
this is a self-evident fact. You just check the
SECTION 78 & PRIOR FINAL COURT register of deeds. Thus, COMELEC can decide.
JUDGEMENT, Exceptions As to the matter of residence, is there a petition
Final pointers on Sections 68 & 78 to file in court what is residence? No. Thus, this is
also a self-evident fact.
When this case of Poe-Llamanzares v.
COMELEC was promulgated in 2016, I think a lot SELF-EVIDENT FACTS MENTIONED BY SIR
of people were misled because of the statement 1. Registered Voter
of the SC, stating this “The COMELEC gravely 2. Residence
abused its discretion because it disqualified 3. Three Termer
Grace Poe on the ground of citizenship in 4. Age (question of looking at Birth Cert)
connection with Section 78. The COMELEC is not 5. Citizenship
equipped with such adjudicatory power to 6. Recantations
disqualify on the basis of 78 without a prior final Note – Citizenship, requires prior judicial
judgment on the matter. adjudication. As to recantation, in Maquiling v.
COMELEC, is a self-evident fact. This has been
People wonder that is not allowed to petition to affirmed in Francisco v. COMLEC (2018).
COMELEC without a prior final court judgement.
Francisco v. COMLEC (2018) – COMELEC can
HOWEVER, if the ground for the section 78 still proceed with 78 petitions even without prior
petition was based on self-evident facts which court judgments.
are of unquestioned and of unquestionable
veracity and judicial confessions, then section
78 petition can still be tackled by COMELEC en
banc.
The discussion of this was followed by a
reference with the case of Marcos v. COMELEC.
In Marcos v. COMELEC, SC said that
COMELEC is not allowed to have adjudicatory
power based on 78 with the following
Three Reasons
1. Ineligibility of a candidate should not
be tackled by COMELEC unless the
candidate is first proclaimed.
Question of eligibility becomes important
only if the candidate is proclaimed as the
winner.
2. A 78 petition is intended to be a
summary proceeding.
3. Laws frown upon pre-proclamation
controversies.
Sir: Those reasons confuses people because of
the proclamation in Poe-Llamanzares. Where it

18

 POLITICAL LAW REVIEW
Atty. Carlo Cruz
October 23, 2019
Successional Rules under Art. VII
Section 7. The President-elect and the Vice
President-elect shall assume office at the
beginning of their terms.
If the President-elect fails to qualify, the Vice
President-elect shall act as President until the
President-elect shall have qualified.
If a President shall not have been chosen, the
Vice President-elect shall act as President until a
President shall have been chosen and qualified.
If at the beginning of the term of the President,
the President-elect shall have died or shall have
become permanently disabled, the Vice
President-elect shall become President.
Where no President and Vice-President shall
have been chosen or shall have qualified, or
where both shall have died or become
permanently disabled, the President of the
Senate or, in case of his inability, the Speaker of
the House of Representatives, shall act as
President until a President or a Vice-President
shall have been chosen and qualified.
The Congress shall, by law, provide for the
manner in which one who is to act as President
shall be selected until a President or a Vice-
President shall have qualified, in case of death,
permanent disability, or inability of the officials
mentioned in the next preceding paragraph.
Section 8. In case of death, permanent disability,
removal from office, or resignation of the
President, the Vice-President shall become the
President to serve the unexpired term. In case of
death, permanent disability, removal from office,
or resignation of both the President and Vice-
President, the President of the Senate or, in case
of his inability, the Speaker of the House of
Representatives, shall then act as President until
the President or Vice-President shall have been
elected and qualified.
There are essentially 4 situations covered under
these provisions:
1 & 2. If the president-elect shall not have
been chosen or the president-elect shall not
have qualified
The president elect is someone who was
proclaimed as the winner but has not yet
assumed office because his term of office will
start at 12nn, 30th day of June. This particular
commencement of the term is fixed by the
Constitution and can only be changed by
amendment. Distinguish this from the terms of the
legislators that are also fixed at 12nn, 30th day of
June but these commencements can be changed
by law provided the 3 year or 6 year terms are
unaltered.
Let us say that the canvassing done by the
Congress as of at 12nn, 30th day of June had not
yet been completed for the president (not: the
proclamation of the Vice President can actually
precede that of the President). The rule is that the
Vice President elect is allowed to act as the
President.
In a similar vein, if the President elect shall not
have qualified as of 12nn, 30th day of June for
instance at 10 am papunta pa lang siya sa
ceremonial site at nabangga sasakyan niya. He
sustains injuries and has to be hospitalized. This
would be mean that by 12nn, 30th day of June he
would not have qualified because he was not able
to take his oath of office which is the qualifying
act. In such a situation, the Vice President elect
is allowed to act as the President.
Understand that President is the President
wherever he may be. Wherever he may be
outside of our territorial jurisdiction he can
exercise all the powers of the presidency. His
absence from the territory does not mean that the
Vice President acts in his stead. There are only
two instances in the Constitution where the Vice
President is allowed to act as the President. One
of them is these the two categories. The only
other time when the Vice President is allowed to
act as President is based on Sec. 11 or the
inability of the President to discharge his duties
upon receipt by the Speaker of the House and the
Senate President of the note from the President
himself or the majority of the cabinet members.
Section 11. Whenever the President transmits to
the President of the Senate and the Speaker of
the House of Representatives his written
declaration that he is unable to discharge the
powers and duties of his office, and until he
transmits to them a written declaration to the
contrary, such powers and duties shall be
discharged by the Vice-President as Acting
President.
19
 by the elected President within ninety days from
Whenever a majority of all the Members of the his assumption or reassumption of office.
Cabinet transmit to the President of the Senate
and to the Speaker of the House of Upon the restoration of power of the elected
Representatives their written declaration that the
president, he has 90D to revoke the
President is unable to discharge the powers and
appointments of the acting VP.
duties of his office, the Vice-President shall
immediately assume the powers and duties of the In either of those two instances, failure to choose
office as Acting President. or failure to qualify, the VP elect or if in the mean
Thereafter, when the President transmits to the time, he becomes VP, the VP acts as the
President of the Senate and to the Speaker of the President.
House of Representatives his written declaration rd th 2
3 and 4 cases when VP becomes president
that no inability exists, he shall reassume the
powers and duties of his office. Meanwhile, 3. When the president dies, the VP
should a majority of all the Members of the becomes president.
Cabinet transmit within five days to the President 4. When president becomes permanently
of the Senate and to the Speaker of the House of disabled
Representatives, their written declaration that the • Problem in “permanent disability”, it’s a
President is unable to discharge the powers and very difficult ground
duties of his office, the Congress shall decide the o What if he loses his pinky? In the
issue. For that purpose, the Congress shall Labor Code, this loss is a
convene, if it is not in session, within forty-eight permanent disability. Do you apply
hours, in accordance with its rules and without the same standard?
need of call. o What if president, during the
If the Congress, within ten days after receipt of incumbency, he goes line
the last written declaration, or, if not in session, (coma?), becomes deaf…
within twelve days after it is required to assemble, o But Franklin Eleanor Roosevelt
determines by a two-thirds vote of both Houses, administered a world war while he
voting separately, that the President is unable to was strapped to his wheel chair
discharge the powers and duties of his office, the because of polio.
Vice-President shall act as President; otherwise, o CONCLUSION: Do not apply the
the President shall continue exercising the standards prescribed in the Labor
powers and duties of his office. Code to trigger the successional
rules in the presidency.
o So when will this rule apply? The
Upon receipt of such note, the Vice President closest would be Alzheimer’s
acts as the President. He can exercise all the disease. The only problem is who
powers of the President. He can pardon, veto or would admit to having this
approve a bill, declare martial law and even make disease?
permanent appointments.
ACTUAL SUCCESSIONAL RULES:
Art. VII
Art. VII
SEC. 14. Appointments extended by an Acting
President shall remain effective, unless revoked SEC. 8. In case of death, permanent disability,
removal from office, or resignation of the

2
Art. VII, SEC 7. The President-elect and the Vice-President-
elect shall assume office at the beginning of their terms.
If the President-elect fails to qualify, the Vice-President-elect
shall act as President until the President-elect shall have
qualified.
If a President shall not have been chosen, the Vice-President-
elect shall act as President until a President shall have been
chosen and qualified.
If at the beginning of the term of the President, the President-
elect shall have died or shall have become permanently
disabled, the Vice-President-elect shall become President.
Where no President and Vice-President shall have been
chosen or shall have qualified, or where both shall have died
or become permanently disabled, the President of the Senate
or, in case of his inability, the Speaker of the House of
Representatives shall act as President until a President or a
Vice-President shall have been chosen and qualified.
The Congress shall, by law, provide for the manner in which
one who is to act as President shall be selected until a
President or a Vice-President shall have qualified, in case of
death, permanent disability, or inability of the officials
mentioned in the next preceding paragraph.

20

President, the Vice-President shall become the
President to serve the unexpired term. In case of
death, permanent disability, removal from office,
or resignation of both the President and Vice-
President, the President of the Senate or, in case
of his inability, the Speaker of the House of
Representatives, shall then act as President until
the President or Vice-President shall have been
elected and qualified.
The Congress shall, by law, provide who shall
serve as President in case of death, permanent
disability, or resignation of the Acting President.
He shall serve until the President or the Vice-
President shall have been elected and qualified,
and be subject to the same restrictions of powers
and disqualifications as the Acting President.
Same discussion on death and permanent
disability.
Resignation as distinguished from
abandonment, as a mode of termination of
official relations, must be attended to by
certain formalities.
1. Resignation letter
2. Submitted to:
a. The authority prescribed in the law,
authorized to receive it
or
b. One who is authorized to effect or to
fill the vacancy.
§ Eg. Congress by way of special
election, the president by way of
appointment
Estrada v. Desierto
G.R. No. 146710-15 and G.R. No. 146738
2001-03-02
Former President Joseph Estrada was elected
during 1998 elections. Sometime in October
2000, however, several allegations of corruption
and of receiving millions of pesos from jueteng
lords were made against him before the Senate
Blue Ribbon Committee. Some Congressmen
moved to impeach Estrada which caused several
sectors, former Presidents Aquino and Ramos to
call for Estrada’s resignation. Some senior
advisers of Estrada as well as a number of his
cabinet resigned from their positions.
Impeachment trial commenced with Chief Justice
Davide presiding.
The impeachment trial was put to a halt after the
public prosecutors tendered their collective
resignation before the Impeachment Tribunal
caused by the decision of 11 Senators not to
open the second envelope (an alleged secret
account of Erap amounting to 3.3B Pesos in the
name of Jose Velarde). The next day, EDSA 2
commenced with the PNP and AFP joining the
crowd.
WN Erap resigned as President- YES.
Using the totality test, the Supreme Court held
that petitioner resigned as President - which was
confirmed by his leaving Malacañang.
Facts show that petitioner did not write any formal
letter of resignation before he evacuated
Malacanang Palace in the afternoon of January
20, 2001 after the oath-taking of respondent
Arroyo. Consequently, whether or not petitioner
resigned has to be determined from his acts and
omissions before, during and after January 20,
2001 or by the totality of prior, contemporaneous
and posterior facts and circumstantial evidence
bearing a material relevance on the issue.
In the press release containing his final
statement,
1. He acknowledged the oath-taking of
Arroyo as President of the Republic albeit
with reservation about its legality;
2. He emphasized he was leaving the
Palace, the seat of the presidency, for the
sake of peace and in order to begin the
healing process of our nation. He did not
say he was leaving the Palace due to any
kind of inability and that he was going to
re-assume the presidency as soon as the
disability disappears;
3. He expressed his gratitude to the people
for the opportunity to serve them. Without
doubt, he was referring to the past
opportunity given him to serve the people
as President;
4. He assured that he will not shirk from any
future challenge that may come ahead in
the same service of our country.
Petitioner’s reference is to a future
challenge after occupying the office of
the president which he has given up; and
5. He called on his supporters to join him in
the promotion of a constructive national
spirit of reconciliation and solidarity.
Certainly, the national spirit of
reconciliation and solidarity could not be
attained if he did not give up the
presidency.
21
Resignation is a factual question and
its elements are beyond quibble: (1) there must
be an intent to resignand (2) the intent must be
coupled by acts of relinquishment. The validity of
a resignation is not governed by any formal
requirement as to form. It can be oral. It can be
written. It can be express. It can be implied. As
long as the resignation is clear, it must be given
legal effect.
A public official has the right not to serve if he
really wants to retire or resign. Nevertheless, if at
the time he resigns or retires, a public official is
facing administrative or criminal investigation or
prosecution, such resignation or retirement will
not cause the dismissal of the criminal or
administrative proceedings against him. He
cannot use his resignation or retirement to avoid
prosecution.
Sir’s point: If Erap would have just boarded the
presidential yacht and waived, he could have still
insisted that he was president.
Upon leaving Malacanang, if he had just waved
goodbye he could have still insisted that he was
president. But no, he had to issue a press
release. He acknowledged the oath taking of
Gloria as President. He said that he is not shirking
any future challenge that he may face to serve the
nation. He said that he is doing that for the
purpose of starting the healing process, the
national reconciliation. If he could have just left
and waved good bye he would still president.
Because of that the court concluded in the case
that taken altogether all of those statements
would indicate his intention to abandon his post.
He was considered as having resigned and the
court said this is why the presidency is not in “the
past tense” (di ko sure kung tama to; di ko
marinig). He resigned, Gloria took over,
successional rule applied.
Ground for Removal in Triggering the
Successional rule
Note that it does not say there removal by
impeachment. So the basic understanding today
in that statement in secition 8 is that any ouster
from office.
SECTION 8. In case of death, permanent
disability, removal from office, or resignation of
the President, the Vice-President shall become
the President to serve the unexpired term. In case
of death, permanent disability, removal from
office, or resignation of both the President and
Vice-President, the President of the Senate or, in
case of his inability, the Speaker of the House of
Representatives, shall then act as President until
the President or Vice-President shall have been
elected and qualified.
The Congress shall, by law, provide who shall
serve as President in case of death, permanent
disability, or resignation of the Acting President.
He shall serve until the President or the Vice-
President shall have been elected and qualified,
and be subject to the same restrictions of powers
and disqualifications as the Acting President.
Our basic understanding is that the removal here
is to be equated with the removal that can arise
from an impeachment proceeding. But I will give
you situations that would indicate, otherwise…
well let us sat that the president, well you know
and we have tackled that the f th is not immune
from all suits. He may be subject class, he may
be a respondent in an impeachment proceeding
he is not immune, precisely because of the
constitutional provision in this regard. Well he is
also not immune from election protests or even
quo warranto suits that may be filed against him
as acknowledged in Art. 7, Sec. 4 which confers
upon the SC sole judgeship over all contests
pertinent to the elections, returns, qualifications of
the President and Vice President.
SECTION 4.
xxx
The Supreme Court, sitting en banc, shall be the
sole judge of all contests relating to the election,
returns, and qualifications of the President or
Vice- President, and may promulgate its rules for
the purpose.
Let’s tackle a few situations here. Let us say that
a sitting president is subject to an election protest.
Well let us liken it to the situation of Bong bong
and Leni. Mali ang bilang. Is he immune from that
suit? No. Nag bilangan, nag revision of ballots. It
turns out mali nga ang bilang. The protestant had
obtained the highest number of votes. In essence
the President is removed by reason of the
adjudication of the electoral tribunal. That is a
removal, but it is not a removal which authorizes
the Vice President to succeed pursuant to Sec. 8.
Who takes over? It is the protestant.
SECTION 8. In case of death, permanent
disability, removal from office, or resignation of
22
the President, the Vice-President shall become
the President to serve the unexpired term. In case
of death, permanent disability, removal from
office, or resignation of both the President and
Vice-President, the President of the Senate or, in
case of his inability, the Speaker of the House of
Representatives, shall then act as President until
the President or Vice-President shall have been
elected and qualified.
The Congress shall, by law, provide who shall
serve as President in case of death, permanent
disability, or resignation of the Acting President.
He shall serve until the President or the Vice-
President shall have been elected and qualified,
and be subject to the same restrictions of powers
and disqualifications as the Acting President.
Let us tackle it from another perspective. Let us
say that the election protest launched against the
sitting president would be by way of an election
offense. He bought votes. It is proved through the
SC acting as the Presidential Electoral Tribunal.
But he is ousted from the office. You remember
our discussion on Section 68.
Sec. 68. Disqualifications. - Any candidate who,
in an action or protest in which he is a party is
declared by final decision of a competent court
guilty of, or found by the Commission of having
a. given money or other material consideration to
influence, induce or corrupt the voters or public
officials performing electoral functions;
b. committed acts of terrorism to enhance his
candidacy;
c. spent in his election campaign an amount in
excess of that allowed by this Code;
d. solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104;
or
e. violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, subparagraph 6,
shall be disqualified from continuing as a
candidate, or if he has been elected, from holding
the office. Any person who is a permanent
resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office
under this Code, unless said person has waived
his status as permanent resident or immigrant of
a foreign country in accordance with the
residence requirement provided for in the election
laws.
The disqualification based on that provision the
officer disqualified would be considered as a
bona fide candidate and during his incumbency a
de jure officer. There is in that event also a
removal in the generic sense. Well who takes
over? This time we apply the successional rule in
Section 8. Consistent with the pronouncement in
Ejercito v Comelec.
Let us say that the election protest is a quo
warranto suit launched against the sitting
president. Let us say the ground involved in
support of that action would be citizenship. He
claimed to be a natural born citizen established
before the electoral tribunal, the SC, that he is not
a natural born citizen. So that would in effect be
a Section 78 disqualification. We recall, that
Section 78 disqualification result in the
reconsideration of the COC’s of the disqualified
candidates to be void ab initio.
Sec. 78. Petition to deny due course to or
cancel a certificate of candidacy. - A verified
petition seeking to deny due course or to cancel
a certificate of candidacy may be filed by the
person exclusively on the ground that any
material representation contained therein as
required under Section 74 hereof is false. The
petition may be filed at any time not later than
twenty-five days from the time of the filing of the
certificate of candidacy and shall be decided,
after due notice and hearing, not later than fifteen
days before the election.
They were never candidates at all. So you see
class, in that circumstance, who takes over? Not
the vice-president but the one who got the highest
number of votes after the disqualification of the
President. So that is what I wanted to mention by
way of additional discussions with respect to Sec.
68 and 78 as they operate on Sections 7 & 8 of
Art. VII.
Section 7. The President-elect and the Vice
President-elect shall assume office at the
beginning of their terms.
If the President-elect fails to qualify, the Vice
President-elect shall act as President until the
President-elect shall have qualified.
If a President shall not have been chosen, the
Vice President-elect shall act as President until a
President shall have been chosen and qualified.
23

If at the beginning of the term of the President,
the President-elect shall have died or shall have
become permanently disabled, the Vice
President-elect shall become President.
Where no President and Vice-President shall
have been chosen or shall have qualified, or
where both shall have died or become
permanently disabled, the President of the
Senate or, in case of his inability, the Speaker of
the House of Representatives, shall act as
President until a President or a Vice-President
shall have been chosen and qualified.
The Congress shall, by law, provide for the
manner in which one who is to act as President
shall be selected until a President or a Vice-
President shall have qualified, in case of death,
permanent disability, or inability of the officials
mentioned in the next preceding paragraph.
Section 8. In case of death, permanent disability,
removal from office, or resignation of the
President, the Vice-President shall become the
President to serve the unexpired term. In case of
death, permanent disability, removal from office,
or resignation of both the President and Vice-
President, the President of the Senate or, in case
of his inability, the Speaker of the House of
Representatives, shall then act as President until
the President or Vice-President shall have been
elected and qualified.
The Congress shall, by law, provide who shall
serve as President in case of death, permanent
disability, or resignation of the Acting President.
He shall serve until the President or the Vice-
President shall have been elected and qualified,
and be subject to the same restrictions of powers
and disqualifications as the Acting President.
We now proceed to the House of Representatives
which consist of two kinds of representatives –
district and party-list representation. For district
representatives, I enjoin you to remember the
adjectives: Compact, Contiguous, and Adjacent,
for purposes of establishing a legislative district.
The creation of legislative districts apart from
those created on the basis of the Constitution as
indicated in that ordinance appended to the
Constitution, if you want to establish legislative
districts, you have to make law. If we have a
province which is lawfully created. Is that
province automatically one legislative district?
The answer is YES. But for the lawfulness of the
creation of that province, we have to reckon with
the criteria created in the Local Government
Code: Revenue, the matter of alternative
requirements (e.g. 2000 sq. km contiguous
territory or 250,000 inhabitants. Kung swak with
these requirements, valid yung creation ng
province therefore it is automatically one
legislative district. To create a province, do you
require a plebiscite? Yes.
So let us say this province now exists. A few
years later, a law is passed dividing it into two
legislative districts. This is Aquino v. COMELEC.
For the validity of that redistricting law, should
each of the new districts be comprised of either
250k sq. km contiguous territory or the 250,000
inhabitants? NO. Those are criteria to establish
PROVINCES, not districts.
Quoting Mariano v. COMELEC: “Petitioners
cannot insist that the addition of another
legislative district in Makati is not in accord with
section 5(3), Article VI of the Constitution for as
of the latest survey (1990 census), the population
of Makati stands at only four hundred fifty
thousand (450,000). Said section provides, inter
alia, that a city with a population of at least two
hundred fifty thousand (250,000) shall have at
least one representative. Even granting that the
population of Makati as of the 1990 census stood
at four hundred fifty thousand (450,000), its
legislative district may still be increased since it
has met the minimum population requirement of
two hundred fifty thousand (250,000). In fact,
Section 3 of the Ordinance appended to the
Constitution provides that a city whose population
has increased to more than two hundred fifty
thousand (250,000) shall be entitled to at least
one congressional representative.”
The Mariano case limited the application of the
250,000 minimum population requirement for
cities only to its initial legislative district. In other
words, while Section 5(3), Article VI of the
Constitution requires a city to have a minimum
population of 250,000 to be entitled to a
representative, it does not have to increase its
population by another 250,000 to be entitled to an
additional district.”
There is no reason why the Mariano case, which
involves the creation of an additional district
within a city, should not be applied to additional
districts in provinces. Indeed, if an additional
legislative district created within a city is not
required to represent a population of at least
250,000 in order to be valid, neither should such
24
be needed for an additional district in a province,
considering moreover that a province is entitled
to an initial seat by the mere fact of its creation
and regardless of its population.
For the validity of a redistricting law, do you
require the conduct of a plebiscite? The answer
is NO. because there is no change in the
territorial configuration. Plebiscites will be
required only if there is a merger, creation,
abolition, division. Here, there is only a creation
of a NEW legislative district. So, the matter of a
plebiscite – not required.
Now, on CITIES. Would the city, like a province,
once lawfully created on the basis of the criteria
established in the LGC, would that also be
automatically one legislative district? NO. For it to
qualify as one legislative district, we have to
follow the dictum in the Constitution. It must have
a ?population?, it must have inhabitants of
250,000. A city established lawfully on the basis
of the requirements of the LGC, even if it does not
have 250,000 inhabitants, it will be a validly
created city, but it will NOT be one legislative
district. It will become a legislative district only if it
is shown that it has 250,000 inhabitants.
Navarro v. Ermita: Re: Dinagat islands, it is an
island province. Because these are islands
grouped together considered as one province,
hindi compliant with the 250,000 sq km rule.
Because for it to qualify automatically as one
legislative district, we have to follow the dictum in
the Constitution:
1. It must have a population;
2. It must have inhabitants of 250,000
So a city established lawfully on the basis of the
requirements of the Local Government Code
even if it does not have 250,000 inhabitants, it will
be a validly created city but it will not be a
legislative district. It will become a legislative
district if it is shown that it has 250,000
inhabitants. A little discussion on Navarro vs.
Ermita pertaining to this Province of Dinagat
Islands. Well it’s an Island Province
Navarro vs. Ermita.
You will note class, because Islands to grouped
together and considered as one province, hindi
compliant with the 2,000 square kilometer
contiguous territory. But it was shown that neither
was this Province compliant with the 250,000
inhabitant requirement. And yet you will recall that
in this case, on third motion for reconsideration.
The Court considered its creation as valid despite
the non-compliance with either of the alternative
requirements. This is how the Court finally
resolved it. Justice Nachura looked at the Local
Government Code. He saw that there are
exemptions to the contiguous territorial
requirement and the exemption would be when
the LGU is comprised of Islands. The problem is,
the Province is not expressly included as among
those exempted from the contiguous territory
requirement. Cities lang and municipalities. Let’s
go to the implementing rules and regulations. He
found in the IRR, Provinces are included among
those exempted. He invoked the IRR for
purposes of validating the creation of the
Province of Dinagat Islands. And that is the ruling
in Navarro vs. Ermita.
You will recall that the fundamental dicta in
administrative law, that administrative rule cannot
amend law. And that exactly was done here. The
exemption in the rule was invoked despite the
absence of the exemption in the law. Explanation:
The matter of exclusion of the Province in the law,
was an oversight on the part of the Congress
which was happily, readily, in the Implementing
Rule of the Local Government Code. That’s the
explanation in that very unusual case. Class you
will recall that this is among, the cases which
have been included in the discussions in the
impeachment efforts against the late Chief
Justice Corona which was pre-empted because
of the supervening events.
The importance of these concepts of compact,
contiguous, and adjacent, a little attention here
because the matter of gerrymandering was
discussed in a fairly recent decision: Belgica vs.
Executive Secretary.
What is gerrymandering:
It is the reconfiguration of a legislative district so
as, and usually done by the incumbent legislator
for purposes of insuring that only the areas where
he would be assured of victory in the polls would
be included in the district. Historically, this
involved Mr. Mr Rich Gerry. A Congressman in
the United States. He was able to maneuver the
promulgation of such a measure when his district
as reconfigured was drawn on a map, it was in
the shape of a salamander. Thats why “Gerry” -
“mandering.” To avoid this from recurring, there
are these contiguous, compact, adjacent,
requirements precisely to avoid this pernicious
political maneuver.
We are done with the matter of District
Representatives, a little discussion now on the
25
part of party-lists. I enjoin you to draw your
attention to two major case here:
1. Atong Paglaum vs. COMELEC
2. Banat vs. COMELEC
I will start with Atong Paglaum although it is the
later case. Basic pronouncements of the Court
from this case:
Atong Paglaum, Inc. vs. COMELEC
Basic pronouncement of the court from this case:
There are three kinds of party lists — national,
regional and sectoral.
1. National party list if majority of the
regions would make up the membership
of the party.
2. Regional party list if majority of the
provinces in the region would comprise
the regional party.
3. Sectoral party lists if it represents
a. the marginalized or the
underrepresented or
b. those who lack well-defined
constituencies.
Of the three, it is only the sectoral party that is
required to represent either the marginalized or
the underrepresented or those who lack well-
defined constituencies. Stated otherwise, the
national and regional parties need not represent
the marginalized or those underrepresented or
those who lack well-defined constituencies.
Marginalized/underrepresented - these are the
fisherfolks, the farmer, the urban poor
Lacking well-defined constituencies - they are
the youth, women, the professionals, among the
samples cited in the case of Atong Paglaum.
Essentially though, these three kinds of party-list,
they are barred by one certain essential
ingredient — there must be commonness among
its members in terms of attributes, government
polices, platforms or programs to be pursued.
The element of commonness particularly in the
context of attributes is important.
Is it possible for a major political party (like the
Liberal or Nacionalista) to participate in party list
election? If it feels, district representative, then it
is not allowed, as a general proposition. Is it
possible for a major political party which feels
district representatives to still be allowed to
participate in party list election? YES, provided it
participates only through its sectoral wings, which
are required to be separately registered and
accredited. (To better remember, think of the
word “daya”) Why? These sectoral wings of
major political parties would be favored by the
political machineries already in place with
nationwide effectivity. They will be competing
against the other party-lists who are not as
blessed as these sectoral wings of major political
parties.
The national and regional party-lists can
nominate only persons who are bona fide
members of these organizations. But those
sectoral party-lists can nominate (1) those who
belong to the sector or (2) even if they do not
belong to the sector, if it can be shown that they
have a proven track record of advocacy for the
cause pursued by the sector.
After a year #2 worried about his continued
tenure in his life, approaches #1 – when he got
#1’s attention, he shot him.
If #2 is not caught having shot and killed #1 – he
automatically takes over or fills the vacancy.
#2 now sitting Congressman and does a happy
dance. Then suddenly slips and dies, who takes
over? #3.
#3, inside his office, caught by the wife having an
affair and stabs the former. #3 dies, who takes
over? #4.
On his way to Batasan, #4 alights from his bus –
got hit by car and dies. #5 takes over.
#5 while seated also dies. All nominees are dead,
who takes over? The party is entitled to nominate
another one because the intent is to keep the seat
filled.
(All in the period of 3 years.)
That’s the reason why there are 5 nominees. It is
obligatory and not discretionary. The party-list
can’t say “di ko na feels”, they must submit 5
names.
Atong Paglaum v. COMELEC
G.R. No. 203766
April 2, 2013
If one (or more) of the nominees would be
disqualified, in terms of possessing the
qualifications and eligibilities, that would not
necessarily result in the disqualification of the
party so long as at least one of the nominees
remain eligible or qualified.
Banat v. COMELEC
26
 592 SCRA 294
Remember: To create a legislative district
requires a law.
Let’s say that there are 4 new laws creating 4 new
legislative districts. You remember the rule in
Sec. 5, Art. VI: 20% of the membership of the
House shall be reserved for the party-list.
Art. VI, Section 5
(2) The party-list representatives shall constitute
twenty per centum of the total number of
representatives including those under the party
list. For three consecutive terms after the
ratification of this Constitution, one-half of the
seats allocated to party-list representatives shall
be filled, as provided by law, by selection or
election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth,
and such other sectors as may be provided by
law, except the religious sector.
For every 4 new legislative districts, there must
be one additional party-list seat. (20% or 1/5)
Do you need a law to establish that additional
party-list seat?
No. It automatically arises by operation of the
Constitution. All that is needed is for the
COMELEC to acknowledge that additional seat in
the awarding/allocation of seats after party-list
elections.
Is the filling of all party-list seat mandatory?
No.
The explanation offered by the SC is
mathematical. Let’s us say: there are only 10
party-lists which participate, under RA 7941 the
maximum number of representatives or
nominees for each party-list shall be 3. Do the
mathematics: 10x3 = 30. What if there were 50
party-list seats, where do you get the other 20? In
that sense, not mandatory.
nd
But as pronounced in the 2 Banat v. COMELEC.
Every effort must be exerted that as much as
possible all party-list seats are filled which is
nd
why the SC relaxed in the 2 Banat v. COMELEC
that the application of the very difficult formula
prescribed in the cases of Tan v. COMELEC and
Veterans v. COMELEC.
As pronounced in the second Banat ruling of the
Court, every effort must be exerted to, as much
as possible, see to it that all partylist seats are
filled. Consequently, the Court relaxed in the
second Banat v. COMELEC pronouncement the
application of that very difficult formula prescribed
or brainstormed by Chief Justice Panganiban in
the very difficult cases of Tan v. COMELEC and
Veterans v. COMELEC.
Four Parameters in Partylist Elections
1. Twenty percent (20%) of the seats in the
House are reserved for partylists
(Constitutional)
2. All partylists which obtained at least two
percent (2%) of the votes cast for all
partylists are guaranteed one (1) seat
each (Consitutional, but also pursuant to
R.A. No. 7941)
a. These partylists are called the
“two percenters”
b. This constitutes the first
allocation of seats confined to
the two percenters.
3. The third parameter pertains to the
manner of filling the remaining available
seats if there would still be remaining
available seats after the allocation of one
seat each to the two percenters.
a. Example: There are 50 seats
available for partylists. The two
percenters are 30. That means
that there are 20 remaining
available seats. How do you fill
those seats? You apply the third
parameter which prescribes the
formula for the filling of the
remaining available seats after
the two percenters shall have
each receive one guaranteed
seat. This is the second
allocation.
b. N.B.: In the second allocation,
you still include the two
percenters in the computations
precisely because each of these
parties would be entitled to a
maximum of three seats.
c. FORMULA:
i. Get the votes of each
partylist. The votes of
each partylist will be the
“numerator”.
ii. Get the total votes cast
for all partylists. This will
be the “denominator”.
iii. Divide. You will come up
with a “quotient”.
27
 iv. Multiply the quotient with
the number of remaining
available seats. You will
get the “product”.
v. Each of the products for
each partylist will be
listed in accordance with
their priority from highest
to lowest. Then, it will
only entail the matter of
allocating one seat to
each partylist in
accordance with their
appearance in the order
of priority until all the
remaining available
seats are filled. This is
the second allocation.
4. Each partylist should have a maximum of
three representatives.
Each of these products for each of the party-lists,
you list them in accordance with their priority from
highest to lowest. It will only entail now the matter
of allocating one seat to each party-list in
accordance with their appearance in the order of
priority until all remaining available seats are
filled. This is the second allocation.
The fourth parameter is that, and this is
consistent with the limitation in RA 7941, each
party-list shall have only a maximum of three
representatives. This is constitutional.
The matter of two-percenters:
You will see that because of this new fourth
parameter, even those who do not obtain at least
2% of the votes may be entitled to a seat. This
change in the Banat pronouncement had an
effect on the basic ground for the cancellation or
denial of due course of applications of
accreditation of party-lists or petitions to cancel
the certificates of registration or accreditation of
party-lists.
There are 8 grounds [under Sec. 6 of R.A. 7941]
for refusal/cancellation of the registration of any
national, regional or sectoral party, organization
or coalition:
1. It is a religious sect or denomination,
organization or association, organized
for religious purposes;
2. It advocates violence or unlawful means
to seek its goal;
3. It is a foreign party or organization;
4. It is receiving support from any foreign
government, foreign political party,
foundation, organization, whether
directly or through any of its officers or
members or indirectly through third
parties for partisan election purposes;
5. It violates or fails to comply with laws,
rules or regulations relating to elections;
6. It declares untruthful statements in its
petition;
7. It has ceased to exist for at least one (1)
year; or
8. It fails to participate in the last two (2)
preceding elections or fails to obtain at
least two per centum (2%) of the votes
cast under the party-list system in the two
(2) preceding elections for the
constituency in which it has registered.
The eighth paragraph essentially lists two sets of
grounds: i) failure to participate in two
consecutive party-list elections and ii) if you do
not garner 2% of the votes cast in two
consecutive party-list elections. This second
ground was declared unconstitutional in Banat v.
COMELEC. So, the only remaining ground there
is non-participation in two consecutive party-list
elections.
Sec. 6 of R.A. 7941 presents grounds for two acts
that may be done by the COMELEC: i) to deny
due course to the application for registration; and
ii) to cancel an existing registration or
accreditation.
Dayao v. COMELEC
G.R. No. 193643, Jan. 29, 2013
This involved a party-list for LPG dealers. A
petition to cancel the certificate of registration of
that party-list was filed against it. This was the
basic contention of the party: that ground should
have been invoked when we applied for
registration. There was no objection when we
applied for registration; therefore, all of these
grounds should be considered as waived.
Ruling: wrong. That’s why the title of Sec. 6 is
“petition to deny due course or to cancel.” So, if a
subsequent ground on the basis of any of the
eight would arise after accreditation, then
certainly, the COMELEC may still cancel. So, the
party-list lost.
Once accredited, the party-list need not be
accredited each time that it will participate in a
party-list election. All it needs to do would be to
submit a manifestation of intent to participate.
28
 Abang Lingkod v. COMELEC
G.R. No. 206952
Oct. 22, 2013
Let’s tackle this case: a party-list submitted a
manifestation of intent to participate. In its
submission, there were administrative
attachments as required by the COMELEC. It
turned out that one of the attachments was
proved to be falsified or fake. Digital copies of
photos depicting its conduct, let’s say, of medical
missions, by way of establishing its track record
of advocacy. COMELEC disqualified it for such
falsification. The party-list appealed to the SC.
Ruling: disqualification reversed. That was for
purposes of establishing track record for
advocacy. This element no longer applies to
party-lists, but only to nominees who are not
members or who do not belong to sectoral party-
lists. Track record of advocacy is no longer
prescribed as a requirement for party-lists but
only upon nominees.
Therefore, that representation [is] immaterial and
could not have led to the disqualification.
But what about the fact that it submitted untruthful
statements? This is a separate ground in Section
6 (par. 6: it declares untruthful statements in its
petition) and was never discussed in the case.
Amores v. House of Representative
G.R. No. 189600
June 29, 2010
This pertains to eligibility. This incumbent youth
sectoral party-list realized that, in the next
congress, he is not anymore considered as youth.
He changed his affiliation (from youth sector to
overseas Filipino workers and their families
sector).
Under R.A. 7941, Section 15, changing of
affiliation can have two effects:
1. Any elected party-list representative who
changes his political party or sectoral
affiliation during his term of office shall
forfeit his seat;
2. If he changes his political party or
sectoral affiliation within six (6) months
before an election, he shall not be eligible
for nomination as party-list
representative under his new party or
organization.
He claimed that he was not covered by these
consequences prescribed under the law because
although he changed his sectoral affiliation, he
remained under the same party.
Supreme Court held that under Section 15 of the
said law, if you changed your party or sectoral
affiliation does not matter, so long as you
changed your affiliation you will forfeit your seat
or if you do it within 6 months before an election,
you will not eligible for nomination by your new
party.
Excerpt from the case:
What is clear is that the wording of Section 15
covers changes in both political party and
sectoral affiliation. And the latter may occur within
the same party since multi-sectoral party-list
organizations are qualified to participate in the
Philippine party-list system. Hence, a nominee
who changes his sectoral affiliation within the
same party will only be eligible for nomination
under the new sectoral affiliation if the change
has been effected at least six months before the
elections. Again, since the statute is clear and
free from ambiguity, it must be given its literal
meaning and applied without attempted
interpretation.
Lokin v. COMELEC
G.R. Nos. 179431-32
June 22, 2010
There are three grounds under R.A. 7941
(Section 8) for the withdrawal of nominations
[three instances in which the party-list
organization can substitute another person in
place of the nominee whose name has been
submitted to the COMELEC]:
1. when the nominee dies;
2. when the nominee withdraws in writing
his nomination; and
3. when the nominee becomes
incapacitated.
The COMELEC added a fourth withdrawal by the
party-list of a nomination. It was ultra vires;
therefore, unconstitutional.
Lico v. COMELEC
G.R. No. 205505
September 29, 2015
There are two important facets in this case. First,
the matter of membership in a party-list being
a continuing qualification. Loss of
membership should result in forfeiture of the
seat. Here, there was a leadership struggle on
the basis of amended By-laws within the party-
list. This particular group won the contest
ostensibly and proceeded to expel a sitting
member, a party-list representative member of
the Congress. When it was challenged before the
29
COMELEC, the COMELEC properly dismissed
this aspect of the case because it pertained to a
member of the House of Representative, and the
rule is if you are a member already of the
House of Representative, you will be under
the jurisdiction of the Electoral Tribunal and
not the COMELEC.
Second, the COMELEC, invoked its intra-party
conflict jurisdiction [because according to
jurisprudence, the authority of the COMELEC to
register political parties necessarily entitles it to
determine the proper leadership of any party and
entitles it to assume jurisdiction over intra-party
conflicts]. So, they find the COMELEC
proceeding with the case, but purely for purposes
of determining the validity of the takeover by the
new board on the basis of the amendments to the
By-laws of the organization. Here, the SC said
that the COMELEC gravely abused its discretion,
following this train of thought:
If you may tackle that matter, you may eventually
uphold the validity of the taking over of the new
board, in effect you would be sustaining the
validity of the expulsion of this particular sitting
party-list representative. That is a matter that
pertains exclusively to the Electoral Tribunal;
hence, the COMELEC gravely abused its
discretion in tackling this particular intra=party
conflict.
Article VI, Section 10 - Power of legislators to
provide for upward salary adjustments in their
favor
Article VI
Section 10. The salaries of Senators and
Members of the House of Representatives shall
be determined by law. No increase in said
compensation shall take effect until after the
expiration of the full term of all the Members of
the Senate and the House of Representatives
approving such increase.
I draw your attention to Article VI, Section 10. It
entitles the legislators to provide for upward
salary adjustments in their favor. Note the
constitutional limitation that the effectivity of the
salary increase shall upon the expiration of the
full-term of legislators who would have approved
that increase. Necessarily, this is done by law and
therefore the senators would have also approved.
The senators, you will recall, have 6-year
terms. Hindi yan effective in the next Congress.
You will have to wait for at least two Congresses
before the salary adjustments can be effective.
Please note that there is no prohibition in the
Constitution with regard to the competence of
legislators to assign to them salaries, allowances,
and other perquisites. The safeguard against this
competence of the congress in this regard will be
Article VI, Section 20. This requires the annual
publication of their expenditures to shame them
into exercising a little restraint. It is not really
effective this provision in the Constitution. I am
particularly alarmed by the fact now we have 22
deputy speakers, each of which shall be entitled
to 750 million by way of an annual appropriation
for the duties attached to their positions as deputy
speakers. We only have one speaker, why do we
need 22 deputy speakers? The restoration of this
"pork barrel" from 70 million, it is now 100 million
each and they are defending it. We are helpless.
Yes, we will file suit. Yes, it may be granted, but
they would have already spent or benefited from
these amounts by allocating to themselves.
Article VI, Section 11 - Privileged Speech and
Debate & Immunity from Arrest
Article VI
Section 11. A Senator or Member of the House
of Representatives shall, in all offenses
punishable by not more than six years
imprisonment, be privileged from arrest while the
Congress is in session. No Member shall be
questioned nor be held liable in any other place
for any speech or debate in the Congress or in
any committee thereof.
We go to Article VI, Section 11, which presents
two parliamentary immunities. The matter of
privileged speech and debate, and this immunity
from arrest with respect to offenses punishable by
more than 6 years. The converse statement there
is that if the offenses imputed or subject of the
warrant of arrest were for more than 6 years, then
they can be arrested. But in the context of the
coverage of the prohibition, understand that the
immunity from arrest does not pertain to day to
day adjournments. Kunwari tapos na ang session
pwede na siyang arestuhin. Understand that the
immunity lasts from the duration of the session,
which is fixed in Article VI, Section 15, to begin on
the 4th Monday of July until 30 days prior to the
next commencement of the session of the
Congress. Understand the basic principle here
that it is to prevent harassment suits from being
filed or lodged against members of the Congress.
Precisely, the purpose here is to ensure that there
30
is representation for their respective
constituencies. This cannot be disregarded or set
aside with a simple institution of suits which would
be easy to institute by way of harassment.
We go to the matter or privileged of speech and
debate. The cases are there in your textbook but
the bottom line consideration would be this.
Remember that this privilege of speech and
debate would applicable only in the context of
their performance of legislative functions. This
would include privileged speeches, debates in
plenary session, discussions and remarks made
in a legislative committee, proceeding, and
legislative investigations. By no means should
you include in its coverage the matter of
interviews. For example, session privileged
speech is delivered, session ended, adjourned
that particular day, then here come the press
reporters ambushed interviews. They say what
they have uttered no longer in the context of
legislative functions. May sabit yun. This is the
essence of the 2018 pronouncement of the SC in
Trillanes v. Hon. Evangeline C. Castillo-
Marigomen (G.R. No. 223451 March 14, 2018.)
They say what they had uttered no longer in the
context of their legislative functions
In Trillanes v Judge ... (2018) The point is it was
an ambush interview, the statements subject of
suit for libel against him were not being
considered as having been made in the context
of performance of legislative functions. Well the
libel suit was allowed to proceed by the court.
Always in the context of legislative function.
No Member shall be questioned nor be held liable
in any other place
In the place where the utterance was made there
can be liability or accountability. Privilege speech
if slanderous cannot be held liable for damages
in civil proceedings before regular courts but the
ethics committee of the particular chamber
concerned can hold the speaker accountable
invoking the disciplinary authority of either
chamber on the basis of Article VI Sec. 16 (3), a
matter of disorderly behavior. Disorderly behavior
as a concept is a political question. The only thing
justiciable around this provision is the vote
required for the imposition of the penalty of either
expulsion or suspension up to 60 days.
Section 12. All Members of the Senate and the
HoR shall, upon assumption of office, make a full
disclosure of their financial and business
interests. They shall notify the House concerned
of a potential conflict of interest that may arise
from the filing of a proposed legislation of which
they are authors.
What are they required to do upon
assumption of office?
Make a full disclosure of their financial and
business interests.
Notice must be made if there is any potential
conflict of interest arising from filing a bill,
Section 13. No Senator or Member of the HoR
may hold any other office or employment in the
Government, or any subdivision, agency, or
instrumentality thereof, including government-
owned or controlled corporations or their
subsidiaries, during his term without forfeiting his
seat. Neither shall he be appointed to any office
which may have been created or the emoluments
thereof increased during the term for which he
was elected.
Section 13 must be necessarily discussed
together with the general incompatibility office
and Section 13 also.
I must necessarily relate Section 13 to the
general concept of incompatibility of offices
particularly also Section 13 of Article 7.
Remember the basic rule, an incompatible office
is one which would present a contrariety of
interests with respect to the original position held.
You cannot, at the same time, be a judge and a
prosecutor. There is a contradictory of interests
In the context of legislators, remember that not
every other office should be considered as an
incompatible office.
For instance, here is the chairman of the senate
in the committee of education, if he were
designated as the board regent of the board of
regents of UP which is a state university so there
is a primary relationship between his functions as
the chairman of the committee of education and
his seat as a regent in UP.
31
Similarly, the chairman on the committee of
finance, he can’t be ex officio designated to sit...
Let’s say, he will seat on the Board of the NTC.
There’s a relationship there, ex officio.
Incompatibility is not there just because it is
another office if there were primary relationship to
the functions of the legislator then it can be
justified.
May a legislator hold an incompatible office?
YES. Remember that this proscription of
inhibition, if you will, is applicable only during his
tenure. The point of this particular prohibition –
the foundation of the principles of separation of
powers delineating executive from legislative
functions. The simple rule is that if a legislator
holds another, an appointive office, then he shall
be considered as having forfeited his seat in the
legislature.
This has been illustrated several times in our
jurisdiction. For instance, the case of Cayetano.
He was appointed a Cabinet position while he
was a Senator (this was during the time of
Noynoy Aquino). He forfeited his seat in the
Senate so you can accept an incompatible office.
3
Similarly, as provided in Art. IX-B, Sec. 7 (1) -
May local elective officials hold incompatible or
other offices? YES. The period of applicability or
effectivity this inhibition is limited during the
tenure such that when the incompatible office is
held, the tenure ends. In this connection,
Topacio Nueno v. Angeles distinguished
between term and tenure.
TERM is the period during which an officer is
entitled to remain in office while TENURE is the
period of actual incumbency.
Let’s go to the matter of forbidden office as stated
in Section 13.
Section 13. No Senator or Member of the House
of Representatives may hold any other office or
employment in the Government, or any
subdivision, agency, or instrumentality thereof,
including government-owned or controlled
corporations or their subsidiaries, during his term
without forfeiting his seat. Neither shall he be
appointed to any office which may have been
3
SECTION 7. No elective official shall be eligible for
appointment or designation in any capacity to any public office
or position during his tenure.
created or the emoluments thereof increased
during the term for which he was elected.
Here is a law sponsored by this Congressman,
offered by him, providing for the creation of the
position of Deputy Prime Minister for the
Bangsamoro by way of amendment to the
Bangsamoro Act.
It is approved. It is now law. Let us say the
promulgation as law happens during his second
year of his 3-year term. Immediately after it
becomes law, the Congressman author of the bill,
which is now law, he resigns. He files a certificate
of candidacy for Deputy Prime Minister of the
Bangsamoro. Should it, as to him, be considered
a forbidden office which will serve to render him
ineligible to run? NO. The forbidden office is an
appointive office. This is an elective office.
Therefore, if he resigns, there is nothing to
prevent him from running for that particular
position.
Let’s alter the facts. Let’s say that the position
created on the basis of that law sponsored by this
Congressman is not an elective but an appointive
office. It becomes effective also during the
second year of his 3-year term. But he is not
appointed during that particular Congress. His
term expires, he runs for re-election and he is
now on his re-elected term. During his re-elected
term, can he now be appointive to this officer or
should it be, as against him, still be considered a
forbidden office?
First is the case of
Funa v. Ermita
G.R. No. 184740, Feb 11, 2010
Here is this lady, undersecretary of
transportation. She was assigned to the maritime
branch of the Department of Transportation.
There are air, land, maritime branches in DOTR.
There are a total of 3 undersecretaries (one for
each branch). As maritime undersecretary, she
was designated by Gloria Arroyo to concurrently
become the officer-in-charge of the Marina
(maritime industry authority). Funa challenged on
the basis of Article 7 Section 13
32
 Article VII
Section 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in
this Constitution, hold any other office or
employment during their tenure. They shall not,
during said tenure, directly or indirectly, practice
any other profession, participate in any business,
or be financially interested in any contract with, or
in any franchise, or special privilege granted by
the Government or any subdivision, agency, or
instrumentality thereof, including government-
owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
The spouse and relatives by consanguinity or
affinity within the fourth civil degree of the
President shall not, during his tenure, be
appointed as Members of the Constitutional
Commissions, or the Office of the Ombudsman,
or as Secretaries, Undersecretaries, chairmen or
heads of bureaus or offices, including
government-owned or controlled corporations
and their subsidiaries.
The petition was sustained by the Supreme
Court. It was against the defense of the good
undersecretary with her reliance on the
provisions of the second paragraph of Article IX-
B, Section 7
Article IX-B Section 7
Section 7. No elective official shall be eligible for
appointment or designation in any capacity to any
public office or position during his tenure.
Unless otherwise allowed by law or by the
primary functions of his position, no appointive
official shall hold any other office or employment
in the Government or any subdivision, agency or
instrumentality thereof, including Government-
owned or controlled corporations or their
subsidiaries.
Which is essentially the foundation Civil
Liberties Union vs. Executive Secretary: SC
said in this case that these civil servants, public
officers can hold other offices if primarily related
to the office or authorized by law. That Article IX-
B, Section 7 provision is a general provision and
cannot prevail as against these stricter prohibition
in Article 7, Section13 which is applicable to the
officers narrated there.
We now go to the second Funa case. The case
of Funa vs. Agra
Funa v. Agra
G.R. No. 191644
February 19, 2013
Sir’s premise for this case is the earlier case of
Public Interest Center vs. Alma: This was a
PCGG Chairman who was designated to act
concurrently as the chief legal counsel. Clearly,
that was an incompatibility of these two offices
because the determination of the PCGG are
reviewable by the chief legal counsel. There is an
incompatibility of offices there; that was not
allowed in that case even if there was a rejection
of the additional salary for the CLC position. What
is important here is that the SC emphasized the
enumeration in Article 7, Section 13 includes
secretaries, undersecretaries, assistant
secretaries. Here’s the problem with our laws.
There are many positions created which would
indicate that this officer shall have the rank of a
cabinet secretary, an assistant secretary.
Remember that does not make them cabinet
secretaries or assistant secretaries. By analogy,
and this is most important, for instance the
government corporate counsel, that law creating
that position gives him the rank of a Justice of a
Court of Appeals. In similar vein, the NLRC
Commissioner is given the rank of a Court of
Appeals Justice. The SC was emphatic on this –
that does not make them justices of the CA, that
does not make them members of the judiciary,
and (for sir which is the most important) that does
not entitle them to be addressed as justices.
The latest pronouncement here would be in the
case of In re Marcelino Veloso: this guy is now
a congressman. He was a former NLRC
commissioner, and then he became a Court of
Appeals justice.
He became a CA justice. The problem was
whether he can tack his tenure as NLRC
commissioner to his tenure of CA Justice for
purposes of computation of his retirement
Justice. The SC held that the matter of
entitlement of an NLRC commissioner is entitled
to all retirement benefits of a court of appeals
justice but they are entitled be referred to be as a
justice.
That principle obtains in the concept of list of
enumerations prescribed in Article VII Sec 13.
33

Article VII
Section 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in
this Constitution, hold any other office or
employment during their tenure. They shall not,
during said tenure, directly or indirectly, practice
any other profession, participate in any business,
or be financially interested in any contract with, or
in any franchise, or special privilege granted by
the Government or any subdivision, agency, or
instrumentality thereof, including government-
owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
The spouse and relatives by consanguinity or
affinity within the fourth civil degree of the
President shall not during his tenure be appointed
as members of the Constitutional Commissions,
or the Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or
heads of bureaus or offices, including
government-owned or controlled corporations
and their subsidiaries.
It only applies to actual cabinet secretaries. This
cannot apply to those who only have the ranks.
You remember the VP we had where he was also
the head of the Boy Scouts of the Philippines? VP
Binay. Would that particular concurrent holding of
the Boy Scouts of the Philippines be in violation
of Art VII Sec 13? Yes.
The Boy Scouts of the PH is a government
agency, attached to the DepEd, as pronounced
in:
Boyscouts v NLRC
G.R. No. 80767
April 22, 1991
Supreme Court held: While the BSP may be seen
to be a mixed type of entity, combining aspects of
both public and private entities, considering the
character of its purposes and its functions, the
statutory designation of the BSP as "a public
corporation" and the substantial participation of
the Government in the selection of members of
the National Executive Board of the BSP, the
BSP, as presently constituted under its charter, is
a government-controlled corporation within the
meaning of Article IX (B) (2) (1) of the
Constitution. Also, the Administrative Code of
1987 designates the BSP as one of the attached
agencies of the Department of Education. Hence,
the BSP is appropriately regarded as "a
government instrumentality" under the 1987
Administrative Code.
Boyscouts v Commission on Audit
G.R. No. 177131
June 7, 2011
Supreme Court: Since the BSP, under its
amended charter, continues to be a public
corporation or a government instrumentality, we
come to the inevitable conclusion that it is subject
to the exercise by the COA of its audit jurisdiction
in the manner consistent with the provisions of
the BSP Charter.
Jesus Falcis filed a case for this. The Supreme
Court held that it is moot and academic because
of the expiration of the term of the Vice President
Funa v Agra
G.R. No. 191644
February 19, 2013
He was an acting Solicitor General. Under the
law, an OSG is a cabinet position, therefore he is
a cabinet secretary. He was designated by Gloria
to be the acting secretary justice. SC held that all
non-acting, hence nullified yung SOJ position.
Supreme Court held: In order to be clear,
therefore, the Court holds that all official actions
of Agra as a de facto Acting Secretary of Justice,
assuming that was his later designation, were
presumed valid, binding and effective as if he was
the officer legally appointed and qualified for the
office. This clarification is necessary in order to
protect the sanctity of the dealings by the public
with persons whose ostensible authority
emanates from the State. Agra's official actions
covered by this clarification extend to but are not
limited to the promulgation of resolutions on
petitions for review filed in the Department of
Justice, and the issuance of department orders,
memoranda and circulars relative to the
prosecution of criminal cases.
Over-acting – that particular designation. Sabi ng
SC, dun sa Funa v. Ermita, if you had designated
him as such ex officio, we would have sustained
it. My point is that the Civil Liberties Union case
still applies today. Ang kulang lang sa Funa v.
Ermita was the word “ex officio”. If it had been
designated in that matter, that would have been
sustained by the SC following principles upheld in
the Civil Liberties Union case.
Betoy v NPC
G.R. Nos. 156556-57
34
 October 04, 2011
Facts: Pursuant to Section 63 of the EPIRA and
Rule 33 of the IRR, the NPB passed NPB
Resolution No. 2002-124 which, among others,
resolved that all NPC personnel shall be legally
terminated on January 31, 2003and shall be
entitled to separation benefits. As a result of the
foregoing NPB Resolutions, petitioner Enrique U.
Betoy, together with thousands of his co-
employees from the NPC were terminated.
Issue: whether or not the designation of
secretaries as board of directors of National
Power Corporation valid? – YES
Held: The delegation of the said official to the
respective Board of Directors were designation
by Congress of additional functions and duties to
the officials concerned, i.e., they were designated
as members of the Board of Directors.
Designation connotes an imposition of additional
duties, usually by law, upon a person already in
the public service by virtue of an earlier
appointment. Designation does not entail
payment of additional benefits or grant upon the
person so designated the right to claim the salary
attached to the position. Without an appointment,
a designation does not entitle the officer to
receive the salary of the position. The legal basis
of an employee’s right to claim the salary
attached thereto is a duly issued and approved
appointment to the position, and not a mere
designation.
The Court, therefore, finds the designation of the
respective members of the Cabinet, as ex-officio
members of the NPB, valid.
By law, or as authorized by law, the Secretary of
Energy were designated ex officio to sit in the
Board of Directors of the National Power
Corporation, a government owned and controlled
cooperation. The Court sustained the statutory
designation dahil swak na swak - binarily related
and energy, trade, NPC, may relationship, and
authorized by law since ayon ung batas eh. Ex
officio and no additional salaries.
That is all for Incompatible Offices. We go back
to the legislature.
Section 14. No Senator or Member of the House
of Representatives may personally appear as
counsel before any court of justice or before the
Electoral Tribunals, or quasi-judicial and other
administrative bodies. Neither shall he, directly or
indirectly, be interested financially in any contract
with, or in any franchise or special privilege
granted by the Government, or any subdivision,
agency, or instrumentality thereof, including any
government-owned or controlled corporation, or
its subsidiary, during his term of office. He shall
not intervene in any matter before any office of
the Government for his pecuniary benefit or
where he may be called upon to act on account
of his office.
Section 15. The Congress shall convene once
every year on the fourth Monday of July for its
regular session, unless a different date is fixed by
law, and shall continue to be in session for such
number of days as it may determine until thirty
days before the opening of its next regular
session, exclusive of Saturdays, Sundays, and
legal holidays. The President may call a special
session at any time.
Section 16. (1) The Senate shall elect its
President and the House of Representatives its
Speaker, by a majority vote of all its respective
Members.
Each House shall choose such other officers as it
may deem necessary.
(2) A majority of each House shall constitute a
quorum to do business, but a smaller number
may adjourn from day to day and may compel the
attendance of absent Members in such manner,
and under such penalties, as such House may
provide.
(3) Each House may determine the rules of its
proceedings, punish its Members for disorderly
behavior, and, with the concurrence of two-thirds
of all its Members, suspend or expel a Member.
A penalty of suspension, when imposed, shall not
exceed sixty days.
(4) Each House shall keep a Journal of its
proceedings, and from time to time publish the
same, excepting such parts as may, in its
judgment, affect national security; and the yeas
and nays on any question shall, at the request of
one-fifth of the Members present, be entered in
the Journal.
Each House shall also keep a Record of its
proceedings.
(5) Neither House during the sessions of the
Congress shall, without the consent of the other,
adjourn for more than three days, nor to any other
place than that in which the two Houses shall be
sitting.
35
Section 14 was tackled when I discussed the
Belgica case
Section 15 speaks about commencement of the
sessions of the Congress, fixed on the fourth
Monday of July. Here, you may draw your
attention to the special sessions, which may be
called by the president at any time. Remember,
that is essentially to be considered as a political
question.
Recall our discussions on Araneta v. Dinglasan,
distinguishing between regular and special
sessions.
In Section 16, I have discussed the first 4 basic
paragraphs while we tackled the matter of voting
requirements. The only remaining thing in Section
th
16 is the 5 paragraph, which simply says that
Congress is may not adjourn for more than 3
days, without the concurrence of both chambers.
Neither may it hold business in any other place
with such concurrence. There is a concurrence
here pero essentially Senate is now there in
Pasay and Congress in the North. Essentially,
Metro Manila yan so in the same area. I imagine
there is concurrence here consistent with the
requirement.
Article VII – Executive
Section 4. The returns of every election for
President and Vice-President, duly certified by
the board of canvassers of each province or city,
shall be transmitted to the Congress, directed to
the President of the Senate. Upon receipt of the
certificates of canvass, the President of the
Senate shall, not later than thirty days after the
day of the election, open all certificates in the
presence of the Senate and the House of
Representatives in joint public session, and the
Congress, upon determination of the authenticity
and due execution thereof in the manner provided
by law, canvass the votes.
Article VIII – Judiciary
Section 1. Judicial power includes the duty of the
courts of justice to settle actual controversies
involving rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the
Government
Under our Constitution there are only two
Electoral Tribunals. The first is the Presidential
Electoral Tribunal (PET) which is basically the
Supreme Court. This is a special judicial power
independent of the judicial power conferred by
nd
the 2 paragraph of section 1 of Article 8.
Macalintal v. Presidential Electoral Tribunal
Facts: Here, Macalintal questioned the Supreme
Court’s jurisdiction to resolve presidential and
vice-presidential elections protest and contest,
invoking Section 12 of Article 8, which prohibits
any member of the judiciary from being
designated to perform or act in any quasi-judicial
function or capacity. Macalintal based his
argument from the doctrine in BOAC, which
provided that the resolution of election protest
and contest is a quasi-judicial function.
Issue: W/N the resolution of election protest and
contest is a quasi-judicial function? NO, it is a
judicial function.
Ruling: The SC abandoned the doctrine in
BOAC, and the resolution of election contest and
protest is in essence an exercise of judicial
power. This judicial power is specially conferred
on the SC by Article 7 Section 4. This is different
nd
from the judicial power prescribed by the 2 par.
of Article 8 Section 1, which describes the
traditional concept of judicial power, involving
legally enforceable and demandable rights, as
opposed to acts which are tainted with grave
abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or
instrumentality of government. The conferment of
sole judge jurisdiction over election protest
pertinent to the President and Vice-President has
nothing to do with judicial power in Article 8
Section 1. This is special judicial power conferred
under the constitution to the Supreme Court. Until
Article 7, section 18, special judicial power is
conferred to determine the factual basis, and
validity of the factual basis for a declaration of
Martial Law or a suspension of the writ of habeas
corpus.
That is a fourth kind of Judicial Power expressly
conferred to the Supreme Court independent of
Article 8, Section 1. We go to Article 9-A Section
7. This is the Certiorari jurisdiction specially
conferred upon the Supreme Court by way of
appellate authority over the adjudication of the
Constitutional Commissions. This is another
special grave abuse of discretion authority given
to the Supreme Court. That grave abuse of
authority is only by way of judicial interpretation.
You will recall I mentioned already the case of
Araullo vs Comelec. Note class that many cases
36
to this effect among them being the case of
Petitioners Organization vs Executive Secretary
which involve 5 respondents, for instance the
UCPB. This is about the use of the coconut levy
funds for the purchase of shares of stock in
private corporations. You will recall that the
petitioners sued on the basis of Rule 65. In Rule
65, you must precede from a prior determination
from a board, party or tribunal. But this was a
direct proceeding to the supreme court without a
prior decision. Therefore, the respondent
contended that this is not covered by Rule 65.
The SC said that even if there were no prior
proceedings, this involves a grave constitutional
issue in which case it becomes the right, nay, the
duty of the Court to exercise Judicial Power.
Petitioners Organization vs Executive
Secretary
F: In 1976 President Marcos enacted P.D. 961,
the Coconut Industry Code, which consolidated
and codified existing laws relating to the coconut
industry. The Code provided that surpluses from
the CCS Fund and the CID Fund collections, not
used for replanting and other authorized
purposes, were to be invested by acquiring
shares of stock of corporations, including the San
Miguel Corporation (SMC), engaged in
undertakings related to the coconut and palm oil
industries. UCPB was to make such investments
and equitably distribute these for free to coconut
farmers. These investments constituted the
Coconut Industry Investment Fund (CIIF). P.D.
961 also provided that the coconut levy funds
(coco-levy funds) shall be owned by the coconut
farmers in their private capacities.
I+R: Does appropriating public funds violate
substantive due process? Yes.
The coco-levy funds were raised pursuant to law
to support a proper governmental purpose. They
were raised with the use of the police and taxing
powers of the State for the benefit of the coconut
industry and its farmers in general. The Court has
also recently declared that the coco-levy funds
are in the nature of taxes and can only be used
for public purpose. Section 2 of P.D. 755, Article
III, Section 5 of P.D. 961, and Article III, Section
5 of P.D. 1468 completely ignore the fact that
coco-levy funds are public funds raised through
taxation. And since taxes could be exacted only
for a public purpose, they cannot be declared
private properties of individuals although such
individuals fall within a distinct group of
persons.But the assailed provisions, which
removed the coco-levy funds from the general
funds of the government and declared them
private properties of coconut farmers, do not
appear to have a color of social justice for their
purpose. The declarations do not distinguish
between wealthy coconut farmers and the
impoverished ones. Consequently, such
declarations are void since they appropriate
public funds for private purpose and, therefore,
violate the citizens’ right to substantive due
process.
That is a different kind of judicial power
extraneous to all of the others that I have already
mentioned. Then, the cases of
Atong Paglaum vs COMELEC and the case of
Lambino vs COMELEC.
You will recall that in both instances, in Atong, the
COMELEC merely followed doctrine. The one set
in Bagong Bayani OFW vs Comelec regarding
the rules on the accreditation of party-lists. It
followed SC doctrine. In Lambino, it followed
Santiago vs. COMELEC. 6735 is inadequate ay
petition on amendment of the constitution. The
Supreme Court ruled in both cases that no grave
abuse of discretion existed. And yet, judicial
power was exercised. There is so much more to
Judicial Power than what is prescribed in Article
8, Section 1. At any rate, sabi ng Supreme Court,
by way of abandonment of the BOAC principle to
the effect, that the resolution contest is quasi-
judicial. In a sense it is a Judicial Power. Note the
additional statement of the SC. Even the Electoral
tribunal, the House and the Senate, when either
of them would resolve election protests, they too
exercise Judicial Power. That’s a little
problematic because remember the membership
of the Electoral Tribunal. 6 from either chamber
chosen proportionately from a representation in
either chamber including, in the lower house,
party-lists and then 3 justices of the Supreme
Court. Sabi ko sa sarili ko, okay na siguro yan
kasi at least merong 3 justices of the Supreme
Court exercising judicial power.
Court did not stop there, SC said that even
Comelec when it resolves election protests, it too
in essence exercises judicial power. That would
be by way of total abandonment of the BOAC v.
Comelec principle to the effect that the resolution
of election contests would partake the character
of quasi-judicial proceedings.
Why is it then that the SC can style itself as the
PET?
37
 • To distinguish the special judicial
power conferred upon it under Art. VII,
Sec. 4 from its traditional judicial
power indicated in Art. VIII, Sec. 1(2)
• If it adopted a different name, it is only for
that purpose à to distinguish the kind of
judicial power that it exercises as the
resolver / sole judge of these electoral
contests
• When it styled itself as the PET, it merely
followed statutory historical precedent
because the first PET was established by
law and it designated the SC to be the
PET
Proceeding to Electoral Tribunals indicated in
Sec. 17
Art. VI
Section 17. The Senate and the House of
Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members
of the Senate or the House of Representatives,
as the case may be, who shall be chosen on the
basis of proportional representation from the
political parties and the parties or organizations
registered under the party-list system
represented therein. The senior Justice in the
Electoral Tribunal shall be its Chairman.
The ETs are not part of the Congress, they are
constitutionally independent of the Congress.
ETs have their own appropriations and own staff
precisely because they are independent.
David v. Senate Electoral Tribunal
G.R. No. 221538
Sept. 20, 2016
The SC does not have appellate jurisdiction over
either ETs. What it may exercise would be
jurisdiction over errors of jurisdiction and not
errors of law. All references of its adjudications to
the SC would be by way of the original action of
certiorari (Rule 65) precisely because of the
independent character of the tribunal.
To mark the independence of ETs, See Bondoc
v. Pineda (not yet asked in Bar)
Bondoc v. Pineda
G.R. No. 97710
Sept. 26, 1991
There are always 9 members in SET / HRET. So
Most of the time it will be 5 vs. 4. The 4 will
constitute the justices of the SC and the minority
representative from either chamber. The 5
majority always prevails.
Reyes v. HRET
G.R. No. 221103
Oct. 16, 2018
Reyes questions the constitutionality of several
provisions of the HRET Rules, specifically, the
rule which requires the presence of at least one
Justice of the SC to constitute a quorum.
The SC held that for a quorum to exist in either
Electoral Tribunals, there must always be in
attendance of at least one Justice of the SC. Even
if there were 5 in attendance but if all 5 are
legislators, there is no quorum.
If all Justices of the members of the electoral
tribunal inhibit themselves, the SC should
designate temporary replacements.
This case is also in addition to the matter of
incompatible offices. Remember that the
legislators are authorized by the Constitution to
become members of Electoral Tribunals. In so far
as the SC is concerned, they are also authorized
to hold this other office of membership in the
electoral tribunal.
Bondoc v. Pineda
G.R. No. 97710
Sept. 26, 1991
Prof’s facts: One of the usual 5 sa majority,
sided with the usual form na minority making
them 5 now, and the usual majority naging 4.
Panalo yung protestant, kaya the incumbent
protestee file ng MR. While the MR was pending,
the conscience voter dun sa usual majority was
replaced, para dun sa resolution ng MR meron
ulit silang 5. The SC said that it cannot be done
because this clearly undermines the
independence of the electoral tribunal.
HRET reached a decision on the election contest
between Pineda and Bondoc in favor of the latter.
Representative Camasura Jr., a member of the
majority party and one of the House’s
representatives in the HRET was removed from
the party for disloyalty. With Camasura’s ouster,
the House of Representatives resolved to
withdraw his nomination and rescind his election
as a member of the HRET. The issue is WON the
38
move of the House of Representatives to change
its representative in the HRET is constitutional –
NO
The SC held that the independence of the HRET
would be a myth if the House of Representatives,
or the majority party therein, may shuffle and
manipulate the political component of the
Electoral Tribunal to serve the interest of the party
in power.
Abayon v HRET
G.R. No. 222236
May 3, 2016
*Note: I did not find the 2018 case, but this case
has the same facts discussed by the Prof.
Abayon and Palparan were duly nominated party
list representatives of AAngat Tayo and Bantay,
respectively. A quo warranto case was filed
before HRET assailing the jurisdiction of HRET
over the partylists and its representatives. HRET
dismissed proceeding but upheld the jurisdiction
over the representatives who now seeks certiorari
before the SC. The issue is WON the HRET has
jurisdiction over the question of qualifications of
petitioners – YES
The Court pronounced that the Electoral Tribunal
has the competence to declare the nullity of an
election. This is consistent with its quasi-judicial
authority, the basic purpose would be for it to
enable to determine the actual victor in any
election or polls.
Note: The matter of annulling an election is a
quasi-judicial act of the Electoral Tribunal. While
the matter to declare a failure of elections is in the
exercise of its administrative competence, NOT
quasi-judicial.
Sanchez v. COMELEC
G.R. No. L-55513
June 19, 1982
4
Atty. Cruz is not sure between 60 days or 6 months. Under
Republic Act No. 7166 Section 4, Special Election shall be
conducted not earlier than 60 days nor longer than 90 days
after occurrence.
Sec. 4. Postponement, Failure of Election and Special
Elections. - The postponement, declaration of failure of
election and the calling of special elections as provided in
Sections 5, 6 and 7 of the Omnibus Election Code shall be
decided by the Commission sitting en banc by a majority vote
of its members. The causes for the declaration of a failure of
The elements of a failure of election as first
fleshed out in this case. If you declare a failure of
election, you postpone – you contact a special
election. It is a failure of election:
1. If the election does not have a time and
date specified
2. If it was not completed during the
schedule period for the election or
3. If there was a problem in the
transmission of the election returns.
Any of these three circumstances would have
been occasion or attended with false, violence,
threat, intimidation, etc.
But remember this principle, the COMELEC,
even if there were failure of election, is not bound
to always declare a failure of election. It has the
discretion to or not to declare a failure of election.
For instance, 1000 polling precinct, there was
fraud and violence in 2 precincts, certainly the
outcome of election in those 2 precincts cannot
have any material effect on the total outcome in
the entire polling area. Therefore, the COMELEC
would be correct if it were not to call or declare a
failure of election because that is essentially
DISCRETIONARY. But if it does so, remember
that it could under the law to conduct as soon as
possible a special election to complete the
election.
Understand that the period to conduct a special
4
election is 60 days. But the point is, even if
special election is conducted, after a declaration
of failure, not within the deadline prescribed
under the law, still it can be upheld precisely
because of the recognition of the court of the
difficulty of conducting special elections
particularly the matter of logistical requirements.
HENCE, the deadline prescribed is not strict
for the conduct of special election after the
prior declaration of failure of election. In any
case, the HRET is authorized to annul election.
That is Quasi-Judicial.
election may occur before or after the casting of votes or on
the day of the election.
In case a permanent vacancy shall occur in the Senate or
House of Representatives at least one (1) year before the
expiration of the term, the Commission shall call and hold a
special election to fill the vacancy not earlier than sixty (60)
days nor longer than ninety (90) days after the occurrence
of the vacancy. However, in case of such vacancy in the
Senate, the special election shall be held simultaneously with
the succeeding regular election.
39
JURISDICTION of the HRET
We have to make a determination as to when the
COMELEC has authority of the eligibility of the
candidate stops and when the authority of the
HRET begins. Look at section 17, it speaks of
jurisdiction over members of either chamber. We
define “member”.
SECTION 17. The Senate and the House of
Representatives shall each have an Electoral
Tribunal, which shall be the sole judge of all
contests relating to the election, returns, and
qualifications of their respective Members. Each
Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members
of the Senate or the House of Representatives,
as the case may be, who shall be chosen on the
basis of proportional representation from the
political parties and the parties or organizations
registered under the party-list system
represented therein. The senior Justice in the
Electoral Tribunal shall be its Chairman.
Historically, 1994 case of Marcos v. COMELEC.
A member of the house or the senate is:
1. One who is proclaimed as the winning
candidate,
2. One who has taken his oath,
3. One who has assumed office.
Reyes v. COMELEC (2013)
G.R. No. 207264
October 22, 2013
nd
The SC changed the 2 requirement. It is now
worded “He must have taken the PROPER oath”.
You must have seen on newspaper or television
coverage, that immediately after proclamation
these winning candidates immediately take their
oath of office. Please realized na walang
katuturan ang mga oath na yun. The oath is a
qualifying act for the purposes of assumption into
office. You cannot assume an office which is not
yet vacant. In the context of Congress, remember
th
that the vacancy arises NOON 30 day of JUNE.
That is the time their term commences as well.
NOW: A member of the house or the senate is:
1. One who is proclaimed as the winning
candidate,
2. One who has taken the proper oath,
3. One who has assumed office.
This is what happened in the case of Reyes v.
COMELEC
Reyes v COMELEC
G.R. No 207264
October 22, 2013
Facts: The candidate here was not a Filipina.
This is about the Reyeses of Marinduque. They
talked among each other that they no longer have
a candidate for Congress (the old Reyes is retired
and the other Reyes is happy with his position in
the Toll Regulatory Board). Regina Ongsiako
Reyes was a natural American and was then
asked to go back home here. She went back
home here and worked as a provincial
administrator then she ran. Her eligibility was
questioned by a petition for disqualification.
Adjudication or promulgation of judgment was set
at May 9 (*note here that elections were held at
May 10). The rule in COMELEC is that if you
receive a notice of the promulgation then that is
considered as service of the judgment. In which
case you have 5 days to go to SC and ask for
restraining order. Failing to do so, then the
judgment becomes final.
Reyes received a copy of the notice of
promulgation of May 9 but she did not attend. She
was proclaimed as winner on May 15 and
immediately after, she took an oath. May 16, she
received a copy of the promulgation against her.
May 17, she then made an oath this time before
Speaker Belmonte. Then June 5, she files a
petition to SC seeking to nullify or restrain the
enforcement of judgment of disqualification
against her saying that because of the events
(proclaimed winner and took an oath), she had
already became a member of the house therefore
only HRET can exercise jurisdiction against her.
Her point was that the particular judgement from
COMLEC cannot be enforced against her
anymore (HRET lang daw!).
Held: SC said that if that was the case, then why
are you here now in the SC if it were the HRET
only which has exclusive jurisdiction over you. SC
said she’s not yet a member because the three
have not concurred. Yes, she was proclaimed as
winner but she has not taken the proper oath. The
oath she took twice is not the proper oath. The
proper oath is one taken in open session
before the Speaker of the House. That time, it
was only June 5. Clearly, she has not yet
assumed office because she can only assume
th
office on the 30 day of June. Therefore, the
COMELEC still has jurisdiction over her. Also,
since she did not go to the SC after May 9, within
40
5 days and she did not obtain a restraining order
to stop the enforcement of that adjudication, then
that ruling of the court have become final.
Remember the basic pronouncement of the court
there is thus:
For the jurisdiction of the HRET to be triggered,
the three requirements must concur:
1. Proclamation as the winning candidate
2. Taking of proper oath
3. Assumption of office
In this case, fail siya sa 2.
Sir's own observation (but don't be confused
daw):
The rules of the HRET obtaining at the time of
Reyes v. COMELEC are very simple: the
deadline for the filing of election protest or quo
warranto before the HRET simply states "within
15 days from proclamation period."
If we were to follow the pronouncement in Reyes
strictly, the petition cannot be lodged with the
HRET unless the protestee is a member. When
does membership commence? Noon 30th day of
June because that is the only time when the
proclaimed winning candidate can assume office.
By then, the 15 days from proclamation would
have already long lapsed.
Next point: let us say, it is already noon 30th day
of June, pwede na mag-qualify, pwede na mag-
assume into office. Umpisa na yung term, meron
nang vacancy. Pwede ba mag proper oath?
As defined in Reyes v. COMELEC, proper oath
is one done in open session.
So pwede na ba mag open session ang Congress
at noon of 30th day of June? Sec. 15 says "4th
Monday of July ang opening
session niya."
Art. VI
Section 15. The Congress shall convene once
every year on the fourth Monday of July for its
regular session, unless a different date is fixed by
law, and shall continue to be in session for such
number of days as it may determine until thirty
days before the opening of its next regular
session, exclusive of Saturdays, Sundays, and
legal holidays. The President may call a special
session at any time.
Let us say 4th Monday of July na. Pwede pa ba
mag open session ang Congress then? The
answer is NO. Why not? Because none of them
has taken the proper oath. Why not? Because
they have not yet chosen a Speaker yet before
whom they can take their proper oath. Note that
the oath in Reyes was taken before Belmonte
when he was the Speaker of that Congress, but
he is not the Speaker of the next Congress.
Now we go back to the absurd pronouncement of
Reyes.
4th Monday of July, hindi sila pwede mag open
session because none of them has taken his
oath. Why? Because no speaker has been
elected. Why have they not elected a Speaker?
Because they cannot convene in open session.
Why can they not convene in open session?
Because they have not taken up proper oath
before a Speaker? That is Reyes v. COMELEC.
Remember you cannot compel the HRET to
change its rules. Independent yan eh. But it has
changed its rules now. Look at how the rules have
changed.
Present HRET Rules:
The deadline now is this, based on the 2017
rules:
if the winning candidate was proclaimed before
noon 30th day of June, the deadline for the
election protest would be within 15 days from
June 30.
But if the proclamation was done after June 30,
then the deadline would be within 15 days from
the date of the proclamation. That still does not
resolve my concerns about the absurdity of that
decision.
COMMISSION ON APPOINTMENTS
SECTION 18. There shall be a Commission on
Appointments consisting of the President of the
Senate, as ex officio Chairman, twelve Senators
and twelve Members of the House of
Representatives, elected by each House on the
basis of proportional representation from the
political parties and parties or organizations
registered under the party-list system
represented therein. The Chairman of the
Commission shall not vote, except in case of a tie.
41
The Commission shall act on all appointments
submitted to it within thirty session days of the
Congress from their submission. The
Commission shall rule by a majority vote of all the
Members.
The Commission on Appointments (CoA) is
adjunct of the Congress, it is part of the Congress
although it performs non-legislative functions.
When the Congress is in session, the CoA is in
operation as well.
The membership in CoA from either chamber is
chosen proportionately from the representations
in either chamber including in the lower house,
the party list. Remember, it [CoA] is presided over
by the second (?) president who does not vote,
except in cases of a tie. The required vote under
this provision for the validity of the determinations
of the CoA would be an absolute majority vote, a
majority of all its members.
SECTION 19. The Electoral Tribunals and the
Commission on Appointments shall be
constituted within thirty days after the Senate and
the House of Representatives shall have been
organized with the election of the President and
the Speaker. The Commission on Appointments
shall meet only while the Congress is in session,
at the call of its Chairman or a majority of all its
Members, to discharge such powers and
functions as are herein conferred upon it.
Section 19 is merely an organizational provision.
SECTION 20. The records and books of accounts
of the Congress shall be preserved and be open
to the public in accordance with law, and such
books shall be audited by the Commission on
Audit which shall publish annually an itemized list
of amounts paid to and expenses incurred for
each Member.
Section 20 should be referred in connection with
the matter of disclosures in the expenditures of
the legislators.
LEGISLATIVE INQUIRIES
SECTION 21. The Senate or the House of
Representatives or any of its respective
committees may conduct inquiries in aid of
legislation in accordance with its duly published
rules of procedure. The rights of persons
appearing in or affected by such inquiries shall be
respected.
Section 21 was discussed in the context of the
legislative oversight competence of the
Congress. This is not by way of conferment of the
authority to conduct legislative investigations
because this prerogative is inherent in the
Congress (Arnault v. Nazareno).
Remember the three limitations. If at all, this
section prescribes the limitations in the exercise
of the power to exercise legislative inquiry. In aid
of legislation, that is one of the limitations. In the
case of Dela Paz v. Senate where it was
reiterated that the matter of the subjects of
legislative inquiries is a political question. Note
however the nuisance in some other cases, like
the case of Bengzon v. Senate Blue Ribbon
Committee which is a peculiar case.
Bengzon v. Senate Blue Ribbon Committee
G.R. No. 89914
November 20, 1991
Facts: This involves 39 corporations where Mr.
Romualdez had shares. All of which were
sequestered. Leading to forfeiture proceedings in
the Sandiganbayan of the ill-gotten wealth. There
were reports to the effect that Mr. Romualdez has
sold all of the sequestered shares. The matter
was already being investigated by the
Sandiganbayan in connection with the ill-gotten
wealth case which by the way is a civil
proceeding. But it was then made a subject of a
resolution of the Senate calling, convening a
legislative inquiry committee.
Issue: Whether the creation of the legislative
inquiry committee was proper?
Ruling: The SC argued that there is nothing there
which indicates that the particular investigation is
in any manner related to, much less in aid of any
pending or proposed legislation. In this case, the
Court nullified or restrained the continuation of
the legislative investigation. Also, the subject of
that inquiry is already being tackled by the
Sandiganbayan.
Sec 23 (2) I already discussed this fully.
Emergency powers where we talk about
permissible delegations.
42
APPROPRIATIONS
We’ll now go to the appropriations prerogative of
the Congress. For this purpose, I will discuss
three basic provisions.
SECTION 29. (1) No money shall be paid out of
the Treasury except in pursuance of an
appropriation made by law.
This is the provision that was breached by
Malacanang in the case that we already
discussed in Araullo v. Aquino.
SECTION 29. (2) No public money or property
shall be appropriated, applied, paid, or employed,
directly or indirectly, for the use, benefit, or
support of any sect, church, denomination,
sectarian institution, or system of religion, or of
any priest, preacher, minister, or other religious
teacher, or dignitary as such, except when such
priest, preacher, minister, or dignitary is assigned
to the armed forces, or to any penal institution, or
government orphanage or leprosarium.
I have already discussed this on the context of
freedom of religion. This is the provision for the
prohibition against sectarian purposes.
SECTION 29 (3) All money collected on any tax
levied for a special purpose shall be treated as a
special fund and paid out for such purpose only.
If the purpose for which a special fund was
created has been fulfilled or abandoned, the
balance, if any, shall be transferred to the general
funds of the Government.
If there were special laws providing for special
projects of the government all amounts
unexpended after the completion or the
achievement of the goal would return back to the
National Treasury.
SECTION 24 All appropriation, revenue or tariff
bills, bills authorizing increase of the public debt,
bills of local application, and private bills shall
originate exclusively in the House of
Representatives, but the Senate may propose or
concur with amendments.
The only requirement here is that all the items
enumerated must originate from the House of
Representatives. There is no requirement that the
final version which will evolve into law shall be the
house version.
Tolentino v. Secretary of Finance
There is such a thing known as amendment by
substitution which is usually done by the Senate
for purposes of finally having a version as the one
which will evolve into law.
Remember that the subjects of legislation must
originate from the House of Representative.
appropriation, revenue or tariff bills, bills
authorizing increase of the public debt, bills of
local application, and private bills.
An example of private bills are bills conferring
citizenship upon certain individuals like Gilas
Basketball players.
There are seven specific constitutional limitations
on the power of appropriations. Before I proceed
with the seven, I discuss first the two
extraconstitutional limitations prescribed on the
power of appropriations.
Pascual v. Secretary
The principle here has been emphasized by the
three recent pronouncements of the Supreme
Court involving local government units. The two
extraconstitutional limitations are that (1) Every
appropriations measure must be for a public
purpose and (2) The amount appropriated must
be specifically determinate or at least
determinable.
In that context a law providing for an amount of
not more than Php 5 Billion is determinable
because it is fixed, not more than Php 5 Billion.
Section 25. 1. The Congress may not increase
the appropriations recommended by the
President for the operation of the Government as
specified in the budget. The form, content, and
manner of preparation of the budget shall be
prescribed by law.
Mr. Secretary, you must have heard about the
recent promulgation of the decision in Belgica v.
Executive Secretary. Wala na po kaming 70M.
We’re worried of our scholarship programs.
Pwede po ba na yung 70M na ginagamit po
talaga namin for scholarship, ikakarga namin sa
appropriations niyo tapos let’s just execute
memoranda of agreements para matuloy ang
aming scholarship program.
43
That is adding to the appropriations of budget
proposed by the executive.
UNCONSTITUTIONAL on the basis of Art. 6,
Sec. 25(1).
2. No provision or enactment shall be embraced
in the general appropriations bill unless it relates
specifically to some particular appropriation
therein. Any such provision or enactment shall be
limited in its operation to the appropriation to
which it relates.
This the provision prohibiting riders in general
appropriations act. We discussed this when we
tackled Gonzales v. Macaraig.
Garcia v Mata
G.R. No. L-33713
July 30, 1975
GAA consists of volumes, it is usually thick. In
one of these GAAs, there is this provision which
talks about special retirement privileges given to
retiring AFP generals.
SC: That is a rider in violation of Art.6, Sec. 25
(2).
3. The procedure in approving appropriations for
the Congress shall strictly follow the procedure
for approving appropriations for other
departments and agencies.
The third limitation in the third paragraph is to
prevent the Congress from approving subrosa,
secretly appropriating for itself.
The requirement here is whatever process is
pursued by the Congress, in handling the
appropriations for other branches, that same
procedure must be observed with respect to the
approval of the appropriations for itself. Para
walang secret appropriations in favor of the
Congress.
4. A special appropriations bill shall specify the
purpose for which it is intended, and shall be
supported by funds actually available as certified
by the National Treasurer, or to be raised by a
corresponding revenue proposal therein.
Special appropriations bill. Public purpose is still
required. The matter of the certification from the
National Treasury as to the existence of funds
supportive of this special appropriations measure
is necessary. Failing which or absence which,
that special appropriations measure should
indicate some revenue raising measure. If only to
ensure that that special appropriations measure
would be supported with actual funds.
Rationale: In the past, before this was installed in
our Constitution, our legislators would often go to
their constituencies, papakita, ang kapal, o kita
niyo yung mga bills na aking sinumite sa
Kongreso. Oh unang bill ko, magpapagawa tayo
ng tulay diyan. Pangalawang bill, magpapagawa
tayo ng ilog sa ilalim ng tulay. Knowing fully well
that there are no funds. They are using their
appropriations prerogative for campaigning
purposes which is why it is now required that for
any special appropriations bill, it must be
supported by either of those two: 1) certification
by the Treasury for the existence of funds or 2)
some revenue raising measure.
5. No law shall be passed authorizing any transfer
of appropriations; however, the President, the
President of the Senate, the Speaker of the
House of Representatives, the Chief Justice of
the Supreme Court, and the heads of
Constitutional Commissions may, by law, be
authorized to augment any item in the general
appropriations law for their respective offices
from savings in other items of their respective
appropriations.
The fifth limitation was discussed already when
we tackled the matter of separation of powers,
principally Araullo v. Aquino.
6. Discretionary funds appropriated for particular
officials shall be disbursed only for public
purposes to be supported by appropriate
vouchers and subject to such guidelines as may
be prescribed by law.
The sixth limitation is about discretionary funds
which must be subject to requirements of law,
supported by vouchers, public purpose.
Araullo v Aquino
G.R. No. 209287
July 1, 2014
Yung mga tinatawag na calamity fund,
intelligence fund and discretionary fund, they are
items of appropriations subject to this limitation
specified in Art. 6, Sec. 25 (6).
44
Intelligence funds and discretionary funds. They
are items of appropriation subject to the
limitations and prohibitions in Section 25. Finally
th
the matter of the 7 limitation.
Automatic Re-appropriation clause.
SECTION 25 (7) If, by the end of any fiscal year,
the Congress shall have failed to pass the
general appropriations bill for the ensuing fiscal
year, the general appropriations law for the
preceding fiscal year shall be deemed reenacted
and shall remain in force and effect until the
general appropriations bill is passed by the
Congress
If for any reason the General Appropriations Act
for the ensuing fiscal year shall not be approved
or evolved into law, the current GAA shall be
carried over in its application to the next fiscal
year until such time as the new GAA might have
been properly approved or evolved into law. No
organization can work without a budget that is
why there is a continuing need for the
appropriation measures to be in place.
Section 26:
Procedure for approval of bills
SECTION 26. (1) Every bill passed by the
Congress shall embrace only one subject which
shall be expressed in the title thereof.
The title is not supposed to be a complete
specification of the subjects. The importance of
this requirements is to prevent surprise or fraud
upon the legislators and to prevent hodge-podge
or log-rolling. In all of the cases that has tackled
this provision, in almost every major law that was
challenged this was raised as an objection.
So long as the questioned provision is germane
to the basic concept of the title then it is allowable.
For Example,
Giron v. COMELEC
G.R. No. 188179
January 22, 2013
It was an amendment to the Fair Elections Act.
This amendment repealed Section 27 of the
Omnibus Election Code that stated that if run for
a position lower than your post, you will be
considered as having forfeited your seat. You do
not forfeit it if you run for re-election or for a higher
seat. Sabi ng Supreme Court, germane naman,
Section 26. 1. Every bill passed by the Congress
shall embrace only one subject which shall be
expressed in the title thereof.
Hodge Podge/ Log Rolling Legislation
Log Rolling Legislation- refers to the process in
which several provisions supported by an
individual legislator or minority of legislators are
combined into single piece of legislation
supported by majority of legislators on quid pro
quo basis; one provision may command majority
support, but the total package will.
Example. There is this Congressman, declaring
me to be the most handsome man in the
universe. Hindi papasa yon. So, maghahanap
siya ng mga ibang tanga. One, declaring you to
be the tallest person in the universe. You,
declaring you to be the sexiest. Ipagsasama-
sama ng mga minority bills nila para magkaroon
sila ng majority vote. That is log rolling legislation.
Section 26. 2. No bill passed by either House
shall become a law unless it has passed three
readings on separate days, and printed copies
thereof in its final form have been distributed to
its Members three days before its passage,
except when the President certifies to the
necessity of its immediate enactment to meet a
public calamity or emergency. Upon the last
reading of a bill, no amendment thereto shall be
allowed , and vote thereon shall be taken
immediately thereafter, and the yeas and nays
entered in the Journal.
As to the procedure for the passage of a bill, three
readings on three separate days. First reading;
title and number referred to in the Committee
after the deliberations submitted. For the second
reading; debates, after the debate, amendments
are introduced. Remember that three days before
the third reading, final legislation to be distributed
to each legislator. On third reading, they vote.
Votes are required to be recorded.
45
 Tolentino vs. Secretary of Finance
G.R. No. 115455
October 30, 1995
Remember if there were a presidential
certification as to the existence of emergency and
national calamity, three readings on three
separate days can be set aside as required. Even
the printed final version requirement is also set
aside.
The only other point in Tolentino vs. Secretary of
Finance regarding the so called Conference
Committee, often referred to as Bicameral
Conference Committee. Not provided for in the
Constitution but very powerful, provided for by the
uniform rules of both chambers. Remember that
this Committee comes up with the final version of
the bill after reconciliation of the conflicting
provisions of either chamber. Here’s my point,
once the final version is approved by the
Conference Committee, there is no need for that
final version to be again subjected to another
three separate readings on three separate days.
This final version can be approved by simple
majority of either chamber, in which case, it
becomes an enrolled bill.
When does it become an enrolled bill?
Upon certification to that effect, signature of the
Senate President, and Speaker, coupled with the
signatures of their respective secretaries. Once
signatures are obtained, it is an enrolled bill. Now,
it is competent to be submitted to the president,
following the rule on presentment.
Casco Chemical vs. Jimenez
G.R. No. L-17931
February 28, 1963
Once an enrolled bill has been submitted and
acted upon by the president, you cannot change
the tenor of the enrolled bill by merely referring in
legislative journals. In Casco Chemicals vs.
Jimenez, the exception was intended to favor two
separate chemicals; urea and formaldehyde. In
this enrolled bill which was approved by the
president, there was a typo error. The conjunctive
word “and” separating urea and formaldehyde
was not included. Therefore class, the tax
exemption was clearly on the basis of the
approved bill which is now a law, extended to
urea formaldehyde which is a separate chemical,
resulting from the mixture of the two other
chemicals of urea and formaldehyde. That is not
the intention said the proponents of the law. Look
at the legislative journals, it is clear, the word
“and” separates the two.
RULING: The remedy is not to rely on legislative
journals. The remedy is to amend the law.
You cannot change the tenor of the approved bill
by merely referring to the legislative journals.
Remember the case of Casco Chemical v.
Jimenez:
CASCO CHEMICAL CO. Inc. v. Jimenez
G.R. No. L-17931
February 28, 1963
The exemption was intended to favor two
separate chemicals. (1) Urea and (2)
formaldehyde. In the enrolled bill which was
approved by the President there was a typo error.
The conjunctive word “and” separating Urea and
formaldehyde was not included. Therefore, the
tax exemption was clearly on the basis of the
approved bill which is now law extended to Urea
formaldehyde which was a separate chemical
altogether resulting from the mixture of the two
chemicals. That’s not the intention said the
proponents of the law! Look at the legislative
journal it is clear that the word “and” separates
the two!
SC: The remedy there is not just to rely on the
legislative journals. The remedy there is for you
to amend the law.
The law is patterned to after the enrolled bill
which is the one submitted to the President
pursuant to the rules on presentment.
ASTORGA v. VILLEGAS
G.R. No. L-23475
April 30, 1974
Prinesent yung enrolled bill. But before the
President can act, the Congress noted the errors
for which reason there was a formal withdrawal of
the signatures of the Senate President, the
Speaker, and their respective secretaries. Result
of the withdrawal of the signatures, there was no
enrolled bill. They were free to change it and then
submit it again with the proper signatures, a new
enrolled bill was given. That was finally approved.
Section 27 (We have already tackled the matter
of voting procedures as well.)
Section 27. (1) Every bill passed by the
Congress shall, before it becomes a law, be
presented to the President. If he approves the
same, he shall sign it; otherwise, he shall veto it
and return the same with his objections to the
House where it originated, which shall enter the
objections at large in its Journal and proceed to
46
reconsider it. If, after such reconsideration, two-
thirds of all the Members of such House shall
agree to pass the bill, it shall be sent, together
with the objections, to the other House by which
it shall likewise be reconsidered, and if approved
by two-thirds of all the Members of that House, it
shall become a law. In all such cases, the votes
of each House shall be determined by yeas or
nays, and the names of the Members voting for
or against shall be entered in its Journal. The
President shall communicate his veto of any bill
to the House where it originated within thirty days
after the date of receipt thereof; otherwise, it shall
become a law as if he had signed it.
(2) The President shall have the power to veto
any particular item or items in an appropriation,
revenue, or tariff bill, but the veto shall not affect
the item or items to which he does not object.
The rule on presentment is indicate it there. Let’s
go now to the second paragraph of Section 27.
Gonzales v Macaraeg
G.R. No. 87636
November 19, 1990
The rule is that when the President vetoes, he
vetoes in toto (in total). Ex: If the bill was
severable in character as can be gleaned from
the separability clause which the Congress will
usually indicate. The Express Constitutional
exception can be found in the second paragraph
of Section 27. The President can effect “partial”
veto with respect to appropriation, revenue, and
tariff measures.
That the matter of the partial veto here was that
no an item of appropriation but a provision. Which
provision was further considered by the Court as
unconstitutional because it contravened the
limitation of prohibition against riders in
appropriation measures. That provision did not
relate to any particular item of appropriation
therefore consistent with par 2 of Sec 27. It was
considered unconstitutional.
Bolinao v Valencia
G.R. No. L-20740
June 30, 1964
Appropriation measure providing funds for cetain
Mass Media facilities in Provinces. To that item,
was attached a condition to wit: If there were in
the province already existing such media
facilities, then such appropriations shall not be
available. That was the condition attached. You
will recall that the old Macapagal approved the
item but vetoes the condition.
Recall the old Macapagal: The item was
approved, but the condition was vetoed.
SC: The approval of the item carried with it the
necessarily the approval of the condition.
Because the condition is NOT item of
appropriation, and therefore, cannot be partially
vetoed.
Section 28. 1. The rule of taxation shall be
uniform and equitable. The Congress shall evolve
a progressive system of taxation.
2. The Congress may, by law, authorize the
President to fix within specified limits, and subject
to such limitations and restrictions as it may
impose, tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties or
imposts within the framework of the national
development program of the Government.
3. Charitable institutions, churches and
personages or convents appurtenant thereto,
mosques, non-profit cemeteries, and all lands,
buildings, and improvements, actually, directly,
and exclusively used for religious, charitable, or
educational purposes shall be exempt from
taxation.
4. No law granting any tax exemption shall be
passed without the concurrence of a majority of
all the Members of the Congress.
Section 29. 1. No money shall be paid out of the
Treasury except in pursuance of an appropriation
made by law.
2. No public money or property shall be
appropriated, applied, paid, or employed, directly
or indirectly, for the use, benefit, or support of any
sect, church, denomination, sectarian institution,
or system of religion, or of any priest, preacher,
minister, other religious teacher, or dignitary as
such, except when such priest, preacher,
minister, or dignitary is assigned to the armed
forces, or to any penal institution, or government
orphanage or leprosarium.
3. All money collected on any tax levied for a
special purpose shall be treated as a special fund
and paid out for such purpose only. If the purpose
for which a special fund was created has been
fulfilled or abandoned, the balance, if any, shall
be transferred to the general funds of the
Government.
Section 30. No law shall be passed increasing
the appellate jurisdiction of the Supreme Court as
47
provided in this Constitution without its advice
and concurrence.
Again, remember Carpio-Morales v. CA:
st
• 1 paragraph – not jurisdiction
conferring statute, it undermines the rule
making power of the SC – INEFFECTIVE
nd
• 2 paragraph – UNCONSTITUTIONAL
because it violates Section 30.
Section 31. No law granting a title of royalty or
nobility shall be enacted.
How come we have Datus and Sultan? Are they
not titles of nobility and Royalty?
- They are not conferred by law, they are
culturally conferred!
- The one that is prohibited is the one
conferred by law.
Section 32. The Congress shall, as early as
possible, provide for a system of initiative and
referendum, and the exceptions therefrom,
whereby the people can directly propose and
enact laws or approve or reject any act or law or
part thereof passed by the Congress or local
legislative body after the registration of a petition
therefor signed by at least ten per centum of the
total number of registered voters, of which every
legislative district must be represented by at least
three per centum of the registered voters thereof.
RA 6735: SALIENT FEATURES - INITIATIVES
AND REFERENDUM (ART. 6, SEC. 32
TOGETHER ART. 7 AS IMPLEMENTED BY RA
6735)
Initiatives on Statutes (national legislation)
1. Must be supported by at least 10% of the
total number of registered voters with 3%
of each legislative district thereof
2. Features:
a. Every petition must only have
one proposition which must only
have one subject, embraced in
the title of the proposition.
b. There can be no proposition for
the purposes of amending or
repealing a law which has been
passed by Congress on an
emergency basis until after 90
days from the effectivity of such
law
Initiatives on Ordinances (local legislation)
1. Features:
a. One petition can have more than
one proposition provided that
each of those propositions
should be within the competence
of the (pertinent) local legislative
council prescribed under the
local government code
2. Indirect Initiative
a. Lobbying

b. Any accredited citizens group
can file an indirect initiative
petition with the Congress by
way of recommending (or urging)
Congress to pass a law on the
basis of that petition.
3. Limitations – If an ordinance were
approved in a referendum, the local
legislative council concerned is not
allowed to amend or repeal such
ordinance until after one year from its
effectivity. The local legislative council
shall have only 3 years within which to
repeal it. But with respect to barangays,
it is 6 months and 1 year.
4. Nothing in RA 6735 prevents the
Congress from amending or repealing a
proposition which had been approved by
the people through initiative and
referendum. (SIR, congress can repeal
whatever we approve as national
legislation)
The matter of the petition would have to
be scrutinized or finally approved or
rejected in a referendum. The
referendum will vary depending on what
is being amended or enacted.
In either case, if the required
percentages to support the petition are
met, national (10% + 3%) or local
(region, province, city – 10% + 3% but
municipality + barangay, only 10%
because there are no legislative districts
there)
The way to approve them is by
referendum. (majority vote) It then
becomes a law or ordinance.
48
Initiatives on Amendment of Constitution
Problem of Sir: Can the Congress repeal these
propositions that we have approved?
Two perspectives
1. The power to make law includes the
power to amend or repeal law. Thus, this
proposition that we approve (which is
now law) is subject to the basic legislative
power of the congress which can
therefore amend or repeal the law.
Sir: Theory that he thinks is right.
2. The law we have approved through
initiative is different (from the laws that
congress pass) because this is
sovereignty resides from the people.
Thus, you can submit that these laws we
have submitted through initiative is
beyond the legislative powers (repealing
or amending power) of the Congress.
Note – there is no provision, law or
jurisprudence on this part.

49

 POLITICAL LAW REVIEW
Atty. Carlo Cruz
November 13, 2019
THE EXECUTIVE DEPARTMENT
Does the President possess the totality of
executive power? No. He does not enforce
election laws because this is conferred upon the
COMELEC therefore in that sense it is not
absolutely his executive power. Another instance
where the President is subordinated to the
COMELEC: in the exercise of his pardoning
power. Recall that Sec. 5, Art. IX-C provides that
you cannot pardon for election offenses without
the prior favor or recommendation of the
COMELEC.
Art IX-C
Section 5. No pardon, amnesty, parole, or
suspension of sentence for violation of election
laws, rules, and regulations shall be granted by
the President without the favorable
recommendation of the Commission.
A note on Marcos v. Manglapus: Remember that
it was an 8-7 vote. A few months after it was
promulgated came the case of Laurel v. Garcia.
Laurel v. Garcia
G.R. No. 92013
July 25, 1990
The Court indicated that the President Corazon
Aquino on her own authority could not, without
express authorization, under the law sell our
Roponggi property in Japan. So the effect is that
the President does not possess the totality of
executive power.
Review Center Association of the Philippines
v. Executive Secretary
G.R. No. 180046
April 2, 2009
President Gloria Arroyo on her own authority by
Executive Order (EO) sought to impose new
standards on review centers. This happened
shortly after nagkadayaan sa PRC with the
nursing exam. The Court nullified the EO
because under the Administrative Code, there is
mention of this concept called residual power.
The President may only exercise such powers as
are expressly conferred upon him either under
the Constitution or the law, or those which by
necessary implication can be claimed as well by
him.
Executive Privilege
See previous discussion
Bar exam question: The Secretary on his own
authority invoked executive privilege for purposes
of rejecting the request for him to disclose certain
matters which he claims took place in a closed
door cabinet meeting. There are two answers: (1)
executive privilege pertains to the President only.
The facts do not indicate that there was any
extension of this privilege in favor of the Secretary
or (2) based on Sereno v. Committee of Trade,
the executive privilege can attach to the character
of the information sought to be disclosed. But you
also have to understand that in that particular
class, the Court placed the burden on the
government to prove that it was really within the
context of a closed door cabinet meeting (which
it met therefore properly invoking executive
privilege).
Presidential Immunity
See previous discussion
Remember that the President is immune from all
civil, criminal, administrative suits. This is by
tradition. But if you were asked whether the
President is absolutely immune from suit, the
answer is no. Art. VII, Sec. 4 subjects him to
election contests pertinent to his qualifications.
An election contest, be it a protest or a quo
warranto, is a suit. It is an action from which he is
not immune precisely because the Constitution
makes him vulnerable.
Art. 11, sec. 2 makes him an impeachable officer.
He can be a respondent there.
Until fairly recently, Sec. 5 in relation to sec. 26 of
the Rome Statute of the ICC, he would have been
not immune from prosecution, detention, arrest,
conviction, punishment by the ICC.
SECTION 4. The President and the Vice-
President shall be elected by direct vote of the
people for a term of six years which shall begin at
noon on the thirtieth day of June next following
the day of the election and shall end at noon of
the same date six years thereafter. The President
shall not be eligible for any reelection. No person
who has succeeded as President and has served
as such for more than four years shall be qualified
for election to the same office at any time.
50

No Vice-President shall serve for more than two
consecutive terms. Voluntary renunciation of the
office for any length of time shall not be
considered as an interruption in the continuity of
the service for the full term for which he was
elected.
Unless otherwise provided by law, the regular
election for President and Vice-President shall be
held on the second Monday of May.
The returns of every election for President and
Vice-President, duly certified by the board of
canvassers of each province or city, shall be
transmitted to the Congress, directed to the
President of the Senate. Upon receipt of the
certificates of canvass, the President of the
Senate shall, not later than thirty days after the
day of the election, open all certificates in the
presence of the Senate and the House of
Representatives in joint public session, and the
Congress, upon determination of the authenticity
and due execution thereof in the manner provided
by law, canvass the votes.
The person having the highest number of votes
shall be proclaimed elected, but in case two or
more shall have an equal and highest number of
votes, one of them shall forthwith be chosen by
the vote of a majority of all the Members of both
Houses of the Congress, voting separately.
The Congress shall promulgate its rules for the
canvassing of the certificates.
The Supreme Court, sitting en banc, shall be the
sole judge of all contests relating to the election,
returns, and qualifications of the President or
Vice- President, and may promulgate its rules for
the purpose
The function of the Congress as a canvassing
body is one of only two instances where the
Congress is required to meet in joint session. The
canvassing is a ministerial function of the
Congress. It is limited to the genuineness and
due execution of the returns. Any question arising
from the validity of the conduct of the election
would have to be lodged with the Supreme Court
acting as the sole judge of all these contests.
Recall Macalintal v. PET. The matter of resolution
of election contests is essentially a judicial power.
In terms of inhibitions of regarding engaging in
profession, in business, conflicts of interest,
financial interest, the principle is to ensure that
the president be focused on his functions.
Hypothetical situations:
1. The President is a successful lawyer and
he had many pending cases in the SC
before his assumption of the presidency.
All are decided and attorney’s fees are
awarded in his favor during his term. Can
the he collect the fees during his
incumbency? Yes. The point is he did not
do any work on those cases when he was
president. All the work he did was before
he was president.
2. A president author who continues to
collect royalties for books he wrote
before he became president. Nothing is
wrong.
SECTION 5. Before they enter on the execution
of their office, the President, the Vice-President,
or the Acting President shall take the following
oath or affirmation:
“I do solemnly swear (or affirm) that I will faithfully
and conscientiously fulfill my duties as President
(or Vice-President or Acting President) of the
Philippines, preserve and defend its Constitution,
execute its laws, do justice to every man, and
consecrate myself to the service of the Nation. So
help me God.” (In case of affirmation, last
sentence will be omitted.)
In this particular provision of the Constitution.
SECTION 7. The President-elect and the Vice-
President-elect shall assume office at the
beginning of their terms.
If the President-elect fails to qualify, the Vice-
President-elect shall act as President until the
President-elect shall have qualified.
If a President shall not have been chosen, the
Vice-President-elect shall act as President until a
President shall have been chosen and qualified.
If at the beginning of the term of the President,
the President-elect shall have died or shall have
become permanently disabled, the Vice-
President-elect shall become President.
Where no President and Vice-President shall
have been chosen or shall have qualified, or
where both shall have died or become
permanently disabled, the President of the
Senate or, in case of his inability, the Speaker of
the House of Representatives shall act as
51
President until a President or a Vice-President
shall have been chosen and qualified.
The Congress shall, by law, provide for the
manner in which one who is to act as President
shall be selected until a President or a Vice-
President shall have qualified, in case of death,
permanent disability, or inability of the officials
mentioned in the next preceding paragraph.
We are also done in the rules of succession in the
presidency and vice presidency in context to sec.
68 and 78 of the Omnibus Election Code. By way
of emphasis only, let me point out, that it is in
section 7 of the first 2 categories when the
President-Elect have not been chosen or shall
have failed to qualify, this is only the first of 2
instances when the VP is allowed to act. The only
other instance is discussed already in the “ping
pong provision”, section 11, regarding the
continued ability of the president to discharge his
duties.
SECTION 11. Whenever the President transmits
to the President of the Senate and the Speaker of
the House of Representatives his written
declaration that he is unable to discharge the
powers and duties of his office, and until he
transmits to them a written declaration to the
contrary, such powers and duties shall be
discharged by the Vice-President as Acting
President. x x x x
2 instances when VP may act as
President
1. President-Elect have not been chosen or
shall have failed to qualify or
2. “Ping-pong provision” where the ability of
the president to discharge his duties is in
question.
SECTION 9. Whenever there is a vacancy in the
Office of the Vice-President during the term for
which he was elected, the President shall
nominate a Vice-President from among the
Members of the Senate and the House of
Representatives who shall assume office upon
confirmation by a majority vote of all the Members
of both Houses of the Congress, voting
separately.
If the VP ascends to the Presidency by
succession, leaving the Vice Presidency vacant,
then the President’s successor is authorized to
nominate his replacement in the Vice Presidency.
His replacement must be nominated from the
membership in the Congress and that nomination
shall be validated by concurrence of majority of
all the congress voting separately.
SECTION 10. The Congress shall, at ten o’clock
in the morning of the third day after the vacancy
in the offices of the President and Vice-President
occurs, convene in accordance with its rules
without need of a call and within seven days
enact a law calling for a special election to elect
a President and a Vice-President to be held not
earlier than forty-five days nor later than sixty
days from the time of such call. The bill calling
such special election shall be deemed certified
under paragraph 2, Section 26, Article VI of this
Constitution and shall become law upon its
approval on third reading by the Congress.
Appropriations for the special election shall be
charged against any current appropriations and
shall be exempt from the requirements of
paragraph 4, Section 25, Article VI of this
Constitution. The convening of the Congress
cannot be suspended nor the special election
postponed. No special election shall be called if
the vacancy occurs within eighteen months
before the date of the next presidential election.
This would address the situation when the
President and the Vice President would die
simultanenously. Remember that in this provision
within 3 days the Congress is required to
convene. It is the Constitution itself which makes
the call for this particular session. Within 7 days
thereafter it is required to pass a special law
calling for a special election. This bill would be
exempt from the requirement of 3 readings in 3
separate days and also the printed copies to be
distributed. Second, it is also exempt from para.
4 sec. 25 which requires the certification of the
National Treasury of the availability of funds. Any
funds or appropriations available can be utilized
for the purposes of the conduct of the special
elections.
Understand though that in the last clause of this
provision that if the simultaneous deaths would
occur within 18 months of the next scheduled
presidential elections, then wala nang special
elections. Whoever succeeds, you follow sec. 8,
first the senate president then if not available the
speaker of the house. Effectively, that speaker,
on the basis of sec. 8, would become the
president for the remaining 18 months.
52

SECTION 12. In case of serious illness of the
President, the public shall be informed of the
state of his health. The Members of the Cabinet
in charge of national security and foreign relations
and the Chief of Staff of the Armed Forces of the
Philippines, shall not be denied access to the
President during such illness.
In cases of serious illness of the President,
access to him shall still be available to the three
officers mentioned therein:
1. The Secretary of Foreign Affairs;
2. National Security Adviser and;
3. The Chief of Staff of the AFP.
SECTION 13. The President, Vice-President, the
Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided in
this Constitution, hold any other office or
employment during their tenure. They shall not,
during said tenure, directly or indirectly, practice
any other profession, participate in any business,
or be financially interested in any contract with, or
in any franchise, or special privilege granted by
the Government or any subdivision, agency, or
instrumentality thereof, including government-
owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
The spouse and relatives by consanguinity or
affinity within the fourth civil degree of the
President shall not during his tenure be appointed
as members of the Constitutional Commissions,
or the Office of the Ombudsman, or as
Secretaries, Undersecretaries, chairmen or
heads of bureaus or offices, including
government-owned or controlled corporations
and their subsidiaries.
Already discussed in the context of incompatible
office.
SECTION 14. Appointments extended by an
Acting President shall remain effective, unless
revoked by the elected President within ninety
days from his assumption or reassumption of
office.
Also discussed by emphasizing on the fact that
an acting-president can exercise all of the powers
of the elected president. Even the power to make
permanent appointments. It can be deduced here
because it gives the President the authority to
revoke the said appointments made by the
acting-president within 90 days from the
restoration or the assumption into office of the
elected-president.
SECTION 15. Two months immediately before
the next presidential elections and up to the end
of his term, a President or Acting President shall
not make appointments, except temporary
appointments to executive positions when
continued vacancies therein will prejudice public
service or endanger public safety.
Many refer to this section as the midnight
appointments provision. I take exception to that
because it defeats or it negates the concept of
midnight appointment. Remember that a midnight
appointment is one made by the President in
anticipation of his loss of his appointment
authority. In that sense, understand class that the
midnight appointment is not necessarily
unconstitutional. Well when we speak of the
appointment covered by the prohibition and note
that prohibition starts from 60 days of the start of
the scheduled presidential election and up to the
end of his term.
When we speak of appointments made during
that period, we do NOT refer to them as midnight
appointments. We refer to them as prohibited
appointments. In the context of Sec. 15, midnight
appointments are those made by the President
BEFORE the start of the 60-day period. All other
appointments done during the period except for
temporary appointments to executive positions if
continued vacancies would endanger public
safety or public health, are prohibited. They
cannot be considered midnight appointments
because, again, only those before the 60-day
period are midnight appointments.
Are midnight appointments necessarily
unconstitutional? The answer is a categorical NO.
In Aytona v. Castillo (1961). Garcia lost the
presidential elections to Macapagal who was
proclaimed Dec. 9. From Dec. 9 to 29, Mr. Garcia
made a total of 350 appointments. 29 was the last
day of work so he stopped the appointments on
that date. When Macapagal took over the office,
his first day, he issued A.O. 2, recalling all of the
350 appointments made by Garcia. Aytona,
appointed as the Central Bank Governor at that
time, sued for Quo Warranto. The cause of action
was the constitutionality of Macapagal’s A.O. 2.
53
The Court said: it was a political question.
Essentially, the petition was dismissed. The effect
of this dismissal is that A.O. 2 was upheld,
because it was presumed to be constitutional. It
had the final effect of revoking all the 350
appointments. NOTE: Nowhere in that case was
it mentioned that the 350 appointments were
unconstitutional.
[Direct quote]: “The filling up vacancies in
important positions, if few, and so spaced to
afford some assurance of deliberate action
and careful consideration of the need for the
appointment and the appointee’s
qualifications may undoubtedly be permitted.
But the issuance of 350 appointments in one
night and planned induction of almost all of them
a few hours before the inauguration of the new
President may, with some reason, be regarded by
the latter as an abuse Presidential prerogatives,
the steps taken being apparently a mere partisan
effort to fill all vacant positions irrespective of
fitness and other conditions, and thereby deprive
the new administration of an opportunity to make
the corresponding appointments.”
Sec. 15, therefore, prescribes a PERIOD wherein
or during which a person is not allowed to make
appointments anymore except temporary
appointments made to executive positions when
continued vacancies would endanger public
health or public safety.
In Castro v. JBC, remember that because of the
intercession of the JBC by way of filtering the
nominees for appointment to the Judiciary, ALL
appointments to the judiciary are exempted from
the prohibited period prescribed in Sec. 15.
NOTE: Not just appointments to the Supreme
Court, even appointments to the lower courts are
included in the exemption.
In Velicaria-Garafil v. Office of the President
(2015) Arroyo, from Mar. 5-9, made several
appointments, knowing that Mar. 10 is when the
prohibited period begins. What was challenged
were the appointments made by Arroyo from Mar.
5-9.
Maraming opinions, midnight appointments,
discussions. But the Court was unanimous on this
particular point and this is important for you to
remember. The appointment process entails a
four (4) step procedure:
1. The SIGNING of a written appointment;
2. The TRANSMITTAL or SENDING of the
signed written appointment to the
appointee;
3. The RECEIPT by the appointee of the
written signed appointment; and most
important of the 4
4. The ACCEPTANCE by the appointee of
the appointment.
Well insofar as the fourth requirement is
concerned I take you back in History and ask you
to recall that old case of Lacson vs. Romero
The city fiscal who was disliked by the appointing
authority, the President. He was given an
appointment to become a Provincial Fiscal
somewhere in the North, (Ilocos Norte yata).
Immediately the President appointed a
replacement City Fiscal. Wait, sari ni Lacson, why
are you replacing me, my position is not vacant. I
have been appointed but I have never accepted
your appointment. I never vacated the City Fiscal
position. Neither was I removed. There the
Supreme Court stressed that to complete an
appointment, there must be acceptance on the
part of the appointee.
Now let’s travel back to today, maraming opinions
class but the Court, the Justices were unanimous
on this particular point. Those appointments
March 5-9, almost all of them, they were not
complete appointments. The writing, the signing
was done, the transmittal on some of them were
actually received March 10, but it was not shown
that all of them were accepted by the appointees
before March 10. Well, here’s the thing, if the four
steps would have been competed during the
prohibited period, then they would have been
unlawful, unconstitutional. So, almost all of these
appointments done by Gloria in that case were
declared UNLAWFUL, UNCONSTITUTIONAL.
One other point that I would like to stress would
be the fact that Gloria made appointments before
March 10, to positions which were before March
10 were not yet vacant. She made appointments
in ANTICIPATION OF VACANCY which would
arise during the prohibited period. Diba? so the
Court said, unlawful. You cannot appoint a
position which is not vacant, VERY BASIC, VERY
FUNDAMENTAL.
We go to SECTION 26:
Section 16. The President shall nominate and,
with the consent of the Commission on
Appointments, appoint the heads of the executive
54
departments, ambassadors, other public
ministers and consuls, or officers of the armed
forces from the rank of colonel or naval captain,
and other officers whose appointments are
vested in him in this Constitution. He shall also
appoint all other officers of the Government
whose appointments are not otherwise provided
for by law, and those whom he may be authorized
by law to appoint. The Congress may, by law,
vest the appointment of other officers lower in
rank in the President alone, in the courts, or in the
heads of departments, agencies, commissions,
or boards.
The President shall have the power to make
appointments during the recess of the Congress,
whether voluntary or compulsory, but such
appointments shall be effective only until
disapproved by the Commission on
Appointments or until the next adjournment of the
Congress.
I tackled the distinction between ad interim and
regular appointments, Matibay vs. Benipayo.
Remember that ad interim and regular
appointments are permanent appointments. They
are not appointments “in acting” or “designated
capacities.” Well insofar as the first paragraph, I
will just reiterate what I have told you already.
There are six (6) classes of appointees, that can
be effected by the President on the basis of the
first paragraph:
1. Cabinet Secretaries;
2. Diplomats;
3. Soldiers from the rank of naval captain or
colonel;
4. other officers whose appointments are
vested in him in this Constitution;
5. officers of the Government whose
appointments are not otherwise provided
for by law; and
6. those whom he may be authorized by law
to appoint
Remember Sarmiento vs. Mison, of those six
categories, ONLY the first four require
concurrence by the Commission on
Appointments.
Remember the case of Lista vs. Soriano:
By Executive Order Mr. Ramos removed the
Philippine Coast Guard from the ambit of the
Armed Forces and transferred it under the
auspices of the Department of Transportation,
then it was still “and Communication.” Well the
pronouncement of the Court here that that
executive order transferring had resulted in the
exception now of the appointments and
promotional appointments in the Philippine Coast
Guard from the concurrence requirement
prescribed in Section 16. Kasi nasa Civil na eh
hindi na Armed Forces. The intention there of the
of these officers, naval captain and colonel, the
intention is in favor of the Armed Forces but since
they were transferred to the DOTC, they were
removed from the concurrence requirement.
Pero I add one more case there, the case of
Caballero vs Philippine Coast, in this particular
case, the issue is “subject pa ba ang Philippine
Coast Guard officers and personnel to the
jurisdiction of the Military Courts or…
Caballero v Philippine Coast Guard (PCG)
GR 174312
Sept. 22, 2008
In this particular case, the issue was whether our
PCG personnel officers subject to the jurisdiction
of the military courts or are they subject to military
laws, considering that as prescribed in another
case, they have been removed from the Armed
Forces.
SC: The only thing we said is that there would be
no need for concurrence anymore for the
appointments and promotion in the PCG. There
was nothing said to the effect that PCG shall now
be subject to the jurisdiction of CSC. They are still
the soldiers and personnel of PCG, subject to the
authority of military courts on the basis of military
laws.
Section 17. The President shall have control of
all the executive departments, bureaus, and
offices. He shall ensure that the laws be faithfully
executed.
POWER OF CONTROL
It is not absolute in the context of doctrine of
exhaustion of administrative remedies. But
considered as absolute if taken in the context of
a 2018 case to which the SC ruled: By law, certain
branches or agencies of the executive
department, cannot be removed from the power
of control of the President. Therefore, the
President retains the coverage of the power of
control. Certainly, it is fixed, extends to all
branches within the executive branch and
Congress may not do anything by way of
55
statutorily limiting the coverage of this particular
function.
In so far as the faithful execution clause (that laws
be faithfully executed) is concerned, can the
President refuse to enforce a law? NO. Because
then in effect his authority will be actually
repealing a law which will then violate the doctrine
of separation of powers.
Saguisag v Executive Secretary
GR 212426
Jan. 12, 2016
Taking care of our laws is a DUTY, NOT JUST A
POWER reserved to the President. He is
commanded to enforce our laws. Instances cited
in this case:
The President enforce transportation projects,
enforces or implements the organic act for the
autonomous regions, confers the award to
national artists. This duty includes the power to
enforce treaties or international agreements.
Certainly, this duty also includes the duty to
protect our EEZ.
The Congress, if not in session, shall, within
twenty-four hours following such proclamation or
suspension, convene in accordance with its rules
without need of a call.
The Supreme Court may review, in an
appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation
of martial law or the suspension of the privilege of
the writ of habeas corpus or the extension
thereof, and must promulgate its decision thereon
within thirty days from its filing.
A state of martial law does not suspend the
operation of the Constitution, nor supplant the
functioning of the civil courts or legislative
assemblies, nor authorize the conferment of
jurisdiction on military courts and agencies over
civilians where civil courts are able to function,
nor automatically suspend the privilege of the writ
of habeas corpus.
The suspension of the privilege of the writ of
habeas corpus shall apply only to persons
judicially charged for rebellion or offenses
inherent in, or directly connected with, invasion.
During the suspension of the privilege of the writ
of habeas corpus, any person thus arrested or
detained shall be judicially charged within three
days, otherwise he shall be released.
MILITARY POWERS
Three military powers
1. Calling out provision entitling him to call
out the Armed Forces to suppress
violence, invasion or rebellion
2. Declaration of martial law. Two
grounds:
a. To suppress invasion, when
public safety requires it
b. To suppress rebellion, when
public safety requires it
3. Suspension of the privilege of writ of
habeas corpus (same two grounds as
above)
In so far as the first two are concerned, I do not
see any real difference, except in calling out,
there is another ground provided (suppress
lawless violence). But remember, this is done
even in the context of martial law. When Martial
law is declared, it is summoning by the President
of greater assistance from the AFP for purposes
precisely of suppressing the two or either of the
two grounds allowed for the declaration.
Invasion - there is presence of foreign military
minds in our territory who had been killing
Filipinos.
Rebellion – defined in the RPC.
Let’s focus on the grounds: invasion. There is
presence of foreign military mind in our territory
and soldiers from the alien lands would be killing
Filipinos. Don’t tell me that the president won’t be
authorized then to summon support from the
armed forces to protect us. In a similar way,
rebellion as defined in the RPC. There is chaos.
Therefore, there is perfect justification for the
summoning of resistance from the armed forces
for purposes of addressing the rebellion. These
are exceptional circumstances sought to be
addressed by these provisions in Section 18.
Under a state of martial law, warrantless arrests
may be done, searches and seizures without
warrants, all okay. Banning of lawful assemblies,
the closure of mass media establishments, full
control over public utilities – even now, those
things can happen in times of peace. Are
warrantless arrests and searches and seizures
allowed today? Of course. Take that in proper
context: Invasion. There are foreigners who have
invaded us. Don’t tell me we won’t allow in
flagrante warrantless arrests and therefore, valid
56
warrantless searches stemming from those
warrantless arrests?
Suspension of the privilege of the writ of
habeas corpus
This has been referred to as the Palladium of
Liberty and also the Writ of Liberty. Everytime a
writ of habeas corpus is applied for, the writ is a
command to produce the body of the person
detained and for the one detaining him to justify
the detention. When a writ is applied for, it must
ALWAYS issue. Suspended man o hindi, it must
nd
always issue. Nagkakatalo sa 2 phase of the
habeas corpus proceeding with the matter of the
justification portion. So the writ is issued, the body
of the person detained is produced before the
court, and then if the privilege of the writ is
suspended in the area where it was issued, then
that manifestation can be made. Upon making of
which, further proceedings can be deferred or
suspended precisely because the privilege shall
have been suspended because of (1) invasion,
(2) rebellion.
Kahit naman suspended ang privilege, wala
naman kinaiba. You look at the penultimate and
the last paragraphs of Section 18. Note that if the
privilege of the writ of habeas corpus were
suspended, arrests without warrants can be done
with respect to offenses inherent to or related to
rebellion, invasion. BUT note the requirement,
“[…] those who are arrested must be judicially
charged within 3 days.” If they are not judicially
charged within 3 days, by command of the
Constitution, they shall be released. My point is
this: ano kinaibahan niyan today? We have the
rule against arbitrary detention. How is it different
from the suspension of the privilege of the writ of
habeas corpus? Nothing. Once they are judicially
charged, then the restraint in their liberty would
have become lawful. What does Article 3 Section
15 provide? The right to bail shall not be impaired
even if the privilege of the writ of habeas corpus
is suspended. Is there a problem? There’s none.
The framers of the Constitution designed this
provision that way to ensure that those dark days
will never happen again. That is assuming that
the President will invoke these powers properly.
1. When martial law [is] declared or
privilege of the writ is suspended – the
requirement is for the President within
48 hrs. to report the matter personally
or in writing to the Congress. Within
24hrs, the Congress is required to
convene.
a. Lagman v. Medialdea, G.R. No.
231658, July 4, 2016
b. Padilla v. Senate, G.R. No.
231671, July 25, 2017
c. Lagman v. Senate GR No.
235935, Feb 06, 2018
While the Congress is required to convene, there
is nothing in the Constitution which requires it to
convene in joint session. If it does, it would not be
because of the command by the Constitution. It
would be by reason of its uniform rules and
procedure. This is a political question.
Why is the Congress required to convene
upon receipt of the report in writing or in
person done by the President?
The matter of review by the Congress is to be
considered as automatic. In other words, the
declaration of the suspension is no longer to be
considered a unilateral act of the President. It
cannot be complete without the appropriate
action taken by the Congress.
It can concur. There is vote required to concur.
Simple majority vote can do this and votes can be
done separately even if not in joint session.
If it were to revoke – Simple joint majority vote is
necessary. Joint majority vote need not be done
in joint session.
If these two chambers decide to meet, that is their
call and not because they are required to do so
under the Constitution. (Padilla v. Senate)
2. Every declaration or suspension,
when the original period is fixed at 60
days – can this period be extended?
Yes.
Procedure for extension: The Congress can
never motu proprio extend it on its own. It will
always have to be at the instance of the
President.
When it extends, it agrees to the request of
extension – what vote is necessary? The same
joint majority vote is prescribed by the
Constitution.
How long may the extension be granted? For
as long as it may be necessary per its discretion.
Remember the grounds – invasion, rebellion, etc.
– who can set a date as to when these would
end? There is proper reason for enabling
interminable extension.
57
How many extensions can be granted by the
Congress? As many as necessary but only at the
instance of the President and always only upon
joint majority vote of both chambers.
3. If martial law were declared, does it
necessarily result into an automatic
suspension of the privilege of the writ
of habeas corpus? No. There has to be
a separate declaration or suspension
of the privilege of the writ of habeas
corpus.
In either case, declaration or suspension, the
Constitution remains effective. The Congress
remains operational and the Courts remain
functioning.
Is there an instance when military courts may be
allowed to assume jurisdiction over civilians
during martial law? Yes. Here we refer to the so-
called “open court theory” – so long as the
courts are open, military courts cannot exercise
jurisdiction over civilians. There needs to be an
entity to be able still to dispense justice, which is
why the Constitution itself allows the military
courts to assume jurisdiction over civilians but
only if the courts are not functioning.
Section 19. Except in cases of impeachment, or
as otherwise provided in this Constitution, the
President may grant reprieves, commutations,
and pardons, and remit fines and forfeitures, after
conviction by final judgment.
He shall also have the power to grant amnesty
with the concurrence of a majority of all the
Members of the Congress.
Section 19 pertains to the President’s pardoning
power. It includes the concepts of fines,
forfeitures, parole, and amnesty.
Note: The concepts of interest penalties and
surcharges are not covered by the pardoning
power.
2016 Bar Examination Question: Is the
pardoning power absolute?
Answer: It is absolute in the sense that it may not
be circumscribed by statute. (Rosas-Vidal v.
Estrada) The LGC provisions and the Omnibus
Election Code laws may not provide for any
limitation upon the President’s exercise of the
pardoning power.
But it is to be considered as not absolute as well
in this sense – the Constitution itself provides
many limitations upon the President’s exercise of
the pardoning power.
Constitutional Limitations Upon the
President’s Pardoning Power
1. It cannot be given except upon final
conviction;
2. It cannot be granted in impeachment
cases;
3. If it is an amnesty, it must be with the
concurrence of Congress; and
4. No pardons covering election offenses
can be granted by the President without
the prior favorable recommendation of
the COMELEC.
Inherent Limitations Upon the President’s
Pardoning Power
1. It cannot condone civil liability; and
2. It cannot condone or pardon for the
purpose of setting aside legislative
contempt or punishments because this
will be in violation of the separation of
powers.
Parole v. Probation
Parole Probation
Executive Judicial
Under certain circumstances, probation in favor
of convicts for purpose relating to the harshness
imposed for their conviction.
In re case (Atty. Cruz forgot the title)
Facts: There was an applicant for public
employment. He was a convict. Imposed upon
him imprisonment penalty with an accessory
penalty of disqualification from holding public
office. He was granted probation, then he applied
for public employment.
Ruling: The probation had the effect of setting
aside all effects of the penalty imposed upon him,
including the matter of disqualification from public
office. Therefore, the SC considered him eligible
for public employment.
Pardon
Pardon requires acceptance of the potential party
before it can be effective.
Classifications: Pardon may be classified as
plenary or partial. It may also be absolute or
conditional.
58
In absolute there is no problem. I refer to the case
of Estrada again. The contention was that the
pardon granted in his favor by GMA was
conditional. Reference was made by the
petitioner in one of the clauses which indicated
that there is an undertaking that the person will
never run for public office. Petitioner here saw
that as a condition and his claim is that because
Estrada ran for public office again that he should
be considered to have violated the condition
attached therefore he should be ineligible and
should be recommitted to jail. The SC said that
was wrong. When you assess the character of the
pardon, you do not assess the preamble clauses.
You go to the body of the text. The body of the
pardon granted to Estrada clearly indicated that
he is fully restored to all of his civil and political
rights. There was no condition attached.
Therefore, the Court considered it to be absolute
pardon. Note that there was a screenshot of the
pardon and to the right there was the handwriting
of Estrada which says, “I accept” and he signed.
Which indicates that even an absolute pardon
needs to be accepted.
All the more reason that the conditional pardon
should require acceptance. Why? Because in
Conditional pardons, usually the condition is
coextensive with the remainder of the penalty.
Example. This rapist is convicted and sentenced
to Reclusion Perpetua. After having served 10
years, he is given a conditional pardon. The
condition being that he would not have sex with
the opposite sex. He should be able to reject that
particular condition and just stay in prison.
If the condition attached to the pardon is
violated, three remedies are available to the
State. First, administrative or executive. This is
the basis of the case if Espuelas v. Provincial
Warden of Bohol. He can be ordered
recommitted. Second, there is a provision in the
Revised Penal Code which punishes violations of
conditional pardons which is a separate offense.
Third, if the act which constituted a violation of the
condition would on its own constitute a separate
offense, then he can be prosecuted for that
separate offense. Example, he was convicted of
an election offense and the condition was “do not
commit another election offense again” and then
he bought votes which is a separate offense. Both
prosecutions may proceed independently of each
other and concurrently and simultaneously
without offense to the principle of double
jeopardy. This is according to the case of
Cunanan v. Director of Prisons. The case of
Espuelas was reiterated in the 1990s in the
Teehankee Court in the case of Sumulong v.
Garcia.
Espuelas v. Provincial Warden of Bohol
G.R. No. L-13223
May 30, 1960
There was this guy, election offender – convicted
– pardoned (conditional – do not commit another
election offense). He committed another election
offense for which he was prosecuted before the
court but the case against him was dismissed
because the witness had not shown up. After the
provisional dismissal of the case, the DOJ
ordered him sent back to prison, he was
recommitted. He sued for Habeas Corpus. His
basic contention was he was never convicted for
that election offense claimed to be a violation of
the condition. Said the SC, “Mere commitment is
enough; conviction is not necessary.” This ruling
was reiterated in Sumulong v. Garcia.
Sir’s opinion: Here is the problem with that case—
who determines whether or not a crime had been
committed? It is the judiciary. The executive can
only allege. But in this particular case, the
executive determination of commission of the
offense constituting a breach of the condition was
enough.
People v. Salle
G.R. No. 103567 December 4, 1995
Salle’s case was pending appeal before SC. He
suddenly filed a Manifestation that he had
obtained a pardon. The SC gave accused-
appellant 30 days within which to withdraw
appeal for purposes of validating the pardon. This
is the modus vivendi that had been pursued by
the SC in other cases after People v. Salle.
Sir’s opinion: how can you validate something
which is void? His appeal was still pending with
the SC, so the element of final conviction is not
there. The only practical reason for adopting this
is to lighten the workload of the courts. But how
can those pardons be valid without the element
of final conviction?
Art. VII, Sec. 19. xxx
He shall also have the power to grant amnesty
with the concurrence of a majority of all the
Members of the Congress.
59
Note the 6 basic distinctions between pardon
and amnesty:
1. A pardon pertains to specific individuals;
amnesty pertains to classes of
individuals or groups of persons.
2. Pardon refers to infractions against the
peace of the State; amnesty involves
crimes against the State like rebellion,
coup d’état, etc.
3. Pardon is a private act of the President
which must be pleaded and proved; an
amnesty is, upon decree, judicial notice
which should obligatorily be observed by
all in government.
4. A pardon would necessitate acceptance
by the pardonee; in amnesty, no
acceptance is required. However, People
v. Vera (G.R. No. L-26539, Feb. 28,
1990) instructs that for an amnesty to be
valid, there must be a prior admission of
guilt.
5. A pardon does not require concurrence
by Congress; an amnesty, by express
provision in Sec. 19 (supra) requires a
concurrence by a vote of majority of all
members of Congress.
6. A pardon looks forward and obliterates
the further consequences of the
conviction; an amnesty looks backward
and obliterates the offense itself as
though it had never been committed.
Garcia v. Chairman of the Commission on
Audit
G.R. No. 75025
September 14, 1993
This employee of the Bureau of
Telecommunications was summarily dismissed
on the ground of dishonesty. After that, he was
charged of qualified theft before the regular
courts. The court acquitted him, not only because
there was no proof beyond reasonable doubt, but
because the court expressly pronounced that he
did not commit the offense. Armed with this tenor
of his acquittal, he went back to the BOTC and
requested his reinstatement. [Remember: Police
Commission v. Lood: on quantum of evidence:
proof beyond reasonable doubt, substantial
evidence.] His request for reinstatement was
denied. Unfazed, he went all the way to the
Executive Secretary. The Executive Secretary
then granted him executive clemency and
directed his reinstatement.
That executive clemency has nothing to do with
the pardoning power. However, it has something
to do with the President’s exercise of his power of
control. That order directing the reinstatement
was by way of reversal of the prior order of the
Secretary of the DOTC, providing for his
dismissal.
Excerpt: It is worthy to note that the dismissal of
petitioner was not the result of any criminal
conviction that carried with it forfeiture of the right
to hold public office, but is the direct consequence
of an administrative decision of a branch of the
Executive Department over which the President,
as its head, has the power of control. The
President's control has been defined to mean
"the power of an officer to alter or modify or nullify
or set aside what a subordinate officer had done
in the performance of his duties and to the
judgment of the former for the latter." In pardoning
petitioner and ordering his reinstatement, the
Chief Executive exercised his power of control
and set aside the decision of the Ministry of
Transportation and Communications.
Monsanto v. Factoran, Jr.
G.R. No. 78239
February 9, 1989
The assistant treasurer of Calbayog City was
convicted of the complex crime of estafa thru
falsification of public documents. Eventually, she
was granted, by President Marcos, absolute
pardon, which she accepted. Armed with this
pardon, she insisted that she be reinstated back
to her previous position. The Court held that the
statement that she is restored fully of all her civil
and political rights does not include her automatic
reinstatement. At best, the pardon only restores
her eligibility to apply for that particular position.
Excerpt: It is clear from the authorities referred to
that when her guilt and punishment were
expunged by her pardon, this particular disability
was likewise removed. Henceforth, petitioner
may apply for reappointment to the office which
was forfeited by reason of her conviction. And in
considering her qualifications and suitability for
the public post, the facts constituting her offense
must be and should be evaluated and taken into
account to determine ultimately whether she can
once again be entrusted with public funds. Stated
differently, the pardon granted to petitioner has
resulted in removing her disqualification from
holding public employment but it cannot go
beyond that. To regain her former post as
assistant city treasurer, she must re-apply and
undergo the usual procedure required for a new
appointment.
60
 There is no requirement, in this provision, for the
SECTION 20. The President may contract or President to personally appear when he enforces
guarantee foreign loans on behalf of the Republic this provision.
of the Philippines with the prior concurrence of
the Monetary Board, and subject to such
limitations as may be provided by law. The
Monetary Board shall, within thirty days from the
end of every quarter of the calendar year, submit
to the Congress a complete report of its decisions
on applications for loans to be contracted or
guaranteed by the Government or government-
owned and controlled corporations which would
have the effect of increasing the foreign debt, and
containing other matters as may be provided by
law.

This is a very neglected provision in the

Constitution, especially in the present
administration. [I am not aware of any effort on
the part of the Congress to exercise its authority
under this particular provision.]
Remember that there is a requirement of prior
concurrence of the Monetary Board as to all of
these foreign loans contracted by the President
and there must be due reporting to the Congress.

SECTION 21. No treaty or international

agreement shall be valid and effective unless
concurred in by at least two-thirds of all the
Members of the Senate.

It is the President who ratifies treaties, the Senate

only concurs.

SECTION 22. The President shall submit to the

Congress within thirty days from the opening of
every regular session, as the basis of the general
appropriations bill, a budget of expenditures and
sources of financing, including receipts from
existing and proposed revenue measures.

[This was discussed when we tackled about

appropriations.]

SECTION 23. The President shall address the

Congress at the opening of its regular session.
He may also appear before it at any other time.

This is the so-called informing power. This is

done by the President in the course of his State
of the Nation Address.

61

THE JUDICIARY
ARTICLE VIII
SECTION 1. - The judicial power shall be vested
in one Supreme Court and in such lower courts
as may be established by law.
Judicial power includes the duty of the courts of
justice to settle actual controversies involving
rights which are legally demandable and
enforceable, and to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the
Government.
Article VIII, Section 1, First Paragraph
Article VIII, Section 1 provides, "The judicial
power shall be vested in one Supreme Court and
in such lower courts as may be established by
law." It should be in ONE SUPREME COURT
and not in THE SUPREME COURT (This is
where Sir got a cinco in law school by not
referring to the SC as "one Supreme Court.").
Vargas v. Rilloraza
G.R. No. L-1612
February 26, 1948.
In Vargas v. Rilloraza, the Supreme Court
nullified the establishment of a temporary
Supreme Court for purposes of trying
collaboration cases. There is only one Supreme
Court.
No temporary composition of the Supreme Court
is authorized by the Constitution. This tribunal, as
established under the organic law, is one of the
permanent institutions of the government. The
clause "unless otherwise provided by law" found
in section 4 of Article VIII can not be construed to
authorize any legislation which would alter the
composition of the Supreme Court, as
determined by the constitution, for however brief
a time as may be imagined. In principle, what
really matters is not the length or shortness of the
alteration of the constitutional composition of the
Court, but the very permanence and unalterability
of that composition so long as the constitution
which ordains it remains permanent and
unaltered. Said clause refers to the number of
Justices who were to compose the Court upon its
initial organization under the Commonwealth,
and the manner of its sitting; that is, the
legislature, when providing for the initial
organization of the Supreme Court under the
Commonwealth, was authorized to fix a different
number of Justices than eleven, and determine
the manner of the Court’s sitting differently from
that established in section 4 of Article VIII of the
Constitution, but it was and is not empowered to
alter the qualifications of the Justices and the
mode of their appointment, which are matters
governed by sections 5 and 6 of said Article VIII
wherein the clause "unless otherwise provided by
law" does not even exist, nor the provision on who
shall be the component members, of the court.
Article VIII, Section 1, Second Paragraph
The second paragraph of Article VIII, Section 1. I
have discussed this many times and contains the
two aspects of Judicial Power.
First is the Traditional Aspect of Judicial
Power. Actual cases/controversies involving
legally enforceable and demandable rights.
Second is the Expanded Concept of Judicial
Power, which has resulted, in turn, in the
constricting or a narrowing down of the Political
Question Doctrine with the institution of this
concept known as Grave Abuse of Discretion
Amounting to a Lack or Excess of Jurisdiction on
the part of any branch or instrumentality of
Government.
Grave Abuse of Discretion Amounting to a
Lack or Excess of Jurisdiction on the part of
any branch or instrumentality of Government
can trigger the exercise by the Supreme Court of
its expanded jurisdiction.
I have told you that there is more to judicial power
than the prescribed in the Second Paragraph.
ARTICLE VII
SECTION 4. - The Supreme Court, sitting en
banc, shall be the sole judge of all contests
relating to the election, returns, and qualifications
of the President or Vice-President, and may
promulgate its rules for the purpose.
Article VII, Section 4, Judicial Power in the
exercise of the power being the sole judge of all
election contests pertinent to the election returns
and qualifications of the President and Vice
President.
ARTICLE VII
SECTION 18. - The Supreme Court may review,
in an appropriate proceeding filed by any citizen,
62
the sufficiency of the factual basis of the
proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus or the
extension thereof, and must promulgate its
decision thereon within thirty days from its filing.
Article VII, Section 18, to determine the factual
basis for a declaration for the suspension of the
privilege of the writ of habeas corpus.
May I add this to my discussion? You forget
about:
Fortun v. Arroyo
G.R. No. 190293
March 20, 2012
It was prescribed that before this judicial power
can exercised, there must be first a completion of
the review by the Congress.
Lagman v. Medialdea
G.R. No. 231658
July 4, 2017
Justice Del Castillo pointed out that the judicial
review and the automatic review of the Congress
can be done concurrently and simultaneously.
ARTICLE IX
SECTION 7-A. Each Commission shall decide by
a majority vote of all its Members any case or
matter brought before it within sixty days from the
date of its submission for decision or resolution.
A case or matter is deemed submitted for
decision or resolution upon the filing of the last
pleading, brief, or memorandum required by the
rules of the Commission or by the Commission
itself. Unless otherwise provided by this
Constitution or by law, any decision, order, or
ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved
party within thirty days from receipt of a copy
thereof.
Judicial Power is also found in Article IX, Section
7-A which confers special certiorari jurisdiction to
the Supreme Court with respect to the
adjudications of the Constitutional Commissions.
Recall that this was interpreted in Aratuc v.
Comelec in 1979.
Aratuc v. Comelec
G.R. No. L-49705-09
February 8, 1979
The certiorari based on Rule 65 Grave abuse of
discretion. This is totally extraneous to the
Second Paragraph of Article VIII, Section 1.
This is special certiorari jurisdiction conferred
upon the Supreme Court with respect to the
adjudications of Constitutional Commissions.
Remember my discussions on:
1. Cocofed v. Republic (G.R. Nos. 177857-
58, January 24, 2012);
2. Petitioner-Organizations v. Executive
Secretary (G.R. Nos. 147036-37, April
10, 2012);
3. Atong Paglaum v. COMELEC (G.R. No.
203766, April 2, 2013);
4. Lambino v. COMELEC (G.R. No.
174153, October 25, 2006).
Requirements of Judicial Review
When there were a grave constitutional issue or
challenge raised, if the issue is of:
1. transcendental importance,
2. adamant public interest, and
3. far-reaching legal constitutional
implications,
then judicial power can be exercised even if
there were no Grave Abuse of Discretion.
So, what are these concepts? You include them
in the general configuration of judicial power.
ARTICLE VIII
SECTION 2. - The Congress shall have the
power to define, prescribe, and apportion the
jurisdiction of various courts but may not deprive
the Supreme Court of its jurisdiction over cases
enumerated in Section 5 hereof.
No law shall be passed reorganizing the Judiciary
when it undermines the security of tenure of its
Members
.
ARTICLE VIII
SECTION 5. - The Supreme Court shall have the
following powers:
(1) Exercise original jurisdiction over cases
affecting ambassadors, other public ministers
and consuls, and over petitions for certiorari,
63
prohibition, mandamus, quo warranto, and
habeas corpus.
(2) Review, revise, reverse, modify, or affirm on
appeal or certiorari, as the law or the Rules of
Court may provide, final judgments and orders of
lower courts in:
(a) All cases in which the constitutionality or
validity of any treaty, international or executive
agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or
regulation is in question.
(b) All cases involving the legality of any tax,
impost, assessment, or toll, or any penalty
imposed in relation thereto.
(c) All cases in which the jurisdiction of any
lower court is in issue.
(d) All criminal cases in which the penalty
imposed is reclusion perpetua or higher.
(e) All cases in which only an error or
question of law is involved.
(3) Assign temporarily judges of lower courts to
other stations as public interest may require.
Such temporary assignment shall not exceed six
months without the consent of the judge
concerned.
(4) Order a change of venue or place of trial to
avoid a miscarriage of justice.
(5) Promulgate rules concerning the protection
and enforcement of constitutional rights,
pleading, practice, and procedure in all courts,
the admission to the practice of law, the
Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not
diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless
disapproved by the Supreme Court.
(6) Appoint all officials and employees of the
Judiciary in accordance with the Civil Service
Law.
We go to Article VIII, Section 2, which vests in the
Congress the authority to define, establish,
apportion the jurisdiction of lower courts.
It cannot touch the jurisdiction of the Supreme
Court as specified in Article VIII, Section 5.
Paragraph 1 (Original),
Paragraph 2 (Minimum Appellate Jurisdiction
over the decisions of local courts)
not without its advice and prior concurrence
consistent with the requirements in Article VI,
Section 13 (PLEASE CONFIRM WITH SIR).
ARTICLE VI
SECTION 13. - No Senator or Member of the
House of Representatives may hold any other
office or employment in the Government, or any
subdivision, agency, or instrumentality thereof,
including government-owned or controlled
corporations or their subsidiaries, during his term
without forfeiting his seat. Neither shall he be
appointed to any office which may have been
created or the emoluments thereof increased
during the term for which he was elected.
Be mindful of the paragraph in Section 2 to this
effect no law reorganizing the judiciary shall be
enacted if it will undermine the security of tenure
of the judges. Let's pause here for a while and I
will tackle three concepts together in connection
with this particular paragraph in Section 2.
Requisites for a Valid Judicial Inquiry
I start first with a reminder regarding the matter of
the requisites for a valid judicial inquiry.
You recall that there must be:
1. an actual case or controversy;
2. proper locus standi;
3. the constitutional question must be
raised at the earliest opportunity; and
4. the restitution of the constitutional
question must be necessary for the
determination of the case itself.
Remember the first two class are mere technical
requirements and can easily be set aside by the
Supreme Court depending on its "feels."
If it considers the matter important enough it will
set aside the mootness of the issue and still
proceed to resolve the matter. If it were important
enough, it can set aside the proper party
requirement. The basic guidelines here or
parameters set forth by the Supreme Court,
they’re the same, transcendental, paramount, far
reaching legal and constitutional implication.
Well, insofar as the actual case and controversy
principle is concerned, there must be ripeness of
the issue. Remember that there have been
64
promulgations as to the effect that a law once
promulgated is at once ripe for review by the
Supreme Court, even if it were not implemented
yet, depending on its importance as well.
Remember also the basic pronouncement by the
court that the mootness is not a magical formula
that can warrant the outright and immediate
dismissal of the case precisely just because the
matter had become moot.
The challenge for instance pertains to the validity
of the 90-day preventive suspension but the 90-
days already lapsed so it’s moot. But the Court
can proceed to resolve. Again, on the basis of its
determination as to whether the challenge
presented is of transcendental, paramount, and
far reaching.
Election protest, but the respondent is already
dead, but because of the importance of the issue,
the court proceeded to make the pronouncement.
Insofar as proper party, personalities concerned,
the direct injury test applies here of course.
Exception: the facial challenge.
Appropriations, taxation measures, taxpayers
would be the proper party personality.
Legislation, of course legislators are the proper
personality. The direct injury principle applies.
The third requisite:
The constitutional question must be raised at the
earliest possible opportunity.
Three basic rules to remember:
1. In criminal cases the constitutional
question can be raised anytime.
2. In civil cases the constitutional question
can be raised anytime if its resolution is
necessary for the determination of the
case itself
3. In ALL OTHER CASES, EXCEPT when
there is estoppel, the constitutional
question can be raised anytime IF IT
INVOLVES THE JURISDICTION OF
THE COURT
The rule remains, basta the constitutional
challenge pertains to the jurisdiction of the court,
it can still be raised anytime exception lang yung
estoppel.
Tihat v Sibuhat (???)
It was only after 15 years that he raised the
constitutional question regarding the jurisdiction
of the court. Cannot be said the court, you are
estopped.
The fourth requisite:
That the resolution of the constitutional issue
must be necessary for the determination of the
case itself.
This principle is rooted in the doctrine of
separation of powers.
This is the reason why as best and as most it can,
the court should refrain from deciding the
constitutional issues if it can resolve the
challenge on the basis of other grounds.
It should defer the addressing of the constitutional
challenge because when there is a constitutional
challenge the basic, the given is this, the mention
of this question is to begin with pressured
constitutional.
The double negative you learned is not
semantics, that is separation of powers.
Yung sinsabi na double negative, that is not
semantics class simply, that is separation of
powers that worked. Here comes the petitioner
challenging an act of government (inaudible),
insisting that it is unconstitutional. But let us say
that the court cannot but address that issue and
then finds in favor of the law. So ,what the court
should say as it often does but not always, in
dismissing the case, para yang sinasabi ng court
na you Mr. Petitioner, contrary to what you are
saying, the law is not unconstitutional. Class that
is not semantics. That is separation of powers ng
court. The challenge is that it is unconstitutional,
it has to overwhelm, overcome the presumption
that it is constitutional. Therefore, if the court
upholds its constitutionality, aba redundant kung
sasabihin ng court, the law is constitutional
because that is a given. Therefore, in disposing
of a case, ang dapat sasabihin talaga properly ng
court the law is not unconstitutional. But don’t
answer like that in the bar anymore. Is the law
valid? You say the law is valid, the law is not valid.
So, we tackle this particular concept. I will
illustrate this in the context also of this Sec. 2 and
the concept of security of tenure. Remember
security of tenure, this is the office and this is the
officer. The officer is secured in its tenure and
entitled to remain there as long as he is not
forcibly oustered. Now, the forcible ouster can be
considered as valid only if the ouster is premised
on (1) just cause; (2) observance of due process,
notice and hearing. So essentially, that is what
security of tenure is all about.
65

Article VIII
Section 2. The Congress shall have the power to
define, prescribe, and apportion the jurisdiction of
the various courts but may not deprive the
Supreme Court of its jurisdiction over cases
enumerated in Section 5 hereof.
No law shall be passed reorganizing the Judiciary
when it undermines the security of tenure of its
Members.
Now Sec. 2 provides that no law shall be passed
reorganizing the Judiciary, it will undermine the
security of tenure of judges. Now take these 3
concepts together now,
Zandueta v. Dela Costa
G.R. No. L-46267
November 28, 1938
In 1944, there was a Judiciary Reorganization
Law, so there was this judge that was oustered.
Why? Because his court was abolished. He
claimed a violation of his right to security of
tenure, but he did not do anything immediately.
He looked at the law, uy may opening pala sa
Palawan. Apply na ko dyan, may bagong court sa
Palawan. So, he applied. He was appointed.
Kaya lang class, during those days, appointments
to the judiciary were confirmed by the COA. They
can give or reject them. It was only after he has
been rejected that he sued, challenging, claiming
a breach of his security of tenure. So you will note
class, he, in his petition, directly, raised the
constitutional challenge. How did the SC resolve
th
this particular case? Well, in the light of the 4
requisite, this is what the court did. Yes, the
constitutional challenge is (inaudible) raised, but
we did not resolve it. The court class dismissed
the case on what ground? Estoppel. You see
class, it deferred or shied away from addressing
th
the constitutional challenge consistent with the 4
requisite for a valid judiciary inquiry and instead
invoked the equitable principle of estoppel for
purposes of resolving the case. Therefore, it did
th
as what is prescribed in the 4 requisite for a valid
judiciary inquiry.
Now, fast forward, 10 years later, 1955, 11 pala,
came this another Judiciary Reorganization Law.
In this particular case, the first case was
Zandueta v. Dela Costa. In this second case,
Ocampo v. Secretary of Justice
Well, a judge who was oustered from his court
again precisely because his court was abolished,
cried foul and claimed a violation of his security
of tenure. But this time, the judge immediately
sued for quo warranto, challenging the
constitutionality of the Reorganization Law. Well
this time, the Courts found that there was no other
ground except to address the constitutional
th
challenge kaya, consistent with the 4
requirement, and because the resolution of the
constitutional challenge was necessary for the
determination of the case itself, it addressed the
constitutional issue directly. Dito sinabi ng SC,
this time, we must let the handle fall and heavily
so it addressed the constitutional challenge. So,
how did it address the constitutional challenge?
Well it said, essentially I’m paraphrasing, this is
the office and this is the officer, he is secured in
his tenure such that if he were forcibly oustered
in his office without just cause or due process,
then it is clear that his security of tenure would be
breached.
He is securing his tenure such that he was
forcibly ousted class of his office without just
cause or due process then it is clear that his
security of tenure will be breached but then
remember that security of tenure arises only if the
mode of termination of official relations were
removal. Remember that there are many other
modes of termination of official relations
prescribed in laws for public officers in the context
of this case. A removal in connection with security
of tenure presupposes an ouster of the office, of
the continued existence of an office, that is not
what happened in Ocampo. There was an ouster
of the officer, the Court ruled that there is no
violation of security of tenure precisely because
the mode of termination which operated here was
not removal but abolition of office. It being a valid
abolition of office there is no breach of the
security of tenure.
Ambas v Buenaseda
G.R. No. 95244
September 4, 1991
All civil servants have security of tenure.
Permanent appointees have security of tenure.
Temporary employees do they have security of
tenure? In this case, hospital clerks or interns had
a 12-month temporary employment contract in
place. The Supreme Court ruled that they cannot
be removed except for causes indicated in those
contracts of temporary employment. There must
be just cause.
What about Probationary employees? They must
be removed by just cause.
66
What is just cause? When they fail to meet the
conditions stipulated in the contract.
LAPID v PCSO
G.R. No. 191940
April 12, 2011
What about casual employees? The Supreme
Court held that even casual employees have
security of tenure. What are the grounds for their
removal?
1. When the project is finished
2. if there are no more funds for the project
3. If their performance is below par
All of these are just causes which will justify
removal. Remember there is violation of security
of tenure only when there is removal and such
removal can be validated only when there is just
cause and observance of due process.
Corpus v Cuaderno
G.R. No. L-16969 April 20, 1966
Highly technical civil servants such as faculty
teachers and scientists have security of tenure.
Do you think that any of those faculty members
will accept employment without being assured
security of tenure?
Do confidential employees have security of
tenure? Yes.
Delos Santos v Mallare
G.R. No. L-3881
August 31, 1950
Definition of confidential employee: It is a
relationship with the appointing authority which
considers the aptitude of the appointee but
primarily the close intimacy which allows freedom
without embarrassment or betrayals of personal
trust or confidence on matters of state.
Sir, I have a boyfriend. I issue a memorandum
transferring the Secretary to the Legal
Department. Did I violate her security of tenure?
NO. Why? What is the term of a primarily
confidential employee? Her term is co-extensive
with the continued possession of the confidence
that I have reposed upon her. But now she has a
boyfriend, there is possibility of pillow talk as to
affairs handled by the office such as sale of a lot
to certain Japanese investors, which are
confidential in nature. Thus, her term expired.
That is not removal. Since there is no removal,
there is no violation of her security of tenure. This
is based on the very old case of Alajar v. Alba.
Alajar v. Alba
G.R. No. L-10360
Jan. 17, 1957
Alajar was appointed by the President as the
Vice-Mayor of Roxas City on Jan. 1954. In Nov.
1955, he was informed that the Pres. had
designated Alba as Acting Vice-Mayor and he
was requested to turn over the office to Alba. He
claimed that it was a violation of his security of
tenure. The Supreme Court ruled that on the
basis of RA No. 603, the President had the power
to appoint the Vice-Mayor who shall hold office at
the pleasure of the President. And it is
established that when the law authorizes a
superior officer to remove a subordinate at
pleasure, his discretion in the exercise of the
power of removal is absolute. As long as the
removal is effected in accordance with the
procedure prescribed by law, it may not be
declared invalid by the courts.
SECTION 3. The Judiciary shall enjoy fiscal
autonomy. Appropriations for the Judiciary may
not be reduced by the legislature below the
amount appropriated for the previous year and,
after approval, shall be automatically and
regularly released.
The wording of the grant of fiscal autonomy to the
Supreme Court is special since it is only the
Supreme Court whose appropriations cannot be
decreased from the previous year. They can only
be retained or increase. In the old case of
Bengzon v. Drilon, the fiscal autonomy of the
Supreme Court entitles it to prescribe judicial fees
for judicial proceedings. This is implemented by
way of its rule-making authority under Art. 8 Sec.
5(5).
Bengzon v. Drilon
G.R. No. 103524
Apr. 15, 1992
Pres. Aquino vetoed certain provisions in the
GAA for the fiscal year 1992 which relate to the
payment of adjusted pensions of retired Justices
of the SC and CA. The Court ruled that the veto
violated the SC’s fiscal autonomy as it is
tantamount to dictating to the Judiciary how its
funds should be utilized. Fiscal autonomy
recognizes that the power and authority to levy,
assess and collect fees, fix rates of compensation
not exceeding the highest rates authorized by law
for compensation and pay plans of the
government and allocate and disburse such sums
as may be provided by law may be prescribed by
67
them in the course of the discharge of their
functions. Pursuant to the Constitutional
mandate, the Judiciary must enjoy freedom in the
disposition of the funds allocated to it in the
appropriations law. It knows its priorities just as it
is aware of the fiscal restraints. The Chief Justice
must be given a free hand on how to augment
appropriations where augmentation is needed.
SECTION 5. The Supreme Court shall have the
following powers:
(5) Promulgate rules concerning the protection
and enforcement of constitutional rights,
pleading, practice, and procedure in all courts,
the admission to the practice of law, the
Integrated Bar, and legal assistance to the
underprivileged. Such rules shall provide a
simplified and inexpensive procedure for the
speedy disposition of cases, shall be uniform for
all courts of the same grade, and shall not
diminish, increase, or modify substantive rights.
Rules of procedure of special courts and quasi-
judicial bodies shall remain effective unless
disapproved by the Supreme Court.
The uniform characteristic of fiscal autonomy as
shared by these constitutionally fiscally
autonomous entities is this basic element: once
the appropriations have been approved, they
shall be automatically and regularly released.
Another aspect of fiscal autonomy as discussed
in the cases involving NPC and GSIS. There were
statutes creating these entities which contained a
provision exempting them from payment of
judicial fees. The SC said this was
unconstitutional as it was an intrusion on the
Court’s rule-making authority founded on its fiscal
autonomy. Therefore, it undermines judicial
independence.
The fiscal autonomy of the SC, like that of the
other bodies, does not exempt them from the
statutory salary standards. They must still be
complied.
Remember that the fiscal autonomy of the court,
like the fiscal autonomies of all the other fiscally
autonomies in the Constitution is not exempt from
the statutory salary standards prescribed. They
must still comply. Does not exempt them from the
basic civil service requirements regarding
salaries as well.
Well recall also in this connection a basic case,
Civil Service Commission v. Secretary of
Budget
G.R. No. 158791
February 10, 2006
Well this involved the CSC but it applies to all the
Constitutionally fiscally autonomous entities. The
Department of Budget Plans implemented a No
Report No Release Policy such that if the one
asking for further releases, disbursements of their
appropriations, they are required to submit a
report on prior releases in their favor such that if
they do not submit those reports, until they do,
they cannot be favored with further or additional
releases. Sabi ng SC, that is a valid requirement.
But it cannot be imposed as a condition for the
release of appropriations of the Constitutionally
fiscally autonomous entities because that would
be by way of impairment of the fiscal autonomy.
Well I will stand by according to Justice Davide
explained here. The Constitutionally autonomous
entities are certainly not exempt from the Report
requirement, only that the submission of this
reports cannot be invoked as a pre-requisite or as
a condition for releases. They can submit the
Reports after.
We proceed to Sec. 4.
Article VIII
Section 4. (1) The Supreme Court shall be
composed of a Chief Justice and fourteen
Associate Justices. It may sit en banc or in its
discretion, in division of three, five, or seven
Members. Any vacancy shall be filled within
ninety days from the occurrence thereof.
(2) All cases involving the constitutionality of a
treaty, international or executive agreement, or
law, which shall be heard by the Supreme Court
en banc, and all other cases which under the
Rules of Court are required to be heard en banc,
including those involving the constitutionality,
application, or operation of presidential decrees,
proclamations, orders, instructions, ordinances,
and other regulations, shall be decided with the
concurrence of a majority of the Members who
actually took part in the deliberations on the
issues in the case and voted thereon.
(3) Cases or matters heard by a division shall be
decided or resolved with the concurrence of a
majority of the Members who actually took part in
the deliberations on the issues in the case and
voted thereon, and in no case without the
concurrence of at least three of such Members.
When the required number is not obtained, the
68
case shall be decided en banc: Provided, that no
doctrine or principle of law laid down by the court
in a decision rendered en banc or in division may
be modified or reversed except by the court sitting
en banc.
Most of the provisions of which I have already
discussed; membership of the SC, par. 2, the
matter of what should be tackled en banc. Please
be mindful of the fact that there are all other
matters required under the ROC to be heard en
banc, should be heard en banc.
One side kwento lang, here involving SM. Sabi ko
naman sa inyo parati panalo SM.
SM Realty v. BCDA
G.R. No. 203655
August 13, 2014
Remember na tinigil ni Nonoy Aquino ang BCDA
management from implementing a Notice or a
granting of a Notice of Award in favor of SM
because of the well determination by the new
management of the BCDA na meron (inaudible)
dun sa bid procedural that was observed during
the previous administration. The Court upheld the
claim of SM that it should be given the Notice of
Award and proceed with the project. On
reconsideration, umupak ang BCDA, teka muna,
this was decided by a division but they did not
mention here that we stopped the award in favor
of SM because of an order of the President. So
this should be construed as an executive order
which is required under Sec. 4 to be heard en
banc. As I’ve seen sa sagot ni Justice Velasco,
where’s your order? Cause it was just a verbal
order, no such things as verbal orders do they
perform (inaudible).
I have already mentioned to you the case of
Fortiz v. Corona: Yung 3-2 naging 2-2 yung
rd
vote. Note the 3 par in Sec. 4
You see these operative words there, cases,
matters, decided, resolved. Clearly class, if there
were a universal principle or doctrine of law, it
cannot be done by a division, it must be tackled
by the en banc. But look at the other thing that
can be tackled en banc on the basis of this
paragraph 3.
Fortiz v. Corona
It was decided by a division. The vote was a 3 as
against 2. Motions for reconsideration were filed.
Ang boto dun sa MR 2 as against 2 because 1 of
original 3 inhibited himself. Because of the 2-2
vote in their case, the movants asked that the
motions be referred to the en banc invoking par.
3 of Sec. 4. This is how the Court ruled, only
cases not decided by the division can be tackled
by the en banc. Matters not resolved and
apparently therefore, a motion is just a matter
cannot be referred to the en banc consistent with
this Constitutional provision. So ano ngayon
nangyari sa kaso na yun? The MR was 2-2, so
ano yung decision? Na uphold yung decision na
denied yung MR.
Now this explains my comments before,
remember this case in Republic v. Sereno, na it
was as predicted na 8-6 ang boto. After it was
promulgated, ang daming posts sa FB na 1 vote
lang ang kailangan natin para ma overturn ang
pronouncement against Chief Justice Sereno.
After Republic v Sereno was promulgated, which
was 8-6, the people were saying that they only
need 1 vote to overturn the decision. This is
wrong
Cruz v. Secretary of Environment and Natural
Resources
G.R. No. 135385
December 6, 2000.
Doctrine: dismissal of petition where votes
equally divided and majority vote are not
obtained. — Petitioners Isagani Cruz and Cesar
Europa brought this suit for prohibition and
mandamus as citizens and taxpayers, assailing
the constitutionality of certain provisions of
Republic Act No. 8371, or the IPRA. After due
deliberation on the petition, the members of the
Court voted as follows: Seven (7) voted to
dismiss the petition. While Seven (7) other
members of the Court voted to grant the petition.
As the votes were equally divided (7 to 7) and the
necessary majority was not obtained, the case
was re-deliberated upon. However, after re-
deliberation, the voting remained the same.
Accordingly, pursuant to Rule 56, Section 7 of the
Rules of Civil Procedure, the petition is
DISMISSED.
If one of the 8 moved to the minority, the vote will
be 7-7. Therefore, upon MR, the main decision of
Republic v Sereno will not be overturned.
Article VIII
Section 5. The Supreme Court shall have the
following powers:
1) Exercise original jurisdiction over cases
affecting ambassadors, other public ministers
69
and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and
habeas corpus.
These are original, concurrent with other courts,
but these are not exclusive. The exceptions to
these are the usual exceptions of the Doctrine of
Hierarchy of Courts, such as transcendental
importance, among others.
Is a Court Martial a Court? Yes. Is it a lower
court? No. It is a Court of Executive Origin,
created by the President in his competence as
Commander in Chief. Can a Court Martial tackle
criminal cases? Yes. Example is a soldier who
committed double murder in his capacity as a
soldier.
Can the soldier appeal the conviction of the Court
Martial, to the Supreme Court, invoking Art VIII
Sec 5 par 2? NO, because a Court Martial is a
lower Court. What are the lower courts? Courts
lower than the Supreme Court. E.g. Court of Tax
Appeals, because they can declare a law
unconstitutional.
He cannot avail himself of the appellate process
prescribed in Article 8, Section 5, paragraph 2 for
the simple reason that the Court Marshall is not a
lower court, and therefore, its decisions are not
covered by the minimum appellate authority of
the Supreme Court. What is the soldier’s
remedy? There must be an exhaustion of all
administrative remedies. Then, from the
President, when he affirms his Commander-in-
Chief, can this now be the subject of an Article 8,
Section 5, paragraph 1, minimum appellate
jurisdiction of the SC? The answer is no because
the President is not a court. [If] it is by way of
original action, you invoke the original jurisdiction
of the Court, Rule 65, on the basis of Article 8,
Section 5, paragraph 1.
Let us say that the soldier was acquitted for
double murder. Later, charges for double murder
are charged against him again – this time before
a regular court (RTC). Is that allowed? Or is it
offensive to the principle of double jeopardy? This
is Garcia v. Office of the President, citing the case
of Crisologo v. People. In the context of criminal
cases in military courts, they have the same
character as criminal cases as tried by the regular
courts. In the concept of the equal protection
clause, there is no substantial distinction between
the two. Therefore, even if the court martial in the
context of Article 8, Section 5, paragraph 2 is not
a lower court, in the context of double jeopardy,
court martials are considered as a competent
court. A conviction or acquittal before a court
martial will bar another court for the prosecution
of the same offense.
Other provisions in sec. 5. Remember 3 and 4
pertain to changes in venue which only the
supreme court can direct and this can be done by
the court even in the context of Civil Cases. Also,
the matter of temporary detention of judges which
cannot be allowed for more than six months
without their consent, these two provisions
pertain to speedy trial provisions these measures
are allowed to be undertaken by the Court to
expedite the process of justice.
Provisions that relate to speedy dispositions
of cases under the Constitution.
1. Article III, sec. 14 par. 2 The right to
speedy trial of the accused
Article III
Section 14 (2) In all criminal prosecutions, the
accused shall be presumed innocent until the
contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of
the nature and cause of the accusation against
him, to have a speedy, impartial, and public trial,
to meet the witnesses face to face, and to have
compulsory process to secure the attendance of
witnesses and the production of evidence in his
behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the
accused provided that he has been duly notified
and his failure to appear is unjustifiable.
2. Article III, sec. 16 all persons shall have
the right to the disposition of their case in
all judicial, quasi-judicial and
administrative bodies. FER the conduct
of preliminary investigation conducted by
the prosecution, in which there is no final
resolution. (Estrada v. OMB)
Article III
Section 16. All persons shall have the right to a
speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies.
Estrada v. OMB
Jinggoy insisted that he can have copies of the
counter-affidavits of his co-respondents in the
70
plunder case. He invoked the doctrine in Ang
Tibay the seven cardinal rights.
SC rejected Jinggoy’s contention ruling that the
Ang Tibay rights, as amplified in the case of GSIS
v. CA, that those seven cardinal rights are only
observed in quasi-judicial proceedings. That a
preliminary investigation is only an administrative
proceeding, precluding the application of the 7
cardinal rights provided in Ang Tibay.
5 session of the Congress, submit to the President
3. Art. VIII sec. 15 the deadlines for the
promulgations of decisions by courts. 24
months for the SC. 12 months for
collegiate courts. 3 months for all other
trial courts.
Art. VIII
Section 15 (1) All cases or matters filed after the
effectivity of this Constitution must be decided or
resolved within twenty-four months from date of
submission for the Supreme Court, and, unless
reduced by the Supreme Court, twelve months for
all lower collegiate courts, and three months for
all other lower courts.
(2) A case or matter shall be deemed submitted
for decision or resolution upon the filing of the last
pending, brief, or memorandum required by the
Rules of Court or by the court itself.
(3) Upon the expiration of the corresponding
period, a certification to this effect signed by the
Chief Justice or the presiding judge shall forthwith
be issued and a copy thereof attached to the
record of the case or matter, and served upon the
parties. The certification shall state why a
decision or resolution has not been rendered or
issued within said period.
5
(1) The first of these rights is the right to a hearing, which
includes the right of the party interested or affected to
present his own case and submit evidence in support
thereof. x x x.
(2) Not only must the party be given an opportunity to
present his case and adduce evidence tending to establish
the rights which he asserts but the tribunal must consider the
evidence presented. x x x.
(3) "While the duty to deliberatedoes not impose the
obligation to decide right, it does imply a necessity which
cannot be disregarded, namely, that of having something to
support its decision. A decision with absolutely nothing to
support it is a nullity, x x x."
(4) Not only must there be some evidence to support a
finding or conclusion, but the evidence must be "substantial."
"Substantial evidence is more than a mere scintilla. It means
(4) Despite the expiration of the applicable
mandatory period, the court, without prejudice to
such responsibility as may have been incurred in
consequence thereof, shall decide or resolve the
case or matter submitted thereto for
determination, without further delay.
Section 16. The Supreme Court shall, within
thirty days from the opening of each regular
and the Congress an annual report on the
operations and activities of the Judiciary.
Note that the Sandiganbayan is 3 months by
resolution of the SC on November 2001. Here,
the SC exercised its authority to reduce the
periods prescribed in sec. 15.
4. Art. IX-A, Section 7 giving the
Constitutional Commissions 60 days to
decide matters in the exercise of their
quasi-judicial power. Those are the
provisions of speedy trial.
Art. IX-A
Section 7. Each Commission shall decide by a
majority vote of all its Members, any case or
matter brought before it within sixty days from the
date of its submission for decision or resolution.
A case or matter is deemed submitted for
decision or resolution upon the filing of the last
pleading, brief, or memorandum required by the
rules of the Commission or by the Commission
itself. Unless otherwise provided by this
Constitution or by law, any decision, order, or
ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved
such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion." x x x.
(5) The decision must be rendered on the evidence
presented at the hearing, or at least contained in the record
and disclosed to the parties affected. x x x.
(6) The Court of Industrial Relations or any of its judges,
therefore, must act on its or his own independent
consideration of the law and facts of the controversy, and not
simply accept the views of a subordinate in arriving at a
decision. x x x.
(7) The Court of Industrial Relations should, in all
controversial questions, render its decision in sucha manner
that the parties to the proceeding can know the various
issues involved, and the reasons for the decisions rendered.
The performance of this duty is inseparable from the
authority conferred upon it.
71
party within thirty days from receipt of a copy
thereof.
Rule-making Authorities of the Supreme
Court
Section 5, Paragraph 5 are the rule-making
authorities of the Supreme Court.
Section 5. The Supreme Court shall have the
following powers:
xxx
5. Promulgate rules concerning the protection
and enforcement of constitutional rights,
pleading, practice, and procedure in all courts,
the admission to the practice of law, the
integrated bar, and legal assistance to the under-
privileged. Such rules shall provide a simplified
and inexpensive procedure for the speedy
disposition of cases, shall be uniform for all courts
of the same grade, and shall not diminish,
increase, or modify substantive rights. Rules of
procedure of special courts and quasi-judicial
bodies shall remain effective unless disapproved
by the Supreme Court.
We have discussed this in Carpio-Morales vs
Court of Appeals.
Enforcement, protection and promotion of
Constitutional Rights
Ito yung mga Writ of Kalikasan, Writ of Habeas
Corpus, Writ of Amparo. Umutang din sila sa
Knights of Rizal ng Writ of Kasaysayan na di
umubra.
A little discussion on the Writ of Amparo. First,
remember that there are two grounds:
1. Enforced disappearances and
2. Extra-judicial killings.
February 2017 pronouncement Mayor Balba vs
Buena. An extra judicial killing is killing without
due process. No need for political motivations.
Similarly, no need for political considerations in
cases of enforced disappearances which refers to
any restraint in liberty by way of unlawful arrest,
disappearance and detention unjustified without
the government exerting any effort for purposing
of re-finding the person when they disappeared.
Those are the elements of these two grounds.
The initial cases of Amparo:
1. There was a battered wife which sued for
a Writ of Amparo. There was no Extra-
judicial killing or an enforced
disappearance. Even if there were, wala
naman government involved so di
pwede.
2. A Writ of Amparo to stop a demolition of
the house as ordered by the Court.
Cannot be.
3. A Writ of Amparo was resorted to
because inhumane yung eviction of the
tenant as ordered by the court. It was not
granted because there was no enforced
disappearance nor an extrajudicial
killing.
Second, you must establish that it is because of
government action. This is not limited to the
police authorities of osldiers. So long as a
government official is involved in the enforced
disappearance or the extra judicial killing,
regardless of the position. It must be the
perpetrator. Remember that in this case in
Roxas- Macapagal vs Arroyo, sinama na ang
Command Responsibility which used to be
reserved for criminal cases. Sinama na yung
theory in Amparo proceedings. If the superior
officer is negligent in the selection and
supervision of their subordinates or participated
or conspired with his subordinates in the
commission of wrong doing, then the superior
officer can be held responsible. This is true even
if the commander in chief or the president is the
superior officer.
Next case. In one, nag way ang teenager at
security guard, nawala yung teenager. Nag writ
of amparo yung magulang. Cannot be because
the security guard is private and there is no
showing that he cooperated with any government
authority. Denied. The Amparo rule requires as
quantum of proof substantial evidence. According
to the court, given the difficulty of coming up with
substantial evidence, the court is willing to accept
circumstantial evidence.
Recent cases, two more points.
1. The farmer claims that he was harassed
by the police. The police steps on his
vegetables. He sued for Amparo to stop
the police officers. The court said no
amparo.
72
 2. The most recent pronouncement by
Art. VIII, sec. 6
SECTION 6 The Supreme Court shall have
administrative supervision over all courts and
the personnel thereof.
Justice Leonen - if there were no
evidence even circumstantial evidence
that is presented then the Court should
not dismiss but it is bound to archive the
case.
Sir’s thoughts: It’s nice that we have the writ of
amparo because that is by way of implementation
of the command by the Constitution to
promote/protect constitutional rights. But it’s a
useless procedure. (e.g. The police officers are
enjoined from approaching the surviving relatives
of the victim of tokhang killing from a certain
distance. If the relatives were to be killed, it is not
the policemen will kill them. They will hire other
people to kill them.)
Writ of Amparo v. Writ of Habeas Corpus
e.g. In enforced disappearances, the General is
ordered to look for the person within the person.
But fails to do so, ordered again for another 6
months. However, the person still cannot be
found.
As compared in habeas corpus, there is a
command to produce the body of the person.
Art. VIII, Sec. 5, par. 6 about appointments
relate that to Sec. 6.
Art. VIII
Section. 5 (6) Appoint all officials and employees
of the Judiciary in accordance with the Civil
Service Law.
Section 6. The Supreme Court shall have
administrative supervision over all courts and the
personnel thereof.
Retirees from judiciary, they need not obtain
clearances from CSC because they are under the
administrative supervision of Supreme Court.
These judges and personnel of lower courts.
Administrative Supervision
Orap v. Sandiganbayan
G.R. No. L-50508-11
Oct. 11, 1985
The Ombudsman exercises dual jurisdictions.
1. Administrative disciplinary authority under
sec. 21 of RA 6770:
• The law vests in the Ombudsman
disciplinary authority over all public
officers, including cabinet secretaries,
except members of the Congress, the
Judiciary, and the impeachable officers.
2. Criminal jurisdiction in the sense that it may
conduct preliminary investigation.
• The Ombudsman has jurisdiction over
judges and personnel of lower courts but
only with respect to criminal jurisdiction
Usually both administrative and criminal
jurisdictions are invoked when filing a complaint
with the Office of the Ombudsman. This case
instructs us that when there is a complaint filed
against a judge or personnel of a lower court, it is
the duty of the Ombudsman to refer the entire
complaint to the SC to enable it to determine
whether or not it has an administrative aspect
against the respondent judge or personnel of the
lower court. In which case, upon such
determination, the administrative aspect is
retained by the SC without prejudice to the
continuation of the criminal aspect in the exercise
by the Ombudsman on its criminal jurisdiction.
Garcia v. Miro
G.R. No. 167409
Mar. 20, 2009
There was this judge charged with reckless
imprudence, he claimed that he was entitled to
the dismissal of the case because only the SC
has jurisdiction over him. SC held that it has no
jurisdiction because it was a criminal case, the
authority of the SC is only with administrative
disciplinary matters.
Ampong vs. CSC
G.R. No. 167916
Aug. 26, 2008
A public school teacher took a civil service
eligibility exam and she cheated because a
different person took the exam for her. Pending
the release of the results, she found employment
as a court interpreter in an MTC, and then she
was discovered for which reason administrative
charges were filed against her before the CSC.
73
SC held that the CSC has no jurisdiction because
upon the filing of the complaint, the respondent
was already a personnel of the lower court
therefore removed from the authority of the CSC.
The key element here is at the time of the filing
of the complaint. If the respondent will be
already a personnel of the lower court, even for
acts committed prior to such employment, the
CSC has no jurisdiction, it should be the SC in the
exercise of its authority under sec. 11, art. VIII.
Andal v. CSC
G.R. No. 185749
Dec. 16, 2009
Similar case with Ampong v. CSC, wherein
Andal, a security guard II in the Sandiganbayan,
cheated in his Career Service Professional
Examination.
Leave Division v. Heusdens
AM No. P-11-2927
Dec. 13, 2011
*Reiterated in the later case involving Judge
Macalincag.
This lady clerk of court wanted to join a family
reunion abroad and applied for an authority to
travel and leave. It was not acted promptly upon
by the Court Administrator but she still left. When
she returned, she was not dismissed but she was
admonished. She did not raise the right to travel
as a defense but SC properly addressed it this
pronouncement.
The requirement for a travel authorization is
not an impairment of the right to travel. It is
merely a reasonable regulation springing from the
administrative supervisory authority of the SC.
The SC said there are many impairments in the
right to travel not found in the constitution
because under sec 6, there can be impairment
only on the grounds of national security, public
safety, public health but understand that this is
not exclusive.
Instances where a person’s right to travel is
impaired not found in the constitution:
• the matter of custody of courts over
accused
• The matter of legislative prerogative with
respect to legislative investigation
Those who worked in the government cannot
leave the country without authority to travel. This
was tackled in the case of Leave Division case.
The court held that it is not impairment rather it is
a reasonable regulation springing from the
administrative supervisory authority of the SC,
founded on Sec 6 of Article VIII because if judges
and personnel of lower courts will be allowed to
indiscriminately leave their post there will be
chaos in the dispensation of justice.
Exceptional Case:
Mamiscal v. Sharia Clerk of Court Abdullah
A.M. No. SCC-13-18-J
July 01, 2015
Special law creates the Sharia Courts but this
special law confers upon the Sharia clerk of court
two functions. (1) He is a clerk of court in the
usual sense but (2) he is also under the Sharia
Law, a Civil Registrar.
There was a divorce decree granted by this court
and he entered into the Civil Registry details of
that particular divorce decree he falsified certain
records therein for which reasons unknown. A
complaint was lodged in the SC. SC held that
considering this complaint stems from his
performance as a Civil Registrar and not as clerk
of court therefore, beyond the jurisdiction of the
Supreme Court. The case was tossed to the Civil
Sercvice Commission and the local mayor
consistent Civil Service Law. This is an
exceptional case.
Judicial and Bar Council
(I have tackled Judge Villanueva v. JBC, when we
talked about Administrative Law)
Supervisory Authority of the SC over the JBC
Jardeleza v Judicial Bar Council
G.R. No. 213181
August 19, 2014
Facts: In the proceedings leading to his non
nomination. three issues were raised against him
based on reports from Rappler:
1. Treason – for taking a view as the
Solicitor General different from the view
of the international council handling our
arbitration on the West Philippine Sea
against China
2. Reports that Justice Francis Jardeleza
engaged in illicit sexual activities while he
was the Secretary of San Miguel
3. Engaged in insider trading
The power of control authorizes the reversal by
the superior of the subordinate’s determination by
way of review. But the power of supervision
74
merely entitles the superior to ensure that the
subordinate follows processes, laws, rules and
procedures.
It was determined that under the rules of JBC,
there was a “unanimity rule” – which should be
applied if there were an objection raised by even
one member referring to the integrity of the
applicant.
Understand that there are four subjective
requirements for judgeship:
1. Competence
2. Independence
3. Probity
4. Integrity
* Note that morality is not required for judgeship
So if found that there was an alleged integrity
issue raised by at least one member of the JBC
then would it be correct for the JBC to apply the
unanimity rule?
Ruling: So the court examined this issue. First,
with treason. The SC said that this is not an issue.
All lawyers differ in their legal opinion so scrap
this.
But the court admitted/conceded the matter of
illicit relations and insider training as an immoral
act. Morality is a component of integrity. You
cannot claim to possess integrity if you are
immoral.
So the court found that those two objections more
properly. Based on integrity issues, the court
concluded that JBC is correct in applying the
unanimity rule. So if that is the case, then it is
correct not to nominate Justice Francis?
Well, the SC went further saying: However, JBC
disregarded a basic fundamental rule – due
process. Given the haste in the proceedings,
Justice Francis was never given an opportunity to
refute those objections based on newspaper
reports. Having been deprived of due process,
SC nullified the original list of nominees and
directed the inclusion of Justice Francis in the list.
The next day he was appointed and then later
took his oath before a smiling Chief Justice
Sereno.
Main Doctrine: remember that Morality is a
component of integrity and that supervision
entitles the SC to change the list of nominees.
That is the interpretation we derive from this case.
Composition of JBC
1. 7 members:
a. 3 ex officio
b. 4 regular members
2. Staggered terms
3. Requires confirmation by the
Commission on Appointments
Aguinaldo v Aquino
G.R. No. 224302
August 8, 2017
Facts: This is a case regarding the matter of
clustering of nominations. Is clustering of
nominees for vacancies of the courts
unconstitutional?
I ask you this basic question first: of course, it is
the president who appoints to the judiciary but
how much time is given to him to field vacancies
in the SC? The period is 90 days from occurrence
of the vacancy. He is also given the period of 90
days from submission of the list of nominees to
field vacancies in local court judgeship.
Is the President the one who appoints the
Ombudsman and the Deputy Ombudsman? Of
course. Are the Ombudsman and the Deputy
Ombudsman filtered by the JBC? Of course. How
much time is given to the President to field
vacancies in these offices of the Ombudsman
and deputies? 3 months [90 days pa rin] from
occurrence of vacancy.
The commencement of the terms of legislators
fixed at noon 30th day of June next following their
election. Can it be changed? Yes by ordinary law.
But the commencement of the terms of the
President and Vice-President, also fixed at noon
30th day of June, can be changed only by
amendment of the Constitution.
Recall that for every vacancy, the JBC is required
to submit a list of at least 3 nominees. Necessarily
cluster yan. So clustering is per se is not
unconstitutional because it is commanded by the
Constitution.
[Going back to Aguinaldo case]
But in the context of Aguinaldo v. Aquino, when
does clustering become unconstitutional? When
it impairs the appointment discretion of the
President. So when does that happen? The
answer is this: if there were simultaneous or near
simultaneous vacancies, then clustering
becomes unconstitutional.
75
Illustration: let us say in the Sandiganbayan, 4
vacancies arose because 2 of the retirees had the
same birthday on Oct. 1 and then the 3rd and 4th
ang 70th birthdays nila Oct. 3 and 5. So
simultaneous and near simultaneous vacancies.
By the way, kung ang birthday ng justice, he
turned 70 on Oct.1, can he still sign decisions on
Oct. 1? No more because precisely he would
already have been then 70. Kaya ang mga
retirees they sign before their birthday because
that would be the official act of the retiring justice.
[Going back to the illustration]
So in this case, if we were to follow strictly the
clustering prescribed by the Constitution, this is
what would happen:
From vacancy A there will be one cluster with 5
nominees, in vacancy B another 5 nominees and
so on and so forth. The president will be limited in
his appointment power.
How and why? The president is given 3 months
from occurrence of the vacancy to fill the
vacancy. If the president chooses nominee no. 1
for the vacancy in cluster A, nominees 2-5 can no
longer be considered for vacancies B, C, and D.
What if the president would want to appoint
anyone from 2-5 to other vacancies? [This is]
impairment of his appointment authority. The
same goes to vacancy B. At the same time,
nominees from cluster B, C, and D are precluded
from appointment for vacancy A.
Aguinaldo v. Aquino
G.R. 224302
To address the issue on the impairment, the
Supreme Court held: if there were simultaneous
or deemed simultaneous vacancies then there
should be only one list with at least 3 nominees in
each vacancies. Therefore, in this case, if there
are 4 vacancies that should be one list of at least
12 nominees and the president should choose
from any of the 12.
Section 10. The salary of the Chief Justice and
of the Associate Justices of the Supreme Court,
and of judges of lower courts, shall be fixed by
law. During their continuance in office, their salary
shall not be decreased.
Section 11. The Members of the Supreme Court
and judges of lower courts shall hold office during
good behavior until they reach the age of seventy
years or become incapacitated to discharge the
duties of their office. The Supreme Court en
banc shall have the power to discipline judges of
lower courts, or order their dismissal by a vote of
a majority of the Members who actually took part
in the deliberations on the issues in the case and
voted thereon.
Section 12. The Members of the Supreme Court
and of other courts established by law shall not
be designated to any agency performing quasi-
judicial or administrative functions.
Section 13. The conclusions of the Supreme
Court in any case submitted to it for decision en
banc or in division shall be reached in
consultation before the case is assigned to a
Member for the writing of the opinion of the Court.
A certification to this effect signed by the Chief
Justice shall be issued and a copy thereof
attached to the record of the case and served
upon the parties. Any Member who took no part,
or dissented, or abstained from a decision or
resolution, must state the reason therefor. The
same requirements shall be observed by all lower
collegiate courts.
Remember that this requirement is not only
prescribed for SC but for all collegiate courts.
An unpromulgated judgment is not a judgment.
When the SC holds a presscon after an Enbanc
meeting of an important case and they announce
the votes and the rationale, this is not actual
promulgation. And until actual promulgation,
those justices who have voted there can still
change their minds.
Section 14. No decision shall be rendered by any
court without expressing therein clearly and
distinctly the facts and the law on which it is
based.
No petition for review or motion for
reconsideration of a decision of the court shall be
refused due course or denied without stating the
legal basis therefor.
This is a due process provision in the constitution.
The judge cannot rule on a case of which the
basis is that the memorandum of the plaintiff is
good but the memo of the defendant is better
therefore the court rules in favor of the defendant.
UP v. Dizon
G.R. No. 171182
The decision of the lower court in awarding of the
damages merely stated: Because of the
76
defendant's negligence, the plaintiff sustained to comply with procedural requirements, e.g.,
damages in the amount of (so and so). failure to include an explanation.
Held: The SC ruled that these are mere Sec. 15: Deadline
conclusions of law. The facts that consitutes the
negligence must be spelled out. How the court Sec. 16: Administrative
arrived at the amount of damages should also be
ARTICLE IX-A: CONSTITUTIONAL
indicated. The courts referred to the case of Nicos
COMMISSIONS
Industrial penned by Justice Isagani Cruz:
It is a requirement of due process that the parties Article IX-A: General Provisions on
Constitutional Commissions
to a litigation be informed of how it was decided,
with an explanation of the factual and legal Remaining concerns
reasons that led to the conclusions of the court.
The court cannot simply say that judgment is • On fiscal autonomy in the same way as the
rendered in favor of X and against Y and just Supreme Court’s
leave it at that without any justification • Funa v. Duque, Commissioners of
whatsoever for its action. Constitutional Commissions may not hold
any other office.
Diong diong v.?? • Funa v. Villar (Rotational scheme)
I cannot hear the case clearly o NOTE: Republic v. Imperial regarding the
There are no allegations in the complaint, neither staggering of terms:
it was determined in the trial. However on the § 1st principle: Each member of the
judgment it indicated a 5% interest. There was no Constitutional Commissions will start
explanation on how the court arrived at the same. his/her term on the same day (Note:
The court held in this case that the said judgment this is only applicable to term
is invalid on the basis of Sec. 14 of the immediately after the 1987
Constitution. Constitution took effect;
pinakaunang mga commissioners
This provision applies only to judgment of courts. under the 1987 Consti)
This does not apply to quasi-judicial adjudication § 2nd principle: When there is a
or administrative determination. Does this mean vacancy on the position and the term
that the quasi-judicial adjudication and of the person occupying the same
administrative determination need not indicate has not yet expired, the
the facts and the law on which the decision is “replacement” will only serve on the
made? Not necessarily. They must but not on the remaining period on that term. The
basis of Sec. 14 but rather on the basis of cardinal point is that there is no offsetting of
primary requirements observed in administrative the remaining period. The purpose
proceedings. The 7th of which states that The being is that the President is
Board or body should, in all controversial prohibited from appointing all
questions, render its decision in such manner that members of the Constitutional
the parties to the proceeding can know the Commissions to ensure their
various issues involved, and the reason for the independence.
decision rendered. o Five offices with staggered terms: 1.
Minute Resolutions COA, 2. CSC, 3. COMELEC, 4. Senate,
and 5. JBC.
Corpus case o Carague, the chairman, was appointed in
A minute resolution is allowed in cases where 2000. Supposedly, he will retire in 2007.
decisions have to be rendered without a full- o Villar was appointed in 2003.
fledged trial or proceedings, e.g., when witnesses Supposedly, he will retire in 2010.
of prosecution did not appear on the dates of trial o When Carague retired in 2007, Villar was
after notice and for no justifiable reason, the appointed as acting chairman (in his
judge may provisionally dismiss the case. fourth year). Was the appointment valid?
In the same vein, in a collegiate/appellate No. Appointments in the Constitutional
proceeding, an appellate court may dismiss the Commissions in an acting capacity are
case via minute resolution on the basis of failure void.

77

 Brilliantes v. Yorac
The chairman of the COMELEC resigned and
then Cory designated Yorac as acting chairman.
This is unconstitutional. Who will be the chairman
pending appointment? The rest of the
commissioners will choose because this will mark
their independence.
Continuing the case of Funa v. Villar
The designation of Villar as acting chairman was
then unconstitutional but Gloria sought after that
designation. She converted the appointment in
that designation into a regular appointment. But
Gloria said that “You are now promoted as
chairman but you will serve only in the period
remaining in your original term as associate
Commissioner.”
He will serve as a Chairman, regular but the
remaining term is only for three years. Kasi diba
2003 siya na-appoint and 2007 siya na-promote.
Funa questioned this on the basis of the principle
of staggering of terms. Funa was sustained.
Actually, nagging moot ito dahil
nagwithdraw/nagresign si Villar pero
transcendental importance kaya si Justice
Velasco proceeded to rule on the particular point.
BASIC RULES:
1. Is the promotion from associate to
chairman to be considered as a
reappointment? Remember
reappointments are not allowed in the
Constitution?
Answer: No, a reappointment is a second
appointment to the same position. This is a
promotional appointment or an appointment from
Associate to a different position, Chairman and
therefore not a reappointment. Not
unconstitutional on that aspect.
2. Is the promotional appointment
considered as valid?
Answer: No, because promotional appointment
can be done only under these conditions. (1)
Vacancy in the Chairmanship must be accidental
and not absolute. You recall in your public officers
that absolute vacancy means expiration of the
term, retirement age. Those are absolute
vacancies. Accidental vacancies are death of the
occupant, resignation, permanent incapacity or
removal by impeachment according to this case
of Funa v. Villar. The SC stated that this is
absolute vacancy not accidental vacancy. This is
an expiration of the term so that promotional
appointment cannot be.
Under what circumstances therefore can a
promotional appointment, given an accidental
vacancy be allowed?
• Let’s say that Carague resigns 2005, that
means that there are still 2 years left in
the chairmanship. Villar was appointed
Associate Commissioner in 2003 kaya
nung 2005 nakaka-two years palang
siya. Sabi ng SC, the associate who will
be promoted should have enough in his
original term to accommodate the
remaining term in the chairmanship.
Villar was appointed in 2003 and was
sought to be promoted in 2005, so that
means that he will still have five years in
his original terms. Question, can those
remaining five years accommodate the
remaining two years? Of course,
because five years is more than two
years. Understand that kung baliktad
yung situation, kapag two remaining
years na lang yung ipropromote pero five
remaining years in the Chairmanship.
Hindi pwedeng ipromote.
• Before promotion can be done, he must
first resign in his position as Associate
Commissioner.
• Final point, following the illustration that I
gave, two years na lang ang natitira sa
Chairmanship, five years pa ang term
niya, ibig sabihin two years na lang
siyang magseserve. What happens with
the three years extra in his remaining five
years the answer is that he waives it.
This is Funa v. Villar.
CIVIL SERVICE COMMISSION
SECTION 2. (1) The civil service embraces all
branches, subdivisions, instrumentalities, and
agencies of the Government, including
government-owned or controlled corporations
with original charters.
(2) Appointments in the civil service shall be
made only according to merit and fitness to be
determined, as far as practicable, and, except to
positions which are policy-determining, primarily
confidential, or highly technical, by competitive
examination.
78

(3) No officer or employee of the civil service shall
be removed or suspended except for cause
provided by law.
(4) No officer or employee in the civil service shall
engage, directly or indirectly, in any
electioneering or partisan political campaign.
(5) The right to self-organization shall not be
denied to government employees.
(6) Temporary employees of the Government
shall be given such protection as may be
provided by law.
Let’s now go to Sec. 2 of Civil Service
Commission. The paragraph 1 of which I have
discussed already, the coverage of the authority
of the Civil Service Commission. You remember
our discussion here on Liban v. CA (GR No.
175352), qualified by the recent case of Torres v.
De Leon (GR No. 199440). I hope you remember
our discussion.
Par. 2, class. The policy determining, primarily
confidential, or highly technical, why are they
separate? Why are they special? Because they
are exempt from civil service eligibility
requirement. But understand that the law
prescribes eligibility even for many others who
have not taken the eligibility exam. (Sir cited
himself as an example for being civil service
eligible for being an honor graduate)
Distinction: Career vs. Non-career
Career Non-Career
Career Executive Secretaries and their
Service Officers confidential staff,
(CESO) directors or heads of
GOCCs
Here’s the point, all of them are entitled to
security of tenure. There are many
pronouncements of the Supreme Court with
respect to the so-called CESO. Remember that
the security of tenure pertains to the status, not to
any specific positions in the government. After
passing that special civil service eligibility exam,
they are entitled to security of tenure as to status,
but never as to ay specific appointment.
Remember that they are essentially presidential
appointees.
Basic function of the CSC
Luego v. CSC
G.R. No. L-69137
Aug. 6, 1986
Yung appointment was designated by the
appointive authority as permanent. Consistent
with the procedure, it was referred to the CSC for
processing. CSC approved the appointment as
temporary.
Held: It cannot be. CSC cannot change the tenor
of the appointment of the appointing authority.
Office of the Ombudsman v. CSC
GR No. 162215
Jul. 30, 2007
This was during the time of Ombudsman Sonny
Marcelo. Consistent with his authority under Art.
11. He created a position, Graft Attorney III. He
made an appointment pursuant to his
Constitutional authority. Consistent with
procedure, he referred his appointment to the
CSC for processing. The CSC characterized the
position as a Career Executive Service Office.
Court: Unconstitutional. It cannot change the
character of the position created. Moreover, If the
could be allowed, then only the President could
have appointed to that position because CESO
can only be appointed by the President.
Other Concerns
Q: Can civil servants form Unions?
A: Yes.
Q: Can they engage in collective bargaining?
A: Yes.
Q: Can they execute collective bargaining
agreement with their employers?
A: Yes.
Q: Can they engage in strikes?
A: No.
Freedom to of lawful necessity or expression
vs. police power competence of the State to
punish for these illegal concerted activities
Class, ang key dito is to find out whether there is
a work disruption. If there was a work disruption,
then the imposition of penalties, even the
supreme penalty of dismissal, would be justified.
GSIS case
There was an auditorium meeting, General
Assembly, the employees walked out. They
staged a 4-day strike. They were dismissed.
79
SC: Valid dismissal. There was work disruption.
Another GSIS case
Administrative charges were filed against union
officers. Rank and file employees, by way of
support, they bought shirts and formed lines as
the union officers were marching towards the
venue where the formal investigation will be held.
SC: There was lawful expression. There was no
effective work disruption because it was merely a
temporary display of support. The penalty
imposed against the civil servants were not
sustained by the court.
Davao City Water District v. Aranjuez
G.R. No. 194192
June 16, 2015
They were required to attend on a Sunday a fun
run. There was reluctance but they obeyed the
memorandum requiring their participation in that
office activity. But, they wore t-shirts expressing
their grievances. They were disciplined.
SC: Cannot be. That is just freedom of
expression.
(6) Temporary employees of the Government
shall be given such protection as may be
provided by law.
Temporary Employments
There was a law which says that if you have been
temporarily appointed to a position doing that
work for 7 years, the CSC may grant you eligibility
even if you do not pass the eligibility exam. Sir
thinks that this law will not apply to lawyers
holding temporary positions who still do not pass
the bar exam.
Section 3. The Civil Service Commission, as the
central personnel agency of the Government,
shall establish a career service and adopt
measures to promote morale, efficiency, integrity,
responsiveness, progressiveness, and courtesy
in the civil service. It shall strengthen the merit
and rewards system, integrate all human
resources development programs for all levels
and ranks, and institutionalize a management
climate conducive to public accountability. It shall
submit to the President and the Congress an
annual report on its personnel programs.
This is the basis for the rule making authority of
the CSC.
Section 4. All public officers and employees shall
take an oath or affirmation to uphold and defend
this Constitution.
This is the oath. Under the Article 16, Sec. 5(1),
there is an additional oath required for armed
forces personnel which requires them to remain
loyal to the Republic.
Art XVI
Section 5. (1) All members of the armed forces
shall take an oath or affirmation to uphold and
defend this Constitution.
Art. IX-B
Section 5. The Congress shall provide for the
standardization of compensation of government
officials and employees, including those in
government-owned or controlled corporations
with original charters, taking into account the
nature of the responsibilities pertaining to, and
the qualifications required for, their positions.
This calls for the standardization of
compensation.
Section 6. No candidate who has lost in any
election shall, within one year after such election,
be appointed to any office in the Government or
any Government-owned or controlled
corporations or in any of their subsidiaries.
There is a little controversy in this provision
because of Mocha Uson.
If you lost as a candidate, for 1 year, there is a
ban or prohibition as against appointment or
designation to any government posts/positions.
The problem is there is no definition as to the term
“candidate”. But this government is estopped
from stating otherwise.
Recall Cardema. When he filed his notice of
substitution (akin to a Certificate of Candidacy),
recall the statements of Malacañan that he is
bound by the ipso facto rule in Section 66 of the
Omnibus Election Code that if you file a CoC,
then you should be considered to have
automatically resigned.
80
The provisions of Section 7 I have tackled
already. The first and second paragraph when it
talked about incompatible offices. The only thing
remaining would be the matter of additional,
indirect double compensation which can be given
if allowed under the law. The concepts of
pensions and gratuities are not covered here.
Veloso v. COA
G.R. No. 193677
September 6, 2011
Three term councilors were recognized for their
continued and loyal services to the city. They
were given cash awards. Upon scrutiny of the
COA, those amounts exactly double the amounts
of the salaries they earned during those 3
consecutive terms. Sabi ng Court malinaw this is
double compensation not allowed under the law.
Good faith principle: Andaming unlawful
disbursement of funds but because of the good
faith principle, hindi nirerequire na ibalik. Ex.
When this provision allowing public employees to
form unions, many of them executed CBAs with
employers. Those CBAs contained provisions or
upward salary adjustments all implemented in
good faith. Isa-isa silang dinidisallow ng Supreme
Court but never sila inorder to return the amounts
received by way of salaries received.
There was this GOCC, its function to give
consultancy services. It assigned two of its
regular employees to this other GOCC to do
consultancy there. When the cost folded up, it
gave cash awrd to the two employees of the
mother company by way of recognition, support,
assistance, double compensation - determination of the number and location of
Unconstitutional.
This strange case of an ERC employee, she
retired, and was appointed chairman of the ERC.
3 retirement benefits ang nakuha nya, malinaw it
is not covered by the prohibitions. But the SC said
only one benefit is receivable.
COMELEC CONCERNS
SECTION 2. The Commission on Elections shall
exercise the following powers and functions:
(1) Enforce and administer all laws and
regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.
It undertakes registration of voters. The present
law requires registration, continuous except 120
days before an election. The COMELEC is
authorized to pursue registration using biometrics
system. This system was challenged but was
sustained as not being an additional literacy,
property, or substantive requirement which shall
prescribe in Article V Section 1.
Biometric system is a valid. It does not fall under
the “literacy, property, or substantive
requirements” as proscribed by the Constitution
(Art. V Sec. 1). This is a valid police power
measure intended to help the COMELEC to
preserve the integrity of registry of voters.
(Bagumbayan v. COMELEC)
Sec. 2. The Commission on Elections shall
exercise the following powers and functions:
(1) Enforce and administer all laws and
regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall.
(2) Exercise exclusive original jurisdiction over all
contests relating to the elections, returns, and
qualifications of all elective regional, provincial,
and city officials, and appellate jurisdiction over
all contests involving elective municipal officials
decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by
trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the
Commission on election contests involving
elective municipal and barangay offices shall be
final, executory, and not appealable.
(3) Decide, except those involving the right to
vote, all questions affecting elections, including
polling places, appointment of election officials
and inspectors, and registration of voters.
…….
This is also the basis of Sec 2 par. 1 of requiring
the COMELEC to issue voters receipt as
commanded by the law subject to the keeping of
the confidentiality of those voters receipt to avoid
vote buying. The voter will proceed to confirm his
vote and put it in a ballot box, which will be kept
by the COMELEC.
The power of enforcement also includes the
power to admit process of certificate of
candidacy, which in the case of Imperial, it was
considered only as administrative duty of the
COMELEC. The power to enforce and to
administer law relative to the conduct of election
also includes the power of the COMELEC to
81
suspend, postpone, or declare failure of elections
consistent with Sections 5 & 6 of the Omnibus
Election Code.
Before, kapag may special election, dapat may
batas lagi. But now, the COMELEC, in its own
authority, can declare a failure of elections.
Failure of election is present when the election
was not done on the date it was scheduled, if not
completed on the date scheduled, and if there
were improper transmission in the election
returns. In either of these instances, there must
be force, violence, threat, or intimidation, which
serves as basis for declaring the failure of
election. It is not obligatory upon the COMELEC
to declare the failure of election. It is absolutely
discretionary. (Sanchez v. COMELEC)
For example: In one legislative district, there are
1000 polling precincts. Sabihin naten there was
violence in 2 precincts. Pwede magdeclare ng
failure of election. But it is the COMELEC’s call.
And if the COMELEC finds that it’s statistically
improbable in the 2 precincts to materially affect
the total outcome of the voting in the district, in
that instance, the COMELEC is well within its
discretion not to declare a failure of election. If it
declares a failure of election, it should call for a
special election even if that special election is to
be done beyond the deadline prescribed by the
law as long as it is reasonably near to that
deadline. Those special elections can still be
upheld understanding the logistically problems
which usually attend the conduct of special
elections.
The other paragraphs in section 2 also include
the authority to determine the number and
location of polling places as well as the
registration of voters. But please note that
express constitutional proscription: the
COMELEC is not given the right to decide on the
right of the voters.
The problem with this provision, when you apply
for registration, something that can be done by
the COMELEC, when it approves that
registration, isn’t it a decision on the right to vote?
If it is rejected, isn’t it a decision on the right to
vote? Do you get my point? I am just being OA
class. Of course, it is only a preliminary
determination. You will note that there is a petition
for inclusion or exclusion of voters to be tackled
by the competent courts. Well, they make the final
pronouncements on the right to vote.
The COMELEC has exclusive original jurisdiction
over all election contests on the qualifications of
provincial, city, and regional elective officials. It
shall have appellate jurisdiction with respect to all
municipal election contests as decided by the
courts of general jurisdiction and all appellate
jurisdiction over all barangay election conflicts
decided by courts of limited jurisdiction provided
by its adjudication with respect to barangay
election contest should be final and not
appealable.
Section 3. The Commission on Elections may sit
en banc or in two divisions, and shall promulgate
its rules of procedure in order to expedite
disposition of election cases, including pre-
proclamation controversies. All such election
cases shall be heard and decided in division,
provided that motions for reconsideration of
decisions shall be decided by the Commission en
banc.
When there is a quasi-judicial matter to be taken
to the attention of the Commission, you cannot go
straight to the EnBanc. Because Section 3
requires that any matters must be tackled at the
first instance by either of the Divisions.
Remember that the quasi-judicial authority of the
En banc is triggered only by appeal, which is
done usually by a Motion for Reconsideration.
Meron appellate jurisdiction and Division ng
COMELEC over RTC municipal election
contests? YES. May it exercise certiorari
jurisdiction over the RTC, in aid of its appellate
jurisdcition? YES. (Several cases on this regard)
COMELEC en banc has appellate authority over
either Division. May the COMELEC en banc
exercise certiorari jurisdiction over interlocutory
matters pending before either Division? NO.
For instance, a Motion filed in one Division for the
admission of affirmative defenses which is denied
arbitrarily. SC: That particular challenge will be
reserved as an error on appeal to be later filed
with the COMELEC en banc, NOT by way of
certiorari.
Say there is an interlocutory matter before a
Division. Kunwari inadmit un pleading despite the
lapse of the deadline, clearly prescribe in the
COMELEC Rules. So, aribitrary and whimsical. Is
certiorari allowed from the Division to the SC
directly, bypassing the appeal to the COMELEC
en banc? YES. (Co v. COMELEC)
82
From a Division interlocutory matter clearly
tainted with Grave Abuse of Discretion, the party
can go straight from the Division to the SC. Mode
is Rule 65, not Rule 64. Rule 64 is limited to
appeals from the COMELEC en banc, in the
exercise of its appellate quasi judicial authority.
Section 4. The Commission may, during the
election period, supervise or regulate the
enjoyment or utilization of all franchises or
permits for the operation of transportation and
other public utilities, media of communication or
information, all grants, special privileges, or
concessions granted by the Government or any
subdivision, agency, or instrumentality thereof,
including any government-owned or controlled
corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity,
and equal rates therefor, for public information
campaigns and forums among candidates in
connection with the objective of holding free,
orderly, honest, peaceful, and credible elections.
In the context of this regulatory authority of the
COMELEC, for purposes of insuring free, honest,
orderly clean election inaudible equal
opportunities. The focus here are public utilities,
mass media etc.
COMPARE: This law implemented by
COMELEC Resolution requiring all newspapers
of general circulation to reserve 1/2 page of each
of their editions to be used by the COMELEC as
COMELEC page announcements, resolutions,
equal opportunity. SC:That is expropriation,
which cannot be valid unless just compensation
is paid. Because pages of newspaper are
considered private property. This particular rule
cannot be justified on the basis solely of Section
4 of Article IX-C.
CONTRAST: COMELEC, implementing the law
by Resolution, requiring all these broadcast
facilities to provide it with airtime. SC: Air space
is owned by government and regulated by
government. Certainly it can be subject to the
regulatory authority of the COMELEC. (Valid
police power)
1-Utak v COMELEC
GR 206020
April 14, 2015
COMELEC invoked Section 4 in prohibiting the
displaying of campaign materials on public utitlity
vehicles and public terminals where PUVs park.
SC: There is prior restraint and therefore violative
of their freedom of expression. Although these
vehicles are PUVs, which are granted franchise
by the government to operate, they still remain
private property. Owners of this private property
certainly, within their freedom of expression, are
free to express their preferences for their
candidates openly on their properties.
SC: You cannot justify it on the basis of Section
4.
This Resolution or prohibition does not in any way
affect the operations of these PUVs. Rather, it
must be seen as clearly impairment of the
freedom of expression of its owners.
Moreover, the resolution cannot be applied in
those public terminals. Precisely, those public
terminals are not public utilities and they are
privately-owned. Pumaparada lang diyan ung
mga PUVs.
Social Weather Station v. COMELEC
G.R. No. 208062
April 07, 2015
Facts: Comelec Resolution No. 9674 directed
Social Weather Stations, Inc. (SWS) and Pulse
Asia, Inc. (Pulse Asia), as well as "other survey
firms of similar circumstance" to submit to
COMELEC the names of all commissioners and
payors of all surveys published from February 12,
2013 to April 23, 2013, including those of their
"subscribers." SWS and Pulse Asia are social
research and public polling firms. Among their
activities is the conduct of pre-election surveys.
Issue: WON the right of the petitioners to free
speech will be curtailed by the requirement to
submit the names of their subscribers - NO
Held: The Court sustained the validity of
Resolution No. 9674. The names of those who
commission or pay for election surveys, including
subscribers of survey firms, must be disclosed
pursuant to Section 5.2(a) of the Fair Election Act.
This requirement is a valid regulation in the
exercise of police power and effects the
constitutional policy of "guaranteeing equal
access to opportunities for public service.”
Section 5.2(a)'s requirement of disclosing
subscribers neither curtails petitioners' free
speech rights nor violates the constitutional
proscription against the impairment of contracts.
The Court also ruled that The Fair Election Act
also governs published surveys during elections.
The nature of the speech involved, as well as the
Fair Election Act's purpose of ensuring political
equality, calls into operation the equality-based
83
approach to weighing liberty to express vis-a-vis
equality of opportunities.
While it does regulate expression (i.e.,
petitioners' publication of election surveys), it
does not go so far as to suppress desired
expression. There is neither prohibition nor
censorship specifically aimed at election surveys.
The freedom to publish election surveys remains.
All Resolution No. 9674 does is articulate a
regulation as regards the manner of
publication, that is, that the disclosure of those
who commissioned and/or paid for, including
those subscribed to, published election surveys
must be made.
Discussion from Sir:
These political surveys can potentially produce
very varying effects politically. Precisely because
they create mindsets. These have bandwagon
effect, motivating effect etc. That’s why the
COMELEC Resolution requires the surveys
company to indicate in the survey results the
name and source of funding. Obviously, to lend
more credence to the credibility of the survey.
Survey companies complain and cried foul. Prior
restraint daw. SC dismissed it.
SC said that it will use the very definition the
petitioners invoked, prior restraint. There’s no
prior restraint here, you are allowed to publish the
results but the police power of the state entitles
the COMELEC, consistent with Section 4 as well,
to make this additional requirement to avoid the
potential political effects to the electorate.
GMA Network v. COMELEC
G.R. No. 205357
September 2, 2014
FACTS: The 5 petitions before the Court put in
issue the alleged unconstitutionality of Section 9
(a) of COMELEC Resolution No. 9615 limiting
the broadcast and radio advertisements of
candidates and political parties for national
election positions to an aggregate total of one
hundred twenty (120) minutes and one hundred
eighty (180) minutes, respectively. They contend
that such restrictive regulation on allowable
broadcast time violates freedom of the press,
impairs the people’s right to suffrage as well as
their right to information relative to the exercise of
their right to choose who to elect during the forth
coming elections. Section 9 (a) provides for an
“aggregate total” airtime instead of the previous
“per station” airtime for political campaigns or
advertisements, and also required prior
COMELEC approval for candidates’ television
and radio guestings and appearances.
ISSUE: Whether or not Section 9 (a) of
COMELEC Resolution No. 9615 on airtime limits
violates freedom of expression, of speech and of
the press.
HELD: YES. The Court held that the assailed rule
on “aggregate-based” airtime limits is
unreasonable and arbitrary as it unduly restricts
and constrains the ability of candidates and
political parties to reach out and communicate
with the people. Here, the adverted reason for
imposing the “aggregate-based” airtime limits –
leveling the playing field – does not constitute a
compelling state interest which would justify such
a substantial restriction on the freedom
of candidates and political parties to
communicate their ideas, philosophies, platforms
and programs of government. And, this is
specially so in the absence of a clear-cut basis for
the imposition of such a prohibitive measure.
It is also particularly unreasonable and whimsical
to adopt the aggregate-based time limits
on broadcast time when we consider that the
Philippines is not only composed of so many
islands. There are also a lot of languages and
dialects spoken among the citizens across the
country. Accordingly, for a national candidate to
really reach out to as many of the electorates as
possible, then it might also be necessary that he
conveys his message through his advertisements
in languages and dialects that the people may
more readily understand and relate to. To add all
of these airtimes in different dialects would
greatly hamper the ability of such candidate to
express himself – a form of suppression of his
political speech.
Discussion from Sir:
Before, at the start of the election period, the rule
is candidates have 120 minutes of airtime. In the
middle of the campaign period, It was aggregated
to 120 minutes for all media exposures.
UNCONSTITUTIONAL for 2 reasons:
1. VIOLATIVE OF DUE PROCESS AND
IMPAIRMENT OF VESTED RIGHTS-
Even it falls under the regulatory
authority of Comelec, you don't change
the rules of the game in the middle of the
game. 120-minute is vested right already.
2. PRIOR RESTRAINT - Political speech is
a protected speech.
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Other powers of COMELEC
Para. 4 of Section 2:
2 instances where the COMELEC is subordinated
to the President:
1. It cannot deputize law enforcement
agencies without concurrence of the
President
2. It cannot discipline the insubordinate
deputies it can only recommend
disciplinary sanctions to the president.
Sir: Do not limit “law enforcement agencies”
only to the concept of armed law enforcement
agencies like the police authorities or the
soldiers.
Bankers Association of the PH Case
For right reasons, any other governmental
agency can be deputized by the COMELEC upon
the concurrence of the President.
SECTION 5. No pardon, amnesty, parole, or
suspension of sentence for violation of election
laws, rules, and regulations shall be granted by
the President without the favorable
recommendation of the Commission.
The pardoning power, is circumscribed or
certainly limited, under this provision: in the sense
that the President may not pardon election
offenses without a favorable recommendation of
the COMELEC.
SECTION 6. A free and open party system shall
be allowed to evolve according to the free choice
of the people, subject to the provisions of this
Article.
SECTION 7. No votes cast in favor of a political
party, organization, or coalition shall be valid,
except for those registered under the party-list
system as provided in this Constitution.
SECTION 8. Political parties, or organizations or
coalitions registered under the party-list system,
shall not be represented in the voters’ registration
boards, boards of election inspectors, boards of
canvassers, or other similar bodies. However,
they shall be entitled to appoint poll watchers in
accordance with law.
Block voting is not allowed, except for party-list
representation. A free and open party system is
encouraged under the Constitution.
Registration and accreditation of political parties
would not entitle it to any special rights except
that it is authorized to appoint poll watchers. Hindi
yan entitlement to representation to voter
registration boards, boards of election inspectors
or much less the boards of canvassers. Ang
special authority lang dito is upon registration, for
these parties, duly registered, to have or appoint
poll watchers.
SECTION 9. Unless otherwise fixed by the
Commission in special cases, the election period
shall commence ninety days before the day of the
election and shall end thirty days after.
Section 9 is the matter of the election period. Do
not confuse the election period with the campaign
period. The campaign period is always shorter. It
usually ends 2 days before the election day as
per resolution of COMELEC.
Rule: The election period commences 90 days
before the date of the election and extends until
30 days thereafter.
The reason for the “30 days thereafter”
1. The election activities do not end on
election day.
2. The COMELEC by simple resolution can
alter the election period. There is no need
for a law, much less a constitutional
amendment. Any COMELEC resolution
will suffice.
The determination of when election would be
important especially for election offenses.
2018 Case: The contention was this: It is the
Congress which prescribes and provides
punishment for election offenses. These are
basically the crimes committed during the
election period. If the COMELEC can alter the
election period, certainly, it can determine
whether or not an act can be considered as an
election offense. That would be a way of
amendment of the law which the COMELEC
cannot do. 

SC: Here, because the COMELEC is allowed to
alter the election period, it was allowed to amend
the law. However, that is not by way of
amendment because clearly these pieces of
legislation when promulgated would have to
follow the election period prescribed by the
COMELEC pursuant to its authority expressly
conferred upon it by Section 9 of the Constitution.
85
Illustration: Based on the Constitution, the
election period commences 90 days before the
date of the election. Now, 89 days before the
election, the person campaigns. This should be
considered pre-mature campaigning. But during
the filing of the charges, the charger looked at the
election period would start 60 before the election
and not 90. Thus, it is not covered in the election
period and thus not an election offense.
Sir: The concept of election offense prescription
still pertains to the Congress but in any election
offense definition, there is a valuable element
which is the election period. This election period
can be determined by the COMELEC pursuant to
this provision.
Another Case: Art. III. Sec. 19, par. 1: Cruel,
degrading and inhumane punishment.
Matruan v. Comelec
March 28, 2017*
sabi ni sir 2018 pero wala.
G.R. No. 227155
Remember that prisonment and fines are
penalties. These are punishments. The
impositions of community service programs and
admonition are allowed as they do not constitute
penalties.
In this case, a candidate for an elective post who
has failed to file his Statement of Contributions
and Expenditures or SOCE within 30 days from
the day of the election is perpetually disqualified
to hold public office.
He claimed the penalty of perpetual
disqualification is “harsh and cruel.” The SC held
that the constitutional proscription under the Bill
of Rights extends only to situations of extreme
corporeal or psychological punishment that strips
the individual of his humanity. The proscription is
aimed more at the form or character of the
punishment rather than at its severity. that
Congress has deemed fit to impose the penalty
of perpetual disqualification on candidates who
repeatedly failed to file their SOCEs cannot be
the subject of judicial inquiry. Congress has the
absolute discretion to penalize by law with
perpetual disqualification from holding public
office in addition to administrative fines the
seekers of public office who fail more than once
to file their SOCEs. Such penalty is intended to
underscore the need to file the SOCE as another
means of ensuring the sanctity of the electoral
process.

86

 POLITICAL LAW REVIEW
Atty. Carlo Cruz
November 20, 2019
COMELEC
Section 2. The Commission on Elections shall
exercise the following powers and functions:
1. Enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite,
initiative, referendum, and recall.
This is the mother of all the powers of the
COMELEC. This is the executive power that is
removed from the President. This is on instance
where the President is subordinated to this
independent constitutional commission because
to the COMELEC is entrusted the enforcement of
election laws.
In contrast, the only other instance where the
President is subordinated to the COMELEC
would be in the exercise of his pardoning power,
which he cannot do, in connection with election
offenses except upon the prior recommendation
of the COMELEC.
In turn, the COMELEC is subordinated to the
President in that it may not deputize law
enforcement agencies without the concurrence of
the President. Once these deputizations are
made, the COMELEC would not be free to
impose disciplinary sanctions upon insubordinate
deputies. It can only recommend to the President
the imposition of such disciplinary sanctions.
Under the third paragraph, note that the
COMELEC may not decide on the right to vote.
Do not be confused when the COMELEC accepts
registration, or even when it denies applications
for registration of voters. That determination is at
best preliminary because ultimately these may be
questioned before the proper courts through a
petition for inclusion/exclusion of voters.
The COMELEC, in the context of its enforcement
power, is entitled to provide for the continuing
registration of voters.
Kabataan Party List v. COMELEC
GR No. 221318
December 16, 2015
The Biometrics System of Registration is a valid
exercise of police power and should not be
construed as a way of statutory imposition of
additional requirements for suffrage. Art V, Sec. 1
prescribes that “No literacy, property, or other
substantive requirement shall be imposed on the
exercise of suffrage.” The Biometrics System of
Registration is intended to maintain or secure the
integrity of registry of voters.
The power to enforce laws also includes the
power to accept certificates of candidacy. As
early as in Abcede v. Imperial, this has been
considered by the Supreme Court as a mere
ministerial duty.
Under this power is also the authority to
postpone, to declare failure of elections and to
conduct special elections upon postponement or
failure of elections.
Sanchez v. COMELEC
Reference was made to the Omnibus Election
Code which provides the COMELEC with
statutory power to postpone, suspend, declare
failures, and conduct special elections.
When the COMELEC declares failure of
elections, this is a performance of its
administrative capacity. Nothing quasi-judicial
about it. There can be a declaration of failure of
elections if the election was not held on the day it
was scheduled, not completed on the day and
time it was scheduled, or if there were problems
in the transmission of election returns. In any of
these grounds, there must be a matter of force,
violence or intimidation. But even if those
circumstances occur, the matter of declaring
failure of elections should be considered as still
discretionary upon the COMELEC. It can do so
only if it determines that the results in the areas
where there had been failure of elections would
materially affect the total outcome of voting in that
area or legislative district.
For instance, in a legislative district comprised of
1,000 polling precincts, there was a failure of 2
polling precincts because there was force or
violence, the results in those 2 polling precincts
would not materially affect the total outcome in
the area. Therefore, COMELEC would be within
its discretion not to declare a failure of elections.
If it does so, then it can call for a special election.
If the COMELEC upon prior declaration of failure
of election, fails to conduct special election within
the prescribed deadline, as long as there is a
substantial compliance with the deadline
prescribed, then the special election can still be
validated.
87
The power to enforce election laws also includes
the power to still tackle pre-proclamation
contests. Distinguish this from election contests
which are essentially covered by other provisions
of the Constitution. The rule of thumb to
determine whether a particular controversy would
be a pre-proclamation contest, you go into the
matter of determining whether or not there was a
problem in the canvassing of the election returns,
such as the illegal composition of the board of
canvassers; the election returns are defective on
its face; the election returns were manufactured
with fraud etc. All of these would go into the
validity of the canvassing.
Abayon v. COMELEC
GR No. 181295
April 2, 2009
There was a pre-proclamation contest that was
filed contending that there was a need to stop the
proclamation because in certain polling precincts
there was violence, someone was kidnapped,
there was gun pointing, ballot boxes were stolen
etc. The Supreme Court said that those should be
raised in an election protest, not a pre-
proclamation contest.
2. Exercise exclusive original jurisdiction over all
contests relating to the elections, returns, and
qualifications of all elective regional, provincial,
and city officials, and appellate jurisdiction over
all contests involving elective municipal officials
decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by
trial courts of limited jurisdiction.
Decisions, final orders, or rulings of the
Commission on election contests involving
elective municipal and barangay offices shall be
final, executory, and not appealable.
COMELEC Jurisdiction:
Exclusive Original over all regional, provincial
and city election contests
Appellate over municipal contests decided by
courts of general jurisdiction and barangay
contests decided by courts of limited jurisdiction
provided that its decisions on appeal with respect
to the barangay contests are final and
unappealable.
Relationships of these entities in the course
of the exercise of the COMELEC of its quasi-
judicial authority (Relate to sec. 3 or Art. IX-C)
Anything and everything quasi-judicial shall be
tackled, at the first instance, by either division
The En Banc’s authority can be triggered only by
filing an appeal that can be marked by filing an
MR.
Municipal
COMELEC COMELEC
election RTC
division En Banc
contests
May either division in the exercise of its appellate
authority, exercise certiorari jurisdiction over the
decisions of the RTC or even the MTC? YES, in
aid of its appellate jurisdiction. But jurisprudence
provides that the En Banc cannot exercise
certiorari jurisdiction over interlocutory matters
tackled by either division in the exercise of its
original or appellate jurisdiction.
• For instance, in one division, there is a
motion to admit affirmative defenses, which
was arbitrarily denied by the COMELEC
division. That matter cannot be appealed to
the COMELEC en banc. Co v. COMELEC
provides that that matter should be
reserved as an error on appeal to be later
tackled, once the entire case is ready or
ripe for appeal to the COMELEC en banc
from the division.
From either division, would it be possible to go to
the SC with regard to interlocutory matters, by-
passing the en banc. Co v. COMELEC says yes.
• For instance, in one division, a pleading
was filed beyond the prescribed period as
per COMELEC rules. This could be
considered as being tainted with grave
abuse of discretion. This interlocutory
matter can be tackled straight by the SC,
by-passing COMELEC En Banc via a rule
65, not rule 64. Rule 64 is reserved by way
of appellate remedy from the en banc
adjudications.
Other powers of the COMELEC:
Art. IX-C
Sec 2(3) Decide, except those involving the right
to vote, all questions affecting elections, including
determination of the number and location of
88
polling places, appointment of election officials
and inspectors, and registration of voters.
(4) Deputize, with the concurrence of the
President, law enforcement agencies and
instrumentalities of the Government, including
the Armed Forces of the Philippines, for the
exclusive purpose of ensuring free, orderly,
honest, peaceful, and credible elections.
(5) Register, after sufficient publication, political
parties, organizations, or coalitions which, in
addition to other requirements, must present their
platform or program of government; and accredit
citizens’ arms of the Commission on Elections.
Religious denominations and sects shall not be
registered. Those which seek to achieve their
goals through violence or unlawful means, or
refuse to uphold and adhere to this Constitution,
or which are supported by any foreign
government shall likewise be refused registration.
Financial contributions from foreign governments
and their agencies to political parties,
organizations, coalitions, or candidates related to
elections constitute interference in national
affairs, and, when accepted, shall be an
additional ground for the cancellation of their
registration with the Commission, in addition to
other penalties that may be prescribed by law.
No. 5 pertaining to disqualifications for
accreditation of political parties, is essentially
echoed in the grounds for denying due course or
cancelling to the COC.
Among those prohibited are: Religious party,
foreign assisted, foreign…
Liberal Party and Atienza v. COMELEC
G.R. 188920, Feb. 16, 2010
Included in the power to register political parties
is the necessary power to resolve intra-party
conflicts precisely because the authority to
register would include the power to determine the
power leadership in any political party.
The same doctrine was invoked by COMELEC in
Lico v. COMELEC for purposes of proceeding in
the exercise of its jurisdiction to decide on the
leadership following the amendment of the by-
laws. The court impliedly upheld this power,
however, the Court held that it was improperly
exercised by the COMELEC. To allow the
COMELEC to rule on this would be tantamount to
allowing it rule on the expulsion of a sitting
member of the HR, which is in the exclusive
jurisdiction of the electoral tribunals.
Art. IX-C
Section 2 (6) File, upon a verified complaint, or
on its own initiative, petitions in court for inclusion
or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of
election laws, including acts or omissions
constituting election frauds, offenses, and
malpractices.
(7) Recommend to the Congress effective
measures to minimize election spending,
including limitation of places where propaganda
materials shall be posted, and to prevent and
penalize all forms of election frauds, offenses,
malpractices, and nuisance candidacies.
(8) Recommend to the President the removal of
any officer or employee it has deputized, or the
imposition of any other disciplinary action, for
violation or disregard of, or disobedience to its
directive, order, or decision.
(9) Submit to the President and the Congress a
comprehensive report on the conduct of each
election, plebiscite, initiative, referendum, or
recall.
Section 3. The Commission on Elections may sit
en banc or in two divisions, and shall promulgate
its rules of procedure in order to expedite
disposition of election cases, including pre-
proclamation controversies. All such election
cases shall be heard and decided in division,
provided that motions for reconsideration of
decisions shall be decided by the Commission en
banc.
Section 4. The Commission may, during the
election period, supervise or regulate the
enjoyment or utilization of all franchises or
permits for the operation of transportation and
other public utilities, media of communication or
information, all grants, special privileges, or
concessions granted by the Government or any
subdivision, agency, or instrumentality thereof,
including any government-owned or controlled
corporation or its subsidiary. Such supervision or
regulation shall aim to ensure equal opportunity,
time, and space, and the right to reply, including
reasonable, equal rates therefor, for public
information campaigns and forums among
candidates in connection with the objective of
holding free, orderly, honest, peaceful, and
credible elections.
This regulatory authority with respect to
legislative franchises of public utilities including
89
vehicle transportation systems and the mass
media. Note the purposes for the conferment of
this regulatory authority- holding free, orderly,
honest, peaceful, and credible elections, equal
opportunities, the right to reply.
Cases: COMELEC resolution implemented a law
requiring all newspapers of general circulation to
reserve one-half page of their editions for
COMELEC space.
• INVALID. The resolution partook of a taking
or the power of eminent domain, which
cannot be done without payment of just
compensation.
COMELEC resolution implemented a law
requiring all mass media establishments- radio or
television to reserve half-hour per day of their
airtime for COMELEC to make its
announcements and provide equal opportunity to
campaign, etc.
• VALID exercise of police power. It is the
State that owns the airspace and therefore
would be subject to its regulation. The
regulation would be through COMELEC
pursuant to Art. IX-C, sec. 4.
The basic justification there is that it is a State
which owns the airspace, and therefore would be
subject to its regulation and in this particular case
the regulation is not through the Comelec
pursuant so Sec. 4 of Art IX-C.
Three new cases. The first is
1-UTAK v. COMELEC
G.R. No. 206020
14 April 2015
Facts: Recall this Comelec Resolution prohibiting
owners of private utility vehicles and owners of
these public terminals where the PUV’s would
park and wait for their passengers. They were
prohibited from displaying in their properties and
their premises campaign materials. Recall that
the complaint there was to the effect that it
constituted prior restraint-that it was suppressing
freedom of expression.
Held: This particular challenge was sustained by
the Supreme Court. Let’s focus on the authority
of the regulatory authority of the Comelec insofar
as the PUV’s are concerned. Remember that the
regulatory authority here pertains necessarily to
the operations of the PUV’s. I’ll cite an example.
In far-flung areas the rich candidates pinapakyaw
na nila yung mga jeeps and mga buses para ma-
transport yung mga voters from their homes to
the polling precinct in order for them to vote for
the candidate. This is precisely the practice which
the COMELEC sought to address through its
regulatory authority under Sec. 4. The Court
pronounced this has nothing to do with that
aspect of its regulatory authority. Remember that
PUV’s, even if they are used for public service,
they remain private properties and therefore the
owners of these private properties can use them
for the purposes of expression. These campaign
materials are considered free speech and
therefore cannot be curtailed by a regulation to
that effect imposed by the Comelec. Yes, it would
constitute as prior restraint. All the more the
reason that that resolution cannot be applied to
the owners of the public terminals because these
public terminals are not even grantees of
legislative franchises. Therefore, clearly, the
freedom of expression of these owners of public
terminals was also considered breached.
We go to the fourth case
GMA Network v COMELEC
G.R. No. 205357
September 2, 2014
Facts: Remember that at the start of the
campaign period the time allotted, by way of
airtime, granted to candidates would have been
120 minutes. But this would be for specific
broadcast facilities. 120 minutes sa GMA, ABS,
(ano pa yung kalintikan na yun?) Kapatid. In the
middle of the campaign period the COMELEC, by
way of resolution, limited or aggregated the total
time to a maximum of 120 minutes for all media
facilities
Held: Invalid. 2 Basic Reasons:
1.) Due Process – you cannot change the
rules of the game in the middle of the
game.
2.) Political speech is considered as free
speech and therefore it constituted as
prior restraint and therefore invalid.
Final case would be
Social Weather Stations v COMELEC
G.R. No. 208062
7 April 2015
Facts: The COMELEC, by resolution, required all
of these political survey companies upon their
publication of their survey results to disclose the
sources or the identities of these funders for
90
these political surveys. Survey companies cried
foul and said that there was prior restraint.
Held: This is within the regulatory authority of the
COMELEC and the purpose here is to avoid the
pernicious political effects of these survey’s. They
produce certain mindsets upon the electorate
which should be avoided as said by the Supreme
Court.
The Separate Kinds of Effects:
First, there is the bandwagon effect where
"electors rally to support the candidate leading in
the polls."This "assumes that knowledge of a
popular 'tide' will likely change voting intentions in
[favor] of the frontrunner, that many electors feel
more comfortable supporting a popular choice or
that people accept the perceived collective
wisdom of others as being enough reason for
supporting a candidate."
Second, there is the underdog effect where
"electors rally to support the candidate trailing in
the polls." This shift can be motivated by
sympathy for the perceived underdog.
Third, there is the motivating effect where
"individuals who had not intended to vote are
persuaded to do so," having been alerted to the
fact of an election's imminence.
Fourth, there is also the demotivating effect
where "voters abstain from voting out of certainty
that their candidate or party will win[.]"
Fifth, there are reports of a behavior known as
strategic voting where "voting is influenced by
the chances of winning[.]"
Lastly, there is also the theory of a free-will
effect where "voters cast their ballots to prove the
polls wrong[.]"
All of which requiring the regulation precisely as
not to poison the electorate. Wala naming prior
restraint, you are allowed to publish your political
survey results. Only that, there is this additional
requirement for you to disclose the identity of the
funders of this political surveys. Perhaps to lend
it more credibility. This within the regulatory
authority of the COMELEC and this is certainly
justifiable on the basis of the police power of the
State.
Section 5. No pardon, amnesty, parole, or
suspension of sentence for violation of election
laws, rules, and regulations shall be granted by
the President without the favorable
recommendation of the Commission.
I have discussed this, the pardoning power
limitation
Section 6. A free and open party system shall be
allowed to evolve according to the free choice of
the people, subject to the provisions of this
Article.
Section 7. No votes cast in favor of a political
party, organization, or coalition shall be valid,
except for those registered under the party-list
system as provided in this Constitution.
Section 8. Political parties, or organizations or
coalitions registered under the party-list system,
shall not be represented in the voters’ registration
boards, boards of election inspectors, boards of
canvassers, or other similar bodies. However,
they shall be entitled to appoint poll watchers in
accordance with law.
No block voting except in connection with party
list elections. Remember registration and
accreditation, no specific additional entitlements
except by way of entitlement to watchers.
Section 9. Unless otherwise fixed by the
Commission in special cases, the election period
shall commence ninety days before the day of the
election and shall end thirty days after.
A little word on the matter of the election period.
Remember the period fixed here is 90-days
before election day and 30-days thereafter. Well
the contrast, as I have discussed, that the
COMELEC has authority to change this by mere
resolution. There is no need for constitutional
amendment or even the passing of the law for
purposes of changing this election period. I have
indicated before that any election is peculiar and
therefore it entitles the COMELEC to prescribe
different rules. That is why we have different
election periods for most elections.
A little word here; I’m sorry I forgot the case title.
There was this case which points out this
particular concern of mine; who defines elections
offenses and prescribes penalties therefore? It is
the Congress. There was this contention. Recall
that the essential ingredient of an election offense
is that it must be committed during the election
period. The claim was that since the COMELEC
91
is entitled to alter the election period, in effect, if
it does so then it would be by way of amendment
of the law prescribing for the election offense. The
SC said that this is not correct. True that the
matter of the election period is a component of
election offenses. But this component is by way
of constitutional decree, essentially a variable
factor left to the discretion of the COMELEC
pursuant to its constitutional authority.
No bona fide candidate shall be subject to
harassment. Relate this to Sec. 18 Par. 1 of the
Bill of Rights.
Article III
Section 18. (1) No person shall be detained
solely by reason of his political beliefs and
aspirations.
*rant start* I have always been against this
provision in the Bill of Rights … *rant end*
By way of emphasizing the fiscal autonomy of the
COMELEC, understand that it is expressly
provided here a uniform feature available to all
fiscally autonomous entities: once the
appropriations for the COMELEC have been
approved, the release shall be:
Automatic; and
Regular
There was a case involving a petition for recall
filed by Hagedorn. The COMELEC, upon receipt
of the petition, refused to conduct the recall
election, claiming that it did not have the funds.
The Court reviewed the appropriations for the
COMELEC and found the funds necessary for the
conduct of the recall election. The Court there,
emphasized, that even if the funds would be
inadequate, this is precisely why the COMELEC
was given under the appropriations act consistent
with Sec. 25 (5) of Art. VI, the authority to transfer
savings for purposes of augmenting these items
of appropriation. The funds are there. If they’re
inadequate, you transfer from savings pursuant to
your authority under the GAA.
CONCERNS UNDER THE COA
We tackle the provisions of Sec. 2. Par. 1 of which
would indicate the AUDIT JURISDICTION of the
COA.
Section 2. (1) The Commission on Audit shall
have the power, authority, and duty to examine,
audit, and settle all accounts pertaining to the
revenue and receipts of, and expenditures or
uses of funds and property, owned or held in trust
by, or pertaining to, the Government, or any of its
subdivisions, agencies, or instrumentalities,
including government- owned or controlled
corporations with original charters, and on a
post-audit basis: (a) constitutional bodies,
commissions and offices that have been granted
fiscal autonomy under this Constitution; (b)
autonomous state colleges and universities; (c)
other government-owned or controlled
corporations and their subsidiaries; and (d) such
non-governmental entities receiving subsidy or
equity, directly or indirectly, from or through the
Government, which are required by law or the
granting institution to submit to such audit as a
condition of subsidy or equity. However, where
the internal control system of the audited
agencies is inadequate, the Commission may
adopt such measures, including temporary or
special pre-audit, as are necessary and
appropriate to correct the deficiencies. It shall
keep the general accounts of the Government
and, for such period as may be provided by law,
preserve the vouchers and other supporting
papers pertaining thereto.
Note: the four enumerated from (a) to (d) are on
a post-audit basis. Be mindful of Veloso v. COA
which said that post-audit or pre-audit is based on
the DISCRETION of the COMELEC. It can
conduct pre-audit with respect to the 4 items
there. This would be consistent with the power
vested in the COA in relation to Par. 2 Sec. 2.
Recall the 3 areas of authority given to the COA
there:
1. To define the scope of its authority;
2. To define the techniques and methods;
3. To promulgate rules to determine
whether the use of public funds would be
excessive, extravagant, unnecessary,
unconscionable, or irregular.
The third one provides the rule-making authority
of the COA.
(2) The Commission shall have exclusive
authority, subject to the limitations in this Article,
to define the scope of its audit and examination,
establish the techniques and methods required
therefor, and promulgate accounting and auditing
92
rules and regulations, including those for the
prevention and disallowance of irregular,
unnecessary, excessive, extravagant, or
unconscionable expenditures or uses of
government funds and properties.
Next: Sec. 3 of IX-D
Section 3. No law shall be passed exempting any
entity of the Government or its subsidiaries in any
guise whatever, or any investment of public
funds, from the jurisdiction of the Commission on
Audit.
In one UCPB case, the UCPB questioned the
authority of the COA to audit its shares of stock
there. They claimed that these were private
properties and therefore excluded from the
authority of the Commission of Audit. It was
pointed out that these shares pertained now to
Cojuangco upon his use of these Coconut Levy
Funds. So you will see that this matter falls
squarely into the coverage of Sec. 3, which would
include the authority to audit uses of investments
of public funds. Public funds were used to
purchase these private shares, therefore that
purchase will fall within the coverage of Sec. 3.
Note: do not overlook or underestimate the
importance of Sec. 3 which states that no
governmental entity shall be exempt from the
scrutiny of the COA. Once upon a time, the
PAGCOR was exempt from COA authority. Sec.
3 was placed there precisely so that things like
this would never happen again.
Final point on the COA would be Funa v. Manila
Economic Cooperation Office.
Funa v. Manila Economic Cooperation Office
& COA (2014)
We maintain the One China Policy. Actually, the
policy now is Only China Policy (joke). We cannot
recognize Taiwan but we cannot disregard the
fact that many of our countrymen work there. So,
during the time of Ramos, he provided for the
creation of a private corporation registered with
the SEC: the Manila Economic Cooperation
Office.
He provided for the creation of a private
corporation registered with the SEC, the Manila
Economic Cooperation Office (MECO) and with it
the Government entered into several
Memorandum of Agreement entrusting to it the
administration of certain funds pertinent to the
existence of our Countrymen there. Visa
processing, etc. Well, class alam niyo, nagpunta
ako dun, nakameeting ko yang MECO na yan,
yung head niyan ang tawag sakanya “his
excellency” and lahat and twang sakanya
“Ambassador.” So you see class, for all intends
and purposes, it is a Diplomatic presence but
done via a Private Corporation precisely to be
consistent with our Diplomatic stand regarding
this One China Policy. There was need to do that
because there is a need to contend our waters
there and that is the only way so as not to be
inconsistent with our diplomatic as against the
People’s Republic of China. Mr. Funa insisted
that the MECO should be COA-ble (don’t use
COA-ble in the exam ah, mahaba kasi masyado
ang audit and examination authority of the COA).
The resolution of the Court was very simple, it is
not COA-ble because it is a private corporation.
But, with respect to the funds which it administers
or holds in trust for the Government, those funds,
certainly are subject to the audit and examination
authority of the Commission on Audit.
POLITICAL LAW
ARTICLE 11
We start with section 1, Public Office is a Public
Trust.
ARTICLE XI
Accountability of Public Officers
SECTION 1. Public office is a public trust. Public
officers and employees must at all times be
accountable to the people, serve them with
utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and
lead modest lives.
• Be mindful of the statements there regarding
• responsibility
• integrity
• loyalty
• efficiency
• act with patriotism and justice
• and lead modest lives
These are all cliches, these are all motherhood
statements but understand, they are important
statements because precisely they are cliches.
This is the basic reason why the matter of the rule
to the effect that administrative offenses do not
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prescribe exists precisely because of the need of
a continued public accountability.
REMEMBER: Administrative offenses do not
prescribe.
You distinguish the criminal and administrative
aspect of particular acts. Certainly crimes, they
prescribe. For instance, Section 15 of Article 11
which states that the State will never lose its
authority to recover ill-gotten wealth by reason of
prescription, estoppel, or laches.
Section 15. The right of the State to recover
properties unlawfully acquired by public officials
or employees, from them or from their nominees
or transferees, shall not be barred by prescription,
laches, or estoppel.
But remember, the criminal acts or actions
attending these ill-gotten wealth acquisitions,
they prescribe. The criminal cases for ill-gotten
wealth according to the latest Cojuangco vs.
People pronouncement would be Fifteen (15)
years. The matter for instance of non-submission
of Statement of Assets, Liabilities, and Network,
the rates pronouncement here is that the
prescriptive period is 8 years. But that is only with
respect to the criminal offense or criminal aspect.
The administrative aspect, it does not prescribe
and the reason for that is precisely because
public office is a public trust. Well here class,
recall that among the grounds for the dismissal by
the Ombudsman under Section 20 of Republic
Act 6770, of administrative complaints filed with
him, there are five grounds in which he may rely
for purposes of dismissing administrative
disciplinary complaints against public officers:
Section 20. Exceptions. — The Office of the
Ombudsman may not conduct the necessary
investigation of any administrative act or omission
complained of if it believes that:
(1) The complainant has an adequate remedy in
another judicial or quasi-judicial body;
(2) The complaint pertains to a matter outside the
jurisdiction of the Office of the Ombudsman;
(3) The complaint is trivial, frivolous, vexatious or
made in bad faith;
(4) The complainant has no sufficient personal
interest in the subject matter of the grievance; or
(5) The complaint was filed after one (1) year from
the occurrence of the act or omission complained
of.
The fifth ground prescribes, it says that if the act
complained of or subject of the administrative
complaint would have been committed a year
earlier, well there was this thought that it would
have stood as a prescriptive period but the
Supreme Court said that it is not a Prescriptive
Period. It is a mere guideline, directory effect, for
the Ombudsman certainly because
administrative offenses do not prescribe.
Remember that Section 1 is also the reason why
as announced in among other cases, there is no
need to apply strictly the rules of procedure, rules
of evidence in the context of administrative
proceedings against public officers. The quantum
of evidence prescribed is merely “SUBSTANTIAL
EVIDENCE”, the lower or lesser quantum of
evidence is justified on the basis of Section 1 of
Article 11. And finally, remember that this is the
provision that was relied upon by the Supreme
Court in finally abandoning the so-called
“CONDONATION DOCTRINE.”
A little history in here, In 1959 with the case of
Pascual vs. Provincial Board of Nueva Ecija,
Incumbent elective official charged with
administrative offenses pending administrative
offenses, he is re-elected. The re-election under
this doctrine serves to pardon him for those
administrative offenses committed during his
prior term. That is Pascual, consistently upheld in
several other decisions thereafter. A qualification
presented in one case, Lizares vs. Villaluza:
The condonation doctrine does not apply to
criminal acts. There was a time when it was
referred to as the Aguinaldo doctrine, of course
that is wrong, yung Aguinaldo vs. Santos
presents a different set of facts although the
same principle in Pascual would have been
applied. In Aguinaldo, the Governor notoriously
committed rebellious acts during his first elective
term. But no charges administratively were filed
against him and then he was re-elected. It was
only during his re-elected term that administrative
charges against him for his acts during his first
term were instituted. The Supreme Court held
that because those acts were committed before
re-election, the re-election even if the charges
were filed after the election, the re-election
necessarily condone those administrative acts
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during the prior term. That is essentially is the
condonation doctrine.
NOTE: The Supreme Court in hundreds of cases
had applied this precisely because of the fact that
on 1959 on the basis of the 1935 Constitution,
there was no specific Constitutional provision on
pUBLIC ACCOUNTABILITY. This was
mentioned in Carpio-Morales vs. Court of
Appeals, there was this curious statement there
to the effect that under the 1935 Constitution, the
closest that it has reached by way of a reference
to public accountability would be Article 2
pronouncement regarding the requirement to
defend the state under reasonable conditions.
The pronouncement in Article II regarding the
requirement as to defend the State under
reasonable conditions provided for under the law.
(Eto un pinakamalapit na concept of public
accountability)
This explains why in 1959 the Court merely relied
on American jurisprudence for purposes of
emphasizing or pronouncing this particular
principle.
It had to take a BInay to effect the abandonment
of condonation doctrine. Aguinaldo v. Santos and
other reiterations of Pascual v. Provinciial Board,
almost all of this gained unanimous votes.
CARPIO-MORALES v. CA
G.R. 217126-27
Nov. 10, 2015
SC abandoned the condonation doctrine. Today,
under the present Constitution, we have an entire
article devoted to the matter of public
accountability. Precisely, administrative offenses
should not be considered as being subject to
prescription.
Bar exam Q 2019: Question on the prospective
applicability of the Carpio-Morales doctrine
(abandonment of the condonation doctrine)
which became effective Nov. 2015. For all of
these administrative offenses and reelections
done before Nov. 2015, you still apply the
condonation doctrine. But thereafter, the matter
of condonation doctrine should prevail or must be
applied.
In the bar exam question, the administrative act,
administrative offense, reelection occured before
Nov. 2015. Judgment was rendered after Nov.
2015. Is judgment of dismissal applicable against
the particular respondent? Because the acts
complained of occurred before Nov. 2015, even if
judgment of dismissal was rendered after Nov.
2015, apply the condonation doctrine. Precisely
because they pertain to acts done before Nov.
2015.
IMPEACHMENT
Section 2. The President, the Vice-President, the
Members of the Supreme Court, the Members of
the Constitutional Commissions, and the
Ombudsman may be removed from office on
impeachment for, and conviction of, culpable
violation of the Constitution, treason, bribery,
graft and corruption, other high crimes, or
betrayal of public trust. All other public officers
and employees may be removed from office as
provided by law, but not by impeachment.
Section 3. (1) The House of Representatives
shall have the exclusive power to initiate all cases
of impeachment.
(2) A verified complaint for impeachment may be
filed by any Member of the House of
Representatives or by any citizen upon a
resolution or endorsement by any Member
thereof, which shall be included in the Order of
Business within ten session days, and referred to
the proper Committee within three session days
thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its
report to the House within sixty session days from
such referral, together with the corresponding
resolution. The resolution shall be calendared for
consideration by the House within ten session
days from receipt thereof.
(3) A vote of at least one-third of all the Members
of the House shall be necessary either to affirm a
favorable resolution with the Articles of
Impeachment of the Committee, or override its
contrary resolution. The vote of each Member
shall be recorded.
(4) In case the verified complaint or resolution of
impeachment is filed by at least one- third of all
the Members of the House, the same shall
constitute the Articles of Impeachment, and trial
by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be
initiated against the same official more than once
within a period of one year.
(6) The Senate shall have the sole power to try
and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be on
oath or affirmation. When the President of the
Philippines is on trial, the Chief Justice of the
95
Supreme Court shall preside, but shall not vote.
No person shall be convicted without the
concurrence of two- thirds of all the Members of
the Senate.
(7) Judgment in cases of impeachment shall not
extend further than removal from office and
disqualification to hold any office under the
Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject
to prosecution, trial, and punishment, according
to law.
(8) The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose
of this section.
Do not equate impeachment with removal.
Because to impeach simply means to be
accused, done upon the filing of the Articles of
Impeachment and concomitantly, this is to be
taken cognizance by the Senate for purposes of
the impeachment trial.
Section 2. Applicability of the principle of
expression unius est exclusios alterios which
pertains to the two lists provided in this Article.
First, the list of impeachable officers.This list is
exclusive.
In Gonzales v. OP, the Court detected that the
grounds to discipline Deputy Ombdusmen are the
same grounds specified in Art. II, Section 11 of
the Constitution for impeachment. This fact does
not make this Deputy Ombudsmen impeachable
officers.
Sec. 4 of PD 1606, as amended, which would
make SB Justices as removable only by
impeachment — one of doubtful constitutionality.
First, the list is exclusive in Sec. 2. Second, SB
Justices are lower court judges and therefore
subject to the exclusive disciplinary authority of
the SC, pursuant to Sec. 11 of Art. VIII. And all
other offices not listed in Sec. 2 shall be
removable through other processes, specified by
law and not by impeachment.
The grounds for impeachment are also exclusive.
Culpable violation of the Constitution - operative
word is culpable. It must be criminal, felonious.
Treason, graft and corruption and bribery -
Congress was given the discretion, being a
political question, to assign definitions for this
concepts. Sir’s opinion: Either chamber cannot
depart too far away from the definition prescribed
in present statutes for these offenses.
High crimes
The closest we have reached by approximating
this concept would be in the case of the
attempted impeachment of President Quirino. In
the discussions there, it would be such crimes as
would strike at the very orderly workings of
government, whatever that may mean. But my
th
point is, regardless, we have this 6 ground:
betrayal of public trust, which for me is a catch-all
provision. It can include any and all acts of any of
the impeachable officers. Here’s the point:
remember, this is an extraordinary measure
described as the most formidable weapon in the
arsenal of democracy against the highest
officials.
Remember the basic notion here: it is with
respect to acts committed by them DURING their
incumbency as impeachable officers. Because
this is a public accountability provision, they
cannot be invoked against acts committed prior
to their ascendance or rise to these impeachable
offices. Remember Binay? Tinitira siya sa mga
parking lot anomalies. Those were done by him
when he was mayor. My submission is that that
cannot be invoked against him during his vice
presidency. Only with respect to his acts as vice
president can he become held accountable on
the basis of sections 2 and 3 of Art. 11.
Betrayal of Public Trust
Gonzales v. Office of the President
Defined in jurisprudence. Look at Gonzales v.
Office of the President. You recall this colonel
who ended up killing several HK tourists whom he
held hostage in Luneta. Remember the reason for
his anger: he was dismissed administratively in
the Ombudsman. He filed a Motion for
Reconsideration. His contention was that the MR
natulog sa Ombudsman. Several months, wala
nangyari so he held hostage these HK tourists
and killed them.
Recall that Noynoy was there. Our SWAT forces
were very inept. Int his context, from this
perspective, that the doctrine of state
responsibility entails essentially two acts to be
done by the host state for purposes of the safety
of the foreign guests:
1. there must be proper announcement by
the host state as to potential danger or
commission of crimes on the persons of
these foreign guests (this is why there
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 are travel advisories; that is part of the
doctrine).
2. Once a crime has been committed, the
host state must exert ALL efforts by way
of investigating, prosecuting, and
providing for the conviction of the
criminals. Dito nagpakita gilas si Noynoy
kasi palpak siya sa first aspect. He never
apologized for the ineptitude displayed
by our forces here. So what did he do?
He went after the reason for the officer’s
disappointment. Obviously, he can’t
pursue the officer because he’s dead. He
went after the Office of the Ombudsman,
the reason daw for the frustration of that
officer. It’s clear that he couldn’t go after
Gutierrez because she was the
Ombudsman and therefore, removable
only through impeachment. So he went
after the Deputy ombudsmen. “Ako nag-
appoint ng mga lintik na ito ah.” This is
based on the law and that law is based
on the Constitution. Remember, deputy
ombudsmen are appointed by the
President like the Ombudsman, subject
to filtering or prior screening by the JBC.
Sinabi ni Noynoy na ako yung nag-appoint ng
mga taong ito. Ni-review niya yung R.A. 6770. I
have the authority to discipline the deputy
ombudsmen. What are the grounds for
disciplining them? The same grounds indicated in
section 2 against impeachable officers. Culpable
violation, treason, bribery, graft and corruption,
other high crimes, and betrayal of the public trust.
Tinira ni Noynoy ng betrayal of the public trust,
the depuity ombudsman who is the petitioner in
this case (Gonzales). So there were 2 basic
questions here: (1) does the president have
disciplinary authority over the deputy
ombudsmen and the special prosecutors, and (2)
could the president validly dismiss the deputy
ombudsman concerned here for betrayal of the
public trust.
For the first aspect, the authority for the president
to discipline was found in RA. 6770. On the basis
of the grounds indicated there. An administrative
complaint was filed with the Malacañang against
Gonzales. Nung nalaman ni Mercidita Gutierrez,
she insitutted the same disciplinary proceedings
against the same deputy ombudsman. Nauna si
Noynoy, sumunod si Gutierrez. Baliwala yung
ginawa ni Gutierrez. Why? PRIMARY
JURISDICTION had been exercised by the
President to the exclusion of the concurrent
jurisdiction authority of the Ombudsman.
In the original decision, the court with an 8-7 vote,
upheld the authortity of the President to disciplne
deputy ombudsman. But on MR, bumaliktad.
President does not have disciplinary authority
over deputy ombudsman.
This was tacked by the SC in Gonzales. What
Gutierrez did was useless. Why? Primary
Jurisdiction had been exercised by the President
to the exclusion of the concurrent disciplinary
authority of the Ombudsman.
Originally, in the original decision (with an 8-7
vote), the Court upheld the authority of the
President to discipline deputy ombudsman. BUT
on motion for reconsideration, the President
DOES NOT have disciplinary authority over
deputy ombudsman.
Reason? Because the deputy ombudsman has
the same degree of level of independence as the
Ombudsman.
Sec 21 of RA 6770, it provides that the
Ombudsman shall have disciplinary authority
over all public officers, including cabinet
secretaries.
• What will happen then if the President will
have disciplinary authority over the
deputy ombudsman (who makes
recommendation to the Ombudsman)?
Final Ruling on MR: Provision in RA 6770
conferring disciplinary authority on the
President over deputy ombudsmen –
UNCONSTITUTIONAL.
In the original and MR decision, SC affirmed that
the provision authorizing the President to
exercise disciplinary authority over special
prosecutors upheld.
nd
2 aspect of Gonzales v. OP
Malacanang removed/disciplined Gonzales for
betrayal of public trust.
Betrayal of Public Trust - referring to those acts
short of being criminal would constitute gross
abuse of discretionary authority, tyrannical abuse
of authority, gross negligence, favoritism and the
like.
This is the definition offered in the 1986
Constitutional Commission adopted by the SC.
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(Sir thinks this is now the definition fixed for
betrayal of public trust)
In the original decision, the action of Malacanang
was by way of removing him for betrayal of public
trust.
(as affirmed in the MR) The SC reversed/nullified
this position of penalty of dismissal. It did not
constitute betrayal of public trust.
Short facts: Yes, the MR filed by the Colonel
landed on the table of the deputy ombudsman
(Gonzales). But the records would show that
within 9 days from receipt of the same, he made
his recommendation and forwarded it to the
Ombudsman. Doon natulog yung kaso.
9 days, he worked on it – hardly, said the SC, can
that be considered as betrayal of public trust.
Thus, even if in the original decision the authority
of the president was upheld, the Court still
nullified/reversed the pronouncement of
Malacanang because that not in conformity with
the definition of betrayal of public trust.
Section 3, Article XI
SECTION 3. (1) The House of Representatives
shall have the exclusive power to initiate all cases
of impeachment.
(2) A verified complaint for impeachment may be
filed by any Member of the House of
Representatives or by any citizen upon a
resolution of endorsement by any Member
thereof, which shall be included in the Order of
Business within ten session days, and referred to
the proper Committee within three session days
thereafter. The Committee, after hearing, and by
a majority vote of all its Members, shall submit its
report to the House within sixty session days from
such referral, together with the corresponding
resolution. The resolution shall be calendared for
consideration by the House within ten session
days from receipt thereof.
(3) A vote of at least one-third of all the Members
of the House shall be necessary either to affirm a
favorable resolution with the Articles of
Impeachment of the Committee, or override its
contrary resolution. The vote of each Member
shall be recorded.
(4) In case the verified complaint or resolution of
impeachment is filed by at least one-third of all
the Members of the House, the same shall
constitute the Articles of Impeachment, and trial
by the Senate shall forthwith proceed.
(5) No impeachment proceedings shall be
initiated against the same official more than once
within a period of one year.
(6) The Senate shall have the sole power to try
and decide all cases of impeachment. When
sitting for that purpose, the Senators shall be on
oath or affirmation. When the President of the
Philippines is on trial, the Chief Justice of the
Supreme Court shall preside, but shall not vote.
No person shall be convicted without the
concurrence of two-thirds of all the Members of
the Senate.
(7) Judgment in cases of impeachment shall not
extend further than removal from office and
disqualification to hold any office under the
Republic of the Philippines, but the party
convicted shall nevertheless be liable and subject
to prosecution, trial, and punishment according to
law.
(8) The Congress shall promulgate its rules on
impeachment to effectively carry out the purpose
of this section.
Remember, every impeachment proceeding
must be initiated in the House of Representatives.
This is done by the filing of a verified complaint.
• If it were an outsider, for it to be tackled
by the House of Representatives, it must
require the endorsement of at least one
member.
• If the impeachment complaint were filed
by a member of HR, there is no need for
endorsement of another member of the
House.
If originally the impeachment complaint would
already have, at the onset, the support of 1/3 of
all the members of the House of Representatives
– that impeachment complaint need not undergo
the process prescribed in Sec. 3. It can be
considered as the Articles of Impeachment to be
filed with the Senate for purposes of
impeachment trial.
Let’s say, here’s a verified complaint filed by an
outsider, properly endorsed by a member of the
HR –
• Within 10 session days: it must be
included in the calendar of business; and
• Within 3 session days: it must be referred
to the proper committee. Per the rules of
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 the House, this would be the committee
on Justice.
Upon the filing of the verified impeachment
complaint and endorsement to the proper
committee – then the impeachment proceeding
should be considered as initiated.
This is one of the two important pronouncement
of the Court in Francisco v. House of
Representatives.
Remember, this rule is important – determining
when impeachment proceedings are considered
initiated – because of the limitation in terms of the
prescriptive period prescribed in the provisions of
Section 3 (5), Article XI.
Article XI
Section 3. (5) No impeachment proceedings
shall be initiated against the same official more
than once within a period of one year
Sir’s comment: Mali yan eh. Upon filing and
endorsement to the committee – initiated na after
that within 1 year wala ng pwedeng impeachment
complaint na pwedeng i-file. Paano if
kinokonchaba lang yan ng mga tao? Kunwari si
Jepoy is an impeachable officer, one of you is the
Speaker, one of you is a congressman. Jepoy
connives with you and tells you “filean mo ko ng
walang kwentang impeachment complaint”. The
one member endorses the complaint, the
Speaker includes it in the calendar and refers to
the Committee. Pagka-refer sa committee, 1 year
wala ng ibang impeachment complaint will be
filed against him. Next year, he does the same
thing. He can do that for the 7 years para exempt
sya from the impeachment proceedings.
In sir’s opinion, impeachment proceedings shall
be considered as initiated upon filing of the
Articles of Impeachment.
Let’s say that this is the impeachment proceeding
(holding the bottle), may one impeachment
proceeding comprise of more than 1
impeachment complaint? YES.
SC said: “Let us liken the impeachment
proceeding to a single candle with a single wick,
and let us liken the impeachment complaint to a
matchstick. More than 1 matchstick can kindle a
single candle.”
Atty. Cruz (Quoting the SC): Let us liken the
impeachment proceeding to a single candle with
a single wick; and let us liken an impeachment
complaint to a matchstick. More than one (1)
matchsticks can kindle a single candle.
Example: Impeachment complaint # 1 was filed
on October 1. Impeachment complaint #2 was
filed on October 3. Impeachment complaint #3
was filed on October 5. So long as all the three
impeachment complaints are simultaneously
calendared, and thereafter referred
simultaneously to the proper committee, those
three complaints can comprise one impeachment
proceeding. (Gutierrez v. House of
Representatives)
Once the referral to the proper committee had
been done, the matter of the conduct of
impeachment proceeding in that context, is a
political question subject to the rules of
procedures of the House of Representatives. In
the same vein, the impeachment trial, if it reaches
the Senate, shall be subject to the rules of
procedures of the Senate. These are political
questions.
NB: The impeachment rules of procedures are
not required to be published. They are only
required to be made known and promulgated.
Gutierrez v. House of Representatives
G.R. No. 193459 (2011)
FACTS: Gutierrez’s counsel, at a certain point in
the House of Representatives Committee on
Justice proceedings, moved for the inhibition of
certain members of the Committee and invoked
for this purpose the Rules of Court provisions on
inhibition.
ISSUE: Can the Rules of Court be applied in
impeachment proceedings? NO
RATIO: One cannot invoke the Rules of Court in
connection with impeachment proceedings
because impeachment is not a judicial
proceeding. It is a political exercise.
The Committee on Justice shall have 60 session
days within which to make the proper
recommendation regarding the impeachment
complaints. In either case, whatever its
recommendation is, the Committee is required
under Section 3 to refer its recommendation to
the plenary.
One-third (1/3) vote of all of the Members of the
House of Representatives would suffice for
purposes of favoring or approving a
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recommendation; or one-third (1/3) to override a
contrary resolution.
If the Committee recommends the filing of articles
of impeachment, and it is supported by one-third,
at least, of the membership of the House of
Representatives, that recommendation will be
converted into articles of impeachment to be filed
with the Senate.
When the Senate convenes for the purposes of
impeachment trial, its members, all the 24
Senators, are required to take a special oath to
act as impeachment judges.
There is nothing in the Constitution which
requires the Senators, acting as judges in the
impeachment, o wear judicial robes.
NB: If it is the President who would be a
respondent in the impeachment trial, the Chief
Justice is required to preside, provided that he
does not vote.
The impeachment trial would have to go on the
basis of the rules of procedure of the Senate.
Question: Can the Supreme Court exercise its
power of judicial review over the impeachment
court’s determination?
Answer: Yes, the Supreme has the power of
judicial review even over impeachment
proceedings. The basis is the expanded
jurisdiction of the Supreme Court, under Section
1, paragraph 2, of Article VIII on grave abuse of
discretion. (Francisco v. House of
Representatives)
NB: The resignation of the impeached official
does not necessarily render the impeachment
trial moot and academic. There are two penalties
that may be imposed after or upon conviction on
impeachment. The first is removal, and the
second is disqualification from holding public
office. Impeachment trial, on the basis of strict
legal theory, can proceed notwithstanding the
resignation for purposes of imposing the penalty
of disqualification upon conviction.
NB: May a preventive suspension be decreed in
the context of an impeachment trial? No, this
would constitute an unnecessary molestation.
For a conviction on impeachment, the required
vote is two-thirds (2/3) of all the Members of the
Senate.
SANDIGANBAYAN
This is a special court but this is NOT a
Constitutional Court. It is peculiar because its
establishment is mandated by the 1973
Constitution but it was created by law. PD1606,
several amendments thereafter.
Because it was created by law, can it be
abolished by law? The answer I think is no
because the Constitution. Peculiar as I said.
Focus on the three areas of the jurisdiction of the
Sandiganbayan.
Three Areas of Jurisdiction of the
Sandiganbayan
First, which contains a very long enumeration of
officers covered would be with respect to
violations of the Anti-Graft and Corrupt
Practices Act.
The rule of thumb here is that this particular
jurisdiction may be exercised over all public
officers in connection with the Anti-Graft and
Corrupt Practices Act violations committed by
salary grade 27 officers. But it is not necessarily
limited to SG27. Even if it is not part of the
enumeration, as long as it is SG27, it is the
Sandiganbayan.
Ex. Municipal Mayors are not included in the
enumeration, only City Mayors but they are SG27
so they are under the jurisdiction. You may not be
SG27 but you are an officer, trustee, director,
manager of a GOCC, you are covered by the
jurisdiction. In this connection, Student Regent in
the University Board of Regents is not SG27 but
it is part of the jurisdiction of the Sandiganbayan.
Recall this lawyer-policeman, he is not SG27 but
he was appointed manager of a certain GOCC
well because he was a manager he was covered
under the jurisdiction. In contrast, remember the
case of Carandang v. Desierto. RPN 9 was
sequestered. Government owned shares of stock
up to about 37%. Erap nominates this fellow as
CEO which was accepted by the Board of
Directors. Sandiganbayan had no jurisdiction.
Why? Only 37% of the shares of RPN 9 was
sequestered by government that did not convert
it into a GOCC. It needs 51%. This case involved
a by-stander. BIR was looking for properties
owned by a delinquent taxpayer. They saw scrap
metal. When they found out that the person
owned the metal, right there and then there was
a written deputization authorizing him (the by-
stander) as an agent of the BIR to guard the scrap
metal. The metal got lost. He was hailed before
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the Sandiganbayan for infidelity. SC said that
written deputization did not covert him into a
public officer therefore he cannot be subjected to
the jurisdiction.
Second area of jurisdiction would be crimes,
simple, complex, or special, committed by
public officers in relation to their offices.
Third jurisdiction, Executive Orders 121414-A
(?). This jurisdiction is civil in character and is
limited to the matter of ill-gotten wealth.
Remember that the concept of ill-gotten wealth is
defined by statute. It is wealth illegally
accumulated by the Marcoses (family, relatives,
friends, cronies, business associates,
employees). These particular executive orders
would give rise to the process of sequestration
which is merely preliminary and which may result
on the forfeiture of these assets in favor of the
government. During the pendency of these
proceedings these are the cases that usually
arise in this context. What is the extent of the
jurisdiction of the Sandiganbayan, civil in
character, over the shares of stock sequestered
by government in these corporations? On the
matters of intra-corporate conflicts, recall that
under present law, intra-corporate jurisdiction
pertains to the regular courts.
This is the rule of thumb, if the intra-corporate
controversy would affect the integrity or the
continued possession and enjoyment by the
government of the sequestered shares, it is
with the Sandiganbayan. If it would not affect
the integrity, then go to the regular courts.
Example, the right to inspect corporate
documents. There is nothing that would affect the
validity or continuing validity of the sequestration.
But if the controversy would pertain to the
increase in the authorized capital stock which
may result in the dilution of the equity ownership
that will certainly affect the integrity.
Take note
- All other cases against public officers
NOT included in the three areas of
jurisdiction are cognizable by the regular
lower courts.
- All cases undertaken against public
officers by the lower courts are
appealable only to the Sandiganbayan. If
they made a mistake of appealing from
the RTC to the CA, that is a fatal error
and kills the appeal.
- Sandiganbayan may exercise certiorari
jurisdiction over the lower courts in aid of
its appellate jurisdiction.
- Finally, rulings of the Sandiganbayan are
appealable only to the Supreme Court on
a Rule 45 petition and only on questions
of law.
OFFICE OF THE OMBUDSMAN
He/She exercises dual jurisdiction:
1. Administrative (Sec. 21, R.A. 6770) –
over all public officers, including Cabinet
secretaries, except members of the
Congress, the Judiciary and
impeachable officers.
2. Criminal over all public officers, not only
those cognizable by the Sandiganbayan,
even those cognizable by the other
courts.
Distinction Between the Two Reliefs
The Ombudsman, when he conducts preliminary
investigations, is like the DOJ acting as
preliminary investigator: it is only on the basis of
grave abuse of discretion that his probable cause
determinations may be challenged. But the
Ombudsman differs from the other so-called
preliminary investigators in that the former is
independent.
The right to a preliminary investigation is not a
constitutional right; it is statutorily conferred and
so may be denied by Congress. But once given
under the law, a violation of the statutory right
becomes a violation of a constitutional right: the
right to criminal due process, under Art. III, Sec.
IV, par. 1.
Art. III
Section 14. (1) No person shall be held to answer
for a criminal offense without due process of law.
xxx
Therefore, the ordinary preliminary investigator is
duty-bound to conduct a preliminary investigation
if the matter is conferred or directed to be done
by law.
The Ombudsman, meanwhile, at the outset, can
dismiss a criminal complaint if it finds that it is
without merit at all. He is not like the ordinary
investigator because his (i.e. the Ombudsman’s)
independence is guaranteed under the
Constitution.
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With respect to the exercise by the Ombudsman
of his administrative disciplinary authority, on the
basis of R.A. 6670, as implemented by
Administrative Order No. 07, which had been
issued by the Ombudsman within his competence
as an independent constitutional officer, the rules
are:
a. If the disciplinary action results in the
exoneration of the respondent, that is
final and unappealable.
b. If the disciplinary action results in a
penalty of not more than 30 days fine or
suspension, that is also final, executory
and unappealable. The only way you can
assail that would be by way of petition for
certiorari under Rule 65 (original action,
grave abuse of discretion).
c. If the penalty were higher, particularly if it
were dismissal, it shall be immediately
executory, without prejudice to appeal.
The mode of appeal would be by way of
Rule 43 from the Ombudsman to the
Court of Appeals (CA).
o The CA may exercise appellate
authority over the administrative
determinations by the Ombudsman
of his exercise of quasi-judicial
authority, but the CA does not have
the power to enjoin the immediate
execution of dismissal. It has no writ
of injunction authority, without
prejudice to its continuation of
exercise of its appellate jurisdiction.
It is indicated in Art. XI that the Ombudsman can
only recommend the imposition of disciplinary
actions against every errant public officer. This
recommendation is obligatory upon all heads of
authority to obey, as though it had direct authority
to discipline, by virtue of these recommendations.
It does recommend, but the recommendation is
obligatory upon all to whom those
recommendations are made. Usually, the
Ombudsman would furnish the agency a copy of
its conviction or adjudication, requiring the head
of agency to report within 5 days as to execution
of that particular order of dismissal.
To repeat: the Ombudsman exercises concurrent
criminal jurisdiction with the DOJ with respect to
offenses not cognizable by the Sandiganbayan.
Office of the Ombudsman v. Mislang
G.R. No. 207926
Oct. 25, 2018
The Ombudsman has concurrent jurisdiction
even over soldiers with respect to offenses
committed by them in relation to their offices. This
is with respect to the Ombudsman’s preliminary
investigation authority.
Article XI
Section 15. The right of the State to recover
properties unlawfully acquired by public officials
or employees, from them or from their nominees
or transferees, shall not be barred by prescription,
laches, or estoppel.
This concerns the State’s continuing competence
to recover ill-gotten wealth, which cannot be
considered barred by reason of estoppel, laches
or prescription.
Article XI
Section 16. No loan, guaranty, or other form of
financial accommodation for any business
purpose may be granted, directly or indirectly, by
any government-owned or controlled bank or
financial institution to the President, the Vice-
President, the Members of the Cabinet, the
Congress, the Supreme Court, and the
Constitutional Commissions, the Ombudsman, or
to any firm or entity in which they have controlling
interest, during their tenure.
These are what are referred to as behest loans.
These loans would only cover business loans.
Public officers, including the officers indicated
there (e.g. Ombudsman), are not precluded from
obtaining personal loans, housing loans, etc.;
only the business loans may not be granted.
• The Heritage Hotel (formerly Trade
Winds Hotel) was built on the basis of
behest loans obtained by a prominent
figure during the Marcos dictatorship. He
obtained the loan, built the hotel and
never repaid; he just let the GSIS
foreclose it after earning a lot of money.
Section 18. Public officers and employees owe
the State and this Constitution allegiance at all
times, and any public officer or employee who
seeks to change his citizenship or acquire the
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status of an immigrant of another country during
his tenure shall be dealt with by law.
Continuing allegiance to the Republic is an
essential requirement for public office. This
continuing allegiance implies sole allegiance to
the Republic of the Philippines. [We talked about
this when we discussed about dual citizenship.]
BILL OF RIGHTS
THREE FUNDAMENTAL POWERS OF THE
STATE:
1. Police Power;
2. Power of Eminent Domain; and
3. Power of Taxation.
POLICE POWER
Requisites:
1. The interest of the public in general, as
distinguished from those of a particular
class, requires its.
2. The means employed are reasonably
necessary for the accomplishment of the
purpose and not unduly oppressive upon
individuals.
[Book: There must be a concurrence of a lawful
subject and lawful method.]
Mosqueda v. Pilipino Banana Growers &
Exporters Association, Inc.
G.R. No. 189185
August 16, 2016
The ordinance required all big plantation owners
to convert from aerial spraying of fertilizers to
truck-mounted boom spraying.
This was annulled based on two grounds or
considerations. It was considered unduly
oppressive, (1) in terms of the costs to be
incurred, and (2) in terms of the very short period
for conversion given, that is, three months.
Because of these, the ordinance was considered
to be unduly oppressive and was struck down as
unconstitutional.
Excerpt:
The impossibility of carrying out a shift to another
mode of pesticide application within three months
can readily be appreciated given the vast area of
the affected plantations and the corresponding
resources required therefor. To recall, even the
RTC recognized the impracticality of attaining a
full-shift to other modes of spraying within three
months in view of the costly financial and civil
works required for the conversion… Requiring the
respondents and other affected individuals to
comply with the consequences of the ban within
the three-month period under pain of penalty like
fine, imprisonment and even cancellation of
business permits would definitely be oppressive
as to constitute abuse of police power.
All laws can be oppressive, because all laws
essentially oppress. However, what is prohibited
is that they be unduly oppressive.
Any police power is undertaken essentially
through a law.
• Under Article III, Section I, on the matter of
due process, [recall that there are two kinds
of due process: procedural and substantive
due process] we confine ourselves to
substantive due process.
• For a measure to be valid it must meet the
factors which would make a law compliant
with the concept of substantive due process.
• Note that the factors are the same with the
requisites for a valid exercise of police
power. Thus, every valid exercise of police
power would have to be in the nature of a
valid law; and for the law to be valid, in the
context of substantive due process, it must
be compliant with the same two requisites:
o the interest of the public in general, as
opposed of a particular class, must be
addressed, and
o the means employed must not only be
reasonably necessary, but must also be
considered as not unduly oppressive.
The police power is the most demanding, the
least limitable, and the most pervasive (of the
three powers).
Ferrer v. Bautista
G.R. No. 210551
June 30, 2015
The matter of the authority of the Quezon City
government to assess additional taxes, i.e. social
housing taxes imposed by an ordinance, was
seen by the Supreme Court as a taxation
measure. But it is more than that. It is actually a
police power measure invoking taxation as an
instrument for the attainment of the greater police
power objective, i.e. to provide homes for the
homeless.
103

The police power being the most pervasive and
demanding is affirmed, taxation being only an
instrument for the attainment of the police power
objective.
Three motels cases:
1. Ermita-Malate Hotel and Motel Operators
Association, Inc. v. City Mayor of Manila,
G.R. No. L-24693. July 31, 1967;
2. City of Manila v. Laguio, G.R. No. 118127,
April 12, 2005; and
3. White Light Corporation v. City of Manila,
G.R. No. 122846, January 20, 2009.
White Light Corp. v. City of Manila
G.R. No. 122846
January 20, 2009
Facts: Mayor Lim of Manila passed an ordiance
which prohibited hotels, motels, and other lodging
establishments from offering short time
admission (stay ofr less than 12 hours) and wash
up rates (stay only for 3 hours), providing for a
fine and imprisonment for violation of said
ordance.
Affected businesses filed a complaint to have the
ordinance annulled, on the ground that it was
unconstitutional.
Held: Although the goal of regulating public
morals falls under the purview of Police Power, it
does not automatically justify any and all means
of achieving this goal.
This means must still align with the Constitution,
the Bill of Rights, and specifically due process.
If the restriction involves one restricting liberty,
the Government must satisfy the Strict Scrutiny
Test.
The burden is on the government to show:
1. That there is a compelling state interest
for the restriction;
2. That the means is necessary to address
that compelling state interest; and
3. That there is no other alternative for the
accomplishment of the purpose that is
less intrusive.
Ermita-Malate v. City of Manila
G.R. No. L-24693
July 31, 1967
Facts: Ordinance No. 4760 proposes to check
the clandestine harboring of transients and
guests of these establishments by requiring these
transients and guests to fill up a registration form,
prepared for the purpose, in a lobby open to
public view at all times, and by introducing
several other amendatory provisions calculated
to shatter the privacy that characterizes the
registration of transients and guests."
Moreover, the increase in the licensed fees was
intended to discourage "establishments of the
kind from operating for purpose other than legal"
and at the same time, to increase "the income of
the city government."
The lower court ruled in favor of the petitioners.
Hence, the appeal.
Issue: Whether or not Ordinance No. 4760 is
unconstitutional? NO.
Held: This particular manifestation of a police
power measure being specifically aimed to
safeguard public morals is immune from such
imputation of nullity resting purely on conjecture
and unsupported by anything of substance.
To hold otherwise would be to unduly restrict and
narrow the scope of police power which has been
properly characterized as the most essential,
insistent and the least limitable of powers,
extending as it does "to all the great public
needs."
Negatively put, police power is that inherent and
plenary power in the State which enables it to
prohibit all that is hurt full to the comfort, safety,
and welfare of society.
On the legislative organs of the government,
whether national or local, primarily rest the
exercise of the police power, which, it cannot be
too often emphasized, is the power to prescribe
regulations to promote the health, morals, peace,
good order, safety and general welfare of the
people.
In view of the requirements of due process, equal
protection and other applicable constitutional
guaranties however, the exercise of such police
power insofar as it may affect the life, liberty or
property of any person is subject to judicial
inquiry.
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Where such exercise of police power may be
considered as either capricious, whimsical, unjust
or unreasonable, a denial of due process or a
violation of any other applicable constitutional
guaranty may call for correction by the courts.
The Court reversed the judgment of the lower
court and lifted the injunction on the Ordinance in
question.
Laguio v. City of Manila
G.R. No. 118127
April 12, 2005
Facts: Private respondent Malate Tourist
Development Corporation (MTDC) is a
corporation engaged in the business of operating
hotels, motels, hostels and lodging houses. It built
and opened Victoria Court in Malate which was
licensed as a motel although duly accredited with
the Department of Tourism as a hotel. MTDC filed
a Petition with the lower court, praying the
Ordinance, insofar as it included motels and inns
as among its prohibited establishments, be
declared invalid and unconstitutional for several
reasons but mainly because it is not a valid
exercise of police power and it constitute a denial
of equal protection under the law.
In the decision rendered by Judge Laguio
declared the Ordinance No. 778[3], Series of
1993, of the City of Manila null and void. The case
was elevated to the Supreme Court.
Issue: Whether or not the City of Manila validly
exercised police power.
Held: The Ordinance infringes the due process
clause since the requisites for a valid exercise of
police power are not met.
The prohibition of the enumerated
establishments will not per se protect and
promote the social and welfare of the community;
it will not in itself eradicate the alluded social ills
of prostitution, adultery, fornication nor will it
arrest the spread of sexual diseases in Manila.
It is baseless and insupportable to bring within
that classification sauna parlors, massage
parlors, karaoke bars, night clubs, day clubs,
super clubs, discotheques, cabarets, dance halls,
motels and inns.
These are lawful pursuits which are not per se
offensive to the moral welfare of the community.
It is readily apparent that the means employed by
the Ordinance for the achievement of its
purposes, the governmental interference itself,
infringes on the constitutional guarantees of a
person’s fundamental right to liberty and property.
Doon lang sa Ermita-Malate sustained yung
ordinance providing for restrictions, but for the
other two hindi noh? Remember the Supreme
Court said in the Laguio Case. Look at the cases.
Almost every invocation by the State of the Police
Power had been upheld. Bihira lang hindi
mauphold yan.
Well, subjects remember Stone v. Mississippi
Stone v. Mississippi
101 U.S. 814
1879
The matter of billboards pay a little attention to the
concept of the regulatory authority of the State.
Police Power over billboards.
Facts: In 1867, the provisional state legislature of
Mississippi chartered the Mississippi Agricultural,
Educational, and Manufacturing Aid Society. The
Society was chartered to run a lottery for the next
25 years; however, in 1868, a new constitution
ratified by the people outlawed lotteries in the
state. John Stone and others associated with the
Society were arrested in 1874 for running a
lottery. The Society claimed they were protected
by the provisions of their charter while the state
declared that the subsequent enforcement
legislation had repealed the grant.
Held: This power of the state is generally
denominated the police power. It has been held
that the state cannot be deprived of its right to
exercise this power.
The police power and the right to exercise its
constitute the very foundation, or at least one of
the corner stones, of the state.
For the state to deprive itself or permit itself to be
deprived of the right to enact laws to promote the
general prosperity and welfare of its inhabitants,
and promote public health, public morals, and
public safety, would be to destroy the very
purpose and objects of the state.
No legislature can bargain away the public health,
public safety, or the public morals. The people
themselves cannot do it, much less their
servants. Governments are organized with a view
to the preservation of these things. They cannot
deprive themselves of the power to provide for
them.
105
 Churchill and Tait v. Rafferty
G.R. No. L-10572
December 21, 1915
The old case Churchill and Tait v. Rafferty,
merong Police Power over billboards.
Facts: The case arises from the fact that
defendant, Collector of Internal Revenue, would
like to destroy or remove any sign, signboard, or
billboard, the property of the plaintiffs, for the sole
reason that such sign, signboard, or billboard is,
or may be offensive to the sight. The plaintiffs
allege otherwise.
Issue: Was there valid exercise of police power in
this case? YES.
Held: Yes. There can be no doubt that the
exercise of the police power of the Philippine
Government belongs to the Legislature and that
this power is limited only by the Acts of Congress
and those fundamentals principles which lie at the
foundation of all republican forms of government.
An Act of the Legislature which is obviously and
undoubtedly foreign to any of the purposes of the
police power and interferes with the ordinary
enjoyment of property would, without doubt, be
held to be invalid.
But where the Act is reasonably within a proper
consideration of and care for the public health,
safety, or comfort, it should not be disturbed by
the courts.
The police power of the State, so far, has not
received a full and complete definition. It may be
said, however, to be the right of the State, or state
functionary, to prescribe regulations for the good
order, peace, health, protection, comfort,
convenience and morals of the community, which
do not violate any of the provisions of the organic
law.
Evasco v. Montannez
G.R. No. 199172,
February 21, 2018
Facts: A 2018 case involving an ordinance in
Davao regulating the locations and sizes of
billboards.
Held: Sustained by the Supreme Court on the
basis of the General Welfare Clause. But then, be
mindful of that nuance offered in the case of
Department of Public Works and Highways v. City
Advertising Ventures Corporation.
DPWH v. City Advertising Ventures Corp.
G.R. No. 182944
November 9, 2016
Facts: Here was an effort on the part of the
DPWH to take down this advertising tarpaulins
posted on Meralco posts and columns
underneath the MRT. They were seen by the
DPWH as obstructions to certain infrastructure
projects of the DPWH. Invoking certain obscure
provisions in certain infrastructure laws, the
DPWH asserted its authority to take them down.
Held: The Supreme Court said that those
campaign or advertising materials are subjects of
contracts and therefore vested rights would have
accrued on the basis of those contracts. These
vested rights cannot be arbitrarily set aside
without offense to the Due Process Clause.
Remember, while the DPWH has the regulatory
authority on the basis of Police Power. You be
mindful of the tempering of this particular concept
upon determination as to the existence of
contracts authorizing those particular billboards.
In recent jurisprudence, there are two important
points I want you to remember. The simple case
of Cruz and Dela Cruz v. Pandacan Hikers Club
Cruz and Dela Cruz v. Pandacan Hikers Club
G.R. No. 188213
January 11, 2016
Facts: You recall this Barangay Chairman who
instructed the Barangay Tanod to destroy the
basketball ring to drive away mga dayo
(transients) who are playing basketball.
They were administratively charged before the
Ombudsman. Their basic defense was that they
were merely in the exercise of the Police Power.
Held: The Supreme Court said that they were
wrong because the Police Power is essentially
legislative. Yes, may be the subject of a valid
delegation. But, on their own, the executive
cannot claim this particular authority.
In this connection, be reminded as to the
statement curiously made by the Supreme Court
in Lagman v. Medialdea. When the President
declares Martial Law, in effect, he exercises the
Police Power as well.
But note the nuance offered in that 2003 case of
David v. Arroyo where the Supreme Court made
the categorical clarification that, even in a state of
Martial Law, the President cannot issue
Presidential Decrees in the same way that Mr.
106
Marcos legislated during this time (during his
Martial Law/Dictatorship) as supported by his
declaration of Martial Law. The only other case
that I want you to be mindful of would be the case
of Aquino v. Municipality of Malay Aklan.
Aquino v. Municipality of Malay Aklan
G.R. No. 211356
September 29, 2014
Just a little on Procedural Due Process because
I will be tackling the concept of nuisances. You
remember the concept of nuisances defined in
the Civil Code as essentially covering anything
which annoys or offends the senses and sense of
morals. If you have difficulty understanding, just
think of this President. He offends and he annoys
and therefore he is a nuisance per se, which
should be subject to summary abatement without
judicial proceedings. I'm just exaggerating to
emphasize the point.
Facts: There was this hotel or resort in Boracay,
which was built on a no-build zone. You will recall
that local governments have the Police Power
competence to provide for zoning ordinances in
their respective jurisdictions. The area where this
hotel was built was a no-build zone declared as
such in an ordinance. The Mayor wanted to
summarily destroy that particular hotel because
of its violation of the proscription in that
ordinance. It was taken before the Supreme
Court.
Is this hotel in a no-build zone a nuisance per se
or a nuisance per accidens? You recall that, if it
were a nuisance per se, it can be subject to
summary abatement. If it were a nuisance per
accidens, it can be subjected to abatement only
after prior judicial proceeding.
Held: The Supreme Court had a long discussion
on this issue but its conclusion was that it was a
nuisance per accidens. Just the same, the
Supreme Court authorized or acknowledged the
authority of the Mayor to summarily destroy the
hotel complex precisely because he would be in
the exercise of his Police Power as delegated in
his favor on the basis of the Local Government
Code pursuant to the Police Power competence
of the local government concerned to provide for
zoning in its respective territory.
You see, The Supreme Court ruled that the
property was a nuisance per accidens but it
upheld the authority to summarily abate even
without judicial proceedings on the basis of the
delegated Police Power authority as found in the
Local Government Code. That is Aquino v.
Municipality of Malay Aklan. More on nuisances
per se later.
Those are my concerns with respect to the Police
Power. Again, I urge you please to look at the
enumerations and the simple summaries of the
cases I have offered both in the excerpts on the
Police Power and on Substantive Due Process.
Let's tackle the more important field
of Expropriation.
Article III Section 9
Section 9. Private property shall not be taken for
public use without just compensation.
The power of eminent domain like the other two
fundamental powers are inherent and there is no
need for express conferment. Section 9 does not
confer but limits the power of the expropriator of
his power of expropriation.
As to who can expropriate, the state represented
by the congress, but the congress may delegate
essentially in favor of government. One
distinction of the power of eminent domain is that
this power of expropriation unlike the power of
taxation and police power cane be delegated
even in favor of non-government. Remember
quasi -public corporations, can be favored with
the power of expropriation by delegated
legislative authority.
For instance, the PLDT, quasi-public, can
expropriate for purposes of their telephone lines,
etc.
Basic components of these limitations:
Private property
Anything that is within the commerce of man, this
will include the concept of services, the only
acknowledged exclusion here in terms of private
property will be cash because the traditional
concept of just compensation would also mean by
way of payment in cash.
Private property in the context of
Garcia v. Sangguniang Panlalawigan ng
Bataan
G.R. No. 174964
October 05, 2016
There is this land owned by the state, registered
in the name of the provincial government of
Bataan. A law was promulgated by the Congress
107
subdividing that state property into smaller lots for
distribution. The provincial board objected saying
that this cannot be done without payment of just
compensation to the provincial government
because the property was registered in its name.
Th Supreme Court held that even if the property
was registered under the name of the provincial
government, the fact still remains that it is still
state property subject to full dominion and
determination by the Congress of the Philippines.
That claim of just compensation is not tenable.
Shall not be taken
Taking is important as an element of
expropriation because it is at the time of the
taking that the character of the property is
assessed or determined it is also at the time of
the taking that the valuation of the property for
purposes of just compensation is determined.
The concept of taking is present in all three
fundamental powers:
For taxation and eminent domain, the things
taken shall be converted to some other public
reason or public use.
While in police power taking is in the form of
suppressing or obliterating something obnoxious
or dangerous to society.
Be mindful of the old definition of taking
especially through the requisites required in that
old case of Republic v Castelleji.
There was a 25 year lease entered into and
implemented, upon the end of the 25 year lease,
the lessee manifested its intention to expropriate
at the end of the lease agreement. While there is
agreement to the expropriation there is
disagreement in the valuation. The contention of
the expropriator is that the value of the property
should be determined at the start of the 25 year
lease or 25 years earlier. The contention of the
private property owner is that since it indicated its
intention to expropriate only after the end of the
25 year lease, the value of the property for the
purposes of just compensation should be
determined as of that time. The Court: the five
requirements for valid taking:
There must be entry to the property for more than
a momentary period until legal authority or color
of title, there must be a conversion of the property
for public use otherwise it is informally occupated,
the taking should result into the virtual and
complete ouster. of the property owner from his
full beneficial use ownership, possession of his
property.
NTC v Heirs of San ...
Reverse eminent domain or inverse
condemnation proceedings
The expropriator must initiate the eminent domain
proceedings but if it does not do so or it fails to do
so then the private property owner can institute a
complaint for payment of just compensation. If it
were the owner of the property who institutes or
starts the proceedings, then it is referred to as the
reverse eminent domain or inverse
condemnation proceedings.
In this case what the NTC did was that it
surreptitiously built or established a tunnel
underneath the agricultural land. This prompted
the owners of the land to institute a reverse
eminent domain proceeding. In this case, the
court said that there is taking if there is any
destruction, diminution, interruption, restriction,
reduction, in the ownership and possession of the
property. As you will see, there is a diminution of
the full beneficial ownership and use of the
property because of the establishment of the
underground tunnel therefore it is considered
taking.
US v Causby, 328 U.S. 256 (1946)
The establishment adjacent to a poultry farm of
an airstrip was considered taking because the
chickens laid less eggs.
Therefore, there was taking there. Remember,
this leak which permanently inundated the
agricultural land adjacent to it. The owner of the
property never lost his ownership but he was
deprived of its full beneficial use. There was
considered a taking there compensable in
character.
Remember this tunnel in America which had
exhaust fans placed in strategic locations. This
particular exhaust fan faced directly the frontage
of a particular house thereby resulting in the
expulsion of the fumes from the tunnel directly
and permanently into the front portion of the
house. There was considered taking there.
Remember the easements, the Ayala Zobel v.
City of Manila case. The three legal easements
for pedestrian arcades. There is taking involved
there.
Remember in recent cases the concept of aerial
easements. Transmission tower connected to
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another transmission tower by transmission lines,
there would be a taking as to the land underneath
those transmission lines precisely because there
will be an inhibition or inability of the landowner to
grow or plant trees of a certain height. That is
deprivation of property. Thus, there is taking
compensable in character.
In the context of taking, there are at least 2 cases
on this particular point, 2016 and 2017.
(not clear) v. Republic
There was this property expropriated for
conversion for use as premises for a fly-over. It
was a 300 square meter property. But the fly-over
only occupied about 170 square meters of the
property. The remaining 130 square meters were
placed in a location that the property owner would
totally be incompetent to use it for any other
purpose.
According to the Supreme Court, although 170
square meters was occupied, considered as
taking na din yung 130 square meters for which
full just compensation should be made.
Public use
The next step is for public use. Remember it
would not matter as to how many would be
benefitted. It would not matter if those who would
be benefitted to use the premises after the
conversion would have to pay a fee so long as
anyone who would be willing to pay the fee can
enter and use the same.
For example, a building is expropriated for
conversion to a museum. There is a public
purpose there. There is a fee to be exacted upon
entry. That does not detract from the fact that it
will still be considered for public use or for public
purpose.
For instance, the NHA, if it were to expropriate 10
hectares and then it subdivides the 10 hectares
into 1000 smaller blocks for the construction of
1000 housing units for distribution to 1000
families - the matter that it will only be1000
families who will be benefitted does not detract
from the fact that it is still be for public use.
Because the public purpose served there would
be the provision of homes to the homeless.
Upon payment of just compensation
Every expropriation entails necessarily 2 phases:
1. Condemnation stage
2. Compensation stage
In the condemnation stage, essentially what is to
be determined is whether or not the property to
be expropriated would be converted to public use.
Condemnation stage is undertaken by the courts.
The matter of whether the property to be
converted is for public use can be a political or
justiciable question. The basic rules are the ff:
1. If the expropriation is undertaken by
direct law of the Congress, then
essentially the matter of public use is to
be considered as a political question. In
accordance with the rule on grave abuse,
it cannot be touched by the courts.
2. If the expropriation were to be
undertaken by a delegate then we tackle
2 rules here:
a. If the expropriation were to be
done on the basis of a general
grant of legislative authority such
that for instance Sec. 19 of the
LGC, then matter of conversion
for public use – that public use
aspect can be tackled as a
justiciable question.
Here, we take the San Beda
case and Chinese Cemetery
case. Property already devoted
for public use can be still
expropriated for further or other
public purpose such as
expansion of a road.
b. If delegate were to expropriate
on the basis of a specific grant
of legislative authority, such that
– then it would be like the
Congress itself who is
undertaking the expropriation
and only but only through the
specific delegate. In such case,
we follow the original rule
because it is on the basis of a
specific grant of legislative
authority, the expropriation - it
should be considered as a
political question.
It is also during the condemnation stage that we
determine the consequences of the public use
aspect.
There are at least 2 cases 2015 and 2016 cases
– NPC v. Sps. Borbon and Sps. Hosada.
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If the public use for which the property has been
taken, it becomes obsolete, can the eminent
domain proceedings proceed?
If the public use for which the property was taken,
it becomes obsolete. Can eminent domain
proceed? What if in the middle of the agricultural
land there are two transmissions erected by the
NPC, obviously eminent domain proceedings
were instituted covering that particular area.
Mahaba expropriation eh so let us say in the
meantime adjacent to that agricultural land they
established a public road. Sabing NPC maybe it
will be wiser if you would just transfer the
transmission towers from the middle of nowhere
to the area adjacent to the newly built road for
easier maintenance etc. In other words the
purpose for the original taking had been
undertaken and had become obsolete. The
Supreme court said that if they are not for public
purpose anymore then the eminent domain
proceeding can no longer proceed.
But can the eminent domain case be dismissed
upon manifestation of withdrawal of expropriation
complaint? The Supreme Court said not
necessarily. The proceeding can continue but
only to determine whether the private property
owner incurred or sustained damages for which
reason obviously they would have to be awarded.
The eminent domain proceeding even with no
public purpose can continue but only with respect
to the matter of awarding of damages. The only
time that eminent can continue as such under
those circumstances is when the court has
already determined the amount of just
compensation to be paid in which case it has to
be enforced by the execution of that particular
award of judgement.
There is a law which says that the NHA may
expropriate and for the purposes of just
compensation it shall pay either the assessed
value or the fair market value of the properties
expropriated whichever may be lower. That law is
UNCONSTITUTIONAL because it impedes or
interferes in what ought to be an exclusive judicial
power. The matter of determining just
compensation is exclusively a judicial
prerogative. There can be no law which can
impair such exclusive judicial authority.
For instance with respect to the Agrarian Reform
expropriations, there would be an authority
vested in the land bank of the Philippines for
purposes of making preliminary valuations which
can serve as basis for just compensation. The
Key word there is “preliminary”. It can only
recommend but the final authority to provide for
just compensation is exclusively judicial in
character. There is also a proviso in the Agrarian
Reform law that if there is a valuation made
preliminarily be the Sec. of Agrarian Reform and
the valuation is not questioned within 15 days
then party owner is necessarily precluded from
questioning it later. That prescriptive period of 15
days does not in any way affect the continuing
sole authority of the courts to determine just
compensation. It doesn’t mean that if that period
lapses the court is already bound by the
preliminary valuation done by the executive
agency.
There is a formula prescribed there regarding
agrarian reform expropriations. Courts are
supposed to as much as possible abide by those
formulas or guidelines prescribed BUT the courts
are not precluded from disregarding that formula
prescribed in Sec. 17 of the CARL provided that
if it departs from its application, there must be
showing of clear reasons why the formula cannot
be applied. This suggestion prescribed by statute
has been gleamed by the SC as something that
requires adherence by the Special Agrarian
Courts but with equal force the SC pronounced
that even if they are required to as much as
possible adhere, they are not certainly bound by
that formula.
Just compensation
The basic indicator here is fair market value. It is
the value of the property at a point or a situation
where the seller is not compelled to sell and the
buyer is not compelled to buy.
Remember that the valuation to be assigned for
purposes of just compensation is determined as
of the time of the taking. For instance, if at the
time that it was taken, the tax declaration
characterized the property as agricultural but in
the course of the expropriation proceedings
evidenced is adduced by the property owner that
final plans have already been in place for
purposes of converting the land to
residential/commercial, the Supreme Court has
ruled that the final plans are immaterial. What is
determinative is what it was at the time of the
taking; if it was declared as agricultural then that
is controlling.
There’s no problem if the property is ordinary
agricultural or commercial. But what if the
property was extraordinary in character like an
old church or an old school like UST? How do you
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assign a value for extraordinary properties? This
was discussed in Republic v. Hon. Mupas. That
case also tackled the issue of who was entitled to
just compensation arising out of the claims made
by the subcontractors.
Republic v. Mupas - NAIA III.
G.R. No. 181892
Sept. 08, 2015
Among the factors to be considered in arriving at
the fair market value of the property are the cost
of acquisition, the current value of like properties,
its actual or potential uses, and in the particular
case of lands, their size, shape, location, and the
tax declarations. The measure is not the taker's
gain but the owner's loss. While jurisprudence
requires the “fair market value” to be the measure
of recovery in expropriation cases, it is not an
absolute and exclusive standard or method of
valuation. There are exceptional cases where
the property has no fair market value or where
the fair market value of the property is difficult
to determine. Examples of specialized
properties are churches, colleges, cemeteries,
and clubhouses. These also include airport
terminals that are specifically built as “a place
where aircrafts land and take off and where there
are buildings for passengers to wait in and for
aircraft to be sheltered.” They are all specialized
properties because they are not usually sold in
the ordinary course of trade or business.
In estimating the FMV of the NAIA-IPT III, the
Court used:
1. The replacement cost method;
2. The standards laid down in Section 5 of
RA 8974 and Section 10 of RA 8974 IRR
(meaning laws pertaining to cost of the
infrastructure project);
3. Equity.
Who is entitled to just compensation? This
became an issue because of the claim of the
subcontractors of the project owner. The Court
ruled that all persons who have lawful interest in
the property sought to be expropriated should be
impleaded in the complaint for purposes of
determining who shall be entitled to just
compensation. If a known owner is not joined as
defendant, he may intervene in the proceeding. If
the owner is joined but not served with process
and the proceeding is already closed before he
came to know of the condemnation, he may
maintain an independent suit for damages. But
where the issue of ownership of the expropriated
property is not disputed, direct and immediate
initial payment to the property owner is
required in cases involving national government
infrastructure projects as provided for under Sec.
4(a) of RA 8974.
The Court ruled that it is the project owner that
was entitled to just compensation because the
law indicated who the project owner was and
therefore it is to that entity to which payment
should be made. As to the subcontractors, the
Court ruled that it is only the project owner which
is entitled to receive just compensation without
prejudice to money claims that may be filed by the
subcontractors against the project owner
independent of the expropriation proceeding.
Land Bank of the Philippines v. AMS Farming
G.R. No. 174971
Oct. 15, 2008
Agricultural lease contained a clause entitled
Eminent Domain. This would address entitlement
of the lessee to damages if and when the
agricultural land is expropriated during the
effectivity of the lease agreement. The land was
later expropriated. The lessee insisted that it
should have a share of the just compensation.
The Court said the existence of the Eminent
Domain clause limits the entitlement of the lessee
to damages; over and above what is indicated
there, the lessee cannot claim a share in the just
compensation due to the agricultural land owner.
As a lessee, the rights of AMS over its standing
crops and improvements on the leased property
are defined, conferred, as well as limited by the
provisions of the contract. That the leased
property was placed under the CARP and that
TOTCO received just compensation therefor are
not relevant to the rights of AMS as a lessee.
Rather, what is significant to AMS is only the fact
that it was deprived of the peaceful and adequate
enjoyment of the property for the duration of the
period of lease agreed upon in the contract.
Just compensation is just only when paid on
time. If there were delay in the prompt payment
of just compensation, there should be interest
paid or assessed against the expropriator.
Rules on interest:
Interest is fixed at the rate of legal interest -
previously 12% now, it’s 6% as of July 1, 2013
per Monetary Board Circular.
But after that, because of the supervening event
of the Banko Sentral Circular, starting July 1,
2013, it will be a 6% interest.
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Condemnation. Compensation.
Let us say the Philippine National Railways
(PNR), they said we will expropriate your land so
that we can extend our railroad tracks. Okay
bayaran niyo ako ah. But the PNR never
instituted eminent domain proceedings. Years
after, the property owner realized that he wasn’t
paid. Thus, he filed an action for the ejectment of
the PNR. Cannot be! He cannot evict because he
allowed. That was a forbearance. The most that
he can do would be to institute an action for
payment of just compensation [reverse?] eminent
domain.
In a matter of just compensation, factors known
as the consequential damages or consequential
benefits shall be included. At any rate, you
understand the concepts of consequential
benefits and damages. At any rate, if the
consequential benefits would exceed the
consequential damages, then both factors should
just be set aside because ultimately, the
bottomline is in any event, just compensation
would still have to be paid. Be mindful of the
pronouncement of Justice Del Castillo in one
2016 case. The rule is that until completion of the
expropriation which is marked by the cancellation
of the old title, and the issuance of the new one in
favor of the expropriator, all taxes, realty, paid by
the private property owner shall be imputable to
the expropriator. This is because in contrast, the
taking then would necessarily entail the
possession by the expropriator of the property,
and yet, the property remained in the name of the
property owner until the conclusion of the
expropriation. The rule consistently applied by
jurisprudence, up to the point of the conclusion of
expropriation, all realty taxes paid in the
meantime by the property owner shall be borne
or repaid by the expropriator from the time of the
taking until conclusion. But in this particular case,
this judge included as a factor of the so-called
consequential damages the matter of capital
gains taxes. Sinama niya as a factor don sa just
compensation, pinasok ng judge na to
consequential damages, he included the capital
gains taxes. The SC said it was wrong because
the burden of paying capital gains taxes,
regardless, falls on the shoulders of the property
owner. That is a tax imposed upon him.
Therefore, it cannot be transferred to the
expropriator by way merely as a factor of
consequential damages.
I told you that it is needed that the old title must
be cancelled and a new one be issued in favor of
the expropriator, that is upon payment of just
compensation. In this case, let us say, there is a
10 hectares property, but only 7 was taken. When
the new title was issued, there was a mistake, the
entire 10 hectares, all of it were included in the
technical description of the expropriated property.
Property owner said I have only been paid for 7
hectares, so he went back to the eminent domain
court and insisted that he be paid additional just
compensation. Cannot be said the SC. He cannot
be paid just compensation for property not taken
from you. The remedy there is for you to correct
the title by removing the 3 hectares which were
erroneously included.
On taxation, concerns have addressed when we
talked about religious freedom, and the limitations
on the power of taxation as prescribed in section
28 of article 6. Remaining concerns on taxation
are paragraph 1 of section 28, progressive
system of taxation. Uniformity of taxation this is
equal protection clause: things, persons similarly
situated must be treated alike both in terms of
rights conferred and responsibilities or
obligations imposed. 1000 square kilometer,
1,000 square meter properties. One exists in
Forbes Park, the other is in Payatas Quezon City.
For obvious reasons, you cannot impose or
subject them to the same tax rate because the
property in Forbes is much higher than the
property in Payatas. For purposes of uniformity, 2
adjacent 1,000 sq meter properties in Payatas, it
is needed that both tax rates be imposed. In
similar vein, two 1,000 square meter properties in
Forbes Park, kailangan pareho ring tax rate that
is uniformity.
Equitable taxation.
In similar vein, two 1000sqm property in Payatas,
needs to have the same tax rate.
Equitable tax is an aspect of due process. This is
a measure against any forms of arbitrariness.
Equitable taxation is based on the competence
and ability of pay. Hence, the graduated rates in
the NIRC.Ad valorem taxes requires that there
should be a requirement of a prior notice and
hearing, precisely to meet the equitable relation
of paragraph 1, Sec. 28 of Article VI.
Police power and Taxation.
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 Tridharma Marketing Corporation v CTA
GR No. 215950
June 20, 2016.
This case discusses the power to tax includes the
power to destroy and the power to tax does not
include the power to destroy.
Both are correct in different perspectives. The
power to tax includes the power to destroy if
taxation is used as an instrument of the police
power of the state. It can destroy.
Powell v Pennsylvania, 127 U.S. 678 (1888).
This case involved Margarine which was was
manufactured in unhygienic circumstances.
Hence, the State wants to regulate this. But
instead of outright prohibition, it merely
discouraged the manufacture of margarine by
imposing a higher tax rate. The power to tax here
included the power to destroy by lessening the
manufacturing of margarine.
If the power of taxation were invoked for purely
revenue-raising purposes, then the power to tax
does not include the power to destroy. This
statement was invoked in the case of an indian-
named corp. The Supreme Court held in this case
that the tax assessment served upon the
business would have destroyed it; the business
was unable to continue its operation because of
the assessment. In this case, since it has clearly
shown that the assessment was merely for
revenue purposes, it should not be made to
effectively destroy the corporation.
Double taxation. The basic elements are:
1. Same Subject Matter
2. Same Purpose
3. Same Taxing Authority
4. Same Taxing Jurisdiction
5. Same Taxable Periods
6. Same Kind or Character
There is nothing constitutionally offensive. This is
no worse than doubled taxation, according to
Justice Holmes. Law A imposes 1k, this law is
amended, this is increased to 2k, that is doubled
taxation. How is this different from Law B,
imposing 1k, and Law C, imposing 1k, on the
same thing, by the same authority, subject to the
same limitations.
Punzalan v Municipal Board of Manila
95 Phil. 46.
The lawyers in Manila was imposed with an
additional license fee to practice in manila. They
argued that they are already paying privilege tax
specified in the NIRC, hence double taxation.
SC held that this is not double taxation. There are
different taxing jurisdictions. National, and city.
The lawyers argued that there is a violation of the
Equal Protection Clause. There is no substantial
distinction which will warrant the imposition of the
additional license fee against lawyers practicing
in Manila because they are no different from
lawyers practicing in manila. SC held that there is
a substantial distinction because the lawyers in
Manila earn more. But this is not applicable
anymore. Be careful with this case given the fact
that many provincial lawyers earn more.
There are 3 cases that involve the same doctrine.
1. City of Manila v Coca-Cola Bottlers, GR
No. 181277, July 3, 2013.
2. Swedish Match Philippines v Treasurer
of the City of Manila, GR No. 181277,
July 3, 2013.
3. City of Manila v Cosmos Bottling
Corporation, GR No. 196681, June 27,
2018.
The charter of city of manila Sections 14 and 21
imposed the same manufacturers business tax
upon the same period for the same activity. The
Supreme Court held that these are two same
taxes imposed within the same jurisdiction by the
same authority for the same period upon the
same taxpayer for the same activity. Only one of
these provisions may be invoked against the
taxpayers because to allow both of these to be
imposed will constitute double taxation.
The provisions in article 3, they have measures
against any form of arbitrariness on the part of the
state. Essentially, therefore and except for a
number of exceptions, they may not be invoked
as against private acts.
Yrasuegi v. PAL
G.R. No. 168081
October 17, 2008
FACTS: there was a flight attendant who could
no longer maneuver the narrow aisles. Yrasuegi
was dismissed because of his failure to adhere to
the weight standards of the airline company.
Petitioner claims that he was illegally dismissed.
He invoked the equal protection clause for the
purposes of seeking to nullify that particular
dismissal.
HELD: The SC stated that the equal protection
clause erects no shield as against private acts no
matter how discriminatory.
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The equal protection clause as tackled from the
perspective of unreasonable searches and
seizure.
The seizure of marijuana by private individuals is
seen in this case of Marti v. People
Marti v. People
G.R. No. 81561
January 18, 1991
FACTS: Andre Marti and his common-law wife
went to the booth of the Manila Packing and
Export Forwarders to send 4 packages to a fiend
in Zurich, Switzerland. When asked if the
packages could be examined and inspected,
appellant refused, assuring that they were simply
gifts of books cigars, and gloves. As a standard
operating procedure before delivering packages
to the Bureau of Customs and/or Bureau of Posts,
the proprietor of the forwarding agency opened
the box for final inspection. He brought samples
to NBI. Agents of the NBI found the shipment
contained marijuana.
ISSUE: May an act of a private individual,
allegedly in violation of appellant’s constitutional
rights be invoked against the State? - NO
HELD: The rule against unreasonable searches
and seizure was not applied in this context. the
liberties guaranteed by the Constitution cannot be
invoked against the State in the absence of
governmental interference. This constitutional
right (against unreasonable search and seizure)
refers to the immunity of one’s person, whether
citizen or alien, from interference by government;
and the search and seizure clauses are restraints
upon the government and its agents, not upon
private individuals.
In the context of the search and seizure, basta
government hindi pwede. Government includes
soldiers, police officers.
Government, in the context of Dela Cruz v.
People, includes even port authorities, yung sa
barko.
Government, in the context of Suzuki and
Johnston, includes Airport Security Authorities. It
also includes the barangay chairmen and tanods.
Miguel v. People
FACTS: He stepped outside to take a leak. He
was accosted by a Bantay Bayan. He was then
subjected to a warrantless search by virtue of a
warrantless arrest.
ISSUE: Whether the Bill of Rights may be
invoked against Bantay Bayan operatives? - YES
HELD: Peeing cannot be the subject of a
warrantless arrest. The Bantay Bayan operatives
are not government agents like the PNP or the
NBI in charge of law enforcement, but are civilian
volunteers who act as “force multipliers” to assist
the law enforcement agencies in maintaining
peace and security. The Bill of Rights generally
cannot be invoked against the acts of private
individuals, however, they may be applicable if
such individuals act under the color of a state-
related function
In this case, the acts of the Bantay Bayan relating
to the preservation of peace and order in their
respective areas have the color of a state-related
function. As such, the Bill of Rights may be
applied to the Bantay Bayan operatives who
arrested and subsequently searched petitioner.
Distinguish this from Marti, private individuals
effected the seizure. Fairly recently, the case of
Marquez v. People was decided by the SC.
Marquez v. People
G.R. No. 197207
March 13, 2013
FACTS: There was a guidance counselor in a
private school approached by parents because
someone was complaining that there was
someone there selling drugs to the students. The
counselor confronted the janitor and discovered
drugs in the possession of the janitor. They both
immediately went to the office, where the
counselor phoned the police and eventually
handed the drugs to the police when they arrived.
ISSUE: Whether the chain of custody was broken
because a private individual first seized the
drugs? - NO
HELD: The chain of custody, evidentiary
requirement, was not applied strictly against her
because the seizure was effected by a private
individual.
Basic proposition, first concept. These measures
are against any arbitrariness on the part of the
State.
Be reminded that there are exceptions provided
in other cases, particularly with respect to the
right of privacy.
No title mentioned
FACTS: They contrast this to the jealous wife of
an amorous doctor who pried open his locked
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drawers. She found incriminating evidence inside
his desk drawers. She later sought to introduce
them as evidence in a later marital judicial
proceeding.
HELD: the SC held that the evidence presented
were inadmissible. You do not shed off your right
to privacy when you marry.
Spouses Hing v. Chuachoy
G.R. No. 179736
June 26, 2013
FACTS: Aldo Resources, a company where the
Chuachoys were major stockholders, filed a case
for injunction and damages against the spouses,
claiming that they were constructing a fence
without a valid permit and the construction would
destroy its building. The court denied the
application by Aldo for preliminary injunction for
failure to substantiate its allegations. To gather
evidence against the spouses, Aldo illegally set-
up on the building of Aldo two video surveillance
camera facing petitioners party and through their
employees and without the consent of spouses
took pictures of their on-going construction; thus
it violates their right to privacy.
ISSUE: Whether the spouses’ right to privacy
was violated? – YES
HELD: What was involved here was Article 26 of
the Civil Code. This provision calls upon us to
respect the dignity and privacy of our neighbors,
etc. Following Tolentino’s opinion on the matter,
“neighbors” do not only refer to the dwellings and
homes of others but also of business
establishments. The concept of privacy was
expanded in the case – even in the concept of
business establishments.
The right to privacy, section 3(1), was upheld, but
even if it was not done by a government entity or
officer, it was upheld as against a private
individual.
Privacy issues are mainly upheld, even in the
private setting.
Due Process Clause and Equal Protection
Clause
This is found in Section 1.
See previous discussion on substantive due
process.
Provincial Bus Operators Association of the
Philippines v. Department of Labor
G.R. No. 202275
July 17, 2018
FACTS: this is the measure of the Department of
Labor requiring fixed monthly salaries to drivers
and dispensing with commission-basis.
HELD: This was upheld as a police power
measure and the requirements of substantive due
process was met
Philippine Petroleum Exporters Association
(Couldn’t find the actual case)
The state imposed high penalties for vessels that
would spill their cargo in Philippine waters is a
valid exercise of police power and complies with
the requirements of substantive due process.
The other concepts of due process pertains to:
Procedural Due Process
(Federation of Family Associations v. Carin,
implementation of the RH law) which prescribes
for the compliance or near compliance with
procedures and processes laid out by law for the
validity of measures. Two types of procedural due
process
1. Judicial due process
a. impartial court
b. jurisdiction properly conferred and
acquired over the parties, persons
and even the properties
c. opportunity to be heard
d. judgement upon lawful hearing
2. Administrative due process (7 cardinal
rights in quasi-judicial proceedings)
a. The first of these rights is the right to
a hearing, which includes the right of
the party interested or affected to
present his own case and submit
evidence in support thereof. x x x.
b. Not only must the party be given an
opportunity to present his case and
adduce evidence tending to establish
the rights which he asserts but the
tribunal must consider the evidence
presented. x x x.
c. "While the duty to deliberatedoes not
impose the obligation to decide right,
it does imply a necessity which
cannot be disregarded, namely, that
of having something to support its
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 decision. A decision with absolutely
nothing to support it is a nullity, x x x."
d. Not only must there be some
evidence to support a finding or
conclusion, but the evidence must be
"substantial." "Substantial evidence
is more than a mere scintilla. It
means such relevant evidence as a
reasonable mind might accept as
adequate to support a conclusion." x
x x.
e. The decision must be rendered on
the evidence presented at the
hearing, or at least contained in the
record and disclosed to the parties
affected. x x x.
f. The Court of Industrial Relations or
any of its judges, therefore, must act
on its or his own independent
consideration of the law and facts of
the controversy, and not simply
accept the views of a subordinate in
arriving at a decision. x x x.
g. The Court of Industrial Relations
should, in all controversial questions,
render its decision in sucha manner
that the parties to the proceeding can
know the various issues involved,
and the reasons for the decisions
rendered. The performance of this
duty is inseparable from the authority
conferred upon it.
Note: These are not applicable in administrative
proceedings such as preliminary investigation
In terms of the
Equal protection clause,
there can be discriminatory laws, provided that
the discrimination is based on reasonable
discrimination. The four requisites are:
1. Substantial Distinction
2. Germane to the purpose of the law
3. Does not only apply to existing conditions
4. Equally apply to all members of the same
class.
Ferrer v. Bautista
The case concerns an ordinance that imposes
higher garbage fees socialized housing units,
condominiums and apartment dwellings, and
lower fees on all other forms of residential
housing.
SC held that there is no reasonable classification
here because there is no substantial distinction
prescribed in this ordinance. The variance of the
garbage fees should be imposed on the amount
of the garbage emanating from any dwelling and
other than the source of the garbage. Note, LGUs
can impose garbage fees pursuant to its police
power.
Classification of wheat on the basis of origin of
the wheat is not a valid classification. The
classification should be based on the kind of
wheat. Certainly, food grade wheat would merit a
higher rate in terms of custom duties as opposed
to feed grade wheat.
Search and Seizure
There are 3 categories of privacy.
1. Situational or locational privacy
- in section 2
2. Informational privacy.
- Disini vs Exec. Secretary not yet
asked in the bar. Section 3,
Paragraph 1.
3. Decisional privacy.
- we tackled this on the perspective of
Imbong vs Ochoa.
- The right to life, etcetera.
Let’s tackle first situational or locational privacy.
The first concept I would like to focus on is this
thing called probable cause. There are four areas
of probable cause. I will give you the
interrelationship between them.
1. Probable cause in the context of
preliminary investigation
The first is not related directly with the concept of
probable cause under Section We first tackle
probable cause in the context of preliminary
investigation. Generally defined, probable cause
is such cause that would make a reasonably
prudent man to take a cause of action he is
authorized to take under the law. In the context of
preliminary investigation, there is need probable
cause determination to warrant the filing the
criminal compliant or information before the
proper court.
Let us say that the preliminary investigation finds
probable cause and files a conviction. We tackle
now the second probable cause concept.
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Side note: Never file a judicial determination of
probable cause because that is a superfluity.
Remember that this is automatic upon the judge
so there is no need to file this motion just to
impress your clients.
2. Probable Cause in the Context of the
Issuance of a Warrant of Arrest
When the judge receives a criminal complaint or
information, he is required under the constitution
to determine probable cause for purposes of
issuing a warrant for the arrest of the accused to
entitle the court of custody or jurisdiction over the
person of the accused. Upon receipt of the
complaint, the judge can do or either of the three
things according to Desmond vs People:
a. They can make probable cause
determination and issue the warrant
b. He can require further submissions from
the prosecution to enable him to make the
determination
c. He can provide for the outright dismissal of
the complaint if he finds that there is no
probable cause.
So all three is within his competence.Remember
this: when he makes this probable cause
determination, he is not required to personally
examine the complainant and the witnesses. All
that he is required is to make a personal
evaluation as to the submission of the
prosecution. Enrile vs. Salazar, Soliven vs.
Makasiar and Leviste vs. CA to support this
precept.
On this point, it is reiterated in several cases that
there is no connection between the probable
cause of the Preliminary investigation and
probable cause of the arrest warrant. The
probable cause in the issuance of the warrant of
arrest is not by way of an appeal of the
preliminary investigation probable cause.
If you want to appeal the Preliminary
Investigation’s probable cause, you go to the
Secretary of Justice. The two Preliminary
Investigation Probable Cause and Warrant of
Arrest probable cause have no relationship
between the two. It is totally independent of each
other.
To emphasize this point, the fairly recent case
ruled in 2016 of People vs. Cojuangco.
Cojuangco vs. People
G.R. No. 160864
November 16, 2016
Cojuangco’s assets were sequestered by the
PCGG. After the sequestration, the PCGG with PI
authority conducted a preliminary investigation
on the same subject and on the same assets that
were sequestered giving rise to a prosecution
before the Sandiganbayan. The Sandiganbayan
issued the warrant for the arrest of Cojuangco.
Cojuangco later, at the earliest opportunity,
questioned the issuance of the warrant because
he questioned the issuance of the filing of the
criminal information invoking due process. Sabi
ng SC, the preliminary investigation was void
because the PCGG could not be considered as
an impartial tribunal in its determination of
probable cause after it had previously provided
for the sequestration of the same assets covered
or subject of the later preliminary investigation.
Bottomline, the filing of the information was void
on due process grounds. The prosecution
contended that if that were so, the fact of
issuance of the Sandiganbayan of the warrant for
the arrest of the accused, necessarily resulted in
validating the probable cause. Therefore the
arrest and the acquisition of the SB jurisdiction
should still be upheld. The SC said that there can
be no valid determination of probable cause for a
warrant of arrest on the basis of a void
information nullified on the basis of due process.
As you can see, there is no connection.
3. Probable cause in the context of
search and seizure warrants.
Remember here that the rule is more strict. The
judge is required to personally examine the
complainant, to depose them and to incorporate
the depositions into the records of the case so
that it can be later on questioned by quashal or
suppression of evidence. There are these
measures known as these warrantless act,
warrantless arrests and warrantless searches
and seizures. Is there a need for probable cause
for the validity of these actions of government?
The answer is of course, yes.
In terms of warrantless arrests, you will
recall……… [21:00]
Warrantless Arrests
Remember Rules of Court provisions
1. In flagrante
2. Hot pursuit
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 3. Escape from penal institutions
It is only on the basis of a prior valid warrantless
arrest from which may emanate a valid
warrantless search
Therefore, the probable cause for the warrantless
search would be the prior valid warrantless arrest
So, in all of these actions, whether by courts or by
warrantless acts – probable cause is always a
requirement.
Probable cause for Warrantless Arrests
NOTE: TIPS from informants are considered as
probable cause in only 2 instances:
1. Buy-busts
2. Drugs-in-transit
Search and Seizure Warrants
The Search Warrant application is not a criminal
proceeding, it is consistently characterized as a
John Doe proceeding
Although undertaken in the name of the People
of the Philippines
So, even private parties may participate in SW
applications by filing pleadings not necessarily
with the consent of the prosecuting authorities
Essentially, it is the one to whom the application
of the SW is entrusted who may file the
application but this may be delegated based on
the Tomas Case
1. Where to file?
Before the court which would have territorial
jurisdiction:
• Over the offense specified in the warrant,
or
• Over the premises of the properties
covered by the search warrant
application
Any court within the judicial region
• If compelling reasons are present
Is it okay for a court which would not have
jurisdiction over the offense imputed or
specified, to issue a search warrant?
YES. This is not a requirement for the validity of
the SW. Ang kailangan lang yung territorial
jurisdiction over the offense or the territorial
jurisdiction over the premises.
Is there a need for the warrant to specify the
name of the premises to be searched?
NO. As long as the premises are particularly
described, it would suffice. (Veloso v. People)
2. Every search warrant must specify only 1
offense
• Referred to as the Scattershot Rule
• There can be no scattershot warrants
(warrant that specified multiple offenses)
• In a 2018 Case (not specified) - warrant
indicated “violations of the Securities
Regulation Code, estafa, other
offenses…” – THIS IS VOID (scatter-
shot)
• Stonehill v. Diokno – “for violations of
specific provisions of RPC, Central Bank
Circulars, NIRC…” – VOID
NOTE: 1 offense, but multiple counts – this is
allowed. It is still one offense.
3. The offense indicated in the warrant must
be an offense. It must be a criminal case.
Coca-Cola Bottlers v. Gomez
G.R. No. 154491
Nov. 14, 2008
A case involving hoarding of bottles. Coca-cola
discovered that their competitor, Pepsi, bought
their glass bottles and hoard them in a warehouse
in Laguna. Coca-cola caught Pepsi and applied
for a search warrant. But Coca-cola invoked
obscure provisions in the Intellectual Property
Code regarding infringement of trademark.
SC held, how can hoarding be considered as
infringement if the bottles were only stored in the
warehouse. So the real offense imputed in the
case is hoarding of bottles – there is no such
crime. Therefore, the search warrant was invalid.
Ho ne Chan v. Honda Motor Co.
G.R. No. 172775
Dec. 19, 2007
This is a case of pirated motorcycles. Honda
discovered that there are fake Honda
motorcycles being manufactured so they went to
the place on the basis of a search warrant issued
but the offense indicated in the search warrant
was breach of goodwill and good name.
SC held that it was not a criminal offense, thus,
invalid search warrant.
Note: The “hoarding” of used bottles & “violating
of goodwill” established by a motorcycle
manufacturer are not crimes or offenses and may
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therefore, no be invoked for purposes of apply for
or obtaining search warrants. (Coca-cola v
Gomez; Hon Ne Chan v. Honda)
4. The premises to be searched must be
particularly described.
PICOP v. Asuncion
G.R. No. 122092
May 19, 1999
The officers of the law, by issuance of a warrant,
searched the premises of the PICOP compound.
They went inside enforcing the search warrant,
the crime imputed there was unlicensed firearm.
But the PICOP compound comprised of 21
hectares were you will find more than 100
structures – office buildings, dormitories, bunk
houses, warehouses. So they went from one
structure to the next until finally they found the
vintage WWII firearms which have already been
retired and therefore unlicensed. A case was filed
against them on the basis of the unlicensed
firearms. PICOP filed Motion to Quash but was
denied by the respondent Judge, hence it went to
the SC.
SC held that the search warrant did not
particularly describe the place to be searched.
Hence, the search was unconstitutional.
Note: This case was handled by sir.
A search warrant which identified only one place
to be searched (i.e. compound), but the said
place was made out of 200 buildings, 84 staff
houses, etc. was invalidated because it gives
police officers unbridled authority. (PICOP v.
Asuncion)
Be mindful of the concept of permissible area
of search.
• The rules are different regarding enforcement
of search warrants and warrantless
searches.
• In warrantless searches, remember that
included in the permissible area of the search
would be the area directly and immediately
accessible to the person being searched.
The point there is to secure and protect the
officer enforcing or doing the warrantless
search.
o For instance a person doing a crime
– naghit ng marijuana inside his car,
the window was opened, so
pinababa siya since it was a valid
warrantless arrest and thus search
was valid. The console beside the
driver's seat is a permissible area of
search as well. It is easily accessible,
baka makakuha ng baril and baka
barilin. So to provide for the security
of the person enforcing the
warrantless search covered yung
permissible area of search - all areas
immediately accessible to the person
subjected to the warrantless search.
• In the context of search warrants being
enforced. Remember this rule in the case of:
Del Castillo v. People
G.R. No. 185128, Jan. 30, 2012
Remember the rule that if the owner of the
premises is not present, then at least 2 persons
of sufficient age and discretion would be required
to be present and one of them was the Brgy.
Tanod. After a few minutes of the enforcement,
nagyosi sa labas, tapos he strayed off from the
premises subject of the warrant. Within 20
meters, he found a nipa hut or bahay kubo. As
soon as he approached it, he saw marijuana on
the table. He immediately seized and gave it to
the police officers. SC held that 20 meters away
is not within the permissible area of search in the
context of search warrants.
Note: Nipa hut located about 20m away from
subject house is no longer within permissible area
of search. (Del Castillo v. People)
• Distinguish that from the 2018 case
pronouncement of:
Dimal and Castillo vs. People
G.R. No. 216922
Apr. 18, 2018
The search warrant indicated the premises to be
searched wherein it specified the address of the
house. Right beside the house was a palay
warehouse and a rice mill. The places were
included in the search as permissible area
because it was right beside the premises of the
search. The distance was not 20 meters away like
in the previous case.
Note:
• Search warrant was valid but most of the
items seized pursuant thereto are
inadmissible in evidence, as they were
neither particularly described in the warrant
nor seized under the “plain view doctrine.”
(Dimal and Castillo v. People)
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• Search warrant is not a sweeping authority
empowering a raiding party to undertake a
fishing expedition to confiscate any and all
kinds of evidence or articles relating to a
crime. Objects taken which were not
specified in the search warrant should be
restored to the person from whom they were
unlawfully seized. (Dimal and Castillo v.
People)
Quashal of Search Warrant
Remember the basics rules as well, if you want to
quash the search warrant, then necessarily every
quashal effort shall have to be instituted before
the issuing court. Unless in the meantime, after
the enforcement of the search warrant, there
would have been a criminal case filed on the
basis of the item seized, in which case the
quashal effort and the motion to suppress
evidence would have to be undertaken before the
court where the criminal case had been filed.
Warrantless Arrest & Warrantless Searches
and Seizure
Basic exceptions prescribed in the Rules of Court
In Flagrante Delicto – this is essentially those
committed in the presence or near the presence
of the arresting officer.
Remember the distances prescribed in
jurisprudence. 5 and 10 meters are okay. In one
case, 50 meters away was still sustained as in
flagrante delicto arrest. But be mindful of the
basic facts presented to you because there are
nuances in recent jurisprudence.
Let say, the officer witnesses the alleged
transaction from across the street. The average
distance of a street is about 10m. He allegedly
saw the person passing a plastic bag to another
person. Because of his trained eye, he detected
that it was shabu. Note the facts of the case, what
kind of plastic bag was it? If it were opaque like
the SM plastic bag, how can you see the content?
You cannot. Therefore, even if it was just 10m
away, it is still not in flagrante delicto. However, if
it were transparent plastic bag with little sachet, a
trained eye would be able to detect whether that
was actually shabu.
Well, if he makes a mistake and founds later that
it was not shabu but a different powder, then the
warrantless arrest is not valid.
Commerciante v. People
G.R. No. 205926
July 22, 2015
There was this police officer who was a buy bust
drug operator. He was on his motorcycle traveling
at the speed of 30 kph. He glances towards his
right and detects a transaction between A and B,
for which reasons he makes an arrest. SC said
no person travelling at speed of 30 kph despite
having a trained eye can actually really detect
that it was a drug transaction. So INVALID
warrantless arrest.
Even if the officer did not see but he heard the
commission of the crime, that can still make a
valid warrantless arrest in flagrante. For example,
the police officer is separated by a wall from his
neighbor suddenly heard his neighbors
quarrelling and later on a gun shot was fired, the
police officer is justified in making the intrusion for
the purpose of effecting a warrantless arrest. That
is valid.
People v. Uy Po Co
(Can’t find the case)
Let us say, it was a kidnapping for ransom that is
being a subject of a surveillance. Police officers
were not sure where the kidnappers are going to
exit whether in Magallanes, BGC or Resort’s
World but, police officers were in constant touch
with each other. Finally, in EDSA, Team B was
able to find and overtake the kidnappers and
effected a warrantless arrest.
SC held that it was a valid warrantless arrest even
if the arresting team did not personally see the
retrieval of the ransom money because the fact of
constant communication vested in Team B
essentially personal knowledge in the
commission of the crime as it was committed.
Another Example:
A woman came to the police station reporting a
pot session. The sergeant together with P01 and
P02 went to the reported house. They saw that
the gate was open. As soon as they came, there
was a man from the side door left the house. P01
and P02 immediately entered the house and
arrested the person who left the house. The
sergeant went on the other side of the house saw
an open window, tip toed, peeked and saw the
evidence. Then, they arrested all the person
inside. This is an invalid arrest. It was not an in
flagrante delicto, hot pursuit, nor an escapee.
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SC sad that they should have first conducted a
surveillance and upon acquisition of personal
knowledge, obtained a search warrant.
If you see the word “peek” (or sumilip), that’s
invalid. Even in the context of plain view,
that’s invalid.
2017 case
(sir did not mention the name of the case)
Facts: This time the complaining neighbor did not
go to the police station but only called, saying that
there is a person in their area that is firing a gun
at the streets. The police officer went to the area
and saw a man acting in a menacing manner
(although not carrying a gun at that time) so the
police officer approached him and conducted the
search and found the gun on his top pocket.
Ruling: That is a valid warrantless arrest despite
the fact that no crime was committed because
based on the information, there was probable
cause. The rationale of the SC is that it would
have been foolhardy on the part of the arresting
officer to have obtained a warrant for the arrest of
the person first before arresting him given the
immediate threat present at that time.
That is a peculiar case different from the previous
case we talked about.
People v Aruta
G.R. No. 120915
April 3, 1998
Facts: There was a “tip” from an informant saying
that “Aling Rosa” will come from the North
(Sagada – where drugs usually come from). She
will be riding a Victory Liner Bus and will arrive at
a certain time. The police team arrived at the said
time and saw Aling Rosa. The bus parked and
Aling Rosa went down holding 2 big bags. Aling
Rosa was then waiting for a tricycle that time
when the police arrested her without a warrant,
searched her bags and saw marijuana.
Ruling: Invalid warrantless arrest. At the time of
the arrest, she was waiting for a tricycle. There
was no in flagrante delicto there.
“Tips” can serve as probable cause for an
arrest in 2 instances:
1. buy bust
2. drugs in transit
In this case, she already alighted from the bus. It
would have been different if she was
apprehended while she was still in the bus (which
would have resulted to a valid warrantless arrest).
In People v Ranch (?) or in People v Aruta (sir is
not sure which of the two), the one who was
arrested was not doing anything illegal at the time
of the arrest. Nothing in flagrante delicto.
Be mindful of aberrant cases such as Umil v
Ramos. These cases are from the old Marcos
era, but be mindful of their pronouncements.
Umil v Ramos
G.R. No. 81567
October 3, 1991
Facts: In these consolidated cases, one involved
a person who was arrested while he was
convalescing from a gunshot wound in a hospital
from a rebellion which took place one week
earlier. He was arrested without a warrant
Ruling: The SC sustained the warrantless arrest.
The murder that was committed was in the
context of a rebellion, which is a continuing
offense. Therefore, it is still in flagrante delicto.
That pronouncement remains and have not been
overturned in similar cases.
Luz v People
G.R. No. 197788
February 29, 2012
Facts: Here is a motorcycle rider. The police
officer was coming out from the police station
when he saw the motorcycle rider without a
helmet. The police stopped the rider and asked
him for his helmet. Mayabang ung driver, so he
was brought inside the police station. He was
then searched there. There was a metal case in
his front pocket which contained marijuana.
Ruling: Inadmissible. Traffic violations cannot
give rise to an arrest unless the traffic violation
would have resulted to death. But an ordinary
traffic violation does not make for a valid
warrantless arrest so it would not have resulted
to a valid warrantless search.
Riley v CA
573 U.S. __, June 25, 2014
Facts:
With respect to a search warrant, under the Rules
of Court, there are 3 basic properties that can be
seized from the service of the search warrant:
1. Property subject of the offense
2. Property stolen or embezzled
3. Property used in the commission of the
offense
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When it comes to warrantless searches and
seizure, the only things that can be seized would
be:
1. dangerous weapons
2. property subject of the offense
In this case of Riley, there was a traffic violation
in a sense that his license tags were expired. He
was stopped. The driver was “mayabang” so he
argued with the officer.
He was searched, and seized from him was his
cellphone, which was turned on by the police
officer, direcho sa gallery ng photos and saw
photos linking that driver together with his gang-
mates participating in a recent drive-by shooting,
which resulted in gang murders. He was arrested
and the vehicle was promptly thereafter
searched. Not only him but even his gang-mates
were later charged for the gang murders. The
issue was whether or not those photos retrieved
from his cellphone would be admissible in
evidence.
Ruling: Inadmissible.
In that decision said the US Supreme Court, there
the same rule obtains: the only things that can be
seized on the basis of a valid warrantless search
would be deadly weapons and properties subject
of the offense. Cellphones could hardly be
considered as deadly weapons or much less the
subject of the offense, therefore, invalid seizure,
invalid search, and therefore inadmissible
evidence.
Homar v. People
G.R. No. 182534
Sept. 2, 2015
Facts: May tumatawid sa gitna ng Roxas
Boulevard at the early hours of the morning.
Sinigawan ng police "Hoy! Dun ka sa pedestrian
lane tumawid!" Yung tao tumigil dun sa gitna ng
kalye edi nakita ng mga police officer "bakit ka
dito?" Sinearch siya, nakitaan ng drugs sa pocket
niya, used in evidence against him for drug
charges.
Ruling: Inadmissible. Pero may nuance itong
case, iba ito sa earlier case ng Luz v. People
(yung motorcycle driver).
Remember jaywalking is an arrest-able offense,
you can subject a jaywalker to a valid arrest. In
flagrante delicto yan, violation of an ordinance.
But here, the SC said, based on the records of
the case, there was no indication that when the
police officer approached him that they had any
intention of restraining his liberty by way of an
arrest. Therefore the purpose in approaching him
was merely to accost him, scold him, or remind
him that he should have crossed from the
pedestrian lane. It escalated quickly to a search,
and that search was invalid because there had
never been any intention to effect a warrantless
arrest.
Note: they could have arrested but they did not
based on the records, and therefore there could
have been no valid warrantless search.
Office of the Ombudsman v. Brillantes
G.R. No. 213699
Sept. 28, 2016
Facts: Remember the mistake in identity
situation? Valid warrant of arrest. He described
the person to be arrested but they arrested the
wrong person. They conducted a search on the
person, and seized drugs from his person.
Admissible ba yung drugs?
Tip: You detect from the facts of the case
whether or not the police officers, even if they
were mistaken in the identity of the person
subject of the warrant of arrest, if they were in
good faith in effecting or enforcing the arrest
warrant, then that should be considered a valid
arrest, which could give rise to an ensuing valid
warrantless search.
• Section 80 of the Forestry Code entitled
forestry officers to, even without
warrants, seize illegal timber. Timber is
unprocessed logs, while lumber is
processed logs. Even without a warrant,
illegal lumber can be the subject of
seizure by forestry officers. My problem:
how does the forestry officer detect
whether or not the lumber is illegal?
Is a “drug czar” position a cabinet position?
Remember that the vice president is authorized
only to accept a cabinet position under the
Constitution. There is no indication that this is a
designation ex-officio. How can it be ex officio by
reason of the vice presidency? Cannot be. So
essentially, that is unconstitutional (strictly
speaking).
Section 13, Article 7. The President, Vice-
President, the Members of the Cabinet, and their
deputies or assistants shall not, unless otherwise
provided in this Constitution, hold any other office
or employment during their tenure. They shall not,
122
during said tenure, directly or indirectly, practice
any other profession, participate in any business,
or be financially interested in any contract with, or
in any franchise, or special privilege granted by
the Government or any subdivision, agency, or
instrumentality thereof, including government-
owned or controlled corporations or their
subsidiaries. They shall strictly avoid conflict of
interest in the conduct of their office.
The only position that a vice president is
authorized to hold is that of a cabinet secretary
which even requires no confirmation (Sec. 3, Art.
7).
Executive Orders are only by way of
implementation either by of Constitution directly
or of a law. It cannot spring from nowhere.
Ople v. Torres
This is the case of the Executive Order on the
matters of national ID system. Apart from the
privacy issue, it was nullified because there was
no law authorizing by executive order to impose
a national ID system.
KMU Director General v. NEDA
The Executive Order for the ID requirement for
government employees is valid because this is
within the competence of the President as the
Chief Executive.
Returning in the points for Warrantless Searches
and Seizures
Basic Exceptions:
Consented Searches
In re Miguel Morales
Suspected of anomalies for selling the decisions
of the cases, the Court Administrator sued him.
And by way of investigation, while his laptop was
on, it was inspected, and the contents were
looked into with the consent of Atty. Morales.
In this particular case, immediately after the
seizure of the incriminating evidence. Atty.
Morales filed a formal manifestation by way of
objection as to the seizure.
SC held: in exonerating him, this was not a
consented search as indicated by his immediate
objection soon after the seizure was effected.
Look for the elements of voluntariness in terms of
the consent.
2019 Bar Exam: After reports of an alleged illegal
drug session, the police conducted an operation
where the accused, whose eyes were red, was
arrested. The accused’s fist was clenched at the
time of the arrest. The arresting officer forced
open the clenched fist and saw drugs. Was there
a valid search incidental to arrest?
1st suggested answer: No. The redness of the
eyes is not sufficient to establish probable cause.
There is no valid search because forcing the
clenched fist to open is not within the purview of
stop and frisk. Stop and frisk is only limited to
external searches to protect the person of the
arresting officer to make sure that the arrested
person is not in possession of a deadly weapon.
2nd suggested answer: Yes. There was a valid
search and seizure. The redness of the eyes of
the accused is sufficient to establish probable
cause that the accused might have committed
use of illegal drugs. The act of forcing the
clenched fist to open and the subsequent
discovery of the illegal drugs are valid because
the search there is valid since it was made after
a valid warrantless arrest. (Manalili case)
Airport Searches
• They are done as matters of necessity to
protect the airports.
• Furthermore, they are consented searches
because when one purchases an airplane
ticket, he or she consents to the conduct of
search over his or her person and baggage.
Customs Searches
• They can only be conducted by custom
officers in connection to the enforcement of
customs laws within customs zones or ports
of entry.
• Therefore, it cannot be done to private
houses except in a case where a person who,
after leaving the port, rode a taxi and was
searched in a location adjacent to the port for
violations of customs law. In that case, the
Supreme Court held that considering the
location of the search, there was still a valid
custom search. This is an unusual case.
Moving Vehicles
• Always a recognized exception
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Plain View Searches and Seizures
Requisites:
1. There was a lawful intrusion to the premises
searched;
2. The viewing was done inadvertently; and
3. The thing to be seized is illegal per se and
subject to immediate seizure.
Last Bar Exam: A motorcycle was carnapped.
The police investigating the case accidentally
looked to his right and saw an opened gate.
Inside the premises was the motorcycle
carnapped. He immediately seized the
motorcycle. Were the search and seizure valid?
Yes.
Another problem: There was a hot pursuit. The
accused entered a house, and the police officers
followed. Inside the house was a mountain of
marijuana. The police officers seized the
marijuana. Was the seizure valid? Yes. (1) There
was a lawful intrusion brought about by the hot
pursuit; (2) there was an inadvertent discovery of
the marijuana; and (3) the marijuana is subject to
immediate seizure.
NOTE: If the searching officer has to do another
act, e.g., kneel down, peek, or force open a
cabinet, there cannot be an inadvertence.
Kung i-lift ang mattress, that’s not inadvertence.
Kung buksan ang cabinet doors or drawers, that’s
not inadvertence. That’s not a valid claim.
Dimal and Castillo v. People
Recurring question from freshmen during the Bill
of Rights semester, kunyari may valid search
warrant at offense indicated there is carrying
unlicensed firearms. And then hinahanap,
enforcement of the warrant. Pagbukas ng cabinet
Nakita marijuana. Question, can a plain view be
effected in the course of a valid search warrant.
Of course, yes. There is no full intrusion, there is
inadvertence and the seizure is valid and not
illegal per se.
Note the nuance in this case of Dimal and Castillo
v. People, there is a categorical statement there
to this effect. After the enforcement of the
warrant, which means that there is already an
inventory and a receipt signed, tapos na. There
can be no plain view search and seizure after the
enforcement and the completion of the
enforcement of the search warrant.
Right to Privacy
I stress the following points:
(Di pa to tinanatanong sa bar) Zones of Privacy.
Matagal na to, yung Morfe v. Mutuc and Ople v.
Torres. The zones of the privacy in the
Constitution are the due process and equal
protection clause.
Section 2, the rule against unreasonable
searches and seizure.
Section 2. The right of the people to be secure in
their persons, houses, papers, and effects
against unreasonable searches and seizures of
whatever nature and for any purpose shall be
inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to
be determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be seized.
Section 3, informational privacy.
The matter of the right against self-incrimination
is included of course.
Section 3. (1) The privacy of communication and
correspondence shall be inviolable except upon
lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
(2) Any evidence obtained in violation of this or
the preceding section shall be inadmissible for
any purpose in any proceeding.
In the context of general laws, there are
provisions there against the violation of our
fundamental liberties. Article 26 is one of them.
(Article 772 and 774, not very sure si Sir, but
these are succession provisions.) Privacy of
communications and correspondence.
Article 26
Every person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons. The following and
similar acts, though they may not constitute a
criminal offense, shall produce a cause of action
for damages, prevention and other relief:
(1) Prying into the privacy of another's residence:
(2) Meddling with or disturbing the private life or
family relations of another;
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(3) Intriguing to cause another to be alienated
from his friends;
(4) Vexing or humiliating another on account of
his religious beliefs, lowly station in life, place of
birth, physical defect, or other personal condition.
• In the revised penal code, there is a
crime trespass to dwelling. Remember
violation of trade secrets. These are
zones privacy.
• Rules of Court, there is privileged
information. Lawyer-client, physician-
patient, priest-penitent and then the
matter of marital privilege. Those are
zones of privacy.
• Special law, journalists and their sources
of information.
• Special law, the anti-wiretapping act.
• Secrecy of bank deposit laws, both
foreign and domestic accounts.
Remember that the right to privacy and the right
to be left alone is not absolute. In the first place,
it can be claimed only when one is competent to
claim a reasonable expectation of privacy. There
being shown that there is none, you can’t claim
the right to privacy.
Discussion of zones of privacy in the case of Ople
v. Torres. (Direct quotation, you can skip this if
you want)
“Indeed, if we extend our judicial gaze we will find
that the right of privacy is recognized and
enshrined in several provisions of our
Constitution. It is expressly recognized in section
3 (1) of the Bill of Rights:
Sec. 3. (1) The privacy of communication and
correspondence shall be inviolable except upon
lawful order of the court, or when public safety or
order requires otherwise as prescribed by law.
Other facets of the right to privacy are protectad
in various provisions of the Bill of Rights, viz:
Sec. 1. No person shall be deprived of life, liberty,
or property without due process of law, nor shall
any person be denied the equal protection of the
laws
Sec. 2. The right of the people to be secure in
their persons, houses papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall
issue except upon probable cause to be
determined personally by the judge after
examination under oath or affirmation of the
complainant and the witnesses he may produce,
and particularly describing the place to be
searched and the persons or things to be seized.
xxx xxx xxx
Sec. 6. The liberty of abode and of changing the
same within the limits prescribed by law shall not
be impaired except upon lawful order of the court.
Neither shall the right to travel be impaired except
in the interest of national security, public safety,
or public health as may be provided by law.
xxx xxx xxx
Sec. 8. The right of the people, including those
employed in the public and private sectors, to
form unions, associations, or societies for
purposes not contrary to law shall not be
abridged.
Sec. 17. No person shall be compelled to be a
witness against himself.
Zones of privacy are likewise recognized and
protected in our laws. The Civil Code provides
that "[e]very person shall respect the dignity,
personality, privacy and peace of mind of his
neighbors and other persons" and punishes as
actionable torts several acts by a person of
meddling and prying into the privacy of another. It
also holds a public officer or employee or any
private individual liable for damages for any
violation of the rights and liberties of another
person, and recognizes the privacy of letters and
other private communications. The Revised
Penal Code makes a crime the violation of
secrets by an officer, the revelation of trade and
industrial secrets, and trespass to dwelling.
Invasion of privacy is an offense in special laws
like the Anti-Wiretapping Law, the Secrecy of
Bank Deposits Act and the Intellectual Property
Code The Rules of Court on privileged
communication likewise recognize the privacy of
certain information.”
Case in point is the writ of habeas data
application in Vivares v. St. Theresa’s College.
Vivares v. STC
Public posts in Facebook, you cannot expect a
reasonable expectation of privacy. Maybe, you
can expect that if your posts were in a Friends
Only setting but even then, in the case of Bello v.
Guevarra.
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Bello v. Guevarra
This Atty. Guevarra, di ko alam kung bakit galit na
galit siya kay Vicky Bello. Tinatawag niya ng
“Reyna ng Kaplastikan” sa mga posts niya sa
Facebook etc. When he was sought to be
disbarred and subjected to disbarment
proceedings and libel suits, his basic defense
was that it was his intention to keep such posts
private as can be gleamed from the fact that his
setting.
From the discussion of Justice Velasco in St.
Theresa’s College, nakafriends only. Even then
kahit nakafriends ka, there is this tagging option
which can lead to the disclosure of your posts
even to persons unintended by you to be covered
in the posts.
• Even then, hindi pa rin may reasonable
expectation of privacy. Be mindful of this
concept, you relate this to the rule
against unreasonable searches and
seizure. Iba yung rule against
unreasonable searches and seizure from
the concept of known as reduced
expectation of privacy. This is especially
in the concept of private settings.
• For instance, this is a 2018 case. If you
enter a bus terminal, you are subjected to
a potential search and seizure. There is
no violation of the rule against
unreasonable searches and seizure if the
other party is not government.
• Second you have a reduced expectation
of privacy if you entered private
premises. The owners of these private
premises are well within their rights to
maintain absolute security in their
premises. This include malls, public
transportation, beach resorts, terminals,
hotel, complexes. These are privately-
owned and when you entered these
premises, essentially and necessarily,
you have a reduced expectation of
privacy.
• You do not apply the rules against
unreasonable searches and seizure
here, you apply the overwhelming and
overwriting property rights of the owner of
private premises. You surrender to them.
Reasonable expectation of privacy vs.
compelling state interest
Even if you were unable to establish a reasonable
expectation of privacy, as in the case for example
of Morfe v. Mutuc (G.R. No. L-20387), we are all
private in our financial transactions. But if the
State were to show that there was a compelling
state interest, it should justify the setting aside of
privacy. The compelling state interest takes
precedence against your reasonable expectation
of privacy.
Morfe v. Mutuc
G.R. No. L-20387
Jan. 31, 1968
If you remember, this is the first time that the
Statement of Assets and Liabilities was
prescribed for public officers to be submitted
periodically. They complained financial right to
privacy. COURT: Yes, you have the right to
privacy. But here, there is a compelling state
interest, public accountability. Therefore, it
suffices for the setting aside of your right to
privacy.
Student inquiry: inspection by virtue of an
ordinance violation
Student: There was this enumeration of J.
Nachura that whenever there is an ordinance or
law requiring the inspection of several premises,
there is no expectation privacy and therefore,
there could be a warrantless search to be
conducted.
Sir: Ultimately it could lead to a warrantless
search because if the premises security guards
detect something unlawful, tatawag yan ng
public. That would be a valid warrantless search.
Probable cause there would be the prior
determination of the private property owners.
Student: But for example, as regards to the
compliance to the Fire Code, there’s an
inspection…
Sir: That is a contentious thing. American
jurisprudence is flip-flopping. The basic rule is
that if the state is within its police power
competence to inspect premises, then there
could be no complaint as to warrantless searches
and seizure. For instance, inspection of fire
marshals and fire authority, there is lawful
intrusion there that is statutorily provided.
The latest pronouncement here is a 2018 case in
connection with the enforcement of environment
laws. The DENR went inside and effected a
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search. SC: that is authorized under the law. That
was the extent of the statement of the Supreme
Court. My assessment of that statement is yes, if
the search is undertaken by the State pursuant to
its police power competence, then any seizure
that may be effected on the basis of such
warrantless search, all the basis of a police power
measure can be justified. The seized evidence
can be admissible.
Student: On those instances, do we apply
compelling state interest?
Sir: You differentiate the matter of the impositions
of property owners in connection with their
ownership prerogatives. Their reasonable
expectation of privacy obtains… Yan compelling
state interest for instance, airports, there is a
police power involve there. So even if you have a
right to privacy with respect to the contents of
your luggage, the compelling state interest for
absolute security in airports, law justifies the
lawful intrusion by way of warrantless search.
Doon naman sa Morfe v. Mutuc, the financial
privacy is the right invoked. There is a reasonable
expectation, set aside because of the greater
compelling state interest of public accountability.
Different reasons for different situations. Clearly,
kung private property yan, you live with the
reduced expectation of property. But if it were
government offices, natural there is a compelling
state interest to keep them safe. So the
justification is not necessarily property ownership
but the overwhelming duty on the part of the State
to maintain the security in the government
premises.
Pollo v. Constantino
G.R. No. 181881
Oct. 18, 2011
Cubicle siya, meron siyang desktop.
Memorandum of Receipt (MR), meron password
etc. Suspected of analomalies, they swoop into
his desk, turned on desktop and found
incriminating evidence. Objected on two grounds:
1) reasonable searches and seizure and 2) right
to privacy.
COURT: 1) No intrusion. You cannot accuse
someone for unreasonably searching property he
owns. The CSC owns the desktop. Therefore,
within its competency to search it. 2) He was on
a cubicle which is accessible to anyone.
Therefore, there is no reasonable expectation of
privacy.
There were about two paragraphs in the case of
Pollo which I think you should be reminded of.
Meron dun discussion pero hindi conclusive.
Sabi, perhaps, a different disposition can be
arrived at. If the office of this particular petitioner
would have been a room with a door which could
be closed. Under those circumstances, there
MAYBE a reasonable expectation of privacy. As
determined in American cases.
Tumigil dun ang SC. Sinabi lang, there may be a
different disposition.
If that is a situation other than a cubicle, maybe
there are privacy issues which may be
determined in favor of the occupant of that room
with a door which can be closed and locked.
Nuance lang un but that is not the
pronouncement in Pollo v. CSC.
Writ of Habeas Data
Vivares v St. Theresa’s College
G.R. No. 202666
20 September 2014
This pertains to life, liberty and security.
Reasonable expectation of privacy must be
alleged and proved. A public post has no
reasonable expectation of privacy.
Unlike the writ of amparo, this applies even
against private individuals provided such
individual is engaged in collecting data or
information.
The defense of St. Theresa’s here is that it was
not engaged in the business of collecting data or
information. SC said that there is nothing in the
habeas data rule that one should be engaged in
the business of collecting data or information. It is
enough that one collects data or information; you
download, screenshot, you can be a subject of
habeas data.
Exclusionary Rule
Any objection to an arrest or seizure on the basis
of either a warrant of arrest or a warrantless
search, it must be raised at the earliest possible
opportunity.
RULE: If the seizure or the subject in which the
evidence is obtained in violation of either Sec. 2
or Sec. 3 (1), it is inadmissible for any purpose
and any proceeding.
To qualify such rule, such evidence can be used
against those who illegally seized them. This is a
safeguard protecting the owners of the property.
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 Ogayon v People
G.R. 188794
2 September 2015
The search warrant was invalid because the
complainant has no personal knowledge.
However, the accused never objected or
challenged the validity of the search warrant. Not
during the arraignment or by way of a motion to
suppress evidence. Not even on appeal.
SC: The SC detected the invalidity of the search
warrant upon review of the depositions taken in
connection with this issuance. The rule is fixed: if
you do not challenged seasonably or at the
earliest opportunity, the validity of the warrant and
the search, then you are considered as having
waived that particular objection. Not so in this
case. Even if that objection was raised promptly,
that failure cannot be overridden by the fact that
the warrant was, to begin with, void.
The requirements to the issuance of a search
warrant are constitutionally prescribed. The
manner of waiver is only a procedural rule.
Therefore, the latter should necessarily be
subordinate to the Constitutional requirements.
Section 4. No law shall be passed abridging the
freedom of speech, of expression, or of the press,
or the right of the people peaceably to assemble
and petition the government for redress of
grievances.
Tordesillas v. Court of Appeals
Siege at Manila Peninsula. Therre was an order
on the aprt of the commanders on ground for the
reporters to stay away from the premises. The
reporters objected saying it produced a chilling
effect on their freedom of press. The measure
was issued by the commanding officer precisely
on the ground to protect them and to ensure they
`will not interfere with the military operations at
that time. The court rejected the contention that
there was a chilling effect produced on their
freedom.
Arch Diocese v. COMELEC
G.R. No. 205728
January 21, 2015
Freedom of expression covers speech, press,
lawful assembly for purposes of petitioning the
government for redress of grievances, correctly
as included in Imbong v. Ochoa, it includes
Freedom of religion and Section 8, the freedom
of association - all components of freedom of
expressions.
Remember the elements of freedom of
expression:
1. Freedom from prior restraint and
censorship and
2. Freedom from subsequent punishment
In either case you need to apply the clear and
present `danger test. Remember that test CAN
result in a suppression of free speech. It can
result in an upholding of free speech, depending
on the circumstances attendant in any specific
case. Being guided here by the pronouncement
by maybe Justice Holmes "shouting fire, in an
open field" cannot be suppressed either on the
basis of prior restraint or subsequent punishment.
But if you shout out the word "fire" in a crowded
theatre then there can be prior restraint or even
subsequent punishment.
Content Based and Content Neutral
Regulation
You have to be specific here because of the
levels of judicial scrutiny that are employed on the
basis of Content Based and Content Neutral
Regulation. Yung 3 levels of Judicial scrutiny
again are: STRICT, RATIONAL BASIS, and
INTERMEDIATE. They are applicable not only to
the equal protection clause but even in the
context of substantive due process cases. Recall
in a case there was a law implemented by
resolution of the COMELEC limiting sizes of
campaign materials. The Arch Bishop of the Arch
Diocese on his own expense produced campaign
materials, "TEAM PATAY" and "TEAM BUHAY".
Indicating his preferences for candidates for the
Senatorial Contest at that time. The COMELEC
ordered its taking down because it transgressed
the size limitations prescribed in the COMELEC
resolution pursuant to the Fair Elections Act.
There was an issue of whether or not that
particular measure of the COMELEC
was Content Based and Content Neutral.
Remember it is Content Based if it goes by way
of actual suppression of the speech. Its Content
Neutral and therefore subjected to lesser judicial
scrutiny if it merely provides for certain
parameters for the exercise of this freedom of
expression in terms of the place, manner, time of
expression. In this case it is to be considered as
against the private property owner as content
based because it went by way of the suppression
of the speech. "Size matters". If you suppress the
font size that would be suppression of speech.
The larger the message with larger fonts, the
greater the audience even those travelling would
be able to read. But if you insist on smaller fonts,
it limits audience. So here it was considered
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content-based regulation. Those materials were
produced solely by the Arch Bishop with no
indication of any participation by any candidates.
They were posted in the façade of a private
property. Yes it was a church, but it was a private
property subject to the administration of the
Archbishop. These three components made for
the conclusion of the SC that it is to be considered
as a content-based regulation subject to strict
scrutiny, and ultimately nullify in application as
against the Archbishop.
The implication is that a resolution providing for
the size limit of campaign materials, if that have
to be employed against candidates, that would be
considered as content-neutral regulation.
Therefore subject to a lesser scrutiny and can be
sustained as a police regulatory power of the
COMELEC pursuant to Section 4 of Article 9(c).
Models of Freedom of expression:
1. It is a measure that provides for a greater
deliberative democracy.
2. It is a mode of self expression (poetry,
literature, arts)
3. It is considered as a market for group
identity.
4. It is a measure that gives light to free
market place of ideas. (Ultimately the
truth will surface if there is enough ideas
in the market)
5. It is a measure against a “majoritarial
rule”. (one voice against the voice of the
majority is essential in democracy)
6. Safety Belt Theory (Anything that is
suppressed long enough will eventually
explode. If the citizens are suppressed in
their frustrations and dissatisfaction with
the government, this may result to
revolution.)
Paradigm of Free Speech
1. Politically disadvantaged speech is
preferred against state regulation. But
state regulation which promotes
politically disadvantaged speech should
be preferred. (In either case, you give
preference to politically disadvantaged
speech)
2. Market Place of Ideas- the basic thought
if there were enough ideas proliferating in
the marketplace of ideas, then ultimately,
the truth will surface.
Chavez v. Gonzales
G.R. No, 168338
Feb. 15, 2008
hello garci tapes. I talked about this when we
discussed the facial challenge. Do not play the
hello garci tapes sabi ng NTC, sabi ng DOJ sec.
Those are considered content-based regulations.
Therefore, subjected strict scrutiny and is actually
declared as unconstitutional by the court
producing this so called “chilling effect” on the
exercise by the persons concerned on the
freedom of expression.
New Sounds Broadcasting v. Dy (Bombo
Radio)
G.R. No. 170270
April 2, 2009
Recall that this is a very vocal radio station
against the local government of Cagayan. When
it applied a renewal of its permit to operate. It was
denied. The basic justification was that there had
been a “rezoning” of the area where the radio
operations were undertaken.
SC: That particular ordinance was actually
content based regulation and was by way of
suppression of the freedom of the press of this
particular radio station.
Best illustration of content based regulation would
be that case of Bayan v. Ermita.
Bayan v Ermita
G.R. No. 169838
Arpil 25, 2006
Eto yung BP 880. “The Public Assembly Act”. You
have to get a permit 5 days before your
scheduled lawful assembly. If not acted upon
within two days then it is impliedly approved and
if rejected you have an appellate process you
need not applied for a permit.
If the lawful assembly would be undertaken in
within private premises or within a private school.
In this cases, only the consent of the owner of the
private property is needed. No permit needed if
the lawful assembly is done in the freedom park
which are required to be established in all local
government units prescribed under the law. Also
in campaign rallies you do not need any permit to
conduct those lawful assemblies.
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SC: Content neutral regulation subject to the least
scrutiny and upheld by the court as valid police
power measures.
I have already discussed freedom of religion. Let
me go to Liberty of Abode.
Liberty of Abode
Section 6. The liberty of abode and of changing
the same within the limits prescribed by law shall
not be impaired except upon lawful order of the
court. Neither shall the right to travel be impaired
except in the interest of national security, public
safety, or public health, as may be provided by
law.
Two sentences:
1. Liberty of Abode
2. Right to travel
On the liberty of abode, nothing has significantly
changed. Remember that the impairment of the
liberty of abode can be done by lawful order of the
court which justifies the eviction, decrees issued
in ejectment cases.
Recall the provisions in Article 13. This should be
sections 10 or 11. If there will be a relocation of
the so-called “urban dwellers”, it must be done in
a humane manner as prescribed by law. Also,
there must be a consultation done by the
relocation authorities with the community to be
relocated and with the community to which the
relocation shall be affected.
Caungang v. Salazar (???)
This househelper was denied to leave the
household until and unless she would have paid
fully the amount she advanced from the employer
by way of recruitment fees.
She sued for habeas corpus, the court saw this
as an impairnment to her right to liberty of abode
and sustained her release from the clutches of
her employer.
Recall Villavicencio v. Lukban
Rubi, et. al v. Provincial Board of Mindoro
39 Phil 660
March 7, 1919
I doubt very much if the principle here would be
applicable today. Remember that this is a 1905-
1906 pronouncement of the court. Justice
Malcom, recall the statement: “Mangyans are
waste people, and waste people do not contribute
to civilization.” Then there was upheld by the SC
a substantial distinction between the Mangyans
and the rest of civilized society and therefore
justified the forcible segregation of Mangyans
from the rest of society.
(Sir does not agree with the pronouncement)
That was a different day and age.
Impairments allowed on the right to travel
There are impairments allowed independent of
the grounds stated in the provision
Examples:
• Accused in custody of courts – not
allowed to freely travel without the
coordination of the cour
• Travel ban to Hongkong/ middle east
• Travel permit requirement for the
Judiciary in order to prevent chaos in the
dispensation of justice
Genuino v De Lima
G.R. No. 197930
April 17, 2018
Facts:
De Lima, then Secretary of Justice, prevented
Arroyo in wheelchair from seeking a medical
appointment in Singapore. In her petition, she
invoked her right to life. She was sought to be
restrained from leaving the PH on the basis of
watch list order. At that point, she was only a
respondent in a preliminary investigation
being jointly undertaken by the Comelec and
DOJ in relation to election sabotage charges
that have been levelled against her. The
justification of De Lima was that it was a matter of
national security.
The Hold Departure Order was on the basis of
Watch Order List. If we sustain the De Lima
theory, the mere pendency of a PI may warrant
an impairment of this right to travel.
SC: Watch Order List – no law authorizing DOJ
to provide for the Watch Order List which impairs
the right to travel. The order is an Invalid
Delegation and an Impairment of the Right to
Travel. Hence, NULLIFIED
Excerpt from the case:
The issuance of DOJ Circular No. 41
has no legal basis
Guided by the foregoing disquisition, the Court is
in quandary of identifying the authority from which
130
the DOJ believed its power to restrain the right to
travel emanates. To begin with, there is no law
particularly providing for the authority of the
secretary of justice to curtail the exercise of the
right to travel, in the interest of national security,
public safety or public health. As it is, the only
ground of the former DOJ Secretary in restraining
the petitioners, at that time, was the pendency of
the preliminary investigation of the Joint DOJ-
COMELEC Preliminary Investigation Committee
on the complaint for electoral sabotage against
them.
To be clear, DOJ Circular No. 41 is not a law.
It is not a legislative enactment which underwent
the scrutiny and concurrence of lawmakers, and
submitted to the President for approval. It is a
mere administrative issuance apparently
designed to carry out the provisions of an
enabling law which the former DOJ Secretary
believed to be Executive Order (E.O.) No. 292,
otherwise known as the "Administrative Code of
1987." She opined that DOJ Circular No. 41 was
validly issued pursuant to the agency's
rulemaking powers provided in Sections 1 and 3,
Book IV, Title III, Chapter 1 of E.O. No. 292 and
Section 50, Chapter 11, Book IV of the mentioned
Code.
It is, however, important to stress that before
there can even be a valid administrative
issuance, there must first be a showing that the
delegation of legislative power is itself valid. It is
valid only if there is a law that (a) is complete in
itself, setting forth therein the policy to be
executed, carried out, or implemented by the
delegate; and (b) fixes a standard the limits of
which are sufficiently determinate and
determinable to which the delegate must conform
in the performance of his functions.
A painstaking examination of the provisions
being relied upon by the former DOJ Secretary
will disclose that they do not particularly vest
the DOJ the authority to issue DOJ Circular No.
41 which effectively restricts the right to travel
through the issuance of WLOs and HDOs.
The DOJ would however insist that the
resulting infringement of liberty is merely
incidental, together with the consequent
inconvenience, hardship or loss to the person
being subjected to the restriction and that the
ultimate objective is to preserve the
investigative powers of the DOJ and public
order. It posits that the issuance ensures the
presence within the country of the respondents
during the preliminary investigation. Be that as
it may, no objective will ever suffice to
legitimize desecration of a fundamental right.
To relegate the intrusion as negligible in view
of the supposed gains is to undermine the
inviolable nature of the protection that the
Constitution affords.
Note: The Supreme Court has recently issued
A.M. No. 18-07-05-SC or the "Rule on
Precautionary Hold Departure Order" ("PHDO
Rules").
PRECAUTIONARY HOLD DEPARTURE
ORDER (August 2018)
- PHDO can be issued by any court in the
context of pending preliminary
investigation upon application by the NBI
- The issuance of PHDO should have no
bearing whatsoever in the probable cause
determination in the preliminary
investigation which is yet to be concluded.
- PHDO must be issued only by proper
courts
- Once issued, it continues to be valid until
lifted
- One who needs to leave during the
effectivity of the same ,then he can post a
bond for purposes of being allowed to
leave the country for the meantime.
CYBER WARRANTS (should be CYBERCRIME
WARRANTS)
Note: The Supreme Court of the Philippines,
through A.M. No. 17-11-03-SC issued the Rule
on Cybercrime warrants, which took effect last
August 15, 2018.
There is now this so called CYBER WARRANTS
- Way of addressing Disini v. Excutive
Secretary. Among the issues raised in
such case is the Validity of the
competence of the DOJ to take down
certain posts in the computer on the
basis of its determination of just cause
of the violation of Cybercrime Law.
- SC: No such thing as just cause in the
actions authorized in that law. That
provision/measure is
UNCONSTITUTIONAL.
Computer data to be considered in 2
perspectives:
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 1. As Property – therefore protected in the
rule of unreasonable search and seizures
2. As Freedom of Expression – it cannot
be subjected to prior restraint or
subsequent punishment unless there’s a
clear showing of the need of either.
After that ,the court issued the rule on Cyber
warrants for the purpose of creating Cyber Courts
which will have jurisdiction on Cybercrimes
indicated in Sections 4 and 5 of the Cybercrime
Law.
- Cyber warrants can be issued
o where the computer is kept or
operated
o where the effects of the thing to
be seized would have been
done,
o where the person affected would
be found
(From internet) Who shall acquire jurisdiction
over the Cybercrime offenses?
The Cybercrime court where:
- The cybercrime offense was committed
- Where the computer system is situated
- The place where the damage was caused
“Affected”: by the objectionable computer posts/
data
Effectivity of a Cyber warrant: 10 days (same
as regular search warrant)
It can authorize the:
1. Destruction
2. Retrieval
3. Seizure
*From the internet: A.M. No. 17-11-03-SC
provides for the issuance of 4 types of warrants
1. Warrant to Disclose Computer Data
(WDCD)
2. Warrant to Intercept Computer Data
(WICD)
3. Warrant to Search, Seize, and Examine
Computer Data (WSSECD)
4. Warrant to Examine Computer Data
(WECD)
Section 7. The right of the people to information
on matters of public concern shall be recognized.
Access to official records, and to documents, and
papers pertaining to official acts, transactions, or
decisions, as well as to government research
data used as basis for policy development, shall
be afforded the citizen, subject to such limitations
as may be provided by law.
Right to Information
Self-executing provision
Exception: Executive Privilege: Can still trump
our right to information.
No need for intervening or implementing
legislation to breathe life into these rights that
were given to us on the basis of the provision.
Existing in splendid symmetry with Art. II,
Section 28 which imposes upon the State the
duty to disclose all info pertinent to transactions
affected with public interest as may be regulated
by law.
The right to information under Art. III, Sec. 7 is to
be always read in consonance with the duty to
disclose imposed upon the State under Art. II,
Sec. 28
Note: Both provisions are self-executing
provisions
Article II, Sec. 28 Article III, Section 7
Pertains to Right to information on
transactions of the matters of public concern.
government Public Concern is a more
affected with comprehensive term than
public interest Public Interest
Bantay Republic Act v. COMELEC
Omnibus Election Code prohibits the COMELEC
from disclosing the names of the nominees from
the partylist.
This petition for mandamus was filed to compel
COMELEC to disclose the names of those
nominees
SC: ordered COMELEC to disclose and declared
that provision on the confidentiality of the list of
nominees as UNCONSTITUTIONAL for being
contrary to the self- executing provision in Art. III,
Sec. 7
Sereno v. Committee on Trade (2016)
Two requisites must concur before the right to
information may be compelled by writ
of mandamus.
132
 1. the information sought must be in relation
to matters of public concern or public
interest.
2. it must not be exempt by law from the
operation of the constitutional guarantee.
First Requisite
• no rigid test in determining whether or not
a particular information is of public
concern or public interest.
• whether or not the information sought is
of public interest or public concern is left
to the proper determination of the courts
on a case to case basis.
Second Requisite: Exemptions from the Right
to Information
1. national security matters and intelligence
information, trade secrets and banking
transactions and criminal matters
2. diplomatic correspondence, closed-door
Cabinet meeting and executive sessions
of either house of Congress
3. the internal deliberations of the Supreme
Court.
4. matters acknowledged as "privileged
information under the separation of
powers," which include "Presidential
conversations, correspondences, or
discussions during closed-door Cabinet
meetings."
5. information on military and diplomatic
secrets, information affecting national
security, and information on
investigations of crimes by law
enforcement agencies before the
prosecution of the accused.
Note: The executive privilege attaches not to the
person (officer) but to the character of the
information. Such that if there is an
overwhelming establishment of the fact that the
information sought to be elicited from the cabinet
secretary would be in the context of a closed-door
cabinet or meeting, then in this case, the right to
information would have to be subordinated even
to the cabinet’s secretary’s invocation of his
executive privilege.
Sir’s Comment: This is a nuance. But this is not
in a way changing that the executive privilege is
claimed by the President himself. If it should be
extended to the secretaries, it should have been
done in an express or categorical extension.
Remember: Since this is a self-executing
provision, it can be a proper subject of a writ of
mandamus.
The basis of all the Chavez cases discussed is
that this provision is a self-executing provision.
SECTION 8. The right of the people, including
those employed in the public and private sectors,
to form unions, associations, or societies for
purposes not contrary to law shall not be
abridged.
Freedom of Association
Already discussed when freedom of religion was
discussed.
Freedom of Association necessarily includes the
freedom not to associate.
Sir: Be mindful of the nuance in the case of In re:
Edillon
In re: Atty. Marcial Edillon
A.C. No. 1928
August 3, 1978
Atty. Edillion invoked his freedom not to associate
when the court compelled him pay the
membership fee. (He was disbarred)
The Integrated Bar is a State-organized Bar
which every lawyer must be a member of as
distinguished from bar associations in which
membership is merely optional and voluntary.
To compel a lawyer to be a member of the
Integrated Bar is not violative of Edillon’s
constitutional freedom to associate. Bar
integration does not compel the lawyer to
associate with anyone. He is free to attend or not
attend the meetings of his Integrated Bar Chapter
or vote or refuse to vote in its elections as he
chooses. The only compulsion to which he is
subjected is the payment of annual dues. The
Supreme Court in order to further the State’s
legitimate interest in elevating the quality of
professional legal services, may require thet the
cost of the regulatory program – the lawyers.
Such compulsion is justified as an exercise of the
police power of the State.
Sir: I have never been to Manila 3 since 1983. I
exercise my freedom not to associate. If you want
to review the Freedom of association, just read
the case of:
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 QC PTCA v. DEPED
G.R. No. 188720
February 23, 2016
Sir: It contains all the concepts. In which I will
summarize.
1. The freedom of association is not
absolute
2. It is subject to State Regulation. Such as
the Labor Code provisions on unions
where managerial employees are
ineligible to form, assist or joint a labor
union.
Sir: This is a reasonable restraint, an exercise of
the State’s Police Power.
Case: The rationale for this inhibition has been
stated to be, because if these managerial
employees would belong to or be affiliated with a
Union, the latter might not be assured of their
loyalty to the Union in view of evident conflict of
interests. The Union can also become company-
dominated with the presence of managerial
employees in Union membership.
Sir: In this case, the claim was that these PTA’s
are not subject to the regulation of DEPED since
they are independent from schools. The SC held
no because the police power of the State
entitles it to exercise regulatory powers even as
their existence or activities.
Case: A parent-teacher association is a
mechanism for effecting the role of parents (who
would otherwise be viewed as outsiders) as an
indispensable element of educational
communities. Rather than being totally
independent of or removed from schools, a
parent-teacher association is more aptly
considered an adjunct of an educational
community having a particular school as its locus.
It is an "arm" of the school. Given this view, the
importance of regulation vis-à-vis investiture of
official status becomes manifest. According a
parent-teacher association official status not only
enables it to avail itself of benefits and privileges
but also establishes upon it its solemn duty as a
pillar of the educational system.

134

 POLITICAL LAW REVIEW
Atty. Carlo Cruz
November 27, 2019
Section 10. No law impairing the obligation of
contracts shall be passed.
This provision applies to all government
measures unlike the ex-post factor law which is
essentially confined to laws. Impairment can
come by way of subsequent law, executive order,
proclamation, ordinance – all these government
measures can be considered as affecting the
efficacy of contracts.
This provision does not apply to certain contracts
such as marriage contracts which is always
subject to alteration by the State.
Traditionally, franchises are considered to be
contracts. However, be mindful of Art. 12, Sec.
11:
Section 11. No franchise, certificate, or any other
form of authorization for the operation of a public
utility shall be granted except to citizens of the
Philippines or to corporations or associations
organized under the laws of the Philippines, at
least sixty per centum of whose capital is owned
by such citizens; nor shall such franchise,
certificate, or authorization be exclusive in
character or for a longer period than fifty years.
Neither shall any such franchise or right be
granted except under the condition that it shall
be subject to amendment, alteration, or repeal
by the Congress when the common good so
requires. The State shall encourage equity
participation in public utilities by the general
public. The participation of foreign investors in the
governing body of any public utility enterprise
shall be limited to their proportionate share in its
capital, and all the executive and managing
officers of such corporation or association must
be citizens of the Philippines.
Therefore, you remove from the concept of
contracts in Sec. 10 the matter of legislative
franchises.
To impair, it must have a retroactive effect.
Impairment can come by way of removal of
remedies which necessarily attend certain
contracts. Example: contracts of law. Let us say
that there are many securities or collateral
arrangements in a mortgage/chattel mortgage/
pledge contract. If a subsequent law removes all
the remedies but retains only one e.g. the
mortgage, there can be no impairment there if
one of the remedies is retained by the law.
Any and all exercise by the State of its
fundamental powers would necessarily take
precedence as against the invocation of the non-
impairment clause foremost of which is the police
power.
The exercise of any of its fundamental powers of
the State will necessarily prevail over an
invocation of the impairment clause. Foremost
would be the police power of the State.
Ilusorio v. CA
By presidential decree of Agrarian Reform, all
existing tenancy agreements were converted into
leasehold agreements in the exercise of police
power. The police power was made to prevail
over the non-impairment clause.
Feati v. Ortigas
In Ortigas center, there were deeds of
restrictions. One of the restrictions was that
anyone who would purchase property would
confine himself to the erection or construction of
properties which were residential in nature.
Feati Bank wanted to construct a building and
invoked for that purpose a new zoning ordinance
promulgated after the properties were purchased.
The zoning ordinance of the City was made to
prevail over the particular contractual stipulation.
Tiro v. Hontanosas
There used to be tripartite agreements between
the teachers, their creditors and the Dept. of
Education, entitling the creditors to go directly to
the payroll divisions of the DepEd for purposes of
collecting their monthly credits as against the
teachers.
An administrative pronouncement by the
Secretary of the DepEd nullified those tripartite
agreements. As against the invocation of the non-
impairment clause, the competence of the
Secretary was sustained as a valid exercise of
police power. The thinking there was that if the
teachers cannot look forward to receiving their
monthly salary, they would have low morale and
could not teach as effectively.
Today, creditors just hold the ATM cards of the
teachers…
135
In the US, the creditors, in anticipation of the
change of official currency from gold to silver,
stipulated in their contracts that the basis for the
payment in their contracts would still be on the
basis of gold, notwithstanding an official change
in official currency.
The transformation of the official currency from
gold to silver was upheld as against the efficacy
of these contracts.
The police power was upheld over this particular
contractual stipulation.
In the matter agrarian reform, essentially
expropriation, it takes precedence over any
existing agreements regarding any administration
and ownership of the particular land subjected to
expropriation.
There is this old US case to the effect that this
county entered in a long term water distribution
agreement with a water distribution company.
Well, during the efficacy of the 25-year
arrangement the county was elevated to the
status of a city and therefore could now
expropriate. It expropriated the water pipelines
that had been laid out by the water distribution
company. When it complained that there was
impairment of the contract between the former
county and that company, well the power of
expropriation or eminent domain was upheld as
against the continuing efficacy of that contract.
You know the rule on taxation that tax trumps
everything. Tax is always made to prevail. There
is this old old case of
Cassanova v Court
(Cant find the case)
Facts: When the State, through government,
entice foreign firms to engage mining activities
here in exchange they would guarantee tax
incentives and exemptions.
Held: Well that particular contract could not be
arbitrarily set aside as said by the SC.
I doubt very much that this doctrine would still
hold true today. For instance, fairly recently,
maybe in the past 5 years, there was this case of
PAGCOR v BIR
G.R. No. 172087
March 15, 2011
Facts: PAGCOR was given, upon its requests,
tax exemptions and incentives which it used for
enticing foreign investors. In the middle of the
game, the tax exemptions and incentives, were
removed by the Congress. They cried foul,
impairment of their contract.
Held: The Court was emphatic here. Per the
taxation prerogative of the State preempts or
prevails as against any reliance on the non-
impairment clause.
All these cases would indicate na parang bali
wala na yung non-impairment clause. Although, I
would not conclude that categorically because
the SC in that 2018 pronouncement in
Provincial Busses Operators v Dept of Labor
G.R. No. 202275
July 17, 2018
Insists that the non-impairment clause is still
alive. However, it did not cite any jurisprudence
as of late supportive of that particular
pronouncement.
SECTION 11. Free access to the courts and
quasi-judicial bodies and adequate legal
assistance shall not be denied to any person by
reason of poverty.
The essence of the Public Attorney’s Office is
founded in this section.
I publicly proclaim my admiration for the public
attorneys in our jurisdiction
Section 12. (1) Any person under investigation for
the commission of an offense shall have the right
to be informed of his right to remain silent and to
have competent and independent counsel
preferably of his own choice. If the person cannot
afford the services of counsel, he must be
provided with one. These rights cannot be waived
except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation,
or any other means which vitiate the free will shall
be used against him. Secret detention places,
solitary, incommunicado, or other similar forms of
detention are prohibited.
(3) Any confession or admission obtained in
violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
(4) The law shall provide for penal and civil
sanctions for violations of this section as well as
compensation to the rehabilitation of victims of
torture or similar practices, and their families.
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Custodial Investigation
Note that there is no mention in Sec. 12 of
CUSTODIAL investigation. It merely speaks of
any person under investigation for an offense.
He/she shall have the so-called Miranda Rights –
the right to be informed of the right to remain
silent and to have competent and independent
counsel preferably of his own choice. Next, the
waiver has to be with the assistance of counsel
voluntarily made. If he cannot afford the services
of counsel, he must be provided with one.
Jurisprudence tells us that these so-called
custodial investigation rights apply even in the
context of a Preliminary Investigation.
Independently of that statement, be mindful of the
FACTORS which would constitute a proper
reliance on the particular rights under Sec. 12.
These rights do NOT arise under a general
inquiry as to culpability. Ordinary audit
investigations – no Miranda rights. General
assemblies where there is a basic questioning
about certain anomalies and criminal activities –
no Miranda rights. These rights are available to
those who are already the FOCUS of the
investigation. In other words – the suspect. This
is the first factor: the one who can invoke these
rights is the one who is the focus of the
investigation.
Second: There must be some measure of
restraint upon the liberty of the person who is
already a suspect.
Factors
1. The one who can invoke these rights is
the one who is the focus of the
investigation;
2. There must be some measure of restraint
upon the liberty of the person who is
already a suspect.
These two factors would comprise for a proper
reliance on these rights.
CASE 1: There is this branch manager suspected
of certain anomalies for having malversed certain
bank branch funds. There is a formal
investigation and she submits a sworn statement
in the course of the investigation where she,
wittingly or unwittingly, makes admissions
regarding her culpability. On the basis of that
sworn statement, she is dismissed from her
employment, and thereafter, criminal charges
were filed against her. The principal evidence
would be the Sworn Statements submitted. She
invokes these particular rights, i.e. that she was
never assisted by counsel, or never informed of
her right to remain silent. She was thus
questioning the admissibility of the sworn
statement.
Well she invokes this particular right. She was not
assisted by counsel, never informed that she had
the right to remain silent for purposes of asking
for the inadmissibility of her sworn statement
against her. This is a measure against the
government. That sworn statement was
submitted in the context of a private disciplinary
investigation in a private entity in fact. And
therefore, these rights cannot be considered as
being risen in the course of the same. Remember
and you relate this to paragraph 2 of Section 12,
the essence of this particular right is to more or
less ensure that the might, the power of the state
is not invoked for purposes of compelling,
coercing, or intimidating, any suspect into making
an extrajudicial confession or admission. Kaya no
force, violence, threat, intimidation, etc. shall be
invoked against against him. And that is the
essence of this particular custodial investigation.
So remember those three factors:
1. It must be a government investigation;
2. The person who invokes it/ these rights must
be the suspect already and not among the
many subjects of a simple general inquiry;
3. There is somehow a restraint in the liberty of
the person invoking it.
Let’s tackle the matter of Government. One case,
People vs. Andan, this was asked two years ago.
People vs. Andan
G.R. No. 116437
March 3, 1997
We have to mention this again because of the
nuances in the 2018 pronouncements of the
Court. Here was this fellow who became the
suspect as to the killing of a second year high
school female student. She was cut. He was
taken in the precinct and without first being
informed of his miranda rights, well he did make
admissions as to his culpability, and even
disclosed the location of the knife he used to
murder that unfortunate sophomore student. So
they went into his house and found, and retrieved,
and seized, that particular knife. Well after
making that admission, without the miranda rights
first applied in his favor, he was placed inside a
cell. When he was behind bars, he was
interviewed by a television reporter where he
137
again made admissions. And thereafter he
requested an audience with the mayor who
maybe was his friend and in “close-door” behind
a close-door conforence, he admitted again to the
mayor his culpability. After that the mayor opened
the doors of his office and then in came the
reporters. He was asked again by reporters, and
he made the admissions anew. Four admissions,
but only the first would have given rise to the
miranda rights protection. Because it was only
the first where there was an actual
government investigation which went on, he
was the focus of the investigation, and his
liberty was restrained.
Well the other three class, two words, res gestae.
Even if he was behind bars, and restrained and
liberty niya, the one who asked the question was
not government, he was a television reporter.
Therefore, res gestae. Well, the mayor
concededly class, is competent to conduct an
investigation and can be considered as
government for purposes of our present
discussion. But in that particular case, he was not
in the exercise of his authority to investigate. He
was listening to a friend. Therefore, the
statements disclosed to him is res gestae. Of
course, obviously, the final press statements
during the press conference after, the doors were
open considered as well as res gestae.
People v Pepino
GR 174771
January 12, 2016
Note the nuances offered in the most recent
pronouncements in the case of People v Pipino.
SIR: Even if the statements were upon
questioning of press reporters, if the situation
were such that right beside the one who would
make the admissions were police officers, and
there would be any indication that during those
press interviews, the police officers would be
offering or doing some measures that is coercive
or intimidating to the declarant, so that the
declarant would reiterate what he had earlier said
by way of admissions to the police officers in the
course of investigation, that intimidation or
coercion could nullify those particular statements
ESPECIALLY if shown that the Miranda rights
were not read to him before he made those
particular statements.
SITUATION: Arson committed in a community.
The entire community was burned down. So
sinabi si X may kasalanan, the barangay
chairman summoned X sa barangay hall. X made
the admissions. The barangay chairman is also
authorized to investigate. Therefore, if he did not
apply the Miranda rights, all those admissions
made by X in the course of his investigation will
be inadmissible.
People v Mayo
(I can’t find the case citation L )
Note that under the same situation (as
promulgated in People v. Mayo), nakaupo si X
after the questioning done by the brgy. chairman.
May chismoso na kapitbahay who asked X what
happened. X admitted what he did — res gestae,
therefore admissible.
People v Gil
GR 172468
Oct. 15, 2008
Same principle applies with respect to
admissions without Miranda rights before a
barangay tanod, because tanods also
investigates.
Miguel v People
(Bantay Bayan case under Search and Seizure
discussion)
For purposes of unreasonable searches and
seizure, bantay-bayan has been considered as
government and therefore the rules against
unreasonable searches and seizures were made
to apply against them.
BUT NOTE: Barangay kagawads/councilman is
not a government officer for purposes of custodial
investigation. Because barangay kagawads are
not authorized to investigate. Therefore,
admissions made to them would be admissible in
the context of res gestae.
Now, NBI is authorized to investigate. NBI
summons and subpoenas the complainant and
respondent. Respondent honors the subpoena.
(NBI HQ in Taft) As soon as the meeting starts,
the NBI agent told them “ayusin nyo yan”. The
NBI agent left for them to talk and then after a
while, the NBI agent was called kasi nagkaayos
na un parties and may compromise agreement
na. NBI agent checks, sees if it’s signed and then
pinauwi na un parties. Let us say the respondent
reneged in his obligation under that agreement
(where he made an admission to the fact that he
defrauded complainant). (cont.)
Recall the NBI agent. “Boss. Nag-ayos na po
kami, meron na kaming compromise agreement.
O napirmahan niyo na? Okay na kayo? Uwi na
kayo.” Well, let us say that thereafter, the
138
respondent reneged on his obligations under that
agreement. In that agreement, he made an
admission as to his having defrauded the
complainant. Later on, he reneges on his monthly
obligations and the complainant decides to file a
criminal case against him invoking that particular
compromise agreement. Recall that the
declarations there were done voluntarily and not
in the course of an investigation therefore, those
declarations there of admissions should be
considered as admissible against the respondent
in this particular case.
This case of People v. [German surname]
involving a German lady who was about to leave
until the metal detector detected something.
There were drugs, etc. She was in a hurry and the
police officers came and told her na, “pumirma ka
lang ng sworn statement na ito na you’re
acknowledging that this is your maleta then you
can go.” So she did sign it. That particular
admission in that particular statement =
INADMISSIBLE precisely because she was NOT
“Mirandized” before. Actually what happened to
her after executing that sworn statement, niloko
siya at dinala siya sa NBI. Anyway,
INADMISSIBLE against her.
However, remember that the inadmissibility of
these extrajudicial admissions and confessions
as provided for in this exclusionary rule
prescribed in paragraph 3 of Section 12, can be
OVERRIDEN by other competent evidence such
as the case of this German lady. Yes, the sworn
statement was not admitted in evidence against
her but the object evidence was. The fact that
there were witnesses who testified that the
maleta was hers, etc.
Line-ups
People v. [inaudible]. An old case reaffirmed in so
many other cases after it would tell us that the
line-up is NOT a part of custodial investigation
and therefore, Miranda rights NOT YET available
at that point.
Note the qualifications prescribed in recent
jurisprudence (2018).
Upon arrest, there is a press conference. The
suspect is wearing yellow/orange and introduced
to the media. After the presscon, the following
day there will be a police line-up. At this point, the
victims/complainants would be asked to identify
them.
THERE IS A DIFFERENCE. In that particular
line-up which comes after the press conference,
there are already Miranda rights available to the
accused there.
Change the situation, there is a line-up before the
press conference. There are still no Miranda
rights available there because that line-up which
precedes the investigation, certainly, is not to be
considered as part of the custodial investigation.
But when the accused had already been arrested,
they are already suspects introduced to the press
and then subsequent to the press conference
there is a line-up. In that particular line-up, the
custodial investigation rights are already
available.
Art. III
Section 12. (4) The law shall provide for penal
and civil sanctions for violations of this section as
well as compensation to and rehabilitation of
victims of torture or similar practices, and their
families.
Apart from the additional fact that there is par. 4
which requires compensation to the family of the
victims of torture and similar practices. There are
laws which would provide for damages in favor of
those people whose rights under Sec. 12 would
have been breached.
For instance, there is a law which says that if
there violation of this rights – up to Php 10,000
can be awarded as damages. In Anti-Terrorism
Law/ Human Security Act, it provides that if you’re
unlawfully detained and subjected to violations of
custodial investigation rights, you would be
entitled up to Php 500,000/day worth of damages
subject to appropriations. (but of course, the
Congress would never make such appropriations
for that particular provision.)
The matter of waiver – voluntarily, freely done
with the assistance of counsel.
(Sir points out something that he is curious about)
In one of these cases, there is this law which
contains a clause which says that if the
assistance of counsel is difficult to obtain in far-
flung places, the assistance of the mayor, judge,
priest or parents/elders may be invoked for
purposes of validating the voluntary confessions
made.
139
Sir’s POV: I find that of doubtful constitutionality
because the word which appears in par. 1 of Sec.
12 is assistance of counsel. It’s okay if the
mayor/priest/etc., were a lawyer. (of course,
judges are lawyers) But on their own per se, I
don’t know if they could validly assist in the
context of these Miranda rights prescribed in the
Constitution.
Bail
Art. III
Section 13. All persons, except those charged
with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by
law. The right to bail shall not be impaired even
when the privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be required.
Remember:
1. Bail is a matter of right before and after
conviction in the lower metropolitan/
municipal trial courts.
2. It is a matter before conviction in the RTC
but after conviction then it becomes a
matter of discretion. Invariably, RTCs
have invoked this tough-against-bail
policy.
There is no such things as constructive bail.
People v. Valero – Based on the PRESCRIBED
PENALTY not imposable penalty.
“Reculsion Perpetua or higher” What is the basis
for the granting of bail? Would it be based on the
prescribed penalty or the imposable penalty as in
indicated in the information? Example, the
offense indicated in the information is punishable
by Reclusion Temporal in its medium to the
maximum period but there are aggravating
circumstances such that it would be elevated to
RP. Do you base the assessment of bail on the
prescribed or imposable? Prescribed. Why?
Because you cannot determine the penalty to be
imposed until after the trial.
Sir: on the matter that there must always be a
hearing before the bail. Hindi totoo yun. Just go
to the courts. Nahuhuli lang minsan yung mga
judge. Na-aadministrative case sila. Because if
they actually conduct hearing for bail for all cases,
wala na sila matatapos. So at the very least pro
forma lang. But you can insist on a hearing as a
matter of right.
Remember that if there is a denial or granting of
the plea for bail, especially if there were a
granting of bail, it’s non-sequitur with respect to
the prior determination of probable cause. Just
because bail was granted on a non-bailable case,
the accused, now out on bail, cannot insist that
that is a clear indication that there was no
sufficient probable cause which would’ve
warranted the filing of the criminal complaint to
begin with.
Probable cause as a standard for the filing of an
information in the context of preliminary
investigations is different from the quantum of
proof for the granting or denial of pleas for bail.
Based on Napoles v. Sandiganbayan (G.R. No.
224162, Nov. 7, 2017) the proper term is not
probable cause but “proof evident, presumption
great.”
Leviste v. CA
G.R. No. 189122
March 17, 2010
These two terms are non-sequitur. A granting of
bail should not be considered an indication that
the probable cause determination in the
preliminary investigation which led to the filing of
the information would’ve been inadequate.
Rights of the Accused
Section 14. (1) No person shall be held to answer
for a criminal offense without due process of law.
This is already covered in the general concept of
due process, but this is focused on criminal
cases. This is a catch-all defense for clients who
may be accused—a measure against any form of
arbitrariness in criminal proceedings.
Inordinate delays can be founded in Sec. 14, Par.
1. The matter of speedy trials can also be
founded in this paragraph. The matter of quantum
of evidence (i.e. proof beyond reasonable doubt)
is justified because of this paragraph.
The preliminary investigation is not a
constitutional right; it is merely statutorily
conferred. But if this statutorily prescribed right
were to be disregarded, you can raise a
constitutional challenge based on Sec. 14, Par. 1,
the right to criminal due process.
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Presumption of Innocence
People v. Opida
G.R. No. L-46272
June 13, 1986
The scales of justice must hang equal. No less
than proof beyond reasonable doubt, which is the
highest quantum of evidence prescribed in any
proceeding in our jurisdiction, should be
necessary for the purpose of conviction.
People v. Tentongko
G.R. No. L-69668
October 2, 1986
While the accused may have been lying, and
there is proof of this fact, the SC said it was not
convinced that the complainant was telling the
truth. This would indicate that it does not really
matter if the defense evidence were weak. What
really counts for purposes of overcoming this
presumption of innocence would be the strength
of the evidence of the prosecution which must be
acquainted with that concept of proof beyond
reasonable doubt, [definition of which is] moral
certainty.
Trillanes v. Pimentel
G.R. No. 179817
June 27, 2008
Presumption of innocence prevail until final
conviction.
Excerpt: The rule stands that until a promulgation
of final conviction is made, the constitutional
mandate of presumption of innocence prevails.
[The concept of presumption of innocence is one
of the “baduy” concepts. However, they are
baduy because they are the most essential. For
example, because of this concept of presumption
of innocence, there are numerous acquittals
effected in the Supreme Court. This is because
there had been engendered reasonable doubts.
This is also the reason why, if there are lapses in
the chain of custody, an evidentiary requirement
prescribed in the Dangerous Drugs Act, even if
tested against the presumption of regularity, the
presumption of innocence would still prevail. The
accused would still be considered as innocent;
therefore, despite countervailing evidence, he
would be acquitted.]
However, it is still a presumption. It can be
effectively rebutted by competent evidence.
Often, problems here would arise with respect to
it being tested against other presumptions under
the law. For example, presumption of innocence
would often be challenged by the presumption of
regularity.
• Look at the facts and find out if the
officers are found not to have been
motivated by any ill-will, malice, or bad
faith. Certainly, the presumption of
regularity can be made to prevail against
presumption of innocence, but,
invariably, if one would weigh the cases,
it would always still be the presumption of
innocence which would be weightier, as
against the presumption of regularity of
performance of official functions.
Two other important presumptions:
1. Flight.
a. Flight results to presumption of guilt.
b. Therefore, if someone flees, then the
constitutional presumption of
innocence, necessarily, would be
affected.
However, jurisprudence also provides that
staying or returning to the scene of the crime,
does not guarantee the presumption of
innocence. There is no presumption of innocence
there. This is because it has been the style of the
criminals to return to the scene of the crime, in
order to purport themselves as innocent.
There are two cases to that effect:
Well, of particular interest to me, dito ko lang
nakitang inaapply ang presumption na ito. If you
are caught in possession of the stolen goods,
then you are presumed to have stolen the goods.
That particular disputable presumption was
precisely applied in this recent case about a week
after the commission of the robbery. Here were
the accused who were found in possession of the
stolen goods. That particular presumption of
having committed the crime was applied against
them. Of course, there was also supportive
evidence of the fact that they actually were the
robbers. There was a good discussion here by
way of application of that particular disputable
presumption, which in this case was admitted as
against the presumption of innocence.
Section 14. (1) No person shall be held to answer
for a criminal offense without due process of law.
(2) In all criminal prosecutions, the accused shall
be presumed innocent until the contrary is
proved, and shall enjoy the right to be heard
by himself and counsel, to be informed of the
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nature and cause of the accusation against him,
to have a speedy, impartial, and public trial, to
meet the witnesses face to face, and to have
compulsory process to secure the attendance of
witnesses and the production of evidence in his
behalf. However, after arraignment, trial may
proceed notwithstanding the absence of the
accused provided that he has been duly notified
and his failure to appear is unjustifiable.
The right to be heard by himself and counsel
The right to be heard by himself and counsel. Of
course, needless to state, this is applicable even
to the deaf-mute and I do not jest in this regard.
Recall the two cases in far-flung courts that there
were these two accused, separate cases, who
were deaf-mutes. The judges in those cases, it
was clearly shown that they exerted best efforts
to obtain the services and assistance of the sign-
language experts. Futile ang best efforts ng
judge. After times of trying, the judge just decided
finally to proceed to continue with the trial and the
deaf-mute accused were both convicted.
The Supreme Court annulled those
convictions because they would have been in
violation of his right to be heard by
themselves and their counsel.
Remember that this particular right, needless
to state, includes to present evidence.
Remember that this right has been
considered as immutable in the context of
criminal cases.
The recent bar examination question in
political law asked if the right to counsel is a
constitutional right when it comes to
administrative proceedings - of course not.
The right to counsel and the right to be heard
by himself and by counsel is immutable only
in the context of criminal cases.
It is also available, like the presumption of
innocence, until also final conviction.
Let me just point out the case of Estrada who, in
the middle of the plunder trial against him, fired
all of his counsel de-parte sila Flaminiano,
Saguisag, etc. The Supreme Court commended
the Sandiganbayan for having insisted and
appointed the public attorneys who were then
present to act as counsel de-officio over the
strong objections of the public attorneys precisely
because they are supposed to represent the
poor. In this particular case, the accused they
represented de-officio was a plunderer, a
billionaire. Well, the Supreme Court
commended the Sandiganbayan. Precisely, it
is by way of recognition of the importance of
this particular right. This is immutable in
criminal cases.
People v. Ching Chan Liu
G.R. No. 189272
January 21, 2015
The latest pronouncement here will be that case
of People v. Ching Chan Liu. Ito yung mga
smugglers na nakitang doing their smuggling
activities. I could never understand "laot" which
means near the shore. Nakita sila sa laot, which
means near the water.
These Chinese when they were apprehended,
they said two sentences. “Call China. Bring
money.” Throughout their incarceration,
throughout their trial that was the only thing they
keep repeating. The judge would show, and this
is reflected in the records, to have exerted best
efforts to look for a counsel for them who could
speak their language. But each time, these
Chinese nationals consistently rejected the offer
of legal assistance. This is a departure from the
two cases I mentioned. Here, when the Chinese
smugglers were finally convicted, on appeal, they
raised the right to be heard and right to counsel.
SC disregarded precisely because the records
show, the zeal of the judge in exerting best
efforts, to make available to them a counsel. The
court emphasized that they unreasonably
rejected each offering done by the trial judge. In
this particular case hindi applicable yung right to
be heard and counsel. People v. Chin Chan Liu
Right to be informed of the nature and cause
of the accusation against him
When I was a new practitioner, when I would
defend an accused in criminal cases ang usual
manifestation at the start, People v. Jepoy
(example) “I represent the accused in this case,
the accused has read the information against
him, he has understood the contents thereof and
he is entering a plea of not guilty. We are ready
for trial your honor.” That is valid arraignment
back then. This is no longer allowed today
because the in light of the right to be informed of
the nature and cause, essentially must be done
in the course of an arraignment where it is now
required for the actual information to be read and
understood by the accused. The judge must ask
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probing questions as to whether or not he fully
understood the allegations and information
against him. And only if the judge is satisfied, can
the accused enter a plea and considered valid.
Three reasons why this right is available:
1. To apprise the accused as to the
character of the charges he would be
facing
2. For the purpose of enabling him to
come up with a proper defense if he so
wishes. These are purposes for him to
secure either his conviction or
acquittal because he may want to
plead guilty.
3. To apprise the judge, the court, for
purposes of enabling him to act
accordingly as to how to proceed. He
must understand the charges.
Basic rules
Always go by the description of the offense. Do
not go by the designation. So if there was
conviction on the basis of specific allegations in
the complaint Aeven if the conviction would be
not in consonance with the designated offense
what is controlling is the body or the description
of the offense in all instances.
For instance, for violation of Par. 2 Art. 171 but
the allegations in the complaint but the
allegations in the complaint spell out a violation of
par. 1 of Art. 171. Even if par. 2 would have been
indicated in the designated offense, if proof were
consistent with par. 1 in the body of the
information then there is no violation of the right
to be informed of the nature and the cause of the
accusations against him.
For instance, the designated offense is homicide
filed properly with the RTC but the body of the
information would have indicated the attendance
of the crime with these qualifying aggravating
circumstances of treachery, nocturnity, abuse of
superior strength in the designated offense. Kahit
na homicide pa ang nakalagay sa designated
offense, kapag naprove ang basic allegations
providing for these aggravating circumstances,
there is no violation of the right to be informed of
the nature and the cause of the accusations
against him.
Even if the specific words “aggravating
circumstances” would not be present in the body
of the information, so long as the actual
aggravating circumstances are properly alleged,
then if there were conviction on the basis of the
aggravating circumstances and therefore
qualifying it to a higher penalty, there would be no
violation of this right to be informed.
Conversely, if there were no allegations as to
aggravating circumstances but they were later on
proved in the trial, there can be NO appreciation
of the PROOF of aggravating circumstances for
purposes of the criminal conviction.
But note, even if not alleged, provided the
aggravating circumstances are proved, those
aggravating circumstances as proved can be
invoked by the judge for purposes of qualifying
the amount of damages that can be awarded so
long as the aggravating circumstances not
alleged but proved would not go into the
conviction. The award of the damages can
include as factors the aggravating circumstances.
This is consistent with the ruling that civil liability
is deemed incorporated in civil liability in criminal
actions. Impliedly instituted ang civil liability in
accordance with Rule 111 of the Rules of Court
and Art. 2177 of the Civil Code on double
recovery on torts and damages.
Two other points that are important here. The
matter of the absorbed crimes. This is also
important when we tackle double jeopardy.
For instance, the accused is charged with selling
or pushing drugs. Let us say that one of the
elements of the sale of drugs is not proved. The
judge, however, convicts him of possession of
drugs.
Can the judge convict based on possession?
Yes. Possession is absorbed in the crime of
smuggling so you see these are inseparable. Be
mindful of the facts presented to you. For
example, a buy bust and he was in possession of
sachets of shabu, the guy can be convicted for
the possession of the drugs intended to be part of
the same, there can be no conviction for the
drugs seized AFTER which if not alleged in the
information cannot be the subject of the so-called
absorption. There would have to be separate
charges filed for the other sachets of shabu found
on his person after the buy bust was done.
People v. Valdez
G.R. 175602
January 18, 2012
He was convicted for murder. On appeal to the
SC, one of the elements was found by the SC as
not adequately proved. He was convicted for
homicide. The SC said it would not violate the
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right to information since the offense of homicide
is necessarily included in murder.
Variance Rule: If there were a variance between
the offense charged and the offense proved, but
the offense proved necessarily includes or is
necessarily included in the offense charged, then
the accused can be convicted for the offense
proved which necessarily includes or is
necessarily included in the offense charged.
Other examples on the Variance Rule.
- Accused of rape with intimidation: It was
proved that the victim was raped while
she was asleep. There is a violation there
if he was convicted for rape while asleep
because there would have been a
different defense.
- Homicide by stabbing but the records
show homicide by drowning. The
variance there is not acceptable. That
would result in a violation of the right to
be informed of the nature of the cause of
the accusation against him.
People v. Arcillas
G.R. 181491
July 30, 2012
The charge was for qualified seduction while the
element of the crime that is essential there is that
it be committed by a relative. In this case, the
accused was the stepfather. The evidence
showed that mother and him were never married
so indeed there was a common law relationship.
There was a conviction for qualified seduction.
SC said INVALID. There is inconsistency
between the offense charged and the evidence
proven therefore there is a violation of the right to
be informed of the nature of the cause against
him.
Speedy Justice
Art. III
Section 14. (2) In all criminal prosecutions, the
accused shall…enjoy the right to have a speedy,
impartial, and public trial[.]
From the foregoing, it is apparent that the concept
of speedy justice applies only to criminal cases.
The larger or greater right, however, is found in
Art. III Sec.16.
Section 16. All persons shall have the right to a
speedy disposition of their cases before all
judicial, quasi-judicial, or administrative bodies.
An administrative proceeding as provided for in
Sec. 16 would refer to the matter of a preliminary
investigation.
Magante v. SB
G.R. No. 230950-51
Jul. 23, 2018
2 informations were filed against Petitioner for
falsification of public documents. Thereafter,
Petitioner filed a MTD on the ground that
inordinate delay attended the conduct of the
preliminary investigation of his alleged crimes, in
violation of his right to a speedy disposition of
cases. It allegedly took 7 years, from the
commencement of the fact-finding investigation
for the Omb. to issue its Resolution directing the
filing of 2 separate informations. This was denied
by the Omb. The Supreme Court ruled that the
broad protection provided by the right to speedy
disposition embraces the periods before, during
and after trial. Thus, it can properly be invoked
even as early as preliminary investigation, even
before the investigating officer renders his ruling
on the determination of probable cause.
Cagang v. SB
G.R. Nos. 206438
Jul. 31, 2018
The Omb.’s received of a tip and of anomalies in
the finances of the provincial government of
Sarangani in 2003. An audit was conducted by
the COA in 2003. A criminal case for
malversation through falsification of public
documents was filed against Petitioner (and 4
others) in 2005. SB acquitted Petitioner in 2010
for insufficiency of evidence. But another
information was filed against Petitioner in 2011
for violation of RA 3019. Petitioner then filed a
Motion to Quash/Dismiss with Prayer to Void and
Set Aside Order of Arrest. This was denied by the
Sandiganbayan. Petitioner argues that the denial
of his Motion violated his right to speedy
disposition of cases. The Supeme Court ruled
that considering that fact-finding investigations
are not yet adversarial proceedings against the
accused, the period of investigation will not be
counted in the determination of whether the right
to speedy disposition of cases was violated.
Thus, this Court now holds that for the
purpose of determining whether inordinate
delay exists, a case is deemed to have
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commenced from the filing of the formal
complaint and the subsequent conduct of the
preliminary investigation. In People v.
Sandiganbayan, Fifth Division, the ruling that fact-
finding investigations are included in the period
for determination of inordinate delay is
abandoned.
3 basic rules to speedy justice:
1. Fixed period rule - if there is a statutorily
provided deadline for decisions in cases, it
must be followed. Beyond the deadline, it
may be considered as inordinate delay. This
is practiced in our jurisdiction e.g. laws
provide that drugs and kidnapping cases
must be resolved within 90 days. These
statutory deadlines have also been adopted
by the Supreme Court in its Rules as to avoid
inconsistency.
2. Demand-waiver rule - The reckoning of
inordinate delay commences upon the
affirmation of the right to speedy justice. All
periods prior to the making of the demand for
speedy trial would be considered as waived
3. Balancing-of-interest rule - Factors in the
reasons for the delay, whether it is imputable
to the accused, respondent, or defendant.
This primordially applied in our jurisdiction.
Since you have time, I suggest you read the case
of Cagang v. Sandiganbayan.
The earlier case here, would be the case of
Magante v. Sandiganbayan July 23, 2018.
Remember, there are other speedy justice
concepts in the Constitution.
1. In Art. VIII, Sec. 5 - the matter of changes
of venue and temporary detail of judges
intended also to speed up justice.
2. In Art. VIII, Sec. 5 (5) - Even the Rules of
Court are required to prescribe speedy
justice.
3. In Art. VIII, Sec. 15 - deadlines are
prescribed for promulgation of judgments
by courts.
a. 24 months for the SC
b. 12 months for collegiate courts and,
c. 3 months for trial courts
d. Sandiganbayan - by resolution of
November 2001, the
Sandiganbayan, although a insisted that it should be given the right to cover
collegiate court, the deadline is 3
months. It is considered, merely for
this purpose, as a trial court. This
would be consistent with the
authority of the Supreme Court as
indicated in Art. VIII, Sec. 15 to
further the reduce the deadlines
prescribed there.
4. Art. IX-A, Sec. 7 - deadline for the
Constitutional Commission adjudications
- 60 days from the submission for
decision.
All of these are speedy justice concepts in the
Constitution.
Impartial tribunals
This is due process. In criminal due process, the
case of Dy v. People, another case wherein the
rule na impliedly instituted yung civil aspect sa
criminal case.
Dy v. People
G.R. No. 189081
August 10, 2016
In this case, the court adjudicated on the civil
liability on the basis of a contract that was proved
during the criminal trial.
According to the SC, that is NOT part of the civil
liability impliedly instituted in the criminal action.
That proof and adjudication on the separate
contract should have been the subject of a
separate civil action and could not have been
incorporated in that criminal proceeding. So
criminal due process is also involved there.
Public Trial
I cite three cases here.
1. Libel suit of Cory Aquino against
Philippine Star
2. Plunder case of Estrada
3. Ampatuan murder cases (still awaiting
decision)
In the Cory Aquino case, the press insisted that
they should be allowed to cover the proceedings,
and for the purpose invoked this right to trial as
provided in Art. III, Sec. 14 (2). The court correctly
made it clear that this right is the right of the
accused and cannot be invoked by the press. It’s
very simple so denied.
But later on Justice Vitug in his ponencia in the
Estrada plunder case where the press similarly
the Estrada plunder trial. The SC tempered the
right of the accused to a public trial and the right
to freedom of the press and arrived at a win-win
situation. The press was allowed to cover but not
145
on the basis of Art. VIII Sec. 14 (2) but rather on
the basis of freedom of expression.
So you will note, they still feature footages on the
plunder trial of Estrada permanently naka-train
lang yung camera from outside the courtroom
toward the bench…
Towards the bench, but there was no interview,
there was no panning of the camera to the left,
panning to the right, no embellishments, just a
simple coverage. And the same principle obtains
today in the Ampatuan mass murder case, but it
was already more high-tech. Freedom of the
press includes the freedom to a competent
livestreaming because of the parameters, but of
course with parameters.
Right to Compulsory Process
Article III, Section 14 (2) In all criminal
prosecutions, the accused shall enjoy the right to
have compulsory process to secure the
attendance of witnesses and the production of
evidence in his behalf…
Included also is the right to compulsory process
to securing attendance of the witnesses and
reproduction of the witnesses for his behalf. This
includes requests for Subpoena and subpoena
ad testificandum.
Joey Marquez v Sandiganbayan
G.R. Nos. 187912-14
January 31, 2011
This case involves the Joey Marquez case as
mayor of Paranaque. When he made a request
for the inspection of the signature of the question
vouchers, he wants to refer to the division of
Camp Crame which holds the document.
Sandiganbayan denied this request. The
Supreme Court reversed the Sandiganbayan,
holding that this is a right covered by Section 14,
Par 2, Art III.
Ratio in the case: In the conduct of its
proceedings, a court is given discretion in
maintaining the delicate balance between the
demands of due process and the strictures of
speedy trial on the one hand, and the right of the
State to prosecute crimes and rid society of
criminals on the other. Indeed, both the State and
the accused are entitled to due process.
However, the exercise of such discretion must be
exercised judiciously, bearing in mind the
circumstances of each case, and the interests of
substantial justice.
Fitness by Design v Commissioner of
Internal Revenue
GR No. 177982
October 17, 2008
The other case is a tax case. This is a CTA case,
wherein the appellant insists that he has right to
compulsory process of production of evidence
because there is a parallel preliminary
investigation in the same subject covered by the
CTA proceedings. The Supreme Court
disagreed. This is a right of the accused, and
cannot be availed of as an absolute right in the
context of taxation proceedings pending before
the CTA. Do not confuse the preliminary
investigation with the rights of the accused.
Insist your client to still participate in litigation
even if they do not want to. It is provided in Par 2,
Sec 14, how trial will proceed notwithstanding the
absence of the accused, provided that he has
been duly notified and that his failure to appear
and his failure to appear is justifiable.
Trial in absentia may be invoked, when the
accused waives his right to be present in his trial.
But do not confuse this with the Court’s
entitlement to forfeit your bail. Tell your client to
appear before the court when your trial is called,
and stand to register your attendance.
You will ask him and you will tell him that when
his name is called, you will stand and register
your attendance. You will go the front and sign
the constancia. If he does not do those things, a
bench warrant can be issued as against him and
his bail can be considered forfeited. Non sequitur
yan.
Section 13. All persons, except those charged
with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by
law. The right to bail shall not be impaired
even when the privilege of the writ of habeas
corpus is suspended. Excessive bail shall not
be required.
Kahit na lawful ung arrest mo, later on, you can
still sue for habeas corpus. For example, if a plea
for bail would have been arbitrarily rejected by the
court, then that transforms the deprivation of
liberty to unlawful restraint and therefore, habeas
corpus is justified.
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In criminal cases, habeas corpus can also be
applied for. For example, the penalty is reclusion
temporal medium to maximum, but later on [in a
subsequent law], the penalty to be imposed is
only prision mayor, eh di prision mayor na ang
service of sentence mo. Therefore, ex post facto
law, favorable to the accused. You can sue for
habeas corpus, securing your release. By reason
of the subsequent law, resulting in a lower
penalty, your continued detention should be and
can be the proper subject of a petition for the writ
of habeas corpus.
Article VII
Section 18. The President shall be the
Commander-in-Chief of all armed forces of the
Philippines and whenever it becomes necessary,
he may call out such armed forces to prevent or
suppress lawless violence, invasion or rebellion.
In case of invasion or rebellion, when the public
safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the
writ of habeas corpus or place the Philippines or
any part thereof under martial law. Within forty-
eight hours from the proclamation of martial law
or the suspension of the privilege of the writ of
habeas corpus, the President shall submit a
report in person or in writing to the Congress. The
Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special
session, may revoke such proclamation or
suspension, which revocation shall not be set
aside by the President. Upon the initiative of the
President, the Congress may, in the same
manner, extend such proclamation or suspension
for a period to be determined by the Congress, if
the invasion or rebellion shall persist and public
safety requires it.
I would like to stress that this is not necessarily in
connection only with political criminal offenses of
rebellion and invasion. Even the Rules of Court
provide for habeas corpus as remedy in cases of
the conflicts of the custody of children. Any
unlawful restraint of liberty is subject of a petition
for writ of habeas corpus.
Be mindful of the Calderon cases.
Manalo v. Calderon
G.R. No. 178920
October 15, 2007
Facts: Soldier placed under restrictive monitoring
– restrictive movements. When they were
subjected to such orders by their superior, they
sued for habeas corpus, claiming that there was
a restraint on their liberty.
Held: The SC said no. You are soldiers so your
remedy is by exhaustion of administrative
remedies. You question your superior officers
restricted to barracks, strict monitoring of
movements pronouncements – then go to higher
superior officers. No restraint on liberty, therefore,
no habeas corpus allowed.
In the Matter of the Petition of Habeas
Corpus of Eufemia E. Rodriguez
G.R. No. 169482
January 29, 2008
Facts: An octogenarian in the care and custody
of her nephew. While the nephew was away, the
other cousins took the octogenarian and started
taking care of her in their homes. Nephew sued
for habeas corpus.
Held: SC said that there is no restraint of liberty
in this case.
Osorio v. Navera
G.R. No. 223272 (Resolution)
February 26, 2018
Facts: A soldier was charged for kidnapping and
was tried before the RTC. SSgt. Osorio mainly
argued that courts-martial, not a civil court such
as the Regional Trial Court, had jurisdiction to try
the criminal case considering that he was a
soldier on active duty and that the offense
charged was allegedly "service-connected."
Ratio: SC held that a writ of habeas corpus may
no longer be issued if the person allegedly
deprived of liberty is restrained under a lawful
process or order of the court. The restraint then
has become legal. Therefore, the remedy of
habeas corpus is rendered moot and academic.
Contrary to SSgt. Osorio's claim, the offense he
committed was not service-connected. The case
filed against him is none of those enumerated
under Articles 54 to 70, Articles 72 to 92, and
Articles 95 to 97 of the Articles of War.
Further, kidnapping is not part of the functions of
a soldier. Even if a public officer has the legal duty
to detain a person, the public officer must be able
to show the existence of legal grounds for the
detention. Without these legal grounds, the public
officer is deemed to have acted in a private
capacity and is considered a "private individual."
The public officer becomes liable for kidnapping
and serious illegal detention punishable
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by reclusion perpetua, not with arbitrary detention
punished with significantly lower penalties.
In re Salibo v. Warden
G.R. No. 197597
April 8, 2015
In relation to the ampatuan murder cases, Salibo
was mistaken to be Butukan S. Malang who was
charged with 57 counts of murder. In summary,
Salibo was subject to a case of mistaken identity
and consequently arrested and detained because
of it.
Ratio: The SC ruled that Salibo was not arrested
by virtue of any warrant charging him of an
offense. He was not restrained under a lawful
process or an order of a court. He was illegally
deprived of his liberty, and, therefore, correctly
availed himself of a Petition for Habeas Corpus.
The Information and Alias Warrant of Arrest
issued by the Regional Trial Court in People of
the Philippines v. Datu Andal Ampatuan, Jr., et al.
charged and accused Butukan S. Malang, not
Datukan Malang Salibo, of 57 counts of murder in
connection with the Maguindanao Massacre.
Because of which, Habeas corpus is the proper
remedy for a person deprived of liberty due to
mistaken identity. In such cases, the person is not
under any lawful process and is continuously
being illegally detained.
The Right against Self-Incrimination
The latest pronouncement here is a 2018 (2017
when I checked) case OCA vs. Judge Yu.
OCA vs. Judge Yu
A.M. No. MTJ-12-1813
March 14, 2017
She was investigated for an administrative
proceeding and she invoked her right against
self-incrimination. This is available only against
testimonial compulsion. In this particular case,
she was asked to produce documents that was
not covered in that perspective. Second, it cannot
be invoked in non-criminal matters. It is clear that
problem you may face must focus on that two
essential points:
1. It does not cover object evidence or
evidence which can be obtained in the
bodies of the persons subject to the
inspections.
2. It is available only as against testimonial
compulsion and in the context of criminal
cases.
A little discussion on Object Evidence. Be mindful
of the cases cited in the textbook. For instance,
the extraction of a small amount of blood to
determine the level of intoxication of the one who
figured in a vehicular accident to determine
culpability. There is no violation against this right
against self-incrimination.
For medical examination of the blood of an
accused to determine whether he has STD
because the victim contracted gonorrhea by
reason of the rape. A connection was sought to
be established. That is not in violation by way of
the violation against the right of self-incrimination.
Remember the nuance in Beltran vs. Samson.
Beltran vs. Samson
G.R. No. 32025
September 23, 1929
Requiring the handwriting amounts to his
testimonial compulsion. It does not require a
simple mechanical act. It requires the utilization
of mental capabilities therefore the use of mental
capabilities partakes the character of testimonial
therefore protected under the right against self-
incrimination.
This right (against self-incrimination) is available
at the outset and absolutely in favor of all
accused.
Situation: Congress sending subpoena for the
accused to appear in connection with a legislative
investigation.
• The right cannot be invoked for the
purpose of snobbing or rejecting the
subpoena issued by Congress
• He must appear under pain of legislative
contempt
• It is only upon his appearance that he
can invoke the right, but he must
honor the subpoena
Insofar as other witnesses are concerned:
• The right is available only as and when
the incrimination question is propounded
• All other questions may not be rejected
by an ordinary accused. Only
incriminating ones may be rejected.
If the question is no longer incriminating:
• He can be compelled to answer
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 • Instances (when the right cannot be
invoked):
o If the question pertains to a matter
that had already been the subject of
a prior conviction of acquittal (double
jeopardy already attached) Thus, the
response cannot incriminate him
o The accused had already been
granted immunity through processes
prescribed by law. So immune
already from the crime
o If the question would tend to
embarrass him or involve him in
certain civil liabilities.
Sir’s example #1: Rapist. Defense is erectile
dysfunction. Can he be compelled to take the
witness stand, disrobe, and attach a bell on his
you-know and then display Anne Curtis in front of
her in a bikini to detect if there would be a
reaction. If the bell rings, can that be considered
object evidence?
• To begin with, that accused cannot be
compelled to take the witness stand
• But then this is object evidence.
Note: Is it possible to extract semen from a male
without masturbation? Prof does not think so. So
if an erection is forced – is this violative of the right
to self-incrimination? Prof thinks that it would be
violation against the person of the accused by
forcing it to have an erection. The Prof would
consider that as arbitrary and therefore offensive
to the Constitution. But not necessarily on the
basis on the right against self-incrimination rather
on the basis on the right to criminal due process
as indicated in art. III, sec. 14 (2).
Article III
Section18. (1) No person shall be detained solely
by reason of his political beliefs and aspirations.
(2) No involuntary servitude in any form shall exist
except as a punishment for a crime whereof the
party shall have been duly convicted.
Correlate Art. III Sec. 18 (1) with Art. IX-C Sec.
10
Bona fide candidates for any public office shall be
free from any form of harassment and
discrimination.
Involuntary Servitude (Sec. 18 (2))
• The important thing here is the matter of
compulsion/coercion. If voluntary
servitude includes the concepts of
slavery, peonage.
• Peonage – labor in a condition of
servitude to extinguish a debt.
Imbong v. Ochoa
G.R. No. 204819
Apr. 8, 2014
Recall the provision in the RH law which was
upheld by the SC. If you are a medical practitioner
who wishes to be accredited with the PhilHealth,
you must render 48 hours pro bono medical
service. The doctors challenged this as being
offensive against this right to involuntary
servitude. The argument was rejected by the SC
because there is no compulsion here. The law
merely prescribes an incentive for accreditation.
If you want to be accredited, then you give pro
bono work; if you don't want, then you don't. No
one is being forced.
Note: The notion of involuntary servitude
connotes the presence of force, threats,
intimidation or other similar means of
coercion and compulsion. A reading of the
assailed provision reveals that it only encourages
health care service providers to render pro bono
service. Other than non-accreditation with
PhilHealth, no penalty is imposed should the
choose to do otherwise. Clearly, no compulsion,
force or threat is made upon them to render pro
bono service against their will. While rendering of
such service was made a prerequisite to
accreditation with PhilHealth, the Court does not
consider the same to be unreasonable burden but
rather a necessary incentive imposed by
Congress in furtherance of a perceived legitimate
state interest.
Case of Involuntary Servitude
If someone pays you in advance for a
performance of a contractual obligation. There is
this particular law that under such circumstances,
the advance payment shall be prima facie
evidence of fraud or intent to defraud, therefore
could be a subject of criminal prosecution. That
was considered as violative of the right against
involuntary servitude. (Poloc v. … [Inaudible])
There are 6 exceptions against this right against
involuntary servitude. Instances where there can
be compulsion to render service.
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 1. Article III Sec 18 Par 2.
(2) No involuntary servitude in any form shall exist
except as a punishment for a crime whereof the
party shall have been duly convicted.
2. Article II Sec 4 – The Defense of the
state. We can all be, under the
reasonable conditions prescribed by law,
compelled to render personal military or
civil service
SECTION 4. The prime duty of the Government
is to serve and protect the people. The
Government may call upon the people to defend
the State and, in the fulfillment thereof, all citizens
may be required, under conditions provided by
law, to render personal military or civil service.
3. Posse Comitatus under the Rules of
Court
If there were only one officer against several
criminals at any given time, the officer may enlist
the assistance of all able bodied persons, men or
women to assist him in the apprehension of the
criminals. This is allowed involuntary servitude.
4. Naval Enlistment
When you sign up for maritime work, you cannot
just quit in the middle of the voyage. (How will the
ship return to the land?) So, you can be
compelled to work under this circumstance.
5. Under the Labor Code, vital industries if
there were strikes there can be return to
work orders.
6. Patria Potestas (or Parental Authority)
Parents can impose to their children certain form
of servitude. Although involuntary, that is allowed.
(Sir’s Example: “Gusto mo mag raid party sa
MOA? Linisin mo muna kwarto mo!” Another
example is Sir’s household chore)
Article III, Section 19
Section 19. (1) Excessive fines shall not be
imposed, nor cruel, degrading or inhuman
punishment inflicted. Neither shall the death
penalty be imposed, unless, for compelling
reasons involving heinous crimes, the Congress
hereafter provides for it. Any death penalty
already imposed shall be reduced to reclusion
perpetua.
(2) The employment of physical, psychological, or
degrading punishment against any prisoner or
detainee or the use of substandard or inadequate
penal facilities under subhuman conditions shall
be dealt with by law.
Maturan v COMELEC
G.R. No. 227155
March 28, 2017
Facts: This case is about the “Cruel, Degrading
and inhuman punishment”. This guy did not
submit his statement of contributions and
expenses. He was found guilty and was
sentenced to absolute disqualification from public
office. He invoked this provision.
Ruling: The SC said that this applies only to
corporeal and psychological punishment and
certainly does not apply in the matter of imposing
a perpetual absolute disqualification in
connection to election offenses.
Another concern here is something we discussed
when we talked about treaties, international law
principles and municipal law. Recall that our
Congress has the Sovereign Constitutional
competence to impose the death penalty for
heinous crimes if there are compelling reasons
therefore.
So let’s see how it plays out if our Congress re-
imposes death as a penalty because this would
have to be tested in line or as against the
incorporation clause indicated in Art II Sec 2.
Article III, Section 20
Section 20. No person shall be imprisoned for
debt or non-payment of a poll tax.
This section prescribes no imprisonment for non-
payment of a debt or poll tax.
Poll tax or cedula is still important. Community
Tax certificate is still needed for certain legal
documents like extrajudicial settlements of estate
(you put there not just your TIN no. but also your
Community Tax Certificate).
The point here is that there’s no imprisonment if
you don’t have one or if you don’t pay for this
particular tax.
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This “non-Imprisonment for debt” concept is an
important provision with regard to old and recent
developments in our jurisdiction.
Sura v Martin
G.R. No. L-25091
November 29, 1968
Facts: This is an action for support. There was a
judgment requiring the father or the husband to
give monthly support. He failed to honor or obey
that monthly obligation. For which he was cited in
contempt and ordered imprisoned.
Ruling: SC said that this is imprisonment for deb.
Therefore this is violative of Sec 20 Art III.
Relate this Sura case to the VAWC Law
Recall that there are economic provisions in the
VAWC Law which provide for the institution of
criminal actions and even criminal liabilities upon
fathers or husbands who would abandon their
families and therefore not providing financial
support for their families. The constitutionality of
the economic provisions in VAWC had not yet
been tested BUT Sir thinks that if this is to be
questioned, the ruling would be along the lines of
what CJ Yap said in Lozano v Martinez regarding
the Bouncing Checks Law.
Lozano v Martinez
G.R. No. L-63419
December 18, 1986
Facts: There was a claim of a breach of non-
imprisonment for debt proscription in Sec 20. The
contention was that if the check bounced, the
penalty of imprisonment with the issuance of the
check would be not in consonance with Sec 20.
Ruling: Remember the simple rationalization
offered by Chief Justice Yap: the punishment
here, being imprisonment, would be provided not
in connection with the fraud which attended the
issuance of the rubber check, and would not in
any way be by reason of the non-payment of the
amount or civil obligation represented in the
check.
My thinking class that if that bouncing provision
were to be upheld by the SC, the matter of
imposing a penalty for failure of the errant
husband or father to provide support of the family.
I think that imprisonment aspect can be justified
on the basis of the act of abandonment of the
family, not necessarily for the failure of the
husband to provide financial support, which after
all, according to Sura v. Martin (L-25091, Nov. 29,
1968), is considered as a civil obligation. There
lies the difference if and when this matter is
challenged, my thinking is that it would be upheld
by our SC.
Double jeopardy
What is Res Judicata in Prison Break? That is
double jeopardy. (That question was asked in
2010 remedial law bar exam)
Remember that:
1. Is the defense of double jeopardy
available in the context of
administrative proceedings like
preliminary investigations? The
answer is NO. Because this applies only
strictly in the context of criminal
proceedings.
2. Can double jeopardy be applied in
disbarment proceedings? NO. Again,
it's not criminal.
3. Can double jeopardy be applied in
contempt proceedings? YES.
Precisely because contempt
proceedings, according to the court,
pertain to the character of criminal
proceedings, and therefore, can give rise
to a valid application of the principle of
double jeopardy.
4. 2017 case: There can be no res judicata
in bail. Apply ka for bail, denied. You can
apply for bail again later if circumstances
would have changed because there is no
res judicata in the concept of a petition for
bail.
Double jeopardy - not applicable, may not be
raised in preliminary investigations, in disbarment
proceedings, but can be applied as a defense in
contempt proceedings.
Requirements for an application of the
principle of double jeopardy as and by way of
a defense:
1. There must be a competent court.
Ang usual na nangyayari dito: may jurisdiction
yung court pero eng-eng yung judge who thought
na walang jurisdiction yung court, and therefore
he would dismiss the criminal complaint.
Well, even if there were consent of the accused
in that particular case, that error of the judge
precludes the institution of another case for the
same offense precisely because the court would
have been competent or clothed with proper
jurisdiction. The error of the judge in dismissing
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the case on his belief that it (the court) has no
jurisdiction would not make it an incompetent
court. The first requirement of a competent court
would still have been met notwithstanding the
error of the judge.
Court Marshall
Ruffy v. Chief of Staff, Marcos v. Chief of Staff,
Crisologo v. People and Garcia v. Office of the
President = In connection with handling of
criminal cases, Court Marshalls are to be
considered as competent courts. Such that,
conviction and acquittals of Court Marshalls
would preclude the institution of another action for
the same offense before the regular courts.
2.
Invalid Complaint or Information
Herrera v. Sandiganbayan
G.R. No.119660-61
If the information filed with the Sandiganbayan
does not properly allege that it was a crime
committed in relation to the office of the public
officer, that will be considered as an invalid
complaint. So if that is dismissed with or without
the consent of the accused, then the reinstitution
of the complaint now properly alleging that the
crime is in relation to the office of the accused
would not be precluded of the defense of double
jeopardy. Because to begin with, it was an invalid
complaint and therefore could not have given rise
to first jeopardy, therefore, there can be no
second jeopardy upon the institution of the proper
complaint.
Guy v. People
G.R. Nos. 166794-96
Even if that phrase “in relation to his office” does
not expressly appear on the body of the
information, if however, there allegations in the
information which would clearly show that the
crime imputed to the accused could not have
been committed by him except in relation to his
office, then it could still be considered as a valid
information which can give rise later on to the
defense of double jeopardy.
3. On the requirement of a valid plea:
This is in relation to an arraignment which was
previously discussed.
4. Conviction or Acquittal or otherwise the
dismissal of the case without the express
consent of the accused:
[Some points that have to be clarified: For the
defense of double jeopardy to prosper, it must
be noted that:
1. The accused was convicted;
2. The accused was acquitted;
3. The case was dismissed without the
consent of the accused; or
4. The case was dismissed based on merits
(e.g., demurrer to evidence)]
Conviction (Sir did not discuss this)
• A conviction for an offense will not bar a
prosecution for an offense which necessarily
includes the offense charged in the former
information where:
1. The graver offense developed due to a
supervening fact arising from the same
act or omission constituting the former
charge;
2. The facts constituting the graver offense
became known or were discovered only
after the filing of the former information
(this does not include the incompetence
on the part of the prosecution to look or
search for these facts); or
3. The plea of guilty to the lesser offense
was made without the consent of the
prosecutor and the offended party. (Rule
117, Sec. 7, ROC)
• Example for number 1, otherwise known as
Doctrine of Supervening Fact:
An accused was convicted of frustrated
murder because at the time of the filing of the
Information the victim was only hospitalized.
Two days after the conviction, the victim died
because of the injuries he sustained. The
accused may still be charged with murder
despite the conviction for frustrated murder.
Acquittal
• There was a case for grave oral defamation
wherein the accused was convicted thereof in
the MTC. In the appeal to the RTC, it was
held that the accused is only liable for slight
oral defamation. When the RTC rendered the
decision, one year has already lapsed and
therefore the crime has already prescribed.
Thus, the accused must be released. The
prosecution appealed to the CA. CA said the
appeal can no longer be entertained because
it is barred by double jeopardy.
• Basic postulate in remedial law: When the
accused appeals his conviction, he throws
his entire case open for scrutiny. In People v.
De Leon (2009), the crime specified in the
Information was robbery with homicide. The
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 RTC acquitted the accused on the robbery
with homicide, but they were convicted with
murder. The CA reexamined and convicted
them of robbery with homicide. Was there
double jeopardy? No. When the accused
appealed, they threw their entire case open
for scrutiny which includes the possibility of
the reversal the trial court’s decision.
• In Lejano v. CA, the Supreme Court acquitted
the accused. The prosecution filed a Motion
for Reconsideration to the judgment of
acquittal. The accused raised double
jeopardy as a defense. The Supreme Court
said that the MR is precluded by double
jeopardy because acquittal immediately
gives rise to the defense of double jeopardy.
• The only time that an acquittal does not give
rise to the defense of double jeopardy when
the issue presented before the appellate
court is grave abuse of discretion amounting
to lack or excess of jurisdiction on the part of
the court that acquitted the accused. An
example would be when the prosecution is
prevented from completing its case or
presenting evidence.
Dismissal without the express consent of the
accused
• If the accused objected to the prosecutions
motion to have the case dismissed, then the
defense of double jeopardy arises.
• It is only when the dismissal was made with
the consent of the accused (and was not
based on merit — this is not mentioned in
the discussion but for clarification) can
there be a bar to the defense of double
jeopardy.
• In People v. Pilpa (1977), the witnesses did
not appear in the trial. The prosecution
moved for the provisional dismissal of the
case. The defense did not object (in the
original case, the defense lawyer said, “no
objection”). The defense of double jeopardy
when the case is revived or another one is
instituted will not prosper.
The only instances when a dismissal even if at
the instance of the accused will give rise to
double jeopardy would be:
1. By relation to the right to speedy trial
a. Even if the motion to dismiss on
this ground were filed by the
accused, if the case is dismissed
it will be tantamount to an
acquittal and will give rise to
double jeopardy.
2. A dismissal on the instance of the
accused on the basis of insufficiency of
evidence.
a. This is equivalent to an acquittal
of the accused, double jeopardy
sets in.
3. Demurrer to evidence, if granted double
jeopardy sets in.
The latest and a little different decision of the
court here would be in reference to a demurrer
but not as to evidence but is a demurrer as to
jurisdiction. The double jeopardy did not set in
there when it is granted because the court really
did not have jurisdiction and therefore first
jeopardy could not have arisen.
Next would be the concept of attempted,
frustrated and consummated. I will relate this to
the right to be informed.
Canceran v. People
G.R. No. 206442
July 01, 2015
The information there was for frustrated theft.
There is no such crime as frustrated theft diba.
Naprove yung crime, consummated. On the basis
of the right to be informed, he could have only
been convicted for attempted theft because the
rule is that when there is a variance between the
offense proved and the offense charged, the
conviction can be only for the same or lower
offense. It cannot be for the higher offense.
In the context of double jeopardy, remember that
the acquittal for frustrated precludes later on
another prosecution for attempted because
covered na yung stages na yun diba.
• Of importance also is the concept of
inseparable offenses and separable
offenses. Rule of thumb, because
maraming cases of this character, if an
act gives rise to a violation of a special
penal law and simultaneously a violation
of revised penal code provision, separate
offenses yan. They can proceed
independently and separately of each
other. Illegal recruitment and estafa,
pwedeng isabay yan. No offense to
double jeopardy.
• Let’s go back to the right to be informed.
Tinira siya ng malversation through
fraud, naconvict siya malversation
through falsification because that was the
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 evidence, offense proved. There is no
violation of the right to be informed there
because fraud and falsification are only
modes of malversation. There is only
offense there committed either way.
• If there were variance between the
method alleged and the method proved,
it does not alter the fact that there is only
one offense that was pursued and
therefore there can be no violation of the
right to be informed.
• Dito naman sa double jeopardy,
remember that pag na-acquit for
malversation through fraud hindi na
pwedeng file-an ng malversation through
falsification. Because that is the same
offense which cannot be the subject of
two separate prosecution.
• Also important is the so-called absorption
rule that we have learned in the right to
be informed applicable din sa double
jeopardy but in a different context.
Double Jeopardy: Subsequent Offense
If one were acquitted of pushing drugs. He cannot
later be subjected to another prosecution, this
time for possession. If the subject of the
subsequent possession case would be the
possession of the same drugs intended to be sold
in the first case, which resulted to an acquittal. If
the second case for possession would be respect
to drugs seized but not included in the actual
attempt to sell, but found in the person of the
accused, upon the arrest after the buy-bust, then
that is another separate prosecution the pursuit
of which should not give offense to the principle
of defense of double jeopardy.
Ivler v. Modesto
G.R. No. 172716
Nov. 17, 2010
Recall that this fellow figured into a vehicular
thing. There was death and there was damage to
property. He was prosecuted for two case.
Arraignment in the first case for reckless
imprudence resulting to damage to property, the
accused plead guilty. He was admonished.
Second case for the same act, reckless
imprudence resulting in homicide, the accused
raised the defense of double jeopardy. He was
sustained. The proper case that should have
been filed against Mr. Ivler was reckless
imprudence resulting to homicide and damage to
property. They are inseparable offenses.
Offenses that could give rise to separate
prosecutions
Culanag v. Director of Prisons
G.R. No. L-27206
Aug. 26, 1967
Given a violation of a conditional pardon, there
can be a separate prosecution for that crime,
violation of conditional pardon. There can be
separate prosecution for the act which constitutes
the violation of the condition, if that act on its own
constitute a separate crime, these two separate
crimes can be prosecuted independently of one
another because these are separable offenses.
For instance, if you were driving without a license
and there is a special law requiring you to have a
license, if in the course of driving you damaged
your neighbor’s fence, that is reckless
imprudence resulting to damage to property. Both
offenses can proceed without necessarily
effecting double jeopardy.
Second sentence of the double jeopardy
provision
Yap v. Leuterio
If you are prosecuted in both special law and
ordinance, the conviction or acquittal in either
shall constitute a bar for another prosecution for
the same act.
BILL OF PAINS AND PENALTIES
The traditional penalty imposed in a bill of
attainder is death. Any bill of attainder which
imposes a penalty less than death is a bill of pains
and penalties.
Ex Post Facto Law
Section 22. No ex post facto law or bill of
attainder shall be enacted.
Here is an EO, which instructs that the
adjudications of the Secretary of Justice, with
respect to preliminary investigations, including
those pending appeal for informations or
resolutions of the investigating prosecutor to the
Sec. of Justice providing henceforth that only
cases punishable by reclusion perpetua shall be
further cognizable by appeal by the Office of the
President. Meaning, if there is an appeal with the
Sec. of Justice, hindi siya punishable by reclusion
perpetua, kapag in-affirm yun ng SoJ, warrant of
arrest ka na. But if it were a reclusion perpetua
case, mayroon ka pang chance to go to the Office
of the President. Is that ex post facto?
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A: NO. It is not a law.
3 essential factors which would make an ex post
facto law:
1. Penal law
2. Retroactively applied
3. Prejudicial to the accused
a. If it favors the accused, it will not be
an ex post facto.
b. Example:
i. A subsequent law applicable to
all pending cases involving all
minors or youthful offenders,
where they will instead be
detained in agricultural camps.
Not an ex post facto since it is
favorable to the accused.
A law which has the penalty of prision mayor in
its minimum and medium periods, and a fine of
P5,000.00. Here comes a subsequent law,
retroactively applied, applicable to all existing
cases, prescribing the penalty of prision
correccional in its medium to maximum periods,
but the fine should be from P5,000.00 to
P20,000.00. Is that ex post facto?
A: NO. The greater penalty of imprisonment is
reduced from prision mayor to prision
correccional even if there was an imposition of an
additional penalty of a fine of P 15,000.00. This is
favorable to the accused, hence, not ex post
facto. (Valero v. CA, G.R. No. L-39532, July 20,
1979)
Tax obligations and tax laws cannot be
considered as ex post facto.
Forfeiture can be considered as ex post facto.
(Katigbak v. Solgen, G.R. No. L-19328, Dec. 22,
1989)
Habeas corpus cannot be considered as ex post
facto. These are not laws.
These are not law. Be mindful of the SIX
classifications of ex post facto laws.
1. Innocent When Done
2. Retro-activity of right
3. Aggravates a crime
4. Reduces the quantum of evidence
5. Makes punishable an act which is
purported to be regulated from a civil
perspective and makes it criminal
6. Elimination of potential defenses like
double `jeopardy after the commission of
the offense.
Bills of Attainder - would constitute a legislative
pronouncement of `guilt by way of preemption of
judicial proceedings. They are usually made
applicable to classes of individuals.
The basic element there is that there is a
PREEMEPTION by the legislature of
judicial power by pronouncement of `guilt without
prior judicial proceedings. In this jurisdiction the
most illustrative case is:
People v. Ferrer
G.R. Nos. L-32613-14
December 27, 1972
About the Anti Subversion law. The contention
was that it was a bill of attainder because it
punished members in the Communist Party of the
Philippines. Sabi ng Supreme Court, no it is not a
bill of attainder, neither is it an ex post facto law
because the intent of the law is to punish those
who would continue to be members after the law
was to be promulgated. It was to purge members
from the membership. It was also contended that
it was a Bill of Attainder cause it punished a class
of individuals. No, said the Supreme Court. The
inclusion of that organization is only descriptive of
all other subversive organizations covered by that
particular statute and therefore cannot be
considered a bill of attainder.
REMEMBER: A bill of attainder is
NECESSARILY an ex post facto law but not all ex
post facto laws are necessarily bills of attainder.
Why? Not necessarily is there a preemption of
judicial proceedings with respect to ex post facto
laws.
BoC Employees v. BOC
G.R. No. 181704 December 6, 2011
Attrition law required customs revenue officers to
meet a certain a collection quota, failing which,
they shall be subject to dismissal. The contention
was that it was a bill of attainder because it
provided for them punishment without judicial
process. No, the SC said. That is only a
specification of that failure to meet the revenue
collection quota that is only a specifcation of a just
cause for their potential removal. There is nothing
in the law that does away with the proper due
notice and hearing requirements prior to a
dismissal. So, NOT a Bill of Attainder.
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CITIZENSHIP
Article IV - Give me the instances under the
Constitution in law and jurisprudence that there
would arise a concept of natural born citizenship.
Recall the basic definition: He is one who is such
without need to perform any act to perfect or elect
his citizenship. Essentially we follow JUS
SANGGUINIS, by blood.
1. If you are born of a Filipino Mother or Father
then you are a natural born.
Instances where Natural Born Filipino
Citizenship Arises:
A. Citizens from birth without having to
perform any act to acquire or perfect their
citizenship
B. Whose fathers or mothers are citizens of
the Philippines (jus sanguinis principle)
C. Born before Jan. 17, 1973 of Filipino
mothers who elect Philippine citizenship
upon reaching the age of majority
3 step process:
1. sign the oath of allegiance
2. sign the statement of election
3. register both documents in the proper
civil registry
Those born before Jan. 17, 1983 would have until
1994 to complete the process of election. After
1994, no one could become a natural born citizen
on the basis of this provision.
D. Natural born immigrant or naturalized
abroad who reacquire natural born
citizenship under R.A. No. 9225 upon
their renunciation of foreign citizenship
Bengson v. HRET
G.R. No. 142840
May 7, 2001
There was this gentleman who was born a natural
born citizen but fled the Philippines during the
time of Mr. Marcos and became a naturalized
American. After Marcos fled, he returned to the
Philippines and he wanted to become a Filipino
again. He had himself repatriated and underwent
naturalization proceedings. Filipino ulit sha. But
then he ran for Congress. A petition for
disqualification was lodged against him.
Ruling: For those who were born originally as
natural born citizen, if repatriated through
naturalization proceedings, the effect of
repatriation is to restore them back to natural born
citizenship status.
Taking either of the two oaths under R.A. No.
9225, the effect is restoration to their original
citizenship status.
E. Foundlings- considered as citizens of
the country where they are found
2 Types of Naturalization:
Direct Naturalization
There are 4 classes:
a. Judicial or administrative proceedings
b. Private bills or laws granting naturalized
citizenship status upon aliens deserving
to be Filipinos (ex. Gilas)
c. Naturalization en masse – when there is
a subjugation of the state. The citizens of
the subjugated state becomes citizens of
the overpowering state.
d. Adoption of minor orphans results in their
naturalization of the person who adopted
them in accordance to the laws of the
country of the adopter.
Derivative Naturalization
Finally, in certain instances, the adoption of
orphans results in their naturalization of the
persons who adopt them in accordance with the
laws of the country of the adopters.
Naturalization
Four instances, a little word on the direct
naturalization, judicial, administrative
Well judicial proceedings, essentially
Commonwealth Act 63, as amended by CA 473.
Administrative naturalization, as prescribed on
the basis of the Administrative Naturalization Act
of 2001.
Among the major differences among the two
major processes:
In administrative naturalization, it is available only
to aliens who were born here. It is also more
expensive. Last, three officers are involved here.
National Security Adviser, the Solicitor General,
and the Secretary of Foreign Affairs.
A little word on judicial naturalization, most
essential would be a consideration of the fact that
all applicants for the naturalization, must not only
possess all the qualifications, but they must also
NOT posses all of the disqualifications.
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Process:
There is a declaration of intent that needs to be
filed a year before the petition for naturalization is
actually filed.
After that one year period, the petition can be filed
before the RTC where the applicant would’ve
have resided for at least a year.
Remember upon filing, there is this jurisdictional
requirement of publication, three separate weeks.
News paper of general circulation.
Thereafter, trial is scheduled within 6 months
provided that the initial trial cannot be done if it
would be within 30 days of an election.
During the proceedings, the applicant must be
able to prove that he possesses all the
qualifications.
• At least 18/21 upon filing
• Residence in the Philippines for at least
10 years, which can be reduced to 5
years under certain condition.
o If he was born here
o Business or novel idea in industry
o If married to Filipina, etc.
• Good moral character
• Knowing a dialect, Spanish, or English
language
• Enroll children in schools which teach
Philippine History, etc.
• Lucrative income (alternative
requirement: ownership of real property
of at least 5k)
Lucrative income must be possessed or earned
by the applicant alone. Do not include the income
of the spouse. Do not include anything which he
receives from his parents or the business of his
parents. He must earn it alone.
Failing to show this qualification, rejected ang
application for naturalization.
Batuigas v. Republic
G.R. No. 183110
This alien woman was born here. She was old
she was already retired. But then she wanted to
die a Filipina.
First, she applied for administrative
naturalization. For technical reasons, it was
rejected. After that she applied for judicial
naturalization.
Hindi yan mutually exclusive, you can file one
after the other. She was retired, therefore the
court rejected the application. Wala siyang
lucrative income.
Well our supreme court here took a humane
stance in the context of this strict qualification
prescribe, the matter of lucrative income.
Lucrative Income
SC: She has been a teacher all her life. But
clearly, if she wants to, she can go back to
teaching and earn a lucrative income.
- The court set aside the strict application
of the disqualification and granted her
plea for naturalization.
- Also, the court acknowledged that the
lady perhaps wants to die as Filipino.
- For patriotic reasons.
Side kwento: Bello (Sir’s friend), lawyer of
Gokongwei for the latter’s naturalization, stood as
a witness for Gokongwei’s good moral character.
- I was smoking inside his car, I throwed
the cigarette butt, do not do not litter-
establish the gmc
- Petition for naturalization allowed
Possession of None of the Disqualification
Republic v Karba Si
G.R. No. 210412
July 29, 2015
Here was a political refugee, accepted in the
Philippines. We are the host country. He applied
for judicial naturalization, it was denied, because
it was shown in the proceedings that his country
of origin did not allow Filipinos to be naturalized
there. Therefore, on the basis of reciprocity, he
was considered disqualified by the court.
On appeal, the SC reversed the trial court. It
invoked jus cogens founded principally on
international covenants affecting political
refugees.
The principle here is, once a refugee is accepted
by the host state, the host state shall exert every
effort to assimilate him into the mainstream or the
society of the host country.
- This would necessarily include even to
naturalization.
- So class, you have to understand: this
again is one of those instances where jus
cogens principles were invoked for
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 purposes of relaxing a bit the strict rigors
or requirements of municipal laws.
Excerpt from the case:
Considering the above disquisitions, the Court
does not need to belabor the last issue on
reciprocity between Iranian and Philippine laws
on naturalization. True, the Naturalization Law
disqualifies citizens or subjects of a foreign
country whose laws do not grant Filipinos the
right to become naturalized citizens or subjects.
A perusal of Karbasi‘s petition, both with the RTC
and the CA, together with his supplemental
pleadings filed with the Court, however, reveals
that he has successfully established his refugee
status upon arrival in the Philippines. In effect, the
country‘s obligations under its various
international commitments come into operation.
Articles 6 and 34 of the 1951 Convention relating
to the Status of Refugees, to which the
Philippines is a signatory, must be considered in
this case.
In the same vein, Article 7 of the said Convention
expressly provides exemptions from reciprocity,
while Article 34 states the earnest obligation of
contracting parties to ―as far as possible
facilitate the assimilation and naturalization of
refugees.ǁ As applied to this, Karbasi‘s status as
a refugee has to end with the attainment of
Filipino citizenship, in consonance with Philippine
statutory requirements and international
obligations. Indeed, the Naturalization Law must
be read in light of the developments in
international human rights law specifically the
granting of nationality to refugees and stateless
persons.
2018 case: This is not specified in any of the
qualification or disqualification BUT applicant
must show that entry to the Philippines is lawful.
- Some certification from port of entry to
this effect
- Failing or absent which, there can be
denial of the petition for naturalization.
Two-Year Probationary Period
Petition can be granted but it does not result
immediately into the conferment of the status of
naturalized citizenship.
- There is 2-year probationary period.
- During which, petitioner must not
permanently reside abroad.
- After 2 years, he can take his oath of
citizenship and will become naturalized
citizen.
5 Grounds For Revocation Of The Decree Of
Naturalization
Such naturalization decree can be assailed. 5
instances where the decree of naturalization can
be invalidated.
1. Declaration of intent was invalid
2. Decree of naturalization was obtained
with fraud
3. If he permanently resided abroad within
a period of 5 years from the granting of
the decree of naturalization.
4. Failure to enroll his minor children, if any,
to Ph school
5. Allowing himself to be a dummy in a
corporation.
All instances can result to the revocation of the
decree.
Effect of decree of naturalization to derivative
naturalization
1. If an alien becomes a Filipino through
judicial naturalization then his alien wife
herself becomes a naturalized Filipino as
well provided that it is shown that she has
all the qualifications and none of the
disqualifications
Moya Limyao v Commissioner of
Immigration
This derivative naturalization is ipso facto what is
needed is a showing that she has all the
qualifications and none of the disqualifications.
2. As to the children: Minor Children
a. Born Here + Resides Here at the
time of naturalization = ipso facto
b. Born Outside + Resides Here at the
time of naturalization = ipso facto
c. Born Outside + Resides Outside at
the time of naturalization = can
choose to elect PH citizenship upon
the attainment of the age of majority
provided that the at the time of the
election, they should be residing
here. Thus, through their election,
they become ipso facto naturalized
Filipinos.
3. An alien woman who marries a
naturalized Filipino, herself becomes
naturalized Filipina provided that she has
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 all the qualifications and none of the
disqualifications
What if the decree of naturalization is revoked
on any of the 5 grounds would it affect those
naturalized under derivative proceeding?
It
would depend on the ground of revocation,
1. if the ground for revocation would refer to
the intrinsic validity of the decree such
that
a. if the declaration of intent is defective
or
b. if the cert of naturalization was
obtained through fraud,
that would adversely affect the
derivative naturalization of the spouse
and minor children
2. If the ground for revocation were
personal to the applicant such as
a. if he allows himself to be dummy
or
b. if he permanently resides abroad
within a period of 5 years
c. if it shown that his minor children
were not continuing their
enrolment in a school in the
Philippines

then clearly that particular revocation
should not affect the derivative
naturalization of the spouse and minor
children.
After the decree, there shall be a 2-year period
which shall need to lapse, probationary period for
investigation before the oath of Filipino
citizenship can be administered then after which
he shall be a naturalized Filipino

159