Green Notes 2015
Political Law
POLITICAL
LAW
PART I
1. Define Political Law
It is that branch of public law which
deals with the organization and operations of
the governmental organs of the State and
defines the relations of the State with the
inhabitants of its territory. (PEOPLE VS.
PERFECTO, 43 Phil. 887)
2. What are included in Political Law?
 Constitutional Law;
 Administrative Law
 Law of Public Officers
 Law on Public Corporation
 Election Law
3. What is the doctrine of constitutional
supremacy?
Under the doctrine of constitutional
supremacy, if a law or contract violates any
norm of the constitution that law or contract
whether promulgated by the legislative or by
the executive branch or entered into by
private persons for private purposes is null and
void and without any force and effect. Thus,
since the Constitution is the fundamental,
paramount and supreme law of the nation, it
is deemed written in every statute and
contract. (Manila Prince Hotel Corporation
Case)
4. What are the requisites for the valid
exercise of ―people‘s initiative‖ to propose
amendments to the Constitution?
It is provided under Section 2, Art.
XVII of the Constitution which provides that
―Amendments to this Constitution may
likewise be directly proposed by the people
through initiative upon a petition of at least
12% of the total number of registered voters,
of which every legislative district must be
represented by at least 3% of the registered
voter therein.‖ The Congress shall provide for
the implementation of the exercise of this
right---which means that there must be
complete and adequate law for the said
purpose.
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5. Is there a law which would provide
for the mechanism for the people to propose
amendments to the Constitution by people‘s
initiative?
While Congress had enacted RA 6735
purportedly to provide the mechanisms for the
people‘s exercise the power to amend the
Constitution by people‘s initiative, the
Supreme Court in MIRIAM DEFENSOR-
SANTIAGO, et al. Vs. COMELEC, G.R. No.
127325, March 19, 1997 & June 10, 1997, the
Supreme Court held that RA 6735 is
incomplete, inadequate or wanting in essential
terms and conditions insofar as initiative on
amendments to the Constitution is concerned.
Its lacunae on this substantive matter are fatal
and cannot be cured by ―empowering‖ the
COMELEC to promulgate such rules and
regulations as may be necessary to carry the
purposes of this act.
However, in LAMBINO VS.
COMELEC, the Supreme Court on November
21, 2006, in the Minute Resolution of the
petitioner‘s Motion for Reconsideration, held
that RA No. 6735 is adequate and complete
for the purpose of proposing amendments to
the Constitution through people‘s initiative by
a vote of 10 members as per Certification of
the En Banc‘s Clerk of Court.
5-a. May the question ―Do you
approve the amendment of Articles VI and VII
of the 1987 Philippine Constitution changing
the form of government from Presidential-
Bicameral to Parliamentary-Unicameral‖ be
allowed to be submitted to the people for
their ratification or rejection as a means of
amending the Constitution by people‘s
initiative if the requisite number of signatories
(12% nationwide and at least 3% for every
legislative district) are met?
No, for two (2) reasons.
1. The said ―proposal‖ did not indicate
which provisions of Articles VI and VII are
actually being amended which is a must under
Section 2, Art. XVII. Otherwise, who shall
make the amendments if the people in a
plebiscite approve the same?
2. Changing the form of government
from presidential to parliamentary is an act of
REVISING the Constitution which is not
allowed under Art. XVII, Section 2. People‘s
 Green Notes 2015
initiative may only be allowed to propose
amendments to the Constitution, not revision.
6. What are the requisites before an
amendment to the Constitution by ―people‘s
initiative‖ is sufficient in form and in
substance?
In the case of RAUL L. LAMBINO and
ERICO B. AUMENTADO , together with
6,327,952 registered voters vs. THE
COMMISSION ON ELECTIONS, G.R. No.
174153, October 25, 2006, 505 SCRA 160, the
following requisites must be present:
1. The people must author and must
sign the entire proposal. No agent
or representative can sign for and
on their behalf;
2. As an initiative upon a petition,
THE PROPOSAL MUST BE
EMBODIED IN THE PETITION
ITSELF.
These essential elements are present
only if the full text of the proposed
amendments is first shown to the people who
will express their assent by signing such
complete proposal in a petition. Thus, an
amendment is ―DIRECTLY PROPOSED BY THE
PEOPLE THROUGH INITIATIVE UPON A
PETIITON ―ONLY IF THE PEOPLE SIGN ON A
PETITION THAT CONTAINS THE FULL TEXT
OF THE PROPOSED AMENDMENTS.
7. Distinguish ―Revision‖ from
―amendment‖ of the Constitution.
―Revision‖ is the alterations of the
different portions of the entire document
[Constitution]. It may result in the rewriting
whether the whole constitution, or the greater
portion of it, or perhaps some of its important
provisions. But whatever results the revision
may produce, the factor that characterizes it as
an act of revision is the original intention and
plan authorized to be carried out. That
intention and plan must contemplate a
consideration of all the provisions of the
Constitution to determine which one should
be altered or suppressed or whether the whole
document should be replaced with an entirely
new one.
―Amendment‖ of the Constitution, on
the other hand, envisages a change or only a
few specific provisions. The intention of an act
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to amend is not to consider the advisability of
changing the entire constitution or of
considering that possibility. The intention
rather is to improve specific parts of the
existing constitution or to add to it provisions
deemed essential on account of changed
conditions or to suppress portions of it that
seem obsolete, or dangerous, or misleading in
their effect. (SINCO, Vicente, PHILIPPINE
POLITICAL LAW, as cited in Santiago vs.
COMELEC & LAMBINO VS. COMELEC)
8. May Congress propose amendments
to the Constitution while at the same time
enacting a law calling for a Constitutional
Convention to propose amendments to the
Constitution?
Yes, there is no prohibition for
Congress to propose amendments to the
Constitution and at the same time call for the
convening of a Constitutional Convention to
amend the Constitution. The word ―or‖ in the
provision ―…Congress, upon a vote of ¾ of all
its members; OR [2] A constitutional
Convention‖ under Section 1, Art. XVII also
means ―AND‖. (GONZALES VS. COMELEC, 21
SCRA 774). IN SHORT, IT APPEARS THAT
THERE IS NO PROHIBITION FOR
CONGRESS, A CONSTITUTIONAL
CONVENTION AND THE PEOPLE MAKING A
PROPOSAL TO AMEND THE
CONSTITUTION AT THE SAME TIME SINCE
THIS IS A POWER SEPARATELY GRANTED
TO THEM BY THE CONSTITUTION UNDER
ART. XVII OF THE 1987 CONSTITUTION.
9. What is the ―Doctrine of Proper
Submission‖ in connection with proposed
amendments to the Constitution?
―Doctrine of Proper Submission‖
means all the proposed amendments to the
Constitution shall be presented to the people
for their ratification or rejection at the same
time, not piecemeal. (TOLENTINO VS.
COMELEC, 41 SCRA 702)
10. What is the archipelagic doctrine or
archipelago theory?
It is the 2nd sentence of Section 1, Art. I
of the Constitution which states that ―the
waters around, between and connecting the
islands of the archipelago, regardless of their
breadth and dimensions, form part of the
internal waters of the Philippines.‖
 Green Notes 2015
11. What are the elements of a ―state‖?
As held in COLLECTOR VS. CAMPOS
RUEDA, 42 SCRA 23, the elements of a state
are.
1. People
2. Territory
3. Sovereignty
4. Government
12. Are the two-fold function of
government as enumerated by the Supreme
Court in BACANI VS. NACOCO, 100 Phil. 468
(Ministrant [merely directory] and Constituent
[Mandatory] Functions) still applicable today?
No more as held in ACCFA VS.
CUGCO, 30 SCRA 649. This is due to
complexities of the changing society, the two-
fold function of the government as classified
by President Wilson is no longer relevant as a
result of the changing society wherein what are
considered merely ministrant functions of the
State before are now considered constituent ,
or vice versa.
13. What kind of government was the
―Aquino Government‖ after former President
Marcos left Malacanang for Hawaii due to the
EDSA Revolution in February 1986.
As held in In Re: SATURNINO
BERMUDEZ, 145 SCRA 160, the same is de
jure. A government formed as a result of a
people‘s revolution, is considered de jure if it is
already accepted by the family of nations or
other countries like the United States, Great
Britain, Germany, Japan, and others.
14. What are the three (3) kinds of de
facto government?
As held in CO KIM CHAM VS.
VALDEZ TAN KEH, 75 Phil. 113, the three (3)
kinds of de facto governments are:
a. The first, or government de facto in a
proper legal sense, is that government that gets
possession and control of, or usurps, by force
or by the voice of the majority, the rightful
legal governments and maintains itself against
the will of the latter, such as the government
of England under the Commonwealth, first by
Parliament and later by Cromwell as Protector.
b. The second is that which is established and
maintained by military forces who invade and
occupy a territory of the enemy in the course
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of war, and which is denominated a
government of paramount force, as the cases
of Castine, in Maine, which was reduced to
British possession in the war of 1812, and
Tampico, Mexico, occupied during the war
with Mexico, by the troops of the United
States.
c. And the third is that established as an
independent government by the inhabitants of
a country who rise in insurrection against the
parent state of such as the government of the
Southern Confederacy in revolt not concerned
in the present case with the first kind, but only
with the second and third kinds of de facto
governments.
"But there is another description of
government, called also by publicists a
government de facto, but which might,
perhaps, be more aptly denominated a
government of paramount force. Its
distinguishing characteristics are
(1), that its existence is maintained by
active military power with the territories, and
against the rightful authority of an established
and lawful government; and
(2), that while it exists it necessarily be
obeyed in civil matters by private citizens who,
by acts of obedience rendered in submission to
such force, do not become responsible, or
wrongdoers, for those acts, though not
warranted by the laws of the rightful
government.
15. What is the postliminy theory or
jus postliminium?
When a foreign power occupies a state
and exercises the powers of government, the
political laws of the said state are deemed
automatically suspended but the former
government automatically comes to life and
will be in force and in effect again upon the re-
establishment of the former government.
(Taylor, International Law, p. 615.)
16. What is the doctrine of sovereignty
as ―auto limitation‖?
In the succinct language of Jellinek, it
―is the property of a state-force due to which
it has the exclusive capacity of legal self-
determination and self-restriction." A state
then, if it chooses to, may refrain from the
 Green Notes 2015
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exercise of what otherwise is illimitable 20. Is the ―separation of church and

competence." The opinion was at pains to state‖ a myth or a reality?
point out though that even then, there is at the
most diminution of jurisdictional rights, not its It is a reality as shown by the following
disappearance. (Cited in Reagan vs. provisions of the Constitution.
Commissioner, PEOPLE VS. GOZO, 53 SCRA
476 and COMMISSIONER VS. ROBERTSON, 1. ART. III, Sec. 5. No law shall be
143 SCRA 397) made respecting an establishment
of religion, or prohibiting the
17. What is the ―incorporation theory‖ free exercise thereof. The free
or the ―Incorporation Clause‖ of the exercise and enjoyment of
Constitution? religious profession and worship,
without discrimination or
It is the principle embodied in Section preference, shall forever be
2, Article II of the Constitution which states allowed. NO RELIGIOUS TEST
that ―The Philippines adopts the generally SHALL BE REQUIRED FOR THE
accepted principles of international law as part EXERCISE OF CIVIL OR
of the law of the land‖. (MEJOFF VS. POLITICAL RIGHTS.
DIRECTOR OF PRISONS, 90 Phil. 70) As such,
even if the Philippines is not a signatory to a 2. ART. VI, Sec. 28 (3). Charitable
generally accepted principle of international institutions, churches, mosques,
law like the Geneva Convention on Land non-profit cemeteries…actually,
Warfare, it may validly use the same in the directly and exclusively used for
trial of war criminals during the Second World religious, charitable, or
War. KURODA VS. JALANDONI, 83 Phil 171, educational purposes shall be
and AGUSTIN VS. EDU, 88 SCRA 195). exempt from taxation.

18. In case of conflict between a 3. ART. VI, Sec. 29 .(2). No public

constitutional right of a citizen and a generally money or property shall be
accepted principle of international law, which appropriated, applied, paid, for
shall prevail? the benefit, directly or indirectly,
for the use, benefit, or support of
In the case of REYES VS. BAGATSING, any sect, church, denomination
125 SCRA 553, the Supreme Court held that or religion, except when such
the constitutional right shall prevail. Though priest, minister.. is assigned to
Article 22 of the Vienna Convention on the armed forces, or to any
Diplomatic Relations prohibits rallies within penal institution, or government
500 feet of any foreign embassy, the same orphanage or leprosarium.
shall give way to the constitutional right of the
citizens to ―peaceably assemble and to petition 4. ART. IX, C, 2(5). Religious
the government for redress of their denominations and sects shall
grievances‖. not be registered…as political
parties. (NOTE: Religious
19. May a citizen refuse to render organizations are also prohibited
personal military service/training because he on connection with sectoral
does not have military inclination or he does representatives under Art. VI)
not want to kill or be killed?
5. ART. XIV, Sec. 3(3). At the
No as held in PEOPLE VS. LAGMAN, option in writing by parents,
66 Phil. 13. ―The appellant‘s argument that he religion shall be allowed to be
does not want to join the armed forces taught to their children in
because ―he does not want to kill or be killed‖ elementary and high schools
and that ―he has no military inclination‖ is not within the regular class hours by
acceptable because it is his obligation to join instructors designated or
the armed forces in connection with the approved by religious authorities
―defense of the State‖ provision of the to which said children belong,
Constitution.

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 Green Notes 2015
without additional cost to the
government.
21. What are the factors to be
considered by the Philippines in dealing with
other nations?
As provided in Section 7 of Art. II, The
Philippines shall pursue an independent foreign
policy. In its relations with other states the
paramount consideration shall be [1] national
sovereignty, [2] territorial integrity, [3]
national interest, and [4] the right to self-
determination,
22. Is there absolute prohibition for
the Philippines to be equipped with nuclear
weapons?
No, as stated in Section 8, Art. II, ―the
Philippines, consistent with the national
interest, adopts and pursues a policy of
freedom from nuclear weapons in its
territory.‖ As such, if it is consistent with
national interest, the same is not prohibited.
23. Is ―divorce‖ prohibited by the
1987 Philippine Constitution?
: and distribution of contraceptives shall still
Father Bernas opines that the
provision of the Constitution (Section 12, Art.
III) which provides in part that the ―State shall
strengthen the family‖ does not take a stand
on divorce though it appears that a divorce
law would ―break‖ the family instead of
―strengthening‖ it. As such, a Divorce Law to
be passed by Congress may or may not be
unconstitutional.
23. Is abortion allowed in the
Philippines?
Section 12, Art. II prohibits all forms of
abortion except ―therapeutic abortion‖ or
when the life of the mother is in danger.
(Note: In the United States, abortion is
allowed but only up to the 2nd trimester of the
pregnancy [ROE vs. WADE])
23-a. Is the provision of the
Reproductive Health law allowing
contraceptives violative of Section 12, Art. II of
the Constitution which prohibits abortion?
No provided said contraceptives do
not kill or destroy a fertilized ovum. But
contraceptives that prevent the union of male
sperm and female ovum are not prohibited by
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the Constitution. Contraceptives before
fertilization are not prohibited. (IMBONG VS.
OCHOA, GR No. 204819, April 8, 2014)
23-b. Does the provision of the RH
Law allowing a spouse to undergo
reproductive health procedures like tubal
ligation or vasectomy without the knowledge
and consent of the husband constitutional?
It is unconstitutional because it violates
the provisions on ―family. Family is shared by
both spouses. One person cannot complete a
family. There should be mutual decision-
making on the part of the spouses on said
procedures. IMBONG VS. OCHOA, GR No.
204819, April 8, 2014)
23-c. Does the provision of the RH
Law allowing contraceptives violative of the
constitutional provision on the right to health
since contraceptives are hazardous to one‘s
health?
No. There exists an adequate safeguard
in the RH Law which safeguards that only
contraceptives which are safe shall be made
available to the public because dispensation
require the prescription of a physician.
IMBONG VS. OCHOA, GR No. 204819, April
8, 2014)
24. Is a law prohibiting the sale of
―girlie (bold) magazines‖ to minors violates
the right of parents in rearing their children
for civic efficiency?
No, as held in the case of GINSBERG
VS. NEW YORK, 390 US 629 (1969), a law
prohibiting the sale of ―girlie magazines‖
[bold?) is constitutional and does not violate
the above provision. This is so because parents
could buy said magazines for their children if
they believe the same is already suitable to the
understanding of their child. This is in
accordance with this provision which states
that the parents have the ―natural and primary
right in rearing their child for civic
efficiency…‖
25. May the State prohibit the teaching
of a particular language in any school?
No as held in MEYER VS. NEBRASKA,
260 US 260 (1922) because the child is not a
mere creature of the State and the parents
 Green Notes 2015
have the natural right and duty of rearing their
children for civic efficiency.
26. May the State require parents to
enroll their small children only to public
schools valid?
As held in PIERCE VS. SOCIETY OF
SISTERS, 268 US 510 (1925), a law requiring
small kids to be enrolled in public schools only
is unconstitutional since it interferes with the
right of parents in rearing their children. They
have the right to choose which school is best
suited for the development of their children
without interference from the State. THIS IS
SO BECAUSE THE CHILDREN ARE NOT
MERE CREATURES OF THE STATE.
27. Do we practice the free enterprise
system in the Philippines or is it the welfare
state concept? Distinguish the two.
As held in ACCFA VS. CUGCO, 30
SCRA 649 ―the Philippines never practiced the
free enterprise system. It is the welfare-state
concept which is being followed as shown by
the constitutional provision on agrarian
reform, housing, protection to labor. (NOTE,
however, that the 1987 Constitution have
provisions which provide for ―free enterprise).
The said doctrine was reiterated in PHILIPPINE
COCONUT DESICCATORS VS. PHILIPPINE
COCONUT AUTHORITY, 286 SCRA 109
where it was held that the Philippine
Constitutions, starting from the 1935
document, HAVE REPUDIATED laissez faire
(or the doctrine of free enterprise) as an
economic principle, and although the present
Constitution enshrines free enterprise as a
policy, it nevertheless reserves to the
government the power to intervene whenever
necessary to promote the general welfare. As
such, free enterprise does not call for the
removal of ―protective regulations‖ for the
benefit of the general public. This is so because
under Art. XII, Sections 6 and 9, it is very clear
that the government reserves the power to
intervene whenever necessary to promote the
general welfare and when the public interest
so requires.
27-a. Is the Trade Liberalization Act of
2000, RA No. 8762 which allows foreigners to
engage in retail trade in the Philippines
violative of Secs. 9, 19 and 20 , At. II of the
Constitution which mandates that the national
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economy shall be effectively controlled by
Filipinos?
No, said law is constitutional. As held
by the Supreme Court in REP. GERARDO
ESPINA ET AL VS. EXEC. SEC. RONALDO
ZAMORA, G.R. No. 143855, September 21,
2010 (The Trade Liberalization Act of 2000,
RA No. 8762) which allows foreigners to
engage in retail trade in 4 categories is not
unconstitutional for alleged violation of Secs.
9, 19 and 20 of Art. II which mandates that
the national economy shall be effectively
controlled by Filipinos. The constitutional
provision does not prohibit foreign
investments BUT ONLY TO REGULATE THE
SAME. As such, the claim that as a result of the
law, WALMART and KMART retailers could
come to the Philippines and would KILL
Filipino retailers has no basis because foreign
participation in retail business is limited.
27-b. May the PCGG Commissioners
refuse to appear before a Senate Committee
conducting alleged irregularities committed by
them while sitting in the Board of
PHILCOMSAT, a private firm sequestered by
the government on account of Executive
Order No. 1 providing that they should not be
the subject of any investigation in connection
with their acts in connection with the
performance of their duties as such?
No. Such act would violate Section 28,
Art. II of the Constitution mandating disclosure
of all public transactions involving the public
interest. Such act would also violate the ―right
to information on matters of public concern‖
as well as the ―public accountability of public
officials‖ as embodied in Section 1, Art. XI of
the 1987 Constitution, not to mention that
such would render nugatory the power of
Congress under Section 21, Art. VI. IN FACT,
GOVERNMENT OFFICIALS HAVE ONLY A
LIMITED RIGHT TO PRIVACY. (SABIO VS.
GORDON, 504 SCRA 704)
28. What Are the limitations to the
Congress power to exercise legislative power?
The limitations are:
1. It cannot pass irrepealable laws
2. Principle of separation of powers
3. non-delegability of legislative
powers
 Green Notes 2015
28-a. Is the Pork Barrel System or the
Priority Development Assistance Fund (PDAF)
of Senators and Congressmen constitutional?
It is unconstitutional for it violates the
following provisions or principles under the
Constitution:
1. SEPARATION OF POWERS. This is
so because Congress should enact
laws only and that the executive
department shall implement the
same.In the case of the Pork Barrel
System, Congress will enact it but
the individual members of
Congress still play a role in its
implementation. The Supreme
Court in ABAKADA PARTY LIST
VS. PURISIMA, 562 SCRA 251 had
already held that ―from the
moment the law becomes
effective, any provision of the law
which empowers Congress or any
of its Members to play any role in
the implementation or
enforcement of the law violates
the separation of powers‖.
2. NON-DELEGATION OF
LEGISLATIVE POWERS. The
power of appropriation is lodged
in CONGRESS AS A WHOLE. The
Pork Barrel System confers on
INDIVIDUAL LEGISLATORS post-
enactment authority on his ―pork
barrel‖. This violates the non-
delegation of legislative power
because such act ALLOWS EACH
LEGISLATOR TO EFFECTIVELY
EXERCISE THE POWER OF
LEGISLATION on his appropriated
―pork barrel.‖
3. CHECKS AND BALANCES. Since
the PDAF does not contain
―specific appropriations of money‖
but only a general provision
granting P200,000,000.00 for
each Senator and P70,000,000.00
for each Member of the House of
Representatives, the President is
deprived of his veto power on
―specific item‖ in the General
Appropriations Act. The PDAF
violates Section 25 [4], Art. VI of
the 1987 Philippine Constitution
which provides that special
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appropriations shall specify the
purpose for which it is intended. In
the case of the PRIORITY
DEVELOPMENT ASSISTANCE
FUND (PDAF), after the General
Appropriations Act is passed,
individual legislators would then
receive their personal lump-sum
allocations and could effectively
appropriate PDAF Funds based on
their discretion.
4. ACCOUNTABILITY OF PUBLIC
OFFICERS. While Congress has the
oversight powers over the funds
which it appropriated and
implemented by the executive
agencies of the government and
therefore they could monitor the
use of said funds during budget
hearings through examination of
the officials of the executive
department and its power of
inquiry in aid of legislation, the
same could not be done for the
lump-sum allocations or PDAF of
members of Congress.
5. AUTONOMY OF LOCAL
GOVERNMENT. As a result of the
power granted by the General
Appropriations Act authorizing the
Members of Congress to
participate in the post-enactment
implementation of the funds
covered by their ―pork barrel‖, it
subverts local autonomy because
legislators, in effect, intervene in
purely local matters. GRECO
BELGICA, ET AL. VS. EXECUTIVE
SECRETARY PPAQUITO OCHOA,
ET AL., G.R. No. 208560,
November 19, 2013 and
companion cases)
NOTE: The Supreme Court did not rule on
whether or not the ―pork barrel system‖
perpetuates ―political dynasty‖ because up to
the present, there is yet no ―Political Dynasty
Law‖ enacted by Congress even though the
latter was mandated by the Constitution to
enact on. The Supreme Court, however,
recognized the effect of said ―pork barrel‖ of
each legislator as very effective in perpetuating
his and his family‘s control over his district.
 Green Notes 2015
29. What are the constitutionally
allowed ―delegation of legislative power‖ by
Congress?
The permissible delegation of
legislative power are.
1) Sec. 23 (2) of Article VI
(Emergency powers to the President in
case of war or other national
emergency, for a limited period and
subject to such restrictions as Congress
may provide, to exercise powers
necessary and proper to carry out a
declared national policy. Unless sooner
withdrawn by Resolution of Congress,
such powers shall cease upon the next
adjournment thereof.
2) Sec. 28 (2) of Article VI. The
Congress may by law, authorize the
President to fix within specified limits,
and subject to such limitations and
restrictions as it may impose, tariff
rates, import and export quotas,
tonnage and wharfage dues, and other
duties or imposts within the
framework of the national
development program of the
government.
3) Delegation to local governments
4) Delegation of Rule-making power
to
administrative bodies
5) Delegation to the People (Section 2,
Art. XVII of the Constitution and Section 32,
Article VI---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 of local
legislative body after the registration of a
petition thereof signed by at least 10% of the
total number of registered voters, of which
every legislative district must be represented by
at least 3% of the registered voters thereof.
30. What is the completeness test? The
sufficiency of standard test?
As held in PELAEZ VS. AUDITOR
GENERAL, 15 SCRA 569:
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(a) Completeness Test simply means
that the law must be complete in itself when it
left Congress. It must set forth therein the
policy to be executed, carried out or
implemented by the delegate which is not
given any discretion; and
(b) Sufficiency of Standards Test simply
requires Congress to fix a standard, the limits
of which are sufficiently determinate or
determinable to which the delegate must
conform in the performance of his functions.
Some of the standards to guide the delegate
are general welfare, public interest, etc.
31. Is it constitutional for the
COMELEC to require candidates for all elective
offices, including those for President, VP,
Senators and members of the House of
Representatives to submit a Certification from
a government-accredited drug-testing centers
that they are free from prohibited drugs before
their Certificate of Candidacy is admitted?
No, the COMELEC Resolution is
unconstitutional. It adds additional
qualifications to those provided for by the
Constitution for the President, VP, Senators
and Members of the House of Representatives.
(PIMENTEL VS. COMELEC, G.R. No. 161658,
November 3, 2008)
31-a. Is a Filipino citizen who became a
member of the US Armed Forces and therefore
at one time a US Citizen considered ―natural
born‖ for purposes of complying with the
qualifications of a member of the House of
Representatives?
Yes as held in ANTONIO BENGSON
III VS. HOUSE OF REPRESENTATIVES
ELECTORAL TRIBUNAL and TEODORO
CRUZ, 357 SCRA 545 because Rep. Act No.
2630 provides that ―Any person who had lost
his Philippine Citizenship by rendering service
to, or accepting commission in, the Armed
Forces of the United States, or after separation
from the Armed Forces of the United states,
acquired US citizenship, MAY REACQUIRE
PHILIPPINE CITIZENSHIP BY TAKING AN
OATH OF ALLEGIANCE TO THE REPUBLIC
OF THE PHILIPPINES AND REGISTERING THE
SAME WITH THE LOCAL CIVIL REGISTRY IN
THE PLACE WHERE HE RESIDES OR LAST
RESIDED IN THE PHILIPPINES. The said Oath
of allegiance shall contain a renunciation of
 Green Notes 2015
any other citizenship.‖ And he shall still be
considered ―natural born‖ Filipino citizen.
32. If the candidate for Congressman is
subsequently disqualified for non-compliance
of the residence requirement under Art. VI,
may the 2nd placer be declared the winner in
his place? When may the 2nd placer be allowed
to be declared the winner?
It depends. As held in OCAMPO VS.
HOUSE ELECTORAL TRIBUNAL and MARIO
CRESPO, a.k.a. MARK JIMENEZ, June 15,
2004.
1. There must be a final judgment
disqualifying a candidate in order that
the votes of a disqualified candidate
can be considered ―stray‖. This final
judgment must be rendered BEFORE
THE ELECTION. (FR. NARDO CAYAT
VS. COMELEC, 2007). This was the
ruling in the case of CODILLA VS. DE
VENECIA. Hence, when a candidate
has not been disqualified by final
judgment and on election day he
obtained the highest number of votes,
the votes cast in his favor cannot be
declared stray. To do so would
amount to disenfranchising the
electorate in whom sovereignty
resides. The reason behind this is that
the people voted for him bona fide
and in the honest belief that the
candidate was then qualified to be the
person to whom they would entrust
the exercise of the powers of
government.
2. The disqualification of a candidate
who obtained the highest number of
votes AFTER THE ELECTION does not
entitle the second placer to be declared
the winner. The said principle was laid
down as early as 1912 in TOPACIO VS.
PAREDES and reiterated in the cases of
LABO VS. COMELEC, ABELLA VS.
COMELEC and DOMINO VS.
COMELEC.
[NOTE: WHILE THIS CASE INVOLVES A
MEMBER OF THE HOUSE OF
REPRESENTATIVES, THE SUPREME COURT
IN THE CASE OF MAQUILING VS. COMELEC
& ARNADO THAT IF THE CANDIDATE FOR
MAYOR WHO RECEIVED THE HIGHEST
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NUMBER OF VOTES IS DISQUALIFIED EVEN
AFTER THE ELECTION, THE SECOND
PLACER SHALL TAKE HIS PLACE, NOT THE
VICE MAYOR, BECAUSE THE FORMER‘S
VOTES SHOULD NOT HAVE BEEN
COUNTED AND THE LATTER IS THE
QUALIFIED CANDIDATE WHO OBTAINED
THE HIGHEST NUMBER OF VOTES.
(MAQUILING VS. COMELEC, G.R. No.
195649, April 16, 2013)
32-a. In order to validly create an
aditional district for Cagayan de Oro City,
must the law creating it be first submitted to
the people therein in a plebiscite in accordance
with Section 10, Art. X of the 1987
Constitution?
No, because the creation of another
district when the same is warranted as when
there is an increase of population justifying
the creation of a new district does not create a
new or divide a local government unit. What
is applicable is Section 5, Art. VI of the
Constitution, not Sectio 10, Art. X.
(BAGABUYO VS. COMELEC, December 8,
2008)
32-b. Is the creation of a fifth district
in Camarines Sur by dividing the existing 1st
District into two (2) valid even though it will
only have 177,000 plus population which is
short of 250,000 as required under Section 5
[3], Art. VI of the Constitution?
No. The 250,000 population
requirement applies only to make a city
entitled to one legislative district or in the
creation of a new province, NOT IN THE
CREATION OF A NEW DISTRICT IN AN
EXISTING PROVINCE. (BENIGNO AQUINO
III VS. COMELEC, April 7, 2010) [Dissenting
Opinion of Justice Carpio: If the majority
ruling is to be followed, as long as the new
district or districts will be carved out from an
existing province, then, even an area with only
200 inhabitants are allowed to constitute a
new district? It violates the requirement of
proportional representation as well as based
on ―uniform and progressive ratio‖]
 Green Notes 2015
32-c. Is the law creating the new
legislative district for Malolos City
constitutional since the National Statistics
Office had projected that it will have a
population of 254,030 by ‖the year 2010‖?
No, there must be 250,000
populations on or before the May 10, 2010
elections. In this case, it was not clear that it
has complied with the population requirement
on election day. 2010 is up to December of
said year. (ALDABA VS. COMELEC, G.R. No.
188078, January 25, 2010)
32-d. In the computation of party-list
representatives, is the Veterans Federation
Party vs. COMELEC Formula or the
Panganiban Formula still applicable?
No more because it results in a
mathematical impossiblity. To strictly comply
with it requiring at least 2% for every sectoral
representative to obtain in order to garner 1
seat would require 116% in order that there
will be 58 sectoral representatives [in 20130
based on the number of legislative districts at
present. Also, the 20% party-list membership
in the House of Representatives shall be fully
filled up, not just 20, 21, 22, or 23 when the
Panganiban Formula was used.
32-e. Is Dan Fernandez qualified to run
for Congressman of the First District of Laguna
since he is renting an apartment in Sta. Rosa,
Laguna, even though his residential house is at
Pagsanjan, Laguna which is a part of the 5th
district where he was residing before though
he resided in that rented apartment for more
than 1 year before the 2007 elections?
Yes. Ownership of a real property in
the place where one runs for Congressman is
not required by Section 6, Art. VI of the
Constitution. (DAN FERNANDEZ VS. HRET,
December 21, 2009)
32-f. If a candidate for the House of
Representatives, actor Richard Gomez, was
disqualified by the COMELEC based on Section
78 of the Omnibus Election Code because ―he
was not a resident of Ormoc City‖ at least one
(1) year before the May 10, 2010 elections,
may he be substituted by his wife Lucy Torres?
Assuming Lucy wins, may she validly be
declared the representative for said District?
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No, a candidate disqualified under
Section 78 of the Omnibus Election Code
cannot be substituted because the Certificate of
Candidacy of Richard is not valid for lack of
the qualification mandated by the
Constitution. A valid COC is a condition sine
qua non for a valid candidate substitution.
There was ―material representation‖ in the
COC of Richard when he claimed he is a
resident of Ormoc City when he was not. As
such, Richard was not considered a
―candidate‖ or there was no candidate to
speak of so there would be no candidate to be
substituted.
It is different for a candidate
disqualified under Section 68 of the OEC. He
could be substituted because he has all the
qualifications but was disqualified due to an
election offense like vote-buying, terrorism,
etc. (TAGOLINO VS. HOUSE OF
REPRESENTATIVES ELECTORAL TRIBUNAL
AND LUCY TORRES-GOMEZ, March 19, 2013)
33. In case of vacancy in the Senate or in the
House of Representatives under Section 9 of
Article VII, is it automatic for the COMELEC to
hold a special election?
No, there must be a law passed by
Congress appropriating the funds for the said
purpose. ( LOZADA vs. COMELEC, 120 SCRA
337)
34. While a Member of Congress is not
allowed to appear as counsel for any party in
court or before administrative bodies, may he
do so as a ―stockholder‖?
No as held in PUYAT vs. DE
GUZMAN, 113 SCRA 31. What could not be
done directly could not likewise be done
indirectly. So a member of Congress who is a
stockholder of the corporation involved in a
case is not allowed to appear under the guise
that he is appearing as such, not as counsel for
the corporation.
(Note: Was the Supreme Court correct
in allowing Senator Joker Arroyo to argue
before the Supreme Court as COUNSEL for the
Senate of the Philippines in the cases (Drilon
vs. Ermita, NERI vs. Blue Ribbon Committee,
etc.) where the Senate was a respondent
therein despite Section 14, Art VI which
provides that ―No Senator or Member of the
House of Representatives may personally
 Green Notes 2015
appear as counsel before any court of
justice…‖?
35. May a court suspend a member of
Congress when Section 16 [3], Article VI
appears to give such exclusive power to each
House only for disorderly behavior, and with
the concurrence of 2/3 of all its members,
suspend or expel a Member. A penalty of
suspension, when imposed, shall moot exceed
sixty days?
Yes, this was the rulings of the
Supreme Court in the cases of MIRIAM
DEFENSOR and REP. PAREDES VS.
SANDIGANBAYAN. RA 3019 applies to all
government officers and employees.
36. In case of conflict between the
entries in a journal of both Houses of Congress
and extraneous evidence like affidavits of
witnesses, which shall prevail?
As held in U.S. vs. PONS, 34 Phil. 729,
the journal prevails over extraneous evidence
like accounts of newspaper journalists and
reporters as to what the proceedings all about.
37. In case of conflict between the
journal and the enrolled bill, which shall
prevail?
In CASCO PHIL. VS. GIMENEZ, 7
SCRA 347, it was held by the Supreme Court
that the enrolled bill prevails over the journal.
If the enrolled bill provides that it is urea
formaldehyde is the one exempt from tax, and
not urea and formaldehyde which appears in
the journal which was really approved, the
former prevails and only CURATIVE
LEGISLATION COULD CHANGE THE SAME,
NOT JUDICIAL LEGISLATION. However, if
the President of the Philippines, Senate
President and the Speaker of the House of
Representatives withdraw their signatures as a
result of an anomaly surrounding the printing
of the final copy of the bill, then, the journal
will prevail since what is left is no longer
considered an ―enrolled bill.‖
(NOTE, however, that the journal
prevails over the enrolled bill on all matters
required to be entered in the journals, like yeas
and nays on the final reading of a bill or on
any question at the request of 1/5 of the
members present. [Justice Isagani Cruz])
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38. May the COMELEC continue to
decide a pending disqualification petition
against a candidate for the House of
Representatives after said candidate has been
proclaimed and already discharging his duties
as such?
No more. Only the House of
Representatives Electoral Tribunal (HRET) has
the jurisdiction to do that being ―the sole
judge of all contests relating to the election,
returns and qualifications‖ of said Member in
accordance with Section 17, Art. VI of the
Constitution. [LIMKAICHONG VS. COMELEC,
April 1, 2009]
38-a. How about members of the
House of Representative representing the
party-list groups?
All questions regarding the
qualifications of members of the different
party-list groups are within the exclusive
jurisdiction of the HRET after their
proclamation as such and that the COMELEC
may no longer continue to decide it.
(ABAYON & PALPARAN VS. HRET, February
11, 2010)
38-b. May Lesbians, Gays, Bisexuals
and Transgenders marginalized or under-
represented considering that they are not
included in the twelve ―marginalized groups‖
enumerated by the Supreme Court in ANG
BAGONG BAYANI VS. COMELEC?
Yes because the enumerated sectors
therein, i.e., labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly,
handicapped, women, youth, veterans, overseas
workers, and professionals, ―is not exclusive‖.
38-c. May an individual who does not
belong to a particular marginalized group
validly become the nominee of said sector?
Yes provided he must have a track
record of advocacy for their respective sectors.
(ATONG PAGLAUM, INC VS. COMELEC, G.R.
No. 203766, and companion cases, February
26, 2013).
 Green Notes 2015
38-d. May national parties qualified to
join the party-list elections?
While the Supreme Court answered
the same in the negative in the cases of Ang
Bagong Bayani and BANAT, they were
allowed in ATONG PAGLAUM, INC VS.
COMELEC, G.R. No. 203766, and
companion cases, February 26, 2013.
38-e. May Congress change the
existing membership of the Commission on
Appointments or Electoral Tribunals as a result
of the changes of membership of the different
political parties?
Yes If the changes in the political party
affiliations of the members of Congress is
substantial and at the same time permanent so
as to dramatically increase the membership of
one party while significantly reducing the
other, the number of representatives of the
different parties in the Commission on
Appointments may also be changed in
proportion to their actual memberships.
[DAZA VS. SINGSON, December 21, 1989]
(NOTE: In Cunanan vs. Tan, the membership
of the Senators was only ―temporary‖ so as
not to result in the change of membership in
the Commission on Appointments)
38-f. May a political party (LDP)
replace its representative in the House of
Representatives Electoral Commission who, in
a preliminary voting in a protest case against
an LDP Member, voted in favor of the other
party and against the candidate of his very
own party?
While as a rule the different political
parties may change their representatives in the
Electoral Tribunal or Commission on
Appointments, it may not change a Member
who completely heard and participated in a
particular case [and has already indicated his
vote to the members of the tribunal] and
replace him with another who has no
participation therein, except only to vote for a
party-mate who is involved in the protest.
Such would be a travesty of justice. (BONDOC
VS. PINEDA, September 26, 1991)
38-g. May the COMELEC continue to
decide a disqualification case against a
candidate for the House of Representatives
after the latter has been proclaimed and taken
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her oath or shall it be the House of
Representatives Electoral Tribunal?
In the case of REGINA ONSIAKO
REYES VS. COMELEC, GR No. 207264, June
25, 2013, the Supreme Court held that the
COMELEC retains jurisdiction because a 3rd
requisite before the COMELEC loses
jurisdiction and that the HRET takes over
jurisdiction, is absent. This is the assumption of
office. Senators and Congressmen assume
office on the 30th day of June following their
elections. Since the COMELEC‘s decision was
promulgated before June 30, 2013, then, it still
has jurisdiction to decide the disqualification
case.
39. May a committee of Congress cite
a person for contempt of court for refusing to
answer its questions during investigations in
aid of legislation? How long may it imprison
such witness?
As held in ARNAULT vs.
NAZARENO, 87 Phil. 29, ―A witness who
refuses to answer a query by the Committee
may be detained during the term of the
members imposing said penalty but the
detention should not be too long as to violate
the witness‘ right to due process of law.‖
40. May the President validly prohibit
members of the Cabinet and those of the
executive department from appearing before
any Committee of Congress without her
consent?
It depends. If the appearance is due to
the power of Congress to investigate in aid of
legislation under Section 21, Art. VI, such act of
the President is unconstitutional for it would
violate the oversight powers of Congress and
because the appearance of said executive
officers is MANDATORY. It would also violate
the right to information on the part of the
citizens. However, if the invitation to appear is
based on Section 22, Art. VI or during the
―question hour‖, then the President may
validly demand that they must get her consent
first because such appearance is
DISCRETIONARY. (SENATE OF THE
PHILIPPINES, represented by SENATE
PRESIDENT FRANKLIN DRILON, ET AL., VS.
EXEC. SEC. EDUARDO ERMITA, ET AL., G.R.
No. 16977, April 20, 2006, 488 SCRA 1)
 Green Notes 2015
Political Law
Prepared by: Atty. Lauro D. Gacayan

40-a. While a Member of the Cabinet communications privilege applies to decision-

may be compelled to appear before Congress making of the President while, the
under Section 21, Art. VI of the Constitution, deliberative process privilege, to decision-
may he be compelled to answer questions making of executive officials. The first is
regarding his conversations with the President rooted in the constitutional principle of
on matters subject of the investigation/inquiry separation of power and the President‘s
in aid of legislation? unique constitutional role; the second
on common law privilege. Unlike the
No if the conversations are covered by deliberative process privilege, the presidential
the ―executive privilege‖. communications privilege applies to
documents in their entirety, and covers final
40-b. Explain the ―executive privilege‖ and post-decisional materials as well as pre-
doctrine. Distinguish the ―presidential deliberative ones. As a consequence,
communications privilege‖ and the congressional or judicial negation of the
―deliberative process privilege‖ which presidential communications privilege is
comprise said ―executive privilege‖. Who are always subject to greater scrutiny than denial
covered by this rule? of the deliberative process privilege.

The Nixon and post-Watergate cases
established the broad contours of the
presidential communications privilege. In
United States v. Nixon, the U.S. Court
recognized a great public interest in
preserving ―the confidentiality of
conversations that take place in the
President‘s performance of his official duties.‖
It thus considered presidential
communications as ―presumptively
privileged.‖ Apparently, the presumption is
founded on the ―President‘s generalized
interest in confidentiality.‖ The privilege is
said to be necessary to guarantee the candor
of presidential advisors and to provide ―the
President and those who assist him…
with freedom to explore alternatives in the
process of shaping policies and making
decisions and to do so in a way many would
be unwilling to express except privately.‖
In In Re: Sealed Case, the U.S. Court of
Appeals delved deeper. It ruled that there are
two (2) kinds of executive privilege; one is
the presidential communications privilege
and, the other is the deliberative process
privilege. The former pertains to
―communications, documents or other
materials that reflect presidential decision-
making and deliberations and that the
President believes should remain
confidential.‖ The latter includes ‗advisory
opinions, recommendations and deliberations
comprising part of a process by which
governmental decisions and policies are
formulated.‖
Accordingly, they are characterized by
marked distinctions. Presidential
Turning on who are the officials
covered by the presidential communications
privilege, In Re: Sealed Case confines the
privilege only to White House Staff that has
―operational proximity‖ to direct presidential
decision-making. Thus, the privilege is meant
to encompass only those functions that form
the core of presidential authority, involving
what the court characterized as ―quintessential
and non-delegable Presidential power,‖ such
as commander-in-chief power, appointment
and removal power, the power to grant
pardons and reprieves, the sole-authority to
receive ambassadors and other public officers,
the power to negotiate treaties, etc .
The situation in Judicial Watch, Inc. v.
Department of Justice: tested the In Re:
Sealed Case principles. There, while the
presidential decision involved is the exercise of
the President‘s pardon power, a non-
delegable, core-presidential function, the
Deputy Attorney General and the Pardon
Attorney were deemed to be too remote from
the President and his senior White House
advisors to be protected. The Court
conceded that functionally those officials were
performing a task directly related to the
President‘s pardon power, but concluded that
an organizational test was more appropriate
for confining the potentially broad sweep that
would result from the In Re: Sealed Case‘s
functional test. The majority concluded that,
the lesser protections of the deliberative
process privilege would suffice. That privilege
was, however, found insufficient to justify the
confidentiality of the 4,341 withheld
documents.

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 Green Notes 2015
The above cases, especially, Nixon, In
Re Sealed Case and Judicial Watch, somehow
provide the elements of presidential
communications privilege, to wit:
1) The protected communication must
relate to a ―quintessential and non-
delegable presidential power.‖
The communication must be authored
or ―solicited and received‖ by a close advisor
of the President or the President himself. The
judicial test is that an advisor must be in
―operational proximity‖ with the President.
The presidential communications
privilege remains a qualified privilege that may
be overcome by a showing of adequate need,
such that the information sought ―likely
contains important evidence‖ and by the
unavailability of the information elsewhere by
an appropriate investigating authority.
Simply put, the bases are presidential
communications privilege and executive
privilege on matters relating to diplomacy or
foreign relations.
Using the above elements, we are
convinced that, indeed, the communications
elicited by the three (3) questions are covered
by the presidential communications privilege.
First, the communications relate to a
―quintessential and non-delegable power‖ of
the President, i.e. the power to enter into an
executive agreement with other countries. This
authority of the President to enter into
executive agreements without the concurrence
of the Legislature has traditionally been
recognized in Philippine jurisprudence.
Second, the communications are ―received‖ by
a close advisor of the President. Under the
―operational proximity‖ test, petitioner can be
considered a close advisor, being a member of
President Arroyo‘s cabinet. And third, there is
no adequate showing of a compelling need
that would justify the limitation of the
privilege and of the unavailability of the
information elsewhere by an appropriate
investigating authority.
We see no dispute on this. It is settled
in United States v. Nixon , that
―demonstrated, specific need for evidence in
pending criminal trial‖ outweighs the
President‘s ―generalized interest in
confidentiality.‖ However, the present case‘s
distinction with the Nixon case is very evident.
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In Nixon, there is a pending criminal
proceeding where the information is
requested and it is the demands of due process
of law and the fair administration of
criminal justice that the information be
disclosed. This is the reason why the U.S.
Court was quick to ―limit the scope of its
decision.‖ It stressed that it is ―not concerned
here with the balance between the President‘s
generalized interest in confidentiality x x x
and congressional demands for information.‖
Unlike in Nixon, the information here is
elicited, not in a criminal proceeding, but in a
legislative inquiry. In this regard, Senate v.
Ermita stressed that the validity of the claim of
executive privilege depends not only on the
ground invoked but, also, on the procedural
setting or the context in which the claim is
made. Furthermore, in Nixon, the President
did not interpose any claim of need to protect
military, diplomatic or sensitive national
security secrets. In the present case, Executive
Secretary Ermita categorically claims executive
privilege on the grounds of presidential
communications privilege in relation to her
executive and policy decision-making process
and diplomatic secrets.
41. May a person validly refuse to
honor an invitation to appear before the
Senate Blue Ribbon Committee in connection
with its alleged investigation ―in aid of
legislation‖?
Yes. In Bengzon, Jr. vs. Senate Blue
Ribbon Committee, Nov. 20, 1991, it was held
that ―the power of both houses of Congress to
conduct inquiries in aid of legislation is not,
absolute or unlimited. "The rights of persons
appearing in or affected by such inquiries shall
be respected." It follows then that the rights of
persons under the Bill of Rights must be
respected, including the right to due process
and the right not to be compelled to testify
against one's self. But broad as is this power of
inquiry, it is not unlimited. There is no general
authority to expose the private affairs of
individuals without justification in terms of the
functions of Congress. Nor is the Congress a
law enforcement or trial agency. These are
functions of the executive and judicial
departments of government. No inquiry is an
end in itself; it must be related to and in
furtherance of a legitimate task of Congress.
Investigations conducted solely for the
personal aggrandizement of the investigators
or to "punish" those investigated are
 Green Notes 2015
indefensible. As such, if the person invited is
already an accused before the Sandiganbayan
or facing a case in the Ombudsman in
connection with a subject matter related to the
House or Senate inquiry, then he could validly
refuse to attend to said hearing.
41-a. May the PCGG Chairman and
commissioners refuse to attend inquiries in ad
of legislation being done by the Senate because
Executive Order No. 1 provides that they
should not be questioned regarding their
activities as such?
No, the provision of Exec. Order No. 1
regarding their privilege not to attend such
hearings is unconstitutional. It violates Section
28, Art. II, The right to information under Art.
III, Section 21, Art. VI and Section 1, Art. XI or
the accountability of public officers.
41-b. May local legislative bodies
validly cite a person in contempt of court (as
what Congress could do) for refusing to
appear therein or to answer the questions of
the members thereof?
No. In NEGROS ORIENTAL II
ELECTRIC COOPERATIVE VS.
SANGGUNIANG PANGLUNGSOD OF
DUMAGUETE CITY, G.R. No. 72492, Nov.
5, 1987, 155 SCRA 421, the Supreme Court
held that such power was not delegated by
Congress to local government units.
41-c. May the Senate Committee on
Foreign Affairs conduct an investigation of an
incident involving ranking members of the
PNP that took place in Moscow, Russia?
Yes. It has the authority to investigate
on ―all matters relating to the relations of the
Philippines with all other nations‖. (DE LA PAZ
VS. SENATE COMMITTEE ON FOREIGN
AFFAIRS, February 13, 2009)
42. What are the bills that must
exclusively originate from the House of
Representatives?
Under Section 24, Art. VI, All
appropriations, 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. (NOTE: In
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Tolentino vs. Secretary of Finance, the
Supreme Court held that the E-VAT Law is
constitutional even if the same was the
VERSION which came from the Senate, not
from the House of Representatives. This is so
because the Senate is allowed to ―propose
amendments‖ to bills which must exclusively
originate from the House of Representatives.)
43. When is transfer of appropriations
allowed by the Constitution?
Only those covered by Section 25 [5]
which provides that ―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 the
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.‖
43-a. Is the Disbursement Acceleration
Program (DAP) of the executive department
under the Department of Budget and
Management constitutional if it uses: [1]savings
from completed programs; [2] funds intended
for discontinued or abandoned programs; and
[3] unpaid appropriations for compensation---
to be used for projects without a law
appropriating it for specific projects or to be
given to Members of Congress for projects
identified by them?
It is unconstitutional. It violates Section
25 [5] and Section 29 [1] of Article VI of the
1987 Constitution which provides that ―no
money shall be paid out of the Treasury except
in pursuance of an appropriations made by
law.‖ ARAULLO VS. BENIGNO SIMEON C.
AQUINO III, et al., GR No. 209287, July 1,
2014)
43-b. What is the Disbursement
Acceleration Program (DAP)? Is DAP an
appropriation measure?
It is a government policy or strategy
designed to stimulate the economy through
accelerated spending. It is not an
appropriation measure and as such, no law
was necessary for the adoption and
implementation of the DAP because it is
neither a fund nor an appropriation, but a
program or an administrative system of
 Green Notes 2015
prioritizing spending and that the adoption of
the DAP was by virtue of the authority of the
President as the Chief Executive to ensure that
laws are faithfully executed. (ARAULLO VS.
BENIGNO SIMEON C. AQUINO III, et al., GR
No. 209287, July 1, 2014)
43-c. Are the unreleased
appropriations and withdrawn unobligated
allotments under the DAP considered as
SAVINGS ?
No. They are not SAVINGS and
therefore, its use in the DAP violates Section
25 [5] Art. VI of the Constitution.
43-d. What are the requisites before
appropriated funds may be validly transferred
under Section 25 [5] Art. VI of the
Constitution?
The requisites are:
1. There must be a law authorizing the
President, Senate President, Speaker of the
House of Representatives, Chief Justice and
heads of the Constitutional Commissions to
TRANSFER FUNDS WITHIN THEIR
RESPECTIVE OFFICES;
2. The funds to be transferred are savings
generated from the appropriations for their
respective offices; and
3. The purpose of the transfer is to augment an
item in the general appropriations law for their
respective offices. (ARAULLO VS. BENIGNO
SIMEON C. AQUINO III, et al., GR No.
209287, July 1, 2014)
43-e. Are the unreleased
appropriations and unobligated allotments
may be considered savings to be used for DAP
purposes before the end of the fiscal year?
No. (ARAULLO VS. BENIGNO
SIMEON C. AQUINO III, et al., GR No.
209287, July 1, 2014)
43-f. What is known as the ―cross-
border augmentations‖ or ―cross-border
transfers‖? Is it allowed by the Constitution?
It is the transfer of savings from one
department to the other like savings in the
executive department ―crossing its borders‖
and given to the legislative department under
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the guise of augmentation of a deficient item
or items in the latter‘s budget. This is what is
exactly prohibited by Section 25 [5] of Article
VI. (ARAULLO VS. BENIGNO SIMEON C.
AQUINO III, et al., GR No. 209287, July 1,
2014)
44. What is the so-called ―executive
impoundment‖?
It means that although an item of
appropriation is not vetoed by the President,
he however refuses for whatever reason, to
spend funds made possible by Congress. It is
the failure to spend or obligate budget
authority of any type. Proponents of
impoundment have invoked at least three (3)
principal sources of authority of the President.
[1] authority to impound given to him by
Congress, either expressly or impliedly; [2] the
executive power drawn from his power as
Commander-in-chief; and [3] the Faithful
execution clause of the Constitution. Note that
in this case the SC held that the Countryside
Development Fund (CDF) or ―Pork Barrel‖ of
Congressmen and Senators is
CONSTITUTIONAL because the same is ―set
aside for ‗infrastructure, purchase of
ambulances and computers and other priority
projects and activities, and credit facilities to
qualified beneficiaries as proposed and
identified by said Senators and Congressmen.
(PHILCONSA VS. ENRIQUEZ, 235 SCRA 506)
45. May the President refuse to
enforce a law on the ground that in his
opinion it is unconstitutional?
No. Otherwise, he will be violating the
doctrine of separation of powers because by
doing so, he will be arrogating unto himself
the power to interpret the law, not merely to
implement it. (L.S. MOON & CO. VS.
HARRISON, 43 Phil.38)
46. The President of the Philippines, by
Administrative Order, mandates the
―ADOPTION OF A NATIONAL
COMPUTERIZED IDENTIFICATION
REFERENCE SYSTEM‖ and appropriating funds
therefore? Is this within his ―executive power‖?
No as held by the Supreme Court in
BLAS OPLE VS. RUBEN TORRES, ET AL., G.R.
No. 127685, July 23, 1998, the AO establishes
a system of identification that is all-
encompassing in scope, affects the life and
 Green Notes 2015
liberty of every Filipino citizens and foreign
residents and therefore, it is supposed to be a
law passed by Congress that implements it, not
by an Administrative Order issued by the
President. Administrative Power, which is
supposed to be exercised by the President, is
concerned with the work of applying policies
and enforcing orders as determined by proper
governmental organs. It enables the President
to fix a uniform standard of administrative
efficiency and check the official conduct of his
agents. Prescinding from the foregoing
precepts, AO 308 involves a subject that is not
appropriate to be covered by an
Administrative Order. An administrative order
is an ordinance issued by the President which
relates to specific aspects in the administrative
operation of the government. It must be in
harmony with the law and should be for the
sole purpose of implementing the law and
carrying out the legislative policy. The subject
of AO 308 therefore is beyond the power of
the President to issue and it is a usurpation of
legislative power.
47. What is the ―totality test‖ used by
the Supreme Court in holding that former
President Joseph Estrada resigned as President
on January 20, 2007?
THIS IS THE TOTALITY TEST, THE
TOTALITY OF PRIOR, CONTEMPORANEOUS
AND POSTERIOR FACTS AND
CIRCUMSTANTIAL EVIDENCE BEARING
MATERIAL RELEVANCE TO THE ISSUE.
48. Is President Gloria Macapagal
Arroyo a de jure or a de facto President when
she took over President Joseph Estrada in
January 2001? If de jure, how did she succeed?
Resignation or permanent disability of former
President Estrada?
Since both Houses of Congress had
recognized that Arroyo is the President when
they passed Resolution ―expressing their
support to the administration of Her
Excellency Gloria Macapagal Arroyo, President
of the Philippines‖ which was passed on
January 24, 2001; another resolution dated
January 24, 2001 ―expressing full support to
the assumption into office by VP Arroyo as
President of the Philippines‖; and the
Resolution dated February 7, 2001
―confirming President Arroyo‘s nomination of
Senator Teopisto Guingona, Jr. as Vice
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President of the Philippines‖, her government
is de jure.
49. May the President makes
appointment to vacancies in the judiciary
within two months immediately before the
next presidential election and up to the end of
his term‖ in order to comply with the
requirement of Sections 4 and 8, Art. VIII for
him to fill up vacancies in the judiciary within
90 days from the submission of the list of
nominees by the Judicial and Bar Council?
No. Section 15, Article VII applies only
to temporary appointments to executive
positions when continued vacancies therein
will prejudice public service or endanger public
safety and not to the judiciary. (IN RE
VALENZUELA & IN RE: JUDGE VALLARTA.
November, 1998)
However, in the case of ARTURO DE
CASTRO VS. JUDICIAL AND BAR COUNCIL,
G.R. No. 191032, March 17, 2010 , a divided
Supreme Court allowed President Arroyo to
appoint a new Chief Justice within the
prohibited period by holding that ―the
prohibition under Section 15, Article VII does
not apply to appointments to fill a vacancy in
the Supreme Court or to other appointments
to the Judiciary‖.
Note, however, that while nine (9)
justices voted to allow the President to
appoint the Chief Justice during the prohibited
period, only five (5) justices voted to reverse
IN RE VALENZUELA & IN RE: JUDGE
VALLARTA. As such, the President is not
allowed to make any other appointments in
the judiciary during said period, except the
Chief Justice. IS THE APPOINTMENT OF THE
CHIEF JUSTICE MADE AS AN EXCEPTION IN
SECTION 15, ART. VII?
50. What appointments made by the
President shall be the subject of confirmation
by the Commission on Appointments?
Only those covered by the 1st sentence
of Section 16, Art. VII which are ―the heads of
the executive departments, ambassadors, other
public ministers and consuls, or officers of the
armed forces from the rank of colonel or naval
captain, and other officers are vested in him in
this Constitution‖.
 Green Notes 2015
51. May the President make temporary
appointments involving the members of the
Cabinet while Congress in session or not in
session? Distinguish ad interim appointment
and appointment in an acting capacity.
Yes provided the temporary
appointments of cabinet members do not
exceed one (1) year. (SEN. AQUILINO
PIMENTEL, et al., vs. EXEC. SECRETARY
EDUARDO ERMITA, et al., 472 SCRA 587)
1. The temporary appointments are
valid. The power to appoint is
essentially executive in nature and the
legislature may not interfere with the
exercise of this executive power
except in those instances when the
Constitution expressly allows it to
interfere. The essence of an
appointment in an acting capacity is its
temporary nature. It is a stop-gap
measure intended to fill an office for a
limited time until the appointment of
a permanent occupant to the office. In
case of vacancy in an office occupied
by an alter ego of the President, such
as the office of a department secretary,
the President must necessarily appoint
an alter ego of her choice as acting
secretary before the permanent
appointee of her choice could assume
office. Congress, through a law cannot
impose on the President the obligation
of automatically appointing the
Undersecretary as her alter ego. He
must be of the President‘s confidence
and provided that the temporary
appointment does not exceed one (1)
year.
2. There is a need to distinguish ad
interim appointments and
appointments in an acting capacity.
While both are effective upon
acceptance, ad interim appointments
are extended only during the recess of
Congress, whereas acting
appointments may be extended any
time that there is a vacancy.
Moreover, ad interim appointments
are submitted to the Commission on
Appointments for confirmation or
rejection; acting appointments are not
submitted to the Commission on
appointments. Acting appointments
are a way of temporarily
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circumventing the need of
confirmation by the Commission on
Appointments.
51-a. May the President appoint a
Chief Justice within the prohibited period
under Section 15, Art. VII of the Constitution?
Yes because the prohibition applies
only to the Executive Department. (ARTURO
DE CASTRO VS. JBC, MARCH 17, 2010 &
APRIL 20, 2010 ON THE MOTION FOR
RECONSIDERATION. [Note, however, that
only five justices voted on the issue on
whether the President could appoint justices
and judges lower than the Chief Justice.
Therefore, the doctrine in IN RE VALENZUELA
& IN RE VALLARTA, 298 SCRA 408 is still
applicable]
51-b. Must the Commissioner of
Customs be subjected to confirmation by the
Commission on Appointments considering the
importance of his position?
No because he does not fall under the
1st sentence of Section 16, Art. VII of the
Constitution. (SARMIENTO VS. MISON, 156
SCRA 549)
51-c. Shall the new Bangko Sentral
Governor be required to be confirmed by the
Commission on Appointments as the law
creating it requires?
No. Congress could not add to the list
of officials subject of confirmation by the
Commission on Appointments under the 1st
sentence of Section 16, Art. VII of the
Constitution. (TARROSA VS. SINGSON, May
25, 1994; CALDERON VS. CARALE, April 23,
1992). Congress may not add the officials
subject of confirmation by the Commission on
Appointments in Section 16 [First Sentence],
Art. VII of the Constitution.
51-d. May the President validly
appoint the DOTC Assistant Secretary Maria
Elena Bautista as Acting Manager of MARINA
which is under DOTC?
No. The same falls under the
prohibition on multiple positions of officials in
the executive department under Section 13,
Art. VII of the Constitution. (DENNIS FUNA
VS. ERMITA & MARIA ELENA BAUTISTA,
February 11, 2010)
 Green Notes 2015
52. What is the ―take care power‖ of
the President of the Philippines?
It is the power of the President under
Section 17, Art. VII which provides that The
President shall have control of all the executive
departments, bureaus and offices. He shall
ensure that the laws be faithfully executed
(RANDY DAVID VS. ARROYO, G.R. No.
171396, May 3, 2006).
53. What is the power of control of
the President. Distinguish it from power of
supervision.
"Control" has been defined as "the
power of an officer to alter or modify or
nullify or set aside what a subordinate officer
had done in the performance of his duties and
to substitute the judgment of the former for
test of the latter." "Supervision" on the other
hand means "overseeing or the power or
authority of an officer to see that subordinate
officers perform their duties. (MONDANO VS.
SILVOSA)
54. May the President validly require
all officers and employees under the executive
department to maintain an ID system and
have ID cards?
Yes in accordance with her power of
control under Section 17, Art. VII of the
Constitution. (KILUSANG MAYO UNO VS.
EXECUTIVE SECRETARY EDUARDO ERMITA,
ET AL., April 19, 2006 & June 20, 2006) But
not for a national ID system which includes
civilians as held in Ople vs. Torres, supra.
55. What is the doctrine of qualified
political agency?
It simply means that ―the President is
not expected to perform in person an the
multifarious executive and administrative
functions. The Office of the Executive Secretary
is an auxillary unit which assists the President.
Under our constitutional set-up, the Executive
Secretary acts for and in behalf of the
President: and by authority of the President,
he has undisputed jurisdiction to affirm,
modify, or even reverse any order of the
Secretary of Natural Resources and other
Cabinet Secretaries. Where the Executive
Secretary acts "by authority of the President"
his decision is that of the President. (Lacson-
Magallanes Co., Inc. vs. Pano, 21 SCRA 895).
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55.a. What is the power of executive
impoundment?
It means that although an item of
appropriation is not vetoed by the President,
he, however, refuses for whatever reason, to
spend funds made possible by Congress. It is
the failure to spend or obligate budget
authority of any type. Proponents of
impoundment have invoked at least three (3)
principal sources of the authority of the
President on this matter. [1] authority to
impound given by Congress, either expressly
or impliedly; [2] the executive power drawn
from his power as the commander-in-chief;
and [3] the faithful execution clause of the
Constitution under Section 17, Art. VII of the
Constitution. (PHILCONSA VS. ENRIQUEZ,
235 SCRA 506)
56. What are the differences between
the power of the President to declare martial
law or suspend the privilege of the writ of
habeas corpus under the 1987 Constitution
and the previous Constitutions?
Under the 1987 Philippine
Constitution, such acts of the President may be
reviewed not only by the Supreme Court but
also the Congress of the Philippines.
Previously, such would be considered ―political
question‖ which is beyond the review powers
of the courts. Likewise, there is a definite
period for the said suspension unlike before
and more importantly, the grounds are only
invasion and rebellion WHEN THE PUBLIC
SAFETY REQUIRES IT. 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 suspension of the privilege of the writ or
the extension thereof, and must promulgate its
decision thereon within 30 days from its filing.
A state of martial law does not
suspend the operation of the Constitution, nor
supplant the functioning of the civil courts or
legislative assemblies, nor authorize the
conferment of jurisdiction on military courts
and agencies over civilians where civil courts
are able to function, nor automatically suspend
the privilege of the writ.
The suspension of the privilege of the
writ shall apply only to persons judicially
charged for rebellion or offenses inherent in or
directly connected with invasion.
 Green Notes 2015
During the suspension of the privilege
of the writ, any person thus arrested or
detained shall be judicially charged within 3
days, otherwise, he shall be released.
57. May the President under the 1987
Constitution validly issue decrees ―which shall
form part of the laws of the land‖ after
declaring a state of national emergency but did
not declare martial law. May she direct the
take-over of business affected with national
interest by reason of the ―emergency‖ which
she herself proclaimed?
In the case of PROF. RANDOLF S.
DAVID, et Al VS. GLORIA MACAPAGAL-
ARROYO, AS PRESIDENT AND
COMMANDER-IN-CHIEF, et al., G.R. No.
171396, May 3, 2006, it was held that in
declaring a state of national emergency,
President Arroyo did not only rely on Section
18, Article VII of the Constitution, a provision
calling on the AFP to prevent or suppress
lawless violence, invasion or rebellion. She
also relied on Section 17, Article XII, a
provision on the State‘s extraordinary power
to take over privately-owned public utility and
businesses affected with public interest. The
Supreme Court ruled that the assailed PP 1017
is unconstitutional insofar as it grants President
Arroyo the authority to promulgate ―decrees.‖
Legislative power is peculiarly within the
province of the Legislature. Section 1, Article
VI categorically states that ―[t]he legislative
power shall be vested in the Congress of the
Philippines which shall consist of a Senate and
a House of Representatives.‖ To be sure,
neither Martial Law nor a state of rebellion
nor a state of emergency can justify President
Arroyo‘s exercise of legislative power by
issuing decrees.
Likewise, the exercise of emergency
powers, such as the taking over of privately
owned public utility or business affected with
public interest, is also unconstitutional. This
requires a delegation from Congress which
shall enumerate the said ―businesses affected
with national interest‖.
57-a. May the President validly declare
a State of National Emergency in the Province
of Maguindanao without a law enacted by
Congress in accordance with Section 23 [2],
Art. VI of the Constitution?
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Yes because the calling out the armed
forces is within the President‘s power under
the 1st Section of Section 18, Art. VII of the
Constitution. (ZALDY AMPATUAN VS. PUNO,
June 7, 2011)
57-b. Is former President Joseph
Estrada qualified to run for Mayor of the City
of Manila as a result of his conviction for
Plunder with ―accessory penalties of civil
interdiction during the period of sentence and
perpetual absolute disqualification‖ despite the
pardon extended to him by former President
Gloria Arroyo?
Yes because the pardon extended to
him was absolute. The power of the President
to extend pardon could not be limited by
Section 40 of the Local Government Code nor
Section 12 of the Omnibus Election Code.
There are only three (3) restrictions on the
pardoning power of the President. These are:
 impeachment cases;
 cases that have not yet resulted in a
final conviction; and
 cases involving violations of election
laws, rules and regulations in which
there was no favorable
recommendation coming from the
COMELEC.
-under Section 19, Art. VII of the
Constitution. (ATTY. ALICIA RISOS-VIDAL VS.
COMMISSION ON ELECXTIONS AND
JOSEPH EJERCITO ESTRADA, GR No.
206666, JANUARY 21, 2015)
58. What are the requisites of judicial
review?
Courts may exercise the power of
judicial review only when the following
requisites are present: first, there must be an
actual case or controversy; second, petitioners
have to raise a question of unconstitutionality;
third, the constitutional question must be
raised at the earliest opportunity; and fourth,
the decision of the constitutional question
must be necessary to the determination of the
case itself.
 Green Notes 2015
59. When may the courts still validly
decide moot and academic cases?
A moot and academic case is one that
ceases to present a justiciable controversy by
virtue of supervening events, so that a
declaration thereon would be of no practical
use or value. Generally, courts decline
jurisdiction over such case or dismiss it on
ground of mootness. The ―moot and
academic‖ principle is not a magical formula
that can automatically dissuade the courts in
resolving a case. Courts will decide cases,
otherwise moot and academic, if:
first, there is a grave violation of the
Constitution (Province of Batangas vs.
Romulo, .R. No. 152774, May 27,
2004, 429 SCRA 736).
second, the exceptional character of
the situation and the paramount public
interest is involved (Lacson vs. Perez,
G.R. No. 147780, May 10, 2001, 357
SCRA 756);
third, when constitutional issue raised
requires formulation of controlling
principles to guide the bench, the bar,
and the public (Province of Batangas
vs. Romulo); and
fourth, the case is capable of repetition
yet evading review (Albaña v.
Commission on Elections, G.R. No.
163302, July 23, 2004, 435 SCRA 98,
Acop v. Guingona, Jr., G.R. No.
134855, July 2, 2002, 383 SCRA 577,
Sanlakas v. Executive Secretary,
G.R. No. 159085, February 3, 2004,
421 SCRA 656.)
60. Define locus standi.
Locus standi is defined as ―a right of
appearance in a court of justice on a given
question.‖ In private suits, standing is
governed by the ―real-parties-in interest‖ rule
as contained in Section 2, Rule 3 of the 1997
Rules of Civil Procedure, as amended. It
provides that ―every action must be
prosecuted or defended in the name of the
real party in interest.‖ Accordingly, the ―real-
party-in interest‖ is ―the party who stands to
be benefited or injured by the judgment in the
suit or the party entitled to the avails of the
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suit.‖ Succinctly put, the plaintiff‘s standing is
based on his own right to the relief sought.
61. What are the tests of locus standi
in the Philippines?
The original was: [1] If the act involves
the disbursement of public funds, mere
taxpayer has the capacity to sue and question
such act. [2] If it does not involve
disbursement of public funds, only those who
are ―directly injured‖ by the said law or
contract entered into by the government.
Case law in most jurisdictions now
allows both ―citizen‖ and ―taxpayer‖ standing
in public actions. The distinction was first laid
down in Beauchamp v. Silk, where it was
held that the plaintiff in a taxpayer‘s suit is in a
different category from the plaintiff in a
citizen‘s suit. In the former, the plaintiff is
affected by the expenditure of public funds,
while in the latter, he is but the mere
instrument of the public concern.
However, to prevent just about any
person from seeking judicial interference in any
official policy or act with which he disagreed
with, and thus hinders the activities of
governmental agencies engaged in public
service, the United State Supreme Court laid
down the more stringent ―direct injury‖ test in
Ex Parte Levitt, later reaffirmed in Tileston v.
Ullman. The same Court ruled that for a
private individual to invoke the judicial power
to determine the validity of an executive or
legislative action, he must show that he has
sustained a direct injury as a result of that
action, and it is not sufficient that he has a
general interest common to all members of the
public.
This Court adopted the ―direct injury‖
test in our jurisdiction. In People v. Vera, it
held that the person who impugns the validity
of a statute must have ―a personal and
substantial interest in the case such that he has
sustained, or will sustain direct injury as a
result.‖ The Vera doctrine was upheld in a
litany of cases, such as, Custodio v. President
of the Senate, Manila Race Horse Trainers‘
Association v. De la Fuente, Pascual v.
Secretary of Public Works and Anti-Chinese
League of the Philippines v. Felix.
However, being a mere procedural
technicality, the requirement of locus standi
 Green Notes 2015
may be waived by the Court in the exercise of
its discretion. This was done in the 1949
Emergency Powers Cases, Araneta v.
Dinglasan, where the ―transcendental
importance‖ of the cases prompted the Court
to act liberally. Such liberality was neither a
rarity nor accidental. In Aquino v. Comelec,
this Court resolved to pass upon the issues
raised due to the ―far-reaching implications‖ of
the petition notwithstanding its categorical
statement that petitioner therein had no
personality to file the suit. Indeed, there is a
chain of cases where this liberal policy has
been observed, allowing ordinary citizens, and
members of Congress, and civic organizations
to prosecute actions involving the
constitutionality or validity of laws, regulations
and rulings.
Thus, the Court has adopted a rule
that even where the petitioners have failed to
show direct injury, they have been allowed to
sue under the principle of ―transcendental
importance.‖ Pertinent are the following cases:
(1) Chavez v. Public Estates Authority,
where the Court ruled that the enforcement of
the constitutional right to information and the
equitable diffusion of natural resources are
matters of transcendental importance which
clothe the petitioner with locus standi;
(2) Bagong Alyansang Makabayan v.
Zamora, wherein the Court held that ―given
the transcendental importance of the issues
involved, the Court may relax the standing
requirements and allow the suit to prosper
despite the lack of direct injury to the parties
seeking judicial review‖ of the Visiting Forces
Agreement;
(3) Lim v. Executive Secretary, while
the Court noted that the petitioners may not
file suit in their capacity as taxpayers absent a
showing that ―Balikatan 02-01‖ involves the
exercise of Congress‘ taxing or spending
powers, it reiterated its ruling in
Bagong Alyansang Makabayan v. Zamora, that
in cases of transcendental importance, the
cases must be settled promptly and definitely
and standing requirements may be relaxed.
By way of summary, the following
rules may be culled from the cases decided by
this Court. Taxpayers, voters, concerned
citizens, and legislators may be accorded
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standing to sue, provided that the following
requirements are met:
1. the cases involve constitutional
issues;
2. for taxpayers, there must be a
claim of illegal disbursement of
public funds or that the tax
measure is unconstitutional;
3. for voters, there must be a
showing of obvious interest in
the validity of the election law in
question;
4. for concerned citizens, there
must be a showing that the issues
raised are of transcendental
importance which must be
settled early; and
5. for legislators, there must be a
claim that the official action
complained of infringes upon
their prerogatives as legislators.
Significantly, recent decisions show a
certain toughening in the Court‘s attitude
toward legal standing.
In Kilosbayan, Inc. v. Morato, the
Court ruled that the status of Kilosbayan as a
people‘s organization does not give it the
requisite personality to question the validity of
the on-line lottery contract, more so where it
does not raise any issue of constitutionality.
Moreover, it cannot sue as a taxpayer absent
any allegation that public funds are being
misused. Nor can it sue as a concerned citizen
as it does not allege any specific injury it has
suffered.
In Telecommunications and Broadcast
Attorneys of the Philippines, Inc. v. Comelec,
the Court reiterated the ―direct injury‖ test
with respect to concerned citizens‘ cases
involving constitutional issues. It held that
―there must be a showing that the citizen
personally suffered some actual or threatened
injury arising from the alleged illegal official
act.‖
In Lacson v. Perez, the Court ruled that
one of the petitioners, Laban ng
Demokratikong Pilipino (LDP), is not a real
party-in-interest as it had not demonstrated
any injury to itself or to its leaders, members
or supporters.
 Green Notes 2015
In Sanlakas v. Executive Secretary, the
Court ruled that only the petitioners who are
members of Congress have standing to sue, as
they claim that the President‘s declaration of a
state of rebellion is a usurpation of the
emergency powers of Congress, thus impairing
their legislative powers. As to petitioners
Sanlakas, Partido Manggagawa, and Social
Justice Society, the Court declared them to be
devoid of standing, equating them with the
LDP in Lacson.
62. What is the ―take over‖ provision
of the Constitution? May the President validly
exercise the same?
This is Section 17, Article XII, which
reads:
Sec. 17. In times of national
emergency, when the public interest so
requires, the State may, during the
emergency and under reasonable terms
prescribed by it, temporarily take over
or direct the operation of any
privately-owned public utility or
business affected with public interest.
While the President alone can declare
a state of national emergency, however,
without legislation, he has no power to take
over privately-owned public utility or business
affected with public interest. The President
cannot decide whether exceptional
circumstances exist warranting the takeover of
privately-owned public utility or
business affected with public interest. Nor can
he determine when such exceptional
circumstances have ceased. Likewise, without
legislation, the President has no power to
point out the types of businesses affected with
public interest that should be taken over. In
short, the President has no absolute authority
to exercise all the powers of the State under
Section 17, Article VII in the absence of an
emergency powers act passed by Congress.
63. What are the limitations of the
President‘s power of executive clemency?
The same is not available in cases of
impeachment as well as violation of election
laws, rules and regulations without the
favorable recommendation of the Commission
on Elections. (Section 19, Art. VII and Section
5, Art. IX-C)) [3] It is not also available unless
there is already conviction by final judgment if
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the one to be exercised are those enumerated
in the first paragraph of Section 19, Art. VII of
the Constitution. (Atty. Vidal vs. COMELEC &
JOSEPH ESTRADA, G. R. No. 206666, January
21, 2015)
63-a. Was the pardon extended to
former President Joseph Estrada conditional or
absolute which would qualify him to be a
candidate for Mayor in the City of Manila
wherein one of the ―whereas clauses‖ provides
that ― WHEREAS, JOSEPH EJERCITO
ESTRADA HAS PUBLICLY COMMITTED TO
NO LONGER SEEK ANY ELECTIVE POSITION
OR OFFICE‖?
Yes because the said whereas clause is
not controlling but the phrase ―HE IS HEREBY
RESTORED TO HIS CIVIL AND POLITICAL
RIGHTS‖. (Atty. Vidal vs. COMELEC &
JOSEPH ESTRADA, G. R. No. 206666, January
21, 2015)
64. Distinguish pardon from amnesty.
As held in BARRIOQUINTO VS.
FERNANDEZ, 82 Phil. 642, the distinctions are
as follows:
[1] Pardon is granted by the Chief
Executive and as such it is a private act
which must be pleaded and proved by
the person pardoned, because the courts
take no notice thereof; while amnesty
by Proclamation of the Chief Executive
with the concurrence of Congress, and it
is a public act of which the courts should
take judicial notice.
[2] Pardon is granted to one after
conviction (of ordinary crimes); while
amnesty is granted to classes of persons
or communities who may be guilty of
political offenses, generally before or
after the institution of the criminal
prosecution and sometimes after
conviction.
[3] Pardon looks forward and relieves
the offender from the consequences of
an offense of which he has been
convicted, that is, it abolished or
forgives the punishment, and for that
reason it does ""nor work the
restoration of the rights to hold public
office, or the right of suffrage, unless
 Green Notes 2015
such rights be expressly restored by the
terms of the pardon," and it "in no case
exempts the culprit from the payment
of the civil indemnity imposed upon
him by the sentence" article 36, Revised
Penal Code). while amnesty looks
backward and abolishes and puts into
oblivion the offense itself, it so
overlooks and obliterates the offense
with which he is charged that the person
released by amnesty stands before the
law precisely as though he had
committed no offense. (section 10[6],
Article VII, Philippine Constitution; State
vs. Blalock, 62 N.C., 242, 247; In re
Briggs, 135 N.C., 118; 47 S.E. 402., 403;
Ex parte Law, 35 GA., 285, 296; State
ex rel AnheuserBusch Brewing Ass'n. vs.
Eby, 170 Mo., 497; 71 S.W 52, 61;
Burdick vs United States, N.Y., 35 S. Ct.,
267; 271; 236 U.S., 79; 59 Law. ed.,
476.)
[4] Pardon is complete with the act of
the President while Amnesty is valid
only with the concurrence of the
majority of the members of all the
members of Congress.
65. Is it required for the person applying
for amnesty to admit his guilt before his
amnesty application can be considered?
Yes as held in VERA VS. PEOPLE, 7
SCRA 152. Before one may validly apply for
executive clemency (pardon or amnesty) he
MUST ADMIT HAVING COMMITTED THE
ACTS WHICH RESULTED IN HIS
IMPRISONMENT. This rule abandoned the
contrary ruling in Barrioquinto vs. Fernandez.
66. May a public officer, who has been
granted an absolute pardon by the Chief
Executive, entitled to automatic reinstatement
to her former position without need of a New
appointment?
No. As held in MONSANTO VS.
FACTORAN,February, 1989, a pardon looks
to the future. It is not retrospective. It makes
no amends for the past. It affords no relief for
what has been suffered by the offender. It does
not impose upon the government any
obligation to make reparation for what has
been suffered. "Since the offense has been
established by judicial proceedings, that which
has been done or suffered while they were in
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force is presumed to have been rightfully done
and justly suffered, and no satisfaction for it
can be required." This would explain why
petitioner, though pardoned, cannot be
entitled to reinstatement, unless appointed
again by the appointing authority, as well as
to receive backpay for lost earnings and
benefits.
67. May the power of executive
clemency applied to administrative cases like
the suspension of a Provincial Governor?
Yes. This was the ruling of the
Supreme Court in Llamas vs. Exec. Sec. Orbos,
Oct. 15, 1991. The word ―conviction in Section
19, Art. VII of the Constitution may be used
either in a criminal case or in an administrative
case.
68. Is the mere filing of a criminal case
against a recipient of a conditional pardon
with the condition "not again violate any of
the penal laws of the Philippines and this
condition be violated, he will be proceeded
against in the manner prescribed by law"
sufficient to revoke such conditional pardon
without first securing conviction against the
grantee?
Yes. As held in TORRES VS.
GONZALES, 152 SCRA 272, the determination
of whether the conditions of a convict‘s
pardon had been breached rests exclusively in
the sound judgment of the President and that
such determination would not be reviewed by
the courts. As held in Tesoro vs. Director of
Prisons, in accepting the terms under which the
parole had been granted, Tesoro had in effect
agreed that the Governor-General's
determination (rather than that of the regular
courts of law) that he had breached one of the
conditions of his parole by committing
adultery while he was conditionally at liberty,
was binding and conclusive upon him.
69. What are the requisites before the
President or his representatives may validly
contract or guarantee foreign loans?
Under Section 20, Art. VII, the
President may contract or guarantee foreign
loans on behalf of the Republic of the
Philippines subject to the following conditions:
a. there must be prior concurrence of
the Monetary Board;
 Green Notes 2015
b. subject to such limitations as may be
provided for by law.
Further, the Monetary Board shall,
within 30 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
for by law.
70. What is judicial power?
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 in excess of jurisdiction
on the part of any branch or instrumentality of
the government. (Section 1, 2nd paragraph, Art.
VIII of the Constitution)
71. May judicial power be exercised by
the Supreme Court in cases involving the
decisions of the House of Representatives
Electoral Tribunal since Section 16, Art. VI of
the Constitution provides that the HRET is the
―sole judge‖ of all contests involving the
election, returns and qualifications of the
members of the House of Representatives?
Yes if there is allegation of grave abuse
of discretion amounting to lack or in excess of
jurisdiction on the part of the HRET
(BONDOC VS. HRET & PINEDA)
72. What is a political question?
In ALMARIO VS. ALBA, 127 SCRA 6, it
was defined as a question which deals with the
necessity, expediency and wisdom of a
particuar act, the same is political and not
justiciable
In Sanidad vs. Comelec, 73 SCRA 333,
political questions was defined as questions
which are neatly associated with the wisdom,
not the legality of a particular act. Where the
vortex of the controversy refers to the legality
or validity of the contested act, the matter is
definitely justiciable or non-political.
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In Tanada vs. Cuenco, 103 Phil.,
political question was defined as questions to
be answered by the people in their sovereign
capacity or in regard to which full
discretionary authority is vested to the
executive or legislative branch of the
government.
Or in Gonzales vs. COMELEC, 21 SCRA
774 , when the crux of the problem deals with
the wisdom of an act, it is political).
73. What is the extent of the fiscal
autonomy granted to the judiciary under the
1987 Constitution?
As provided under Section 3, At. VIII,
the judiciary shall enjoy fiscal autonomy and as
such 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.
74. What are the cases to be decided
by the Supreme Court en banc?
All cases involving the constitutionality
of a treaty, international or executive
agreement, or law, which shall be heard by the
Supreme Court 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. Also,
no doctrine or principle of law laid down by
the court en banc or in division may be
modified or reversed except by the court
sitting en banc.
Also if two (2) divisions of the
Supreme Court have conflicting decisions, the
same shall be resolved by the Supreme Court
en banc. Cases referred to by the division to
the banc involving novel questions of law, the
same shall be decided by the en banc accepted
by the latter.
Finally, dismissal of judges and
disbarment of lawyers are also decided by the
Supreme Court en banc.
 Green Notes 2015
75. What are the powers of the
Supreme Court?
As enumerated in Art. 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,
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.
1. Assign temporarily judges of lower
courts to other stations as public
interest may require. Such
temporary assignment shall not
exceed 6 months without the
consent of the judge concerned.
2. Order a change of venue or place
of trial to avoid a miscarriage of
justice.
3. 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
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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.
4. Appoint all officials and employees
of the judiciary in accordance with
the civil service law.
76. What are the 3-fold Functions of
Judicial Review?
These are the:
1) legitimizing function or to
declare the law valid and
constitutional;
2) checking function or to declare
the law unconstitutional;
3) symbolic or educational
function or when the supreme
court decide a case even if it is
moot and academic to
educate the lower courts and
other government officials.
77. May inferior courts also exercise
the power of judicial review (declaring a law,
treaty, etc. unconstitutional) in the light of the
requirements of Section 4(2) of Article VIII that
not even any of the Supreme Court‘s three (3)
divisions, sitting separately could not declare a
law, treaty, etc., unconstitutional?
Yes because the power of judicial
review is just a part of judicial power which is
available to all courts (Section 1, Art. VIII).
Likewise, as shown by Section 5 [2] (a), the
decision of lower courts declaring a law
unconstitutional is subject to review by the
Supreme Court. (YNOT VS. IAC, March 20,
1987)
78. What is the ―operative fact
doctrine‖?
It simply means that the declaration of
unconstitutionality of a law, treaty, etc., is
prospective. As such, all acts done in
connection with the said law before its
 Green Notes 2015
declaration of unconstitutionality shall be
considered legal, valid and binding. It is only
the declaration of unconstitutionality which is
the ―operative fact‖ which would stop the
people from complying with its provisions.
(DE AGBAYANI VS. PNB, 38 SCRA 429)
78-a. Is the declaration of the DAP as
unconstitutional covered by the ―operative
fact‖ doctrine?
Yes. Its application to DAP proceeds
from equity and fair play. The consequences
resulting from the DAP and its related issuances
could not be ignored or could no longer be
undone. (ARAULLO VS. BENIGNO SIMEON
C. AQUINO III, et al., GR No. 209287, July 1,
2014). Otherwise, the executive department
and the offices under it could be required to
undo everything they have implemented in
good faith under the DAP. That scenario
would be enourmously burdensome for the
government since the DAP yielded undeniably
positive results that enhanced the economic
welfare of the country. To count the positive
results like public infrastructure, roads, bridges,
homes for the homeless, hospitals, classrooms
and the like may be impossible but not to
apply the operative fact doctrine for the DAP
could literally cause the physical undoing of
such worthy results by destruction, and would
result in most undesirable wastefulness.
79. ―A‖, an employee of the
Sandiganbayan, was found guilty of dishonesty
by the Civil Service Commission and ordered
dismissed from the government service because
it was shown that another person took the
Civil Service Examination for him that is why
he passed. He was given the opportunity to
answer said charge but failed to do so. Decide.
The Decision of the Civil Service
Commission is not valid. Only the Supreme
Court has the power remove officials and
employees in the judiciary under its power
enunciated in Section 6, Art. VIII of the
Constitution. (CSC VS. ANDAL, December 16,
2009)
80. What are the qualities of one
aspiring to become a member of the judiciary
aside from the citizenship and age
qualifications?
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A member of the judiciary must be a
person of proven competence, integrity,
probity and independence.
81. Under the 1987 Constitution, may
the salaries of the members of the judiciary be
taxed without violating Section 10, Article VIII
which would have the effect of decreasing the
same?
No. This was the ruling in NITAFAN
VS. COMMISSIONER, 152 SCRA 284 which
abandoned the contrary rulings in the cases of
PERFECTO VS. MEER, 85 Phil. 552 and
ENDENCIA VS. DAVID, 93 Phil. 696
81-a. May the Congress of the
Philippines be represented by a Member of the
House of Representatives and a member of the
Senate in the Judicial and Bar Council
separately?
No. Under Section 8, Art. VIII of the
Constitution, the Judicial and Bar Council shall
have seven (7) members only and the
Congress of the Philippines is entitled to only
one (1) member. As such, the House of
Representatives shall send only one (1)
member in the Judicial and Bar Council.
(FRANCISCO CHAVEZ VS. JUDICIAL AND
BAR COUNCIL, July 18, 2012 and April 13,
2013)
82. Up to when are members of the
judiciary entitled to hold on to their positions?
Section 11, Art. VIII provides that the
Members of the Supreme Court and judges of
the lower court shall hold office [1] during
good behavior until they reach the age of 70
years or [2] 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 majority of the members who
actually took part in the deliberations on the
issues in the case and voted thereon.
83. May an RTC Judge be appointed
as a member of the Provincial Peace and
Order Council of the place where he holds
office?
No. The members of the Supreme
Court and other courts established by law shall
not be designated to any agency performing
quasi-judicial or administrative functions. (IN
 Green Notes 2015
RE: JUDGE RODOLFO MANZANO, October
5, 1988)
84. Are the different administrative
and quasi-judicial bodies (COMELEC, NLRC,
NAPOLCOM, MILITARY COMMISSIONS)
bound by the requirement of Section 14, Art.
VIII that ―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. It applies only to the courts as
defined or included by Section 1, Art. VIII. (AIR
FRANCE VS. CARRASCOSO, 18 SCRA 155,
VDA DE ESPIRITU VS. CFI, 47 SCRA 354,
BUSCAYNO VS. ENRILE, 102 SCRA 7,
MANGCA VS. COMELEC, 112 SCRA 273,
VALLADOLID VS. INCIONG, 121 SCRA 205,
NAPOLCOM VS. LOOD, 127 SCRA 75,
NUNAL VS. CA, 169 SCRA 356 and Mangelen
vs. CA, 215 SCRA 230)
85. What are the periods given to the
different courts to decide cases before them?
Under Section 15, Art. VIII, all cases
or matters filed after the effectivity of this
Constitution must be decided or resolved
within 24 months from date of submission for
the Supreme Court, and unless reduced by the
Supreme Court, 12 months for all lower
collegiate courts, and 3 months for all other
lower courts. A case shall be deemed
submitted for decision or resolution upon the
filing of the last pleading, brief or
memorandum required by the Rules of Court
or by the court itself.
Under Section 18, Art. VII, however, a
case questioning the validity of the declaration
of martial law or suspension of the writ of
habeas corpus must be decided within 30 days
from the date of filing.
86. Is the requirement under Section
15, Art. VIII mandatory or merely directory?
Section 15, Art. VIII is mandatory in all
courts except the Supreme Court where said
provision is considered merely directory. This
is so because it is ―impossible‖ for the Supreme
Court to comply with such provision
considering the volume of cases filed before it.
(CORPUS VS. CA 98 SCRA 424, MALACORA
VS. CA, 117 SCRA 435, MARCELINO VS.
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CRUZ, 121 SCRA 51 and DE ROMA VS. CA,
152 SCRA 205)
87. What are covered by the powers
of the Civil Service Commission?
Under Section 2, Article IX-B of the
Constitution, the civil service embraces all
branches, subdivisions, instrumentalities, and
agencies of the government; including
government owned and controlled
corporations WITH ORIGINAL CHARTERS.
88. What are the requirements before
one may be appointed in the civil service?
Exceptions?
Appointments in the CS shall be
made only according to merit and fitness to be
determined as far as practicable, and except as
to positions which are policy determining,
primarily confidential or highly technical, by
competitive examination.
89. Define the three (3) exceptions to
the rule that the appointee must be chosen
based on merit and fitness to be determined
by competitive examination?
Policy determining is one charged with
laying down of principal or
fundamental guidelines or rules, such
as that head of a department.
Primarily confidential position is one
denoting not only confidence in the
aptitude of the appointee for the
duties of the office but primarily close
intimacy which ensures freedom of
intercourse without embarrassment or
freedom from misgivings or betrayals
of the personal trust on confidential
matters of the state (Example: Chief
Legal Counsel of the PNB, Besa vs.
PNB, 33 SCRA 330)
Highly technical position requires the
appointee thereto to possess technical
skill or training in the supreme or
superior degree.
89-a. May a government employee
under ―probationary period‖ entitled to
security of tenure? May he be dismissed
without just cause and due process?
No. The CSC position that a civil
service employee does not enjoy security of
 Green Notes 2015
tenure during his 6-month probationary period
is contrary to the Constitution and the Civil
Service Law itself. Section 3 (2) Article 13 of
the Constitution guarantees the rights of all
workers not just in terms of self-organization,
collective bargaining, peaceful concerted
activities, the right to strike with qualifications,
humane conditions of work and a living wage
but also to security of tenure, and Section 2(3),
Article IX-B is emphatic in saying that, "no
officer or employee of the civil service shall be
removed or suspended except for cause as
provided by law."
Consistently, Section 46 (a) of the Civil
Service Law provides that ―no officer or
employee in the Civil Service shall be
suspended or dismissed except for cause as
provided by law after due process.‖
Our Constitution, in using the
expressions ―all workers‖ and ―no officer or
employee,‖ puts no distinction between a
probationary and a permanent or regular
employee which means that both
probationary and permanent employees enjoy
security of tenure. Probationary employees
enjoy security of tenure in the sense that
during their probationary employment, they
cannot be dismissed except for cause or for
failure to qualify as regular employees. (CSC
vs. Magnaye, April 23, 2010)
90. Is the position of City Engineer of
Baguio City a ―highly technical‖ position?
No. The position of City Engineer of
Baguio City is technical ―but not highly so.‖
(DE LOS SANTOS VS. MALLARE, 87 Phil. 289)
91. Is there such a thing as ―next-in-
rank‖ or seniority rule in filling up vacancies in
the classified civil service?
No. As held in Medenilla vs. CSC,
February 19, 1991, there is no need ―to wait
for the deadwoods to retire‖ before one may
be promoted to fill-up a vacancy as a result of
the presence of other employees with longer
years of service or ―next-in-rank‖. What is
important is that the appointee meets all the
qualifications for the said position.
92. What is the extent of the powers
of the CSC in appointment cases?
It has only the power to approve the
appointment if the appointee meets all the
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qualifications and the power to deny the
appointment if the appointee does not meet
the qualifications. IT DOES NOT HAVE THE
POWER TO SUBSTITUTE THE APPOINTEE
CHOSEN BY THE APPOINTING AUTHORITY
WITH ANOTHER WHICH IT BELIEVES TO BE
MORE QUALIFIED. (BARROZO VS. CSC &
VALENTINO JULIAN)
93. Is the position of City or Provincial
Legal Officer a primarily confidential position?
Yes, as held in CADIENTE VS.
SANTOS, 142 SCRA 280, the Provincial Legal
Officer is a primarily confidential office, but
not his assistant. The same was reiterated in
SAMSON VS. CA, 145 SCRA where it was held
that The City Legal officer is a primarily
confidential officer.
94. May gov't. employees form unions
for purposes of collective bargaining and to
strike against the government?
As held in ALLIANCE OF GOVT.
WORKERS VS. MOLE, 124 SCRA and
Executive Order No. 180 , June 1, 1987,
government employees may form unions but
not authorized to strike or demand for
collective bargaining agreement with the
government. authorizing govt.
employees to form unions.
95. May government employees be
removed without cause as a result of
government reorganization?
No. This is clear from RA 6656, June
10, 1988, which is ―An act to protect the
security of tenure of civil service officers and
employees in the implementation of
government reorganization.‖ There must be
full compliance of the due process
requirement. It must be based on just cause
and with due process.( DARIO VS. MISON,
August 8, 1989, FLOREZA VS. ONGPIN,
February 26, 1990, MENDOZA VS.
QUISUMBING, June 4, 1990, DOTC vs. CSC,
October 3, 1991, Romualdez vs. CSC, August
12, 1993 and Torio vs. CSC, 209 SCRA 677)
96. May a person be appointed in a
temporary capacity as a Commissioner of the
Commission on Elections?
No, Section 1, Art. IX-C provides that
―In no case shall any member be appointed or
 Green Notes 2015
designated in a temporary or acting capacity.
―(Brillantes vs. Yorac, Dec. 18, 1991)
97. What are the more important
powers of the COMELEC?
Under Section 2, Art. IX-C, its powers
are to enforce and administer all laws relative
to the conduct of election, plebiscite, initiative,
referendum and recall….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 courts of general jurisdiction and elective
barangay officials decided by trial courts of
limited jurisdiction. Also, it has the power to:
a. Deputize law enforcement
agencies, including the AFP.
b. Register political parties, except
religious groups.
c. File complaints for violation of
election laws.
d. Regulate the enjoyment or
utilization of all franchises for the
operation of transportation and
other public utilities, media of
communication..
98. Which court has jurisdiction over
election cases involving municipal and
barangay officials?
Election cases involving municipal
official shall be filed before the RTC whose
decision may be appealed to the COMELEC.
Those involving barangay officials shall be filed
with the MTC whose decision is likewise
subject to appeal to the COMELEC whose
decision in both instances is final and not
appealable.
99. Where must election protest cases
involving city and provincial officials be filed?
It must be filed with the COMELEC,
not with the courts.
99-a. May the COMELEC EN BANC
decide on Appeal the Decision of RTC Agoo,
La Union, regarding the election protest
involving candidates for Municipal mayor
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because the Division where the appeal was
raffled could not decide it due to the
inhibition of its members resulting in no
quorum therein?
No. The COMELEC en banc could only
decide Motions for Reconsideration from a
Decision of a Division of the
COMELEC.(SANDRA ERIGUEL VS. COMELEC,
February 26, 2010)
100. Does the President have discretion
on the release of the Internal Revenue
Allotment (IRA) for the Local Government
Service Equalization Fund (LGSEF) and may
she validly impose conditions for the release
thereof?
No, local governments have fiscal
autonomy under Art. X of the 1987
Constitution. As held by the Supreme Court in
the case of PROVINCE OF BATANGAS VS.
HON. ALBERTO ROMULO, ET AL., May 27,
2004, automatic release of funds of Local
Government Units, particularly the IRA, is
mandated with no conditions imposed for its
release. To allow the President to impose
conditions for the release of the IRA amounts
to control to local government units when the
President‘s power over local government units
is confined to general supervision, not power
of control as enunciated in Drilon vs. Lim, 235
SCRA 135.
100-A. May the Secretary of
Environment and Natural Resources validly
reverse and set aside the ―small-scale mining
permit‖ issued by a Provincial Governor
without violating Section 4, Art. X of the
Constitution which provides that the President
shall have general supervision only, not
control, over local governments?
Yes. Paragraph 1 of Section 2, Article
XII (National Economy and Patrimony) of the
Constitution provides that ―[t]he exploration,
development and utilization of natural
resources shall be under the full control and
supervision of the State ―. Moreover,
paragraph 3 of Section 2, Article XII of the
Constitution provides that ―[t]he Congress
may, by law, allow small-scale utilization of
natural resources by Filipino citizens x x x.‖
Pursuant to Section 2, Article XII of the
Constitution, R.A. No. 7076 or the People's
Small-Scale Mining Act of 1991 was enacted,
establishing under Section 4 thereof a People's
 Green Notes 2015
Small-Scale Mining Program to be
implemented by the DENR Secretary in
coordination with other concerned
government agencies. (LEAGUE OF
PROVINCES OF THE PHILIPPINES vs.
DEPARTMENT OF ENVIRONMENT and
NATURAL RESOURCES and HON. ANGELO
T. REYES, in his capacity as Secretary of DENR,
GR. No. 175368, APRIL 11, 2013)
101. What are the requirements for a
valid change of residence for purposes of the
requirement on ―residence‖ under the Local
Government Code?
In the case of DUMPIT-MICHELENA
VS. COMELEC, 475 SCRA 290, it was held that
to validly effect a change of residence, there
must be animus manendi coupled with animus
non revertendi. The intent to remain in the
new domicile of choice must be for an
indefinite period of time must be voluntary
and the residence at the new domicile must
be actual.
102. Is the 3-term limit of elected local
officials applicable to a term acquired through
succession?
No, the 3-term limit applies only if the
official was DULY ELECTED to the said
position for three (3) consecutive terms, not
by succession. (BENJAMIN BORJA VS.
COMELEC, and JOSE T. CAPCO, JR., G.R. No.
133495, September 3, 1998, 295 SCRA 157)
102-a. Montebon was elected
Municipal Councilor of Tuburan, Cebu during
the 1998, 2001 and 2004 elections. He was
number councilor in the election of 2004. In
2005, the Vice Mayor died and he took over
the said position by way of succession in
accordance with the Local Government Code.
May he validly run again for Municipal
Councilor during the May, 2007 elections?
Yes, because there was
―INVOLUNTARY RENUNCIATION‖ of his 3rd
terms. It was not voluntary which could have
resulted in the counting of his election in 2004
as his 3rd term. He was forced by law to vacate
his position as Municipal Councilor.
(MONTEBON VS. COMELEC, April 8, 2008)
102-b. Nicasio Bolos, Jr. was elected
Barangay Captain of Barangay Biking, Dauis,
Bohol during the 1994, 1997 and 2002
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Barangay elections. Without having completed
his 3rd term, he ran for Municipal Councilor of
Dauis, Bohol during the 2004 National and
Local Elections and won. His term ended on
June 30, 2007. Is he qualified to run for
Barangay Captain of his barangay during the
barangay elections of October, 2007?
No more because he was elected to
three consecutive terms. His non-completion
of his 3rd term WAS VOLUNTARY when her
run for Municipal Councilor. (BOLOS, JR. VS.
COMELEC, March 17, 2009)
102-c. Hagedorn was elected and
served for three (3) consecutive terms as
Mayor of Puerto Princesa City but did not run
during his supposed 4th term. However, after
just a year in office of his successor, a recall
election was held. May Hagedorn run in the
recall elections without violating the 3-
consecutive rule provision of the Constitution?
No. An elective official, who has
served for three consecutive terms and who
did not seek the elective position for what
could be his fourth term, but later won in a
recall election, had an interruption in the
continuity of the official‘s service. For, he had
become in the interim, i.e., from the end of
the 3rd term up to the recall election, a private
citizen (Adormeo vs. COMELEC, February 4,
2002 and Socrates vs. COMELEC and Edward
Hagedorn, November 12, 2002).
102-D. For four (4) successive regular
elections, namely, the 2001, 2004, 2007 and
2010 national and local elections, Abundo
vied for the position of municipal mayor of
Viga, Catanduanes. In both the 2001 and 2007
runs, he emerged and was proclaimed as the
winning mayoralty candidate and fully served
the corresponding terms as mayor. In the 2004
elections, however, the Viga municipal board
of canvassers initially proclaimed as winner
one Jose Torres (Torres), who, in due time,
performed the functions of the office of
mayor. Abundo protested Torres‘ election and
proclamation. Abundo was eventually
declared the winner of the 2004 mayoralty
electoral contest, paving the way for his
assumption of office starting May 9, 2006 until
the end of the 2004-2007 term on June 30,
2007, or for a period of a little over one year
and one month. May he validly run for the
same position in the May, 2010 elections?
 Green Notes 2015
Yes. He has not served 3-consecutive
terms. The consecutiveness of what otherwise
would have been Abundo‘s three successive,
continuous mayorship was effectively broken
during the 2004- 2007 term when he was
initially deprived of title to, and was veritably
disallowed to serve and occupy, an office to
which he, after due proceedings, was
eventually declared to have been the rightful
choice of the electorate.
The three-term limit rule for elective
local officials, a disqualification rule, is found
in Section 8, Article X of the 1987
Constitution, which provides:
Sec. 8. The term of office of elective
local officials, except barangay officials,
which shall be determined by law,
shall be three years and no such official
shall serve for more than three
consecutive terms.
Voluntary renunciation of the office
for any length of time shall not be
considered as an interruption in the
continuity of his service for the full
term for which he was elected.
(Emphasis supplied.)
To constitute a disqualification to run
for an elective local office pursuant to the
aforequoted constitutional and statutory
provisions, the following requisites must
concur.
(1) that the official concerned has been
elected for three consecutive terms in
the same local government post; and
(2) that he has fully served three
consecutive terms. (MAYOR
ABELARDO ABUNDO., SR. VS.
COMELEC & ERNESTO VEGA, G.R.
No. 201716, JANUARY 08, 2013)
102-e. He was elected for 3-
consecutive terms as Municipal Mayor of
Digos, Davao del Sur. She served 9 years as
such. Before the end of his 3rd term, Digos was
converted into a component city. May he run
again for City Mayor?
No. The abolition of an elective local
office due to the conversion of a municipality
to a city does not, by itself, work to interrupt
the incumbent official‘s continuity of service.
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He is barred by the 3-consecutive rule. (Latasa
vs. COMELEC, December 10, 2003).
102-f. He was elected for 3-consecutive
terms but was the subject of a preventive
suspension by the Ombudsman for several
months during one of his terms. Is he qualified
for a 4th term?
No. Preventive suspension is not a
term-interrupting event as the elective officer‘s
continued stay and entitlement to the office
remain unaffected during the period of
suspension, although he is barred from
exercising the functions of his office during this
period (Aldovino, Jr. vs. COMELEC, December
23, 2009).
102-g. A candidate for mayor was
elected to 3-consecutive terms. In one of his
terms 3 terms, however, he was proclaimed
winner but he was ousted from office due to
an election protest several months before the
end of his term. May he run again for a
―supposed‖ 4th term?
Yes. When a candidate is proclaimed as
winner for an elective position and assumes
office, his term is interrupted when he loses in
an election protest and is ousted from office,
thus disenabling him from serving what would
otherwise be the unexpired portion of his term
of office had the protest been dismissed. The
break or interruption need not be for a full
term of three years or for the major part of the
3-year term; an interruption for any length of
time, provided the cause is involuntary, is
sufficient to break the continuity of service.
(Lonzanida vs. COMELEC, 311 SCRA 602 and
Dizon vs. COMELEC )
102-h. Mayor Morales was elected for
3 consecutive terms and had FULLY SERVED
said 3 terms. However, in one of said terms,
his opponent protested and was declared the
real winner, not Morales. Unfortunately, said
decision removing Morales from office became
final only after he had fully served the same.
May he run again for a ―4th term‖?
No more. The case of Lonzanida is not
applicable because he was not able to serve
the full term and his opponent took over the
rest of one of his terms thus ―disenabling‖ him
to full serve 3 consecutive terms. When an
official is defeated in an election protest and
said decision becomes final after said official
 Green Notes 2015
had served the full term for said office, then his
loss in the election contest does not constitute
an interruption since he has managed to serve
the term from start to finish. His full service,
despite the defeat, should be counted in the
application of term limits because the
nullification of his proclamation came after the
expiration of the term (Ong vs. COMELEC,
January 23, 2006 and Rivera vs. COMELEC &
MARINO ―BOKING ― MORALES, May 9,
2008).
102-i. If the mayor-elect is declared
inieligible as a result of the fact that after re-
acquiring his Philippine citizenship, he again
used his US Passport, who shall be declared the
new Mayor? The Vice mayor or the second
placer?
Since the votes cast for an ineligible
candidate are considered stray votes, then the
second placer shall be declared as the duly
elected mayor since he obtained the highest
number of valid votes during the elections.
(MAQUILING VS. COMELEC and ARNADO,
G.R. No. 195649, April 16, 2013)
102-j. After his disqualification in the
2010 elections because of his use of his US
Passport after he executed an Affidavit of
Repatriation, Arnado again executed another
Affidavit of Repatriation and did not use
anymore his US Passport, is he now qualified
to be elected Municipal Mayor of Kauswagan,
Lanao del Norte for the May, 2013 elections?
No. in order to be qualified for any
elective position, the candidate must have
total and undivided allegiance to the Republic
of the Philippines. (ARNADO VS. COMELEC,
August 18, 2015)
103. In the creation of a new
province, city, municipality or barangay or
when it will be divided, merged or abolished,
or its boundary substantially altered, who shall
vote in the plebiscite to be conducted?
All the residents of the political units
affected, i.e., former and new local
government unit to be formed, must
participate in the plebiscite. (TAN VS.
COMELEC, 142 SCRA 727 and Padilla vs.
COMELEC, 214 SCRA 735
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Please take note of the contrary rulings
in PAREDES VS. EXECUTIVE SECRETARY, 128
SCRA 6 and LOPEZ VS. METRO MANILA
COMMISSION, 136 SCRA 633)
104. Are the statement of assets and
liabilities and, Personal Data Sheet of Justices
and Judges confidential and shall not be
released to the public?
No. In the case of IN RE: REQUEST
OF THE PHILIPPINE CENTER FOR
INVESTIGATIVE JOURNALISM (PCIJ( FOR
THE 2008 STATEMENT OF ASSETS AND
LIABILITIES AND NET WORTH (SALN) AND
PERSONAL DATA SHEETS OF THE SUPREME
COURT AND COURT OF APPEALS JUSTICES,
A.M. No. 0908-07-CA, June 13, 2012, the
Supreme Court held that they could be given
to requesting parties subject to the limitations
and prohibitions provided in R.A. No. 6713,
its implementing rules and regulations, and the
following guidelines:
1. All requests shall be filed with the Office
of the Clerk of Court of the Supreme
Court, the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals;
for the lower courts, with the Office of the
Court Administrator; and for attached
agencies, with their respective heads of
offices.
2. Requests shall cover only copies of the
latest SALN, PDS and CV of the members,
officials and employees of the Judiciary,
and may cover only previous records if so
specifically requested and considered as
justified, as determined by the officials
mentioned in par. 1 above, under the
terms of these guidelines and the
Implementing Rules and Regulations of
R.A. No. 6713.
3. In the case of requests for copies of SALN
of the Justices of the Supreme Court, the
Court of Appeals, the Sandiganbayan and
the Court of Tax Appeals, the authority to
disclose shall be made by the Court En
Banc.
4. Every request shall explain the requesting
party‘s specific purpose and their
individual interests sought to be served;
shall state the commitment that the request
shall only be for the stated purpose; and
shall be submitted in a duly accomplished
 Green Notes 2015
request form secured from the SC
website. The use of the information
secured shall only be for the stated
purpose.
5. In the case of requesting individuals other
than members of the media, their interests
should go beyond pure or mere curiosity.
6. In the case of the members of the media,
the request shall additionally be supported
by proof under oath of their media
affiliation and by a similar certification of
the accreditation of their respective
organizations as legitimate media
practitioners.
7. The requesting party, whether as
individuals or as members of the media,
must have no derogatory record of having
misused any requested information
previously furnished to them.
The requesting parties shall complete
their requests in accordance with these
guidelines. The custodians of these documents
(the respective Clerks of Court of the Supreme
Court, Court of Appeals, Sandiganbayan, and
Court of Tax Appeals for the Justices; and the
Court Administrator for the Judges of various
trial courts) shall preliminarily determine if the
requests are not covered by the limitations and
prohibitions provided in R.A. No. 6713 and its
implementing rules and regulations, and in
accordance with the aforecited guidelines.
Thereafter, the Clerk of Court shall refer the
matter pertaining to Justices to the Court En
Banc for final determination.
This is in accordance with the
constitutional provision on public
accountability and transparency under Section
1, Art. XI and Section 7, Art. III or the right to
information on matters of public concern as
well as access to official records…
104-a. What are the grounds for
impeachment?
Only for ―Culpable violation of the
constitution, treason, bribery, graft and
corruption, other high crimes, or betrayal of
public trust‖.
105. What is the extent of a judgment
in impeachment cases?
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Judgment in cases of impeachment
shall not extend further than removal from
office and disqualification to hold any other
office under the Republic of the Philippines but
shall nevertheless be liable to prosecution, trial
and punishment according to law.
106. When is an impeachment
complaint deemed ―initiated‖ to bar another
complaint within a period of one year?
As held in FRANCISCO VS. SPEAKER
JOSE DE VENECIA, ET AL, 415 SCRA 44,
November 10, 2003, an impeachment
complaint deemed ―initiated‖ to be a bar to
the filing of another complaint within a 1-year
period upon its [a] filing; and [b] COUPLED
WITH CONGRESS TAKING INITIAL ACTION
OF SAID COMPLAINT.‖
107. Does the prohibition under
Section 3 [5] of Art. XI applies when the 1st
impeachment complaint was filed on July 22,
2010 and the 2nd on July 27, 2010 against the
same impeachable officer though both
complaints were referred to the appropriate
committee on the same day?
No. What is prohibited is having more
than one impeachment proceedings within a
period of one (1) year. Even if there are several
cases filed on different dates but
simultaneously tried against the said
impeachable officer, there is no prohibition to
Section 3 [5] of Art. XI. (GUTIERREZ VS.
HOUSE OF REPRESENTATIVES COMMITTEE
ON JUSTICE, ET AL., February 15, 2011)
107. Who investigates and prosecutes
public officials for crimes committed in the
performance of their official duties? Exception
It is the Office of the Ombudsman and
the Office of the Special Prosecutor except if
the offense is in violation of election laws,
rules and regulations wherein only the
COMELEC has the power to investigate and to
file the appropriate information in court.
(Corpuz vs. Tanodbayan, 149 SCRA 281)
108. What is covered by the ―academic
freedom‖ provision of the 1987 Constitution?
It covers not only academic freedom
on the part of the school but also those of the
teachers, professors and the students because
the provision states that ―Academic freedom
 Green Notes 2015
shall be enjoyed in all institutions of higher
learning‖ while under the 1973 Constitution,
only institutions of higher learning enjoy
academic freedom because the provision then
states that ―all institutions of higher learning
shall enjoy academic freedom (Art. XV, Section
8 [1], 1973 Constitution.‖
109. What is the extent of academic
freedom on the part of schools?
It includes the power to determine:
a. who may teach,
b. what may be taught,
c. how it shall be taught, and
d. who may be admitted to study"'
(Emphasis supplied; citing Sinco,
Philippine Political Law, 491,
(1962) and the concurring opinion
of Justice Frankfurter in Sweezy v.
New Hampshire (354 US 234
[1957], GARCIA VS. FACULTY
ADMISSION, 68 SCRA 277).
110. Does academic freedom on the
part of the school carries with it the power to
revoke a degree or honor it has bestowed to
its students?
Yes. As held in UP BOARD OF
REGENTS VS. CA, August 31, 1999, ―academic
Freedom includes the power of a University to
REVOKE a degree or honor it has conferred to
a student after it was found out that the
student‘s graduation was obtained through
fraud. Academic freedom is given a wide
sphere of authority. If an institution of higher
learning can decide on who can and cannot
study in it, it certainly can also determine on
whom it can confer the honor and distinction
of being its graduates.
111. May a school punish its students
for illegal acts committed outside the school
premises and beyond school hours but within
the semester where they are enrolled?
Yes because they still carry the name of
the school and their actuations affect the
reputation of the school. (ANGELES VS.
SISON, 112 SCRA 26). This rule was reiterated
in the cased of DE LA SALLE UNIVERSITY VS.
CA (2008) where a rumble between members
of two fraternities took place outside the
school campus but the students involved were
EXPELLED by the school. The Supreme Court,
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however, while conceding the power of the
school over its students held that the penalty
of expulsion is too harsh a penalty. It should
be EXCLUSION, meaning, they are not
allowed to enroll at the De La Salle but they
should be given transfer credentials so that
they may enroll in another school.
111-a. Are students entitled to cross-
examine the witnesses against them in an
administrative case to satisfy their right to due
process?
No. What is important is that they
were given the opportunity to be heard. DE
LA SALLE UNIVERSITY VS. CA (December,
2008).
112. What are the underlying principles
behind the constitutional proscription that the
State may not be sued without its consent?
By reason of public policy (if every
citizen is allowed to sue the government, it
will be distracted from performing its functions
to serve the people and it will be left just
answering cases in court), by reason of
sovereignty (the people shall not be allowed
to sue the very entity that gives it said right;)
and by reason of consent (when the people
ratified the Constitution which includes the
provision that the State cannot be sued
without its consent, it has consented or waived
said right to sue).
113. How may the State gives its
consent to be sued?
Expressly when there is a law allowing
it and impliedly when it enters into a contract
with an individual because in the latter, it
descended to the level of an individual making
it susceptible to counterclaims or suits.
114. May the government be sued in
the exercise of its governmental functions?
Yes if the government agency has a
charter which allows it to be sued. (RAYO VS.
CFI OF BULACAN, 110 SCRA 456). Also, the
government is not allowed to invoke its
immunity from suit if by doing so, it will be
causing an injustice to its citizens.
(MINISTERIO VS. CFI of Cebu, 40 SCRA and
SANTIAGO VS. REPUBLIC, 87 SCRA 294)
 Green Notes 2015
Political Law
Prepared by: Atty. Lauro D. Gacayan

115. Is the US Government also
immune from suit in the Philippines in
connection with the exercise of its
governmental functions?
Yes. This was the ruling in U.S. VS.
RUIZ, 136 SCRA where it was held that even if
there is a contract entered into by the US
Government but the same involves its ―jusre
imperii‖ functions (governmental functions‖,
it cannot be sued. It is only when the contract
involves its ―jus gestiones‖ or business or
proprietary functions that it may be sued.
116. Are local governments
entitled to invoke immunity from suit?
already complied with his obligations under
said agreement?
Yes, because the government shall not
enrich itself at the expense of its citizens.
(DEPARTMENT OF HEALTH VS. C.V.
CANCHELA, et al., 475 SCRA 218) Also, the
said immunity from suit defense is not
applicable if to do so would cause an injustice
to a citizen (MINISTERIO VS. CFI OF CEBU,
40 SCRA) It does not also apply if it was the
government which violated its contract with its
citizen (SANTIAGO VS. REPUBLIC, 87 SCRA
294)
also

Yes.

117. May a municipality be held liable

for damages as a result of the death of a
person arising from the collapse of a stage
constructed by the local government in
connection with its town fiesta?

Yes, a town fiesta is a business or

proprietary function, not governmental, since
no law requires any town, city, province or
barangay to hold an annual fiesta. (TORIO VS.
FONTANILLA, 85 SCRA 599)

118. May a local government validly

invoke state immunity from suit in a case
where there is a contract entered into with a
private corporation for the delivery of trucks
to the said municipality? May the court trying
the same validly issue a writ of preliminary
attachment against the municipality?

The municipality may not validly

invoke its immunity from suit in a case where
it entered into a contract with a private
corporation since it is deemed to have waived
state immunity from suit. However, unlike in
cases of ordinary defendants, the Trial Court
may not validly issue a writ of preliminary
attachment against the properties of the
municipality even if the grounds under Section
1, Rule 57 of the 1997 Rules of Civil Procedure
are present. Suability is different from liability.
(MUNICIPALITY OF HAGONOY, BULACAN
VS. JUDGE DUMDUM, JR., RTC 7, CEBU
CITY, March 22, 2010)

119. May the government still be held

liable to a private individual if the contract it
entered into is void but the other party had

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 Green Notes 2015
PART II
1. Define police power.
It is the power vested in the legislature
by the Constitution to make, ordain, and
establish all manner of wholesome and
reasonable laws for the good and welfare of
the State and its people. (ERMITA MALATE
HOTEL VS. CITY MAYOR, July 31, 1967)
2. What are the basic purposes/aspects
of police power:
a. To promote the general welfare,
comfort and convenience of the
people; (ASSOCIATION OF SMALL
LANDOWNERS VS. SECRETARY,
175 SCRA 343; US VS. TORIBIO,
15 Phil. 85
b. To promote and preserve public
health; (VILLANUEVA VS.
CASTANEDA, September 21, 1987;
DECS VS. SAN DIEGO, 180 SCRA
533 [NMAT]; LORENZO VS.
DIRECTOR OF HEALTH, 50 Phil.
595—apprehend and confine
lepers in a leprosarium)
c. To promote and protect public
safety; (AGUSTIN VS. EDU, 88
SCRA 195; TAXICAB OPERATORS
VS. JUINIO, 119 SCRA 897 )
d. To maintain and safeguard peace
and order; (GUAZON VS. DE
VILLA)
e. To protect public morals; (DE LA
CRUZ VS. PARAS, 123 SCRA 569;
ERMITA MALATE HOTEL VS.
CITY MAYOR, July 31, 1967; JMM
PROMOTIONS VS. CA, 260 SCRA
319; VELASCO VS. VILLEGAS,
February 13, 1983)
f. To promote the economic security
of the people. (ICHONG VS.
HERNANDEZ, 101 Phil. 11155)
2-a. May an Ordinance of the City of
Manila validly require people/couples checking
in the different motels in the city to [1] register
at the motel‘s desk facing a public street; and
[2] show their identification card, etc.?
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A. Yes. It is a valid exercise of police
power to promote public morals, i.e., curb
prostitution or illicit relationships. ERMITA
MALATE HOTEL VS. CITY MAYOR, July 31,
1967)
2-b. May the City of Manila validly
prohibit the operation of night clubs, sauna
parlors, massage parlors, karaoke bars,
beerhouses, and similar establishments in the
Ermita-Malate Area and gives the existing
establishments three (3) months to transfer to
any place outside said area under pain of
imprisonment of up to 1 year and fine of
P5,000.00 or change the nature of their
business to gift shops, restaurants, etc. ?
A. the Ordinance is unconstitutional. It
violates the due process clause by depriving
the owners of said establishments of their
legitimate businesses. It likewise violates the
equal protection clause. There is no logic in
allowing said establishments in other parts of
the City of Manila but not in the Ermita-
Malate area. Finally, even assuming that the
said Ordinance is intended to promote public
morals, the means employed is constitutionally
infirm and not a valid exercise of police
power. (CITY OF MANILA, represented by
Mayor Alfredo Lim VS. JUDGE PERFECTO
LAGUIO, JR. and MALATE TOURIST
DEVELOPMENT CORPORATION, G.R. No.
118127, April 12, 2008)
2-c. May the City of Manila validly
prohibit hotels and motels, etc., at the Ermita-
Malate area, to offer ―short time‖ admission
therein?
A. the Ordinance is unconstitutional
and is not a valid exercise of police power.
There is nothing immoral in staying in a motel
or hotel for a period of three (3) hours only
because a person‘s stay therein could be for
purposes other than having sex or using illegal
drugs. Further, there is nothing that would
prevent people engaged in illicit relationships
to check in said motels by paying 12 hours or
more though they will just stay there for 3
hours. (WHITE LIGHT CORPORATION VS.
CITY OF MANILA, represented by MAYOR
ALFREDO LIM, G.R. No. 122846, January 20,
2009.)
 Green Notes 2015
3. Distinguish police power with power of
eminent domain.
The distinctions are:
a. The power of eminent domain is
the inherent right of the State to
condemn or to take private
property for public use upon
payment of just compensation
while police power is the power of
the state to promote public
welfare by restraining and
regulating the use of liberty and
property without compensation;
b. In the exercise of police power,
enjoyment of a property is
restricted because the continued
use thereof would be injurious to
public welfare. In such case, there
is no compensable taking provided
none of the property interests is
appropriated for the use or for the
benefit of the public. Otherwise,
there should be compensable
taking if it would result to public
use.
c. Properties condemned under
police power are usually noxious
or intended for noxious purpose;
hence, no compensation shall be
paid. Likewise, in the exercise of
police power, property rights of
private individuals are subjected to
restraints and burdens in order to
secure the general comfort, health
and prosperity of the state.
(DIDIPIO EARTH SAVERS MULTI
PURPOSE ASSOCIATION VS.
DENR SEC. ELISEA GOZU, ET AL.,
485 SCRA 586)
4. What are the tests for a valid
exercise of police power
a. the interests of the public, not mere
particular class, require the exercise of
police power; (LAWFUL SUBJECT)
b. the means employed is reasonably
necessary for the accomplishment of
the purpose and not unduly oppressive
to individuals. (LAWFUL MEANS). In
short, the end does not justify the
means.
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5. Define due process.
Due process is a law which hears
before it condemns, which proceeds upon
inquiry and renders judgment only after trial
(Per Daniel Webster in the DARTMOUTH
COLLEGE CASE)
6. What are the Kinds of Due Process?
a. substantive due process---requires
the intrinsic validity of the law in
interfering with the rights of the
person to life, liberty or property.
In short, it is to determine whether
it has a valid governmental
objective like for the interest of the
public as against mere particular
class.
b. Procedural due process---one
which hears before it condemns, or
the procedure as pointed out by
Daniel Webster.
7. What are the requisites of ―judicial
due process‖?
As held in BANCO ESPANOL VS.
PALANCA, 37 Phil. 921. The requisites are:
1. There must be an impartial court
or tribunal clothed with judicial
power to hear and decide the
matter before it;
2. Jurisdiction must be lawfully
acquired over the person of the
defendant or over the property
subject of the proceedings;
3. The defendant must be given the
opportunity to be heard;
4. Judgment must be rendered only
after lawful hearing.
8. What are the requisites of due
process before administrative bodies?
As held in TIBAY VS. CIR, 69 Phil. 635,
the requisites are:
a. the right to a hearing which
includes the right to present
evidence;
b. the tribunal must consider the
evidence presented;
c. the decision must have something
to support itself;
 Green Notes 2015
d. the evidence must be substantial;
e. the decision must be based on the
evidence presented during the
hearing;
f. the tribunal or body must act on
its own independent consideration
of the law or facts;
g. the board or body shall in all
controversial questions, render its
decision in such a manner that the
parties to the proceedings can
know the various issues involved.
9. If an accused was represented by a
non-lawyer during the trial of his criminal case,
what right of the said accused was violated? Is
he entitled to a new trial?
If an accused was represented by a
non-lawyer during the entire trial (though she
thought that he was a lawyer), his right to due
process was violated and therefore, he entitled
to a new trial. (DELGADO VS. CA, November
10, 1986).
9-a. Consulta was represented by one
―Atty. Jocelyn Reyes‖ from arraignment up to
the time that the prosecution rested its case.
He was represented by another lawyer when
he presented his evidence. It turned out that
―Atty. Reyes‖ was not a member of the Bar.
May he validly claim violation of his right to
due process and have a new trial like in
―Delgado‖?
No more. Even if he was not
represented by a non-lawyer at the start of the
criminal trial, particularly when the
prosecution presented its evidence, but was
represented by a lawyer when he presented his
evidence, there is no violation of his right to
due process or right to counsel. All the
requisites of judicial due process are present.
(CONSULTA VS. PEOPLE, G.R. No. 179642,
February 12, 2009)
9-b. Mayor Maliksi was furnished
copies of the Resolutions of the COMELEC
directing his opponent, who appealed the
decision of the RTC against him, to deposit
amounts for the decrypting, copying and
printing of the ballot images from CF Cards.
Thereafter, the COMELEC unseated Mayor
Maliksi. He went to the Supreme Court and
claimed violation of his right t to due process
because he was not informed of the dates
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when the ―decryption, copying and printing‖
of the ballot images.
Yes, his right to due process was
violated. HE WAS NOT INFORMED OF THE
DATES WHEN THE ―decryption, copying and
printing‖ of the ballot images took place.
9-c. Is Senator Jinggoy Estrada‘s right
to due process of law violated when the
Ombudsman did not furnish him copies of the
Counter-Affidavits of his co-respondents in the
graft and plunder cases against him?
No. There is no law or rule which
requires the Ombudsman to furnish a
respondent with copies of the counter-
affidavits of his co-respondents. Sen. Estrada
claims that the denial of his Request for the
counter-affidavits of his co-respondents
violates his constitutional right to due process.
Sen. Estrada, however, fails to specify a law or
rule which states that it is a compulsory
requirement of due process in a preliminary
investigation that the Ombudsman furnish a
respondent with the counter-affidavits of his
co-respondents. Neither Section 3(b), Rule 112
of the Revised Rules of Criminal Procedure nor
Section 4(c), Rule II of the Rules of Procedure
of the Office of the Ombudsman supports Sen.
Estrada‘s claim. The right is merely statutory,
not constitutional in preliminary investigation
of criminal complaints before the Prosecutor‘s
Office or Office of the Ombudsman.
(SENATOR JINGGOY EJERCITO vs. OFFICE
OF THE OMBUDSMAN, G.R. Nos. 212140-41,
January 21, 2015)
9-d. How about if the case is an administrative
case? Is a respondent entitled to be furnished
copies of the Counter-Affidavits of his co-
respondents?
Yes. (Office of the Ombudsman v.
Reyes) , an administrative case, in which a
different set of rules of procedure and
standards apply. Sen. Estrada‘s Petition, in
contrast, involves the preliminary investigation
stage in a criminal case. Rule III on the
Procedure in Administrative Cases of the Rules
of Procedure of the Office of the Ombudsman
applies in the Reyes case, while Rule II on the
Procedure in Criminal Cases of the Rules of
Procedure of the Office of the Ombudsman
applies in Sen. Estrada‘s Petition. In both cases,
 Green Notes 2015
the Rules of Court apply in a suppletory
character or by analogy.
In the Reyes case, failure to furnish a
copy of the counter-affidavits happened in the
administrative proceedings on the merits,
which resulted in Reyes‘ dismissal from the
service. In Sen. Estrada‘s Petition, the denial of
his Request happened during the preliminary
investigation where the only issue is the
existence of probable cause for the purpose of
determining whether an information should be
filed, and does not prevent Sen. Estrada from
requesting a copy of the counter-affidavits of
his co-respondents during the pre-trial or even
during the trial. We should remember to
consider the differences in adjudicating cases,
particularly an administrative case and a
criminal case:
Note that in administrative cases, the same
may be decided on the merits immediately
based on said pleadings unlike in preliminary
investigations where the only issue is the
existence of probable cause before trial could
proceed where all those evidence are available
to the respondent.
9-e. Is there a violation of the
accused‘s right to due process when his motion
for a new trial because he was ―accorded
grossly insufficient legal assistance by his
former lawyer‖ was denied by the
Sandiganbayan?
No. The petitioner was given
an opportunity to be heard during trial. This
opportunity to be heard is the essence of due
process. While petitioner claims that he was
incorrectly advised by his former counsel that
the presentation of evidence is no longer
necessary, this unfortunate mistake cannot
qualify as gross negligence or incompetence
that would necessitate a reopening of the
proceedings. In fact, not once did petitioner
refute, or at the very least, address the
Sandiganbayan‘s finding that he had expressly
consented to the waiver of the presentation of
evidence by affixing his signature as conformity
to the manifestation submitted by his former
(EDELBERT C. UYBOCO vs. PEOPLE OF THE
PHILIPPINES, G.R. No. 211703, December 10,
2014 )
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9-f. Is the accused‘s right to due
process of law violated when the court denied
his motion for reconsideration and/or new
trial based on former counsel‘s mistake who
categorically admitted that he did not know of
petitioner‘s ailment and thus did not make the
proper manifestations in Court?
No. . While his counsel represents him, the
latter‘s mistakes should not deprive him of his
day in court to present his side. (ALEJANDRO
C. ALMENDRAS, JR. vs. ALEXIS C.
ALMENDRAS, G.R. No. 179491, January 14,
2015.)
10. What are the requisites of
procedural due process in disciplinary actions
against students?
As held in GUZMAN VS. NU, 142
SCRA 706, the requisites are:
1. the students must be informed in
writing of the nature and cause of any
accusation against them;
2. they shall have the right to answer the
charges against them, with the assistance of
counsel;
3. they shall be informed of the evidence
against them;
4. they shall have the right to adduce
evidence in their own behalf;
5. the evidence must be duly considered
by the investigating committee or official
designated by the school authorities to hear
and decide the case.
11. What are the requisites of due
process before a private employee may be
dismissed from his work?
The requisites of Due Process before
the NLRC are:
1. Notice; and
2. Hearing
12. Is due process satisfied in
administrative proceedings if the respondent
was not assisted by counsel?
There is no law, whether the Civil
Service Act or the Administrative Code of
 Green Notes 2015
1987, which provides that a respondent in an
administrative case should be assisted by
counsel in order that the proceedings therein is
considered valid. Not only, that, petitioner
herein was given the opportunity several times
to engage the services of a lawyer to assist him
but he confidently informed the investigators
that he could protect himself.(LUMIQUED VS.
EXENEA, 282 SCRA 125)
12-a. Is there a violation of a person‘s
right to due process before an administrative
body like the Civil Service Commission if a
party was not allowed to cross-examine the
witnesses against him despite his request?
No. The right to due process is not
violated even if a party to an administrative
case was not allowed to cross-examine the
other party or his witnesses. What he is
entitled to is the right to be heard. (ATTY.
ROMEO ERECE VS. LYN MACALINGAY, ET
AL., G.R. No. 166809, April 22, 2008)
12-b. How about in investigations
involving disciplinary actions against students,
are the latter entitled to cross-examine the
complainant and his witnesses?
A. No. The right to due process on the
part of a student is not violated even if he was
not allowed to cross-examine the other party
or his witnesses. Due process is served if he
was given the chance to present his evidence.
(DE LA SALLE UNIVERSITY VS. JUDGE
WILFREDO REYES, RTC 36, Manila, G.R. No,
127980, December 19, 2007)
12-c. Is there a violation of the right to
due process if members of a faction of the
Liberal Party were expelled from said party in
a meeting where they were not even notified
nor given the chance to be heard?
No. Due process could be invoked
only before tribunals created by the State
through which governmental acts or functions
are performed. The right to due process guards
against unwarranted encroachment by the
State into fundamental rights and cannot be
invoked in private controversies involving
private rights. (ATIENZA VS. COMELEC &
MANUEL ROXAS III, ET AL., February 16,
2010)
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13. What are the requisites for a valid
classification?
As held in People vs. Cayat, 68 Phil. 12,
the requisites are:
a. There must be real and substantial
distinctions;
b. It must be germane to the purposes of the
law;
c. It must not be limited to existing
conditions only; and
d. It must apply equally to all members of the
same class.
14. Is there violation of the equal
protection clause if policemen who are
charged of a criminal offense punishable for
more than six (6) years will remain suspended
until after the his acquittal unlike other public
officers whose maximum suspension even
when facing graft and corrupt charges is only
three (3) months?
No there is no violation. In HIMAGAN
VS. PEOPLE, the Supreme Court held that the
fact that policemen charged with a criminal
offense punishable by more than 6 years are to
be suspended during the entire duration of the
case unlike other government employees is
valid since it rests on valid classification
because policemen carry weapons and the
badge of the law which can be used to harass
or intimidate witnesses against them.
14-a. Is there a violation of the right to
equal protection of the laws of appointed
government officials who are deemed
automatically resigned upon the filing of their
certificate of candidacy while elected officials
are not?
No, there is real and substantial
distinction. Most elected officials have a fixed
term under the Constitution and said term
could not be shortened by means of a law.
(QUINTO VS. COMELEC, February 22, 2010)
14-b. Is there violation of the equal
protection clause if policemen and soldiers are
given allowances in the General
Appropriations Act while other government
workers are not since the allowances of all
government workers were incorporated
already in their salaries under the
Compensation and Position Classification Act
of 1989?
 Green Notes 2015
No. There is real and substantial
distinction. Policemen and soldiers are in
charge of the defense of the country and could
be transferred to virtually anywhere in the
country. Since their basic pay does not vary on
location, the continued grant of COLA to them
is intended to help them offset the effects of
living in higher cost areas. (GUTIERREZ VS.
DEPARTMENT OF BUDGET AND
MANAGEMENT, March 18, 2010)
14-c. Is Executive Order No. 1, Series of
2010 creating the Philippine Truth Commission
of 2010 to investigate ―officers and employees
of the previous administration for graft and
corruption‖ constitutional?
It is unconstitutional for violation of
the equal protection clause. It singles out the
officials of the previous administration only
even though there are also alleged graft and
corruption in other administrations before that
of President Arroyo. (BIRAOGO VS.
PHILIPPINE TRUTH COMMISSION, December
7, 2010)
14-d. Is there a violation of the equal
protection clause if appointed government
officials are deemed automatically resigned
upon the filing of their certificates of candidacy
while elected officials may continue
discharging the duties of their office despite the
filing of their COC‘s?
No violation of their right to equal
protection because there is a real and
substantial distinction. Note that the term of
office of Members of Congress, President and
Vice President are mandated by the
Constitution which is up to noon of June 30, 3
years or 6 years after their election and as
such, Congress could not shorten their term by
providing that they are deemed resigned upon
the filing of their COC‘s.
14-e. Is there a violation of the equal
protection clause if medical practitioners may
not be compelled to perform a reproductive
health procedure by reason of their religious
beliefs but provincial health officers, city or
municipal health officers, chiefs of hospitals, ,
nurses and midwifes must do it regardless of
their religious beliefs by reason of their offices
and they could not be considered as
―conscientious objectors‖?
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Yes, said provision is violative of the
equal protection clause. There is no real and
substantial distinction why medical
practitioners could not be compelled by reason
of their religious beliefs while the provincial
health officers, city or municipal health
officers, chiefs of hospitals, , nurses and
midwifes could be compelled just because that
is their work even if against their religious
beliefs. (IMBONG VS. OCHOA, GR No.
204819, April 8, 2014)
14-e. Is there a violation of the equal
protection clause because the penalty for
online Libel is one degree higher than the
penalty for libel through newspapers, etc.?
No violation. Aside from the fact that
fixing the penalties is the prerogative of
Congress, the stiffer penalty is justified because
the offender in using the internet often evades
identification and is able to reach far more
victims or cause greater harm. The higher
penalties are proportionate to the evil sought
to be punished. (DISINI VS. SECRETARY OF
JUSTICE, GR No. 203335, February 18, 2014)
15. What are the requisites of a valid
search warrant or warrant of arrest?
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 2, Art. III)
In addition, Rule 126 of the Rules on
Criminal Procedure requires that no warrant
shall be issued for more than one (1) specific
offense and that in the implementation of a
search warrant when the respondent is not
present, witnesses are required. Finally, a
Circular issued by the Supreme Court requires
that no warrant or warrant of arrest shall be
implemented during the night, week-ends or
holidays, except in exceptional cases.
 Green Notes 2015
15-a. What are the two (2) kinds of
probable cause?
The two (2) kinds of probable cause
are:
[1] The executive determination of
probable cause by the Prosecutor
where he determines whether to file a
criminal case in court or not; and
[2] Judicial determination of probable
cause to be done by the judge for the
purpose of issuing a warrant of arrest
against the accused. (LEVISTE VS.
JUDGE ALAMEDA, August 3, 2010)
15-b. May the Anti-Terrorism Council
issue a warrant of detention against terrorists
or suspected terrorists without violating
Section 2, Art. III of the Constitution which
allows only ―judges‖ to issue warrants?
In the cases of [1] SOUTHERN
HEMISPHERE ENGAGEMENT NETWORK,
INC., on behalf of the South-South Network
(SSN) for Non-State Armed Group
Engagement, and ATTY. SOLIMAN M.
SANTOS, JR., [2] KILUSANG MAYO UNO
(KMU; [3] BAGONG ALYANSANG
MAKABAYAN (BAYAN), [4] KARAPATAN,
ALLIANCE FOR THE ADVANCEMENT OF
PEOPLE‘S RIGHTS, [5] THE INTEGRATED BAR
OF THE PHILIPPINES (IBP), vs. THE ANTI-
TERRORISM COUNCIL, ET AL., G.R.
No. 178552, October 5, 2010 , the Supreme
Court failed to decide on the constitutionality
of the said law because the petitioners were
held to have no legal standing or personality
to sue.
Please note of the questionable
provisions of the said law:
Sec. 18. Period of detention without
judicial warrant of arrest.- The provisions of
Article 125 of the Revised Penal Code,
notwithstanding, any police or law
enforcement personnel, who, having been
duly authorized in writing by the Anti-
Terrorism Council has taken custody of a
person charged with or suspected of the crime
of terrorism or the crime of conspiracy to
commit terrorism shall, WITHOUT
INCURRING ANY CRIMINAL LIABILITY FOR
DELAY IN THE DELIVERY OF DETAINED
PERSONS TO THE PROPER JUDICIAL
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AUTHORITIES, DELIVER SAID CHARGED OR
SUSPECTED PERSON TO THE PROPER
JUDICIAL AUTHORITY WITHIN A PERIOD
OF THREE (3) DAYS counted from the
moment said charged or suspected person has
been apprehended or arrested, detained, and
taken into custody by the said police, or law
enforcement personnel: Provided, That the
arrest of those suspected of the crime of
terrorism or conspiracy to commit terrorism
must result from the surveillance under Section
7 and examination of bank deposits under
Section 27 of this Act.
Section 19. Period of Detention in the
event of an actual or imminent terrorist attack.
In the event of an actual or imminent terrorist
attack,, suspects may not be detained for more
than three days without the written approval
of a municipal, city, provincial or regional
official of a Human Rights Commission, or
judge of the municipal, regional trial court, the
Sandiganbayan or a justice of the Court of
Appeals nearest the place of arrest. If the arrest
is made during Saturdays, Sundays or holidays,
or after office hours, the arresting police of law
enforcement personnel shall bring the person
thus arrested to the residence of any of the
officials mentioned above that is nearest the
place where the accused was arrested. The
approval in writing of any of the said officials
shall be secured by the police or law
enforcement personnel concerned within five
days after the date of the detention of the
persons concerned; Provided, however, That
within three days after the detention the
suspects whose connection with the terror
attack or threat is not established, shall be
released immediately.
(NOTE: Under the Human Security
Act/Anti-Terrorism Law, Republic Act No.
9372, Approved on March 6, 2007 and
effective on July 15, 2007 (This Law shall be
automatically suspended one (1) month before
and two (2) months after the holding of any
election) a person may be taken into custody
by the police if there is a written authorization
by the Anti-Terrorism Council and such
detention may be extended upon written
approval of the Commission of Human Rights
in case of actual or imminent terrorist attack.)
 Green Notes 2015
16. In case the place to be searched as
indicated in the search warrant is erroneous
because it is different from the place
mentioned by the applicants who searched the
place indicated by them in their affidavit, are
the things seized admissible in evidence?
No. As held in PEOPLE VS. CA, 291
SCRA 400, WHAT IS MATERIAL IN
DETERMINING THE VALIDITY OF A SEARCH
IS THE PLACE STATED IN THE WARRANT
ITSELF, NOT WHAT THE APPLICANTS HAD
IN THEIR THOUGHTS, OR HAD
REPRESENTED IN THE PROOFS THEY
SUBMITTED TO THE COURT ISSUING THE
WARRANT.
17. What are the different instances
when a warrantless search and seizure is
allowed under our existing jurisprudence?
Warrantless search is allowed in the
following instances:
1. customs searches;
2. searches of moving vehicle;
3. seizure of evidence in plain view;
4. consented searches;
5. search incidental to a lawful arrest;
and
6. stop and frisk measures. (PEOPLE
VS. ARUTA, 288 SCRA 626)
18. May a judge deputize his Clerk of
Court to take the deposition of the applicant
for a search warrant subject to clarificatory
questions after his hearing in other cases?
No. As held in Bache vs. Ruiz, 37
SCRA 823, and the examination of the
complainant ant the witnesses he may produce
must be done personally by the judge.
Otherwise, the warrant shall be void. As such,
the SC held in PENDON VS. CA, November
16, 1990 that when the questions asked to the
applicant for a search warrant was pre-typed,
the same is not valid since there could have
been no searching questions.
19. May a single search warrant be
issued for the crimes of estafa, falsification,
tax evasion and insurance fraud?
No, such would be a ―general
warrant‖ and violates the rule that a warrant
shall be issued for one (1) specific offense.
(Asian Surety vs. Herrera, 54 SCRA 312)
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20. What is a ―scatter-shot warrant‖?
It is a search warrant issued for more
than one (1) specific offense like a search
warrant issued for estafa, robbery, theft and
qualified theft‖. (TAMBASEN VS. PEOPLE, July
14, 1995; PEOPLE VS. CA, 216 SCRA 101)
21. May a judge validly issue a warrant
of arrest based only from the Information and
the Resolution of the Prosecutor finding
probable cause against the accused?
No. There will be no basis for the
issuance since the Prosecutor is neither the
complainant nor the witness to the case. He
could not have determined probable cause
based from the said documents. (VICENTE
LIM,SR. AND MAYOR SUSANA LIM VS.HON.
N. FELIX , G.R. NO. 99054-57). As held in the
case of Soliven vs. Makasiar, decided under the
1987 Constitution, the Court noted that the
addition of the word personally after the word
determined and the deletion of the grant of
authority by the 1973 Constitution to issue
warrants to other respondent officers as to
may be authorized by law does not require the
judge to personally examine the complainant
and his witness in his determination of
probable cause for the issuance of a warrant of
arrest.What the Constitution underscores is the
exclusive and personal responsibility of the
issuing judge to satisfy himself of the existence
of probable cause. Following established
doctrine and procedures, he shall:
(1) Personally evaluate the reports
and the supporting documents submitted by
the fiscal regarding the existence of probable
cause and, on the basis thereof, issue a warrant
of arrest;
(2) If on the basis thereof he finds
no probable cause, he may disregard the
fiscal's report and require the submission of
supporting affidavits of witnesses to aid him in
arriving at a conclusion as to the existence of
probable cause.
The case of People vs. Honorable
Enrique B. Inting reiterates the following
doctrines:
(1) The determination of probable
cause is a function of the judge. It is not for the
Provincial Fiscal or Prosecutor nor for the
 Green Notes 2015
Election Supervisor to ascertain. Only the
judge alone makes this determination.
(2) The preliminary inquiry made
by the prosecutor does not bind the judge. It
merely assists him to make the determination
of probable cause. The judge does not have to
follow what the prosecutor's present to him.
By itself, the prosecutor's certification of
probable cause is ineffectual. It is the report,
the affidavits, the transcripts of stenographic
notes, and all other supporting documents
behind the prosecutor's certification which are
material in assisting the judge to make his
determination.
(3) Preliminary inquiry should be
distinguished from the preliminary
investigation proper. While the former seeks to
determine probable cause for the issuance of
warrant of arrest, the latter ascertains whether
the offender should be held for trial or be
released.
22. As to the requirement that the
judge must ―personally‖ determine probable
cause, must he examine the complainant and
his witnesses face to face in order to comply
with the said constitutional provision?
It depends.
[1]. In connection with the issuance of
a SEARCH WARRANT, he must personally
examine the complainant and the witnesses,
with searching questions, face to face. (Bache
vs. Judge Ruiz, supra)
[2]. In connection with the issuance of
a warrant of arrest, however, the word
―personally‖ after the word determined does
not necessarily mean that the judge should
examine the complainant and his witnesses
personally or face to face before issuing the
warrant of arrest but the exclusive
responsibility on the part of said judge to
satisfy himself of the existence of probable
cause. As such, there is no need to examine the
complainant and his witnesses face to face. It is
sufficient if the judge is convinced of the
existence of probable cause upon reading the
affidavits or deposition of the complainant and
his witnesses. SOLIVEN VS. MAKASIAR, 167
SCRA 393
23. Is the judge bound by the findings
of existence of ―probable cause‖ by the
Prosecutor as indicated in his Certification in
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the information so that the issuance of a
warrant of arrest is only ministerial on his part?
If not satisfied of the existence of probable
cause, may the judge require the Prosecutor to
submit additional evidence?
The judge is not bound by the findings
of the Prosecutor because the said finding is
only ―probable cause‖ that a crime was
committed. Probable cause to justify the
issuance of a warrant of arrest is a judicial
function vested only in the judge. In fact, he
can require the Prosecutor to submit additional
evidence if he is not convinced of the existence
of probable for the issuance of a warrant of
arrest. (P. vs. Villanueva, 110 SCRA 465;
Placer vs. Villanueva, 126 SCRA 463).
24. Is "Operation Kapkap" being done
by the police because the suspect has
something bulging in his waist and keeps on
touching his abdomen as if touching a gun
valid?
As held in PEOPLE VS. MENGOTE,
G.R. No. 87059, June, 1992, 210 SCRA 174,
―OPERATION KAPKAP‖ or warrantless search
without probable cause is unconstitutional.
Such search is valid only if covered by Section
5, Article 113 of the Rules of Court which
provides:
Sec. 5. Arrest without warrant; when
lawful.- A peace officer or private person
may, without warrant, arrest a person:
(a) When, in his presence, the person
to be arrested has committed, is actually
committing, or is attempting to commit an
offense;
(b) When an offense has in fact just
been committed, and he has personal
knowledge of facts indicating that the person
to be arrested has committed it; and
(c) When the person to be arrested is a
prisoner who has escaped from a penal
establishment or place where he is serving final
judgment or temporarily confined while his
case is pending, or has escaped while being
transferred from one confinement to another.
Compare this case to MANALILI VS.
PEOPLE, October 9, 1997. The policemen saw
several suspicious looking men at dawn who
ran when they went near them. As the
 Green Notes 2015
policemen ran after them, an unlicensed
firearm was confiscated. The search was
declared valid by the Supreme Court. Note,
however, that in MALACAT VS. CA, 283 SCRA
159, the SC held that mere suspicions not
sufficient to validate warrantless arrest.
24-a. Is the provision of the Online
Libel Law which authorizes the DOJ to restrict
or block computer data because in its opinion,
the same is obscene, pornographic, etc.?
The said provision is unconstitutional.
It would violate the search and seizure
provision and makes the DOJ the judge, jury
and executioner rolled into one. It also
restrains free speech. (DISINI VS. SECRETARY
OF JUSTICE, GR No. 20335, February 18,
2014)
25. May the Iloilo Police arrest or
makes a search without warrant the person
disembarking from a ship based solely on an
information relayed to them by an informant
that the suspect‘s bag contains marijuana?
No. As held in PEOPLE vs.
AMMINUIDIN, 163 SCRA 402 a warrantless
arrest of the accused was unconstitutional. This
was effected while he was coming down the
vessel, to all appearances no less innocent than
the other disembarking passengers. He had not
committed nor was actually committing or
attempting to commit an offense in the
presence of the arresting officers. He was not
even acting suspiciously. In short, there was no
probable cause that, as the prosecution
incorrectly suggested, dispensed with the
constitutional requirement of a warrant.
26. In arrests without warrant based
on the fact that a crime has just been
committed, what kind of knowledge is
required on the part of the arresting officer?
In PEOPLE VS. GALVEZ, 355 SCRA
246, the Supreme Court held that the
policeman arrested the accused-appellant on
the basis solely of what Reynaldo Castro had
told him and not because he saw the accused-
appellant commit the crime charged against
him. Indeed, the prosecution admitted that
there was no warrant of arrest issued against
accused-appellant when the latter was taken
into custody. Considering that the accused-
appellant was not committing a crime at the
time he was arrested nor did the arresting
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officer have any personal knowledge of facts
indicating that accused-appellant committed a
crime, his arrest without a warrant cannot be
justified.
27. What is the effect on the illegality
of the arrest by the subsequent act of the
accused in posting bond for his provisional
liberty and entering a plea during his
arraignment?
By entering a plea of not guilty during
the arraignment, the accused-appellant waived
his right to raise the issue of illegality of his
arrest. IT IS NOW SETTLED THAT
OBJECTION TO A WARRANT OF ARREST
OR THE PROCEDURE BY WHICH A COURT
ACQUIRES JURISDICTION OVER THE
PERSON OF AN ACCUSED MUST BE MADE
BEFORE HE ENTERS HIS PLEA, OTHERWISE,
THE OBJECTION IS DEEMED WAIVED. THE
FACT THAT THE ARREST WAS ILLEGAL DOES
NOT RENDER THE SUBSEQUENT
PROCEEDINGS VOID AND DEPRIVE THE
STATE OF ITS RIGHT TO CONVICT THE
GUILTY WHEN ALL THE FACTS POINT TO
THE CULPABILITY OF THE ACCUSED.
(PEOPLE VS. GALVEZ, 355 SCRA 246)
28. Is a warrantless search and seizure
by a private individual valid?
Yes since the constitutional provision is
not applicable to him. (PEOPLE OF THE
PHILIPPINES VS. ANDRE MARTI, G.R. NO.
81561, January 18, 1991; SILAHIS
INTERNATIONAL HOTEL, INC. VS. ROGELIO
SOLUTA, ET AL., 482 SCRA 660)
29. What are the requisites of a valid
search incidental to a valid arrest?
As held in NOLASCO VS. PANO, 139
SCRA 541, a search incidental to a valid arrest
must be done at the place where the accused is
arrested or its immediate vicinity or on the
person of the accused. As such, if accused was
arrested while inside a jeepney, there is no
valid search incidental to a valid arrest if she
will be brought to her residence and thereafter
search the said place. Or as held in ESPANO
VS. CA, 288 SCRA 588, if the accused was
arrested in the street during a buy-bust
operation, the search of his house nearby is
not a valid search incidental to a valid arrest.
 Green Notes 2015
30. If the accused was validly arrested
without warrant inside a night club for illegal
possession of firearm, may the arresting
officers validly search his car parked several
meters from the place of arrest based on
―search incidental to a valid arrest‖?
Where the gun tucked in a person‘s
waist is plainly visible to the police, no search
warrant is necessary and in the absence of any
license for said firearm, he may be arrested at
once as he is in effect committing a crime in
the presence of the police officers. No warrant
is necessary in such a situation, it being one of
the recognized exceptions under the Rules. As
a consequence of the accused‘s valid
warrantless arrest inside the nightclub, he may
be lawfully searched for dangerous weapons
or anything which may be used as proof of the
commission of an offense, without a search
warrant in accordance with Section 12, Rule
126. This is a valid search incidental to a lawful
arrest.
In fact, the subsequent discovery in his
car (which was parked in a distant place from
where the illegal possession of firearm was
committed [after he requested that he will
bring his car to the Police Station after his
warrantless arrest---with a policeman escorting
him]) , of a drug paraphernalia and shabu,
CANNOT BE SAID TO HAVE BEEN MADE
DURING AN ILLEGAL SEARCH because of his
consent, not due to search incidental to a valid
arrest. As such, the items do not fall under the
exclusionary rule and the unlicensed firearms,
drug paraphernalia and the shabu, can be used
as evidence against the accused. (PEOPLE VS.
GO, 354 SCRA 338)
31. May the police authorities validly
search the rented apartment of a suspect
without a search warrant or without the
consent of the said person BUT WITH THE
CONSENT OF THE OWNER OF THE
APARTMENT?
No. PEOPLE VS. DAMASO, 212 SCRA
547 abandoned the ruling in Lopez vs.
Commissioner where the alleged ―wife‖ could
give a valid consent for the search of the hotel
room of her husband as held by the Supreme
Court---even though it turned out that she was
just a ―manicurist‖ of the suspect. In order that
there is a valid consent to a warrantless search,
the consent must come from the person
directly affected by said warrantless search.
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32. What is the ―plain view doctrine‖
in connection with warrantless search and
seizure?
As held in PEOPLE VS. VALDEZ, 341
SCRA 25, the ―plain view‖ doctrine, which
may justify a search without warrant, APPLIES
ONLY WHERE THE POLICE OFFICER IS NOT
SEARCHING FOR EVIDENCE AGAINST THE
ACCUSED, BUT INADVERTENTLY COMES
ACROSS AN INCRIMINATING OBJECT. As
such, ―plain view doctrine could not be used
to justify the seizure of an unlicensed firearm
in People vs. Damaso, supra, which was seen
on top of a table after the opening of his
apartment‘s door without a warrant nor
consent of the occupant therein.
32-a. The police received an
information that accused‘s house is surrounded
by fully grown marijuana. Thereafter, the
police went to the place of the accused and it
turned out that the information was correct.
The accused was arrested and the police took
his pictures infront of his marijuana plants and
other pictures with him after uprooting the
same. Is the seizure of the marijuana plants
justified under the ―plain view doctrine‖?
No, the seizure is not valid. Nor can it
be justified under the plain view doctrine. In
order that the plain view doctrine could be
validly applied, the marijuana plants must
have been INADVERTENTLY FOUND. In this
case, the policement went there specifically to
look for it. (PEOPLE VS. VALDEZ, 341 SCRA
25)
33. Define probable cause in
connection with the issuance of a search
warrant.
The "probable cause" for a valid search
warrant, has been defined "as such facts and
circumstances which would lead a reasonably
discreet and prudent man to believe that an
offense has been committed, and that the
objects sought in connection with the offense
are in the place sought to be searched".
(Quintero vs. NBI, June 23, 1988). This
probable cause must be shown to be within
the personal knowledge of the complainant or
the witnesses he may produce and not based
on mere hearsay. (P. VS. SY JUCO, 64 PHIL.
667; ALVAREZ VS. CFI, 64 PHIL. 33; US VS.
ADDISON, 28 PHIL. 566).
 Green Notes 2015
34. What is the ―sufficiency test‖ in
connection with applications for a search
warrant?
"The true test of sufficiency of a
deposition or affidavit to warrant issuance of a
search warrant is whether it was drawn in a
manner that perjury could be charged thereon
and the affiant be held liable for damage
caused. The oath required must refer to the
truth of the facts within the personal
knowledge of the applicant of a search
warrant and/or his witnesses, not of the facts
merely reported by a person whom one
considers to be reliable." (DR. NEMESIO
PRUDENTE VS. THE HON. EXECUTIVE
JUDGE ABELARDO M. DAYRIT, RTC 33,
Manila & People of the Philippines, GR No.
82870, December 14, 1989)
35. May the police and military
authorities validly search the citizens without
warrant in checkpoints set up by them? What
is the extent of the search that they may
conduct?
In RICARDO VALMONTE VS. GEN
RENATO DE VILLA, GR No. 83988,
September 29, 1989, the Supreme Court held
that warrantless searches and seizures in
military and police checkpoints are not illegal
as these measures to protect the government
and safeguards the lives of the people. The
checkpoints are legal as where the survival of
the organized government is on the balance,
or where the lives and safety of the people are
in grave peril. However, the Supreme Court
clarified that the military officers manning the
checkpoints may conduct VISUAL SEARCH
ONLY, NOT BODILY SEARCH.
36. Is an unlicensed firearm seized in
the house of the accused without warrant by
the military authorities, after they were given
consent by the said owner of the house for
them to search for rebel soldiers, admissible in
evidence?
No. In VEROY VS. LAYAGUE, 210
SCRA 97, the Supreme Court held that the
owner of the house allowed the policemen to
enter his house because they will be searching
for rebel soldiers but when inside the house,
they instead seized an unlicensed firearm. As
such, there was no consent to search for
firearms and as a consequence, the firearm is
not admissible as evidence.
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37. If the judge finds that there's
probable cause, must he issue a warrant of
arrest as a matter of course?
It depends:
1. SAMULDE VS. SALVANI, SEPTEMBER 26,
1988 (No because a warrant is issued in
order to have jurisdiction of the court over
the person of an accused and to assure the
court of his presence whenever his case is
called in court. As such, if the court
believes that the presence of the accused
could be had even without a warrant of
arrest, then he may not issue said warrant.
Note: This case involves a minor offense)
2. GOZO VS. TAC-AN, 300 SCRA 265. If the
offense committed is a serious one like
that obtaining in this case for murder, the
Judge must issue a warrant of arrest after
determining the existence of probable
cause)
38. If the applicant for a search
warrant testifies that his knowledge of the facts
and circumstances was derived from a ―highly
reliable informant‖, would such fact sufficient
to convince the court of the existence of
―probable cause‖?
No, knowledge based on hearsay
information does not justify the existence of
probable cause. (Prudente vs. Dayrit, supra.) In
fact, when the statements in the affidavits of
witnesses are mere generalities, mere
conclusions of law, and not positive statements
of particular acts, the warrant issued by virtue
thereof is not valid. Ponsica vs. Ignalaga, July
31, 1987)
39. In the seizure of alleged pirated
tapes, what must the applicant submit to the
court in order that the search warrant to be
issued shall be valid?
In Century Fox vs. CA, 164 SCRA 655
and COLUMBIA PICTURES VS. CA, 261 SCRA
144, it was held that the master copy of the
allegedly pirated tape should be presented
before the judge in order to convince him of
the existence of probable cause)
 Green Notes 2015
40. What is the effect on the evidence
obtained in violation of Sections 2 and 3 of
Article III?
Any evidence obtained in violation of
Sections 2 and 3 of Article III shall be
inadmissible for any purpose in any
proceeding.
41. Under the Human Security
Act/Anti-Terrorism Law, Republic Act No.
9372, Approved on March 6, 2007 and
effective on July 15, 2007, may police
authorities the listen to, intercept and record,
with the use of any mode, form or kind or
type of electronic or other surveillance
equipment or intercepting and tracking
devices, or with the use of any other suitable
ways or means for that purpose, any
communication, message, conversation,
discussion, or spoken or written words of a
person without violating the right to privacy?
Yes under Sections 7 and 8 of the law
which provides:
Section 7. Surveillance of suspects and
interception and recording of communications.
The provisions of RA 4200 (Anti-Wiretapping
Law) to the contrary notwithstanding, a police
or law enforcement official and the members
of his team may, upon a written order of the
Court of Appeals, listen to, intercept and
record, with the use of any mode, form or
kind or type of electronic or other surveillance
equipment or intercepting and tracking
devices, or with the use of any other suitable
ways or means for that purpose, any
communication, message, conversation,
discussion, or spoken or written words
between members of a judicially declared and
outlawed terrorist organization, association, or
group of persons or of any person charged
with or suspected of the crime of terrorism or
conspiracy to commit terrorism.
Provided, That surveillance,
interception and recording of communications
between lawyers and clients, doctors and
patients, journalists and their sources and
confidential business correspondence shall not
be authorized.
42. Under the Human Security
Act/Anti-Terrorism Law, Republic Act No.
9372, Approved on March 6, 2007 and
effective on July 15, 2007, may police
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authorities examine the bank accounts of
individuals without violating their right to
privacy?
Yes under Sections 27 and 28 of the
said law. It provides:
Section 27. Judicial authorization
required to examine bank deposits, accounts
and records.
The justices of CA designated as special
court to handle anti-terrorism cases after
satisfying themselves of the existence of
probable cause in a hearing called for that
purpose that:
A person charged with or suspected of the
crime of terrorism or conspiracy to commit
terrorism;
Of a judicially declared and outlawed
terrorist organization or group of persons;
Of a member of such judicially declared
and outlawed organization, association or
group of persons may authorize in writing
any police or law enforcement officer and
the members of his team duly authorized
in writing by the anti-terrorism council to:
examine or cause the examination of, the
deposits, placements, trust accounts, assets,
and records in a bank or financial
institution; and
gather or cause the gathering of any
relevant information about such deposits,
placements, trust accounts, assets, and
records from a bank or financial
institution. The bank or financial institution
shall not refuse to allow such examination
or to provide the desired information,
when so ordered by and served with the
written order of the Court of Appeals.
Sec. 28.Application to examine
deposits, accounts and records.
The written order of the CA
authorizing the examination of bank deposits,
placements, trust accounts, assets and records:
A person charged with or suspected of the
crime of terrorism or conspiracy to commit
terrorism;
 Green Notes 2015
Of a judicially declared and outlawed terrorist
organization or group of persons;
Of a member of such judicially declared and
outlawed organization, association or group of
persons, in a bank or financial institution-
-SHALL ONLY BE GRANTED BY THE
AUTHORIZING DIVISION OF THE CA UPON
AN EX-PARTE APPLICATION TO THAT
EFFECT OF A POLICE OR LAW
ENFORCEMENT OFFICIAL who has been duly
authorized by the Anti-Terrorism Council to
file such ex-parte application and upon
examination under oath or affirmation of the
applicant and his witnesses he may produce to
establish the facts that will justify the need and
urgency of examining and freezing the bank
deposits, placements, trust accounts, assets and
records:
Of A person charged with or suspected of the
crime of terrorism or conspiracy to commit
terrorism;
Of a judicially declared and outlawed terrorist
organization or group of persons;
Of a member of such judicially declared and
outlawed organization, association or group of
persons.
43. May a wife validly seize the
diaries, checks and greeting cards of the
alleged paramours of her husband in the
latter‘s clinic and use the same as evidence in a
legal separation case between them?
As held in ZULUETA VS. CA, February
10, 1996, the evidence obtained by the wife
who forcibly opened the drawers at the clinic
of her doctor-husband and took diaries, checks
and greeting cards of his alleged paramours is
inadmissible as evidence. This is so because
the intimacies of husband and wife do not
justify the breaking of cabinets to determine
marital infidelity. It violates the right to
privacy.
43-a. What are the two (2) categories
of the right to privacy?
The two (2) categories are:
1. Decisional privacy which involves
the right to independence in making certain
important decisions; and
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2. Informational privacy which refers
to the interest in avoiding disclosures on
personal matters. (WHALEN VS. ROE, 429 US
589, cited in DISINI VS. SECRETARY OF
JUSTICE, GR No. 20335, February 18, 2014)
43-b. What are the two (2) aspects of
informational privacy?
These are: [1] the right not to have
private information disclosed; and [2] the right
to live freely without surveillance and
intrusion. DISINI VS. SECRETARY OF JUSTICE,
GR No. 20335, February 18, 2014)
43-c. Is the freedom of speech and
expression affected by the Human Security
Act?
Yes, under Section 26 of the law, it
provides that persons who have been charged
with terrorism or conspiracy to commit
terrorism---even if they have been granted bail
because evidence of guilt is not strong—can
be: ―Prohibited from using any cellular phones,
computers, or other means of communications
with people outside their residence.‖
44. Is the act of the COMELEC in
ordering the Diocese of Bacolod City to
remove its big tarpaulin where it impliedly
asked the voters to vote for the TEAM BUHY
or the Senators or Congressmen who opposed
the Reproductive Health Bill and against the
members of TEAM PATAY or the Senators and
Congressmen who voted in favor of the
Reproductive Health Bill VALID? (DIOCESE OF
BACOLOD VS. COMELEC, G.R. No. 205728,
January 21, 2015)
No, the order violates the freedom of
speech on the part of the Diocese of Bacolod
and the other petitioners.
44-a. Was there violation of the law
regulating the size of tarpaulin to be used
during election campaign because the tarpaulin
used by ther Diocese of Bacolod in the TEAM
BUHAY AND TEAM PATAY campaign is
bigger than that allowed by the law?
There is no violation because the size
of the tarpaulins in this case is beyond the
constitutional powers of the COMELEC to
regulate because this is part of the protected
speech of the petitioners WHO ARE NOT
CANDIDATES. DIOCESE OF BACOLOD VS.
 Green Notes 2015
COMELEC, G.R. No. 205728, January 21,
2015)
44-b. Distinguish political speech from
commercial speech.
Political speech refers to speech both intended
and received as a contribution to public
deliberation about the same issue fostering
informed and civic-minded deliberation while
commercial speech is a speech that does no
more than to propose a commercial
transaction. DIOCESE OF BACOLOD VS.
COMELEC, G.R. No. 205728, January 21,
2015)
44-c. Distinguish content-based
regulation from content-neutral regulation as
restrictions to free speech.
Content-based regulation can either be
based on the viewpoint of the speaker or the
subject of the expression. Content-based
regulations bears a heavy presumption of
invalidity and the Supreme Court had
consistently used the clear and present danger
as a measure of its validity or invalidity. A
content-based restraint or censorship refers to
restrictions based on the subject matter of the
utterance or speech.
Content-neutral regulation controls
merely on the incident of free speech such as
time, place or the manner of the speech.
DIOCESE OF BACOLOD VS. COMELEC, G.R.
No. 205728, January 21, 2015)
45. What is the rule on criticisms on
the acts of public officers?
A public official should not be too
onion-skinned with reference to comments
upon his official acts. The interest of the
government and the society demands full
discussion of public affairs. (US vs. Bustos, 37
Phil. 731)
45-a. May the above rule applicable to
private individuals who are public figures or
private individuals who are candidates for
public office?
As held by the Supreme Court in the
case of BAGUIO MIDLAND COURIER &
CECILLE AFABLE VS. COURT OF APPEALS &
RAMON LABO, JR., 444 SCRA 28 [November
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25, 2004 , the article involving a private
individual running for Mayor of Baguio City is
still within the mantle of protection
guaranteed by the freedom of expression
provided in the Constitution since it is the
public‘s right to be informed of the mental,
moral and physical fitness of candidates for
public office. This was recognized as early as
the case of US VS. SEDANO, 14 Phil. 338
[1909] and the case of NEW YORK TIMES VS.
SULLIVAN, 376 U.S. 254 where the US
Supreme Court held:
―…it is of the utmost consequence that
the people should discuss the character and
qualifications of candidates for their suffrages.
The importance to the State and to society of
such discussions is so vast, and the advantages
derived so great, that they more than
counterbalance the inconvenience of private
persons whose conduct may be involved, and
occasional injury to the reputations of
individuals must yield to the public welfare,
although at times such injury may be great.
The public benefit from publicity is so great
and the chance of injury to private character
so small, that such discussion must be
privileged. ―
Clearly, the questioned articles
constitute fair comment on a matter of public
interest as it dealt with the character of the
private respondent who was running for the
top elective post in Baguio City at that time.
46. May the COMELEC validly
prohibit columnists, radio announcers and TV
commentator for commenting for or against
any issue during the plebiscite period since
they can air their views in a program
sponsored by the COMELEC itself?
No, such would be an undue
interference on the freedom of expression. IT
IS STILL A RESTRICTION ON THE
COLUMNIST, ANNOUNCER OR
COMMENTATOR‘S CHOICE OF THE
FORUM WHERE HE MAY EXPRESS HIS VIEW.
Plebiscite issues are matters of public concern
and importance. The people's right to be
informed and to be able to freely and
intelligently make a decision would be better
served by access to an unabridged discussion of
the issues, INCLUDING THE FORUM. The
people affected by the issues presented in a
plebiscite should not be unduly burdened by
restrictions on the forum where the right to
expression may be exercised. (PABLITO V.
 Green Notes 2015
SANIDAD VS. COMELEC, G.R. NO. 90878,
January 29, 1990)
47. What are the requisites that a
newspaper must comply in order that its news
item on an ongoing trial in court will not be
actionable for being libelous?
In Elizalde vs. Gutierrez,76 SCRA 448,
it was held that in order that any news item
relating to a judicial proceeding will not be
actionable, the same must be [a] a true and fair
report of the actual proceedings; [b] must be
done in good faith; and [c] no comments nor
remarks shall be made by the writer}
48. What are the tests of obscenity?
The three (3) tests as held in Miller vs.
California, 37 L. Ed. 2d 419 are:
1. Whether the average person
applying to contemporary
community standards would
find the work appeals to
prurient interest;
2. Whether the work depicts or
describes a patently offensive
sexual conduct;
3. Whether the work as a whole
lacks serious literary, artistic,
political or scientific value.
49. May the City Mayor order the
confiscation without a search warrant
magazines which he believes to be obscene?
What is the correct procedure for him to
follow?
No. (Pita vs. CA, 178 SCRA 362). A
City Mayor may not order the warrantless
seizure of magazines which he believes to be
obscene; otherwise, he will become the
complainant, prosecutor and judge at the same
time. He should obtain a search warrant from
a judge by following the procedure laid down
by the Rules on how to secure a search
warrant.
50. May public school teachers validly
file mass leaves, instead of going on strike,
after their demand to the government was not
met‖
In GESITE et al. vs. COURT OF
APPEALS, 444 SCRA 51 held that ―these mass
actions were to all intents and purposes a
strike; they constituted a concerted and
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unauthorized stoppage of, or absence from,
work which it was the teachers‘ duty to
perform, undertaken for essentially economic
reasons.‖ It is undisputed fact that there was a
work stoppage and that petitioners‘ purpose
was to realize their demands by withholding
their services. The fact that the conventional
term ―strike‖ was not used by the striking
employees to describe their common course of
action is inconsequential, SINCE THE
SUBSTANCE OF THE SITUATION, AND NOT
ITS APPEARANCE, WILL BE DEEMED
CONTROLLING.
The right of government employees
to organize IS LIMITED TO THE
FORMATIONS OF UNIONS OR
ASSOCIATIONS ONLY, WITHOUT
INCLUDING THE RIGHT TO STRIKE.
(Bangalisan vs. CA, 276 SCRA 619)
51. What is the procedure to be
followed in the application of rally permits
before the City or Municipal Mayor in
accordance with BP Bilang 880?
The applicants for a permit to hold an
assembly should inform the licensing authority
of the date, the public place where and the
time when it will take place. If it were a
private place, only the consent of the owner
or the one entitled to its legal possession is
required. Such application should be filed well
ahead in time to enable the public official
concerned to appraise whether there may be
valid objections to the grant of the permit or
to its grant but at another public place. It is an
indispensable condition to such refusal or
modification that the clear and present danger
tests be the standard for the decision reached.
If he is of the view that there is such an
imminent and grave danger of a substantive
evil, the applicants must be heard on the
matter. Thereafter, his decision, whether
favorable or adverse, must be transmitted to
them at the earliest opportunity. Thus if so
minded, they can have recourse to the proper
judicial authority. (BAYAN, KARAPATAN,
KILUSANG MAGBUBUKID NG PILIPINAS
(KMP), and GABRIELA vs. EDUARDO
ERMITA, in his capacity as Executive Secretary,
Manila City Mayor LITO ATIENZA, Chief of
the Philippine National Police, Gen. ARTURO
M. LOMIBAO, NCRPO Chief Maj. Gen. VIDAL
QUEROL, and Western Police District Chief
Gen. PEDRO BULAONG, G.R. No. 169848,
May, 2006)
 Green Notes 2015
51-a. May the City Mayor of Manila
validly deny the application for a rally permit,
or to change the venue thereof, if he finds
evidence of clear and present danger in
accordance with the JBL Reyes vs. Mayor
Bagatsing doctrine?
Compliance with the Reyes vs.
Bagatsing doctrine is no longer enough. Under
the Public Assemble Act, if the Mayor believes
in the existence of clear and present danger,
HE MUST FIRST INFORM THE APPLICANT
OF THE SAID EVIDENCE AND GIVE HIIM
THE CHANCE TO SUBMIT
CONTROVERTING EVIDENCE BEFORE HE
COULD DENY THE SAID APPLICATION FOR
A RALLY PERMIT. (INTEGRATED BAR OF
THE PHILIPPINES VS. MAYOR JOSE ATIENZA,
JR., February 24, 2010)
52. Is BP 880 unconstitutional for
being vague (Void for Vagueness Doctrine)
and overbroad (Overbreadth Doctrine)?
No. It is very clear that it deals only on
public assemblies that deals with rallies, mass
actions and similar acts and not all kinds of
public assemblies. As such, it is not vague.
Neither is the law overbroad. It
regulates the exercise of the right to peaceful
assembly and petition only to the extent
needed to avoid a clear and present danger of
the substantive evils Congress has the right to
prevent.
53. Is the Calibrated Pre-emptive
Response (CPR) of the Arroyo Administration
towards rallyists constitutional?
The Court reiterates its basic policy of
upholding the fundamental rights of our
people, especially freedom of expression and
freedom of assembly. For this reason, the so-
called calibrated preemptive response policy,
the policy of dispersing rallyists through water
cannons, has no place in our legal firmament
and must be struck down as a darkness that
shrouds freedom. It merely confuses our
people and is used by some police agents to
justify abuses. On the other hand, B.P. No.
880 cannot be condemned as unconstitutional;
it does not curtail or unduly restrict freedoms;
it merely regulates the use of public places as
to the time, place and manner of assemblies.
Far from being insidious, ―maximum
tolerance‖ is for the benefit of rallyists, not the
government. The delegation to the mayors of
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the power to issue rally ―permits‖ is valid
because it is subject to the constitutionally-
sound ―clear and present danger‖ standard.
(BAYAN, KARAPATAN, KILUSANG
MAGBUBUKID NG PILIPINAS (KMP), and
GABRIELA vs. EDUARDO ERMITA, in his
capacity as Executive Secretary, Manila City
Mayor LITO ATIENZA, Chief of the Philippine
National Police, Gen. ARTURO M. LOMIBAO,
NCRPO Chief Maj. Gen. VIDAL QUEROL, and
Western Police District Chief Gen. PEDRO
BULAONG, G.R. No. 169848, May, 2006)
54. May the MTRCB suspend for three
(3) months the airing of the program Ang
Dating Daan of Brother Eliseo Soriano as a
result of vulgar and uncouth language he
uttered against the host of the program Ang
Tamang Daan of the Iglesia Ni Kristo?
Yes as ―subsequent punishment‖. In
fact, it is a valid ―prior restraint‖ measure on
the part of the MTRCB (SORIANO VS.
LAGUARDIA, April 29, 2009) [Dissenting
Opinion: The suspension of the program is
illegal. It constitutes ―prior restraint‖. He is
prevented from hosting the program during
the succeeding days even if he will just say the
―Lord‘s Prayer‖ or to greet ―good morning‖ to
his viewers. Per Justice Antonio Carpio]
54-a. May the City of Cauayan,
Isabela, validly close the Bombo Radio Stations
therein on the ground that their building was
constructed on an ―agricultural land‖ [that is
why the City did not issue business permit for
it to operate] which has not been converted to
―commercial land‖ by the DAR despite the fact
that it has been there for so many years and
was questioned only when the said station was
critical of the Dy‘s in Isabela who own the
only other radio station therein?
A. The act of the City of Cauayan,
Isabela constitutes prior restraint. It shall pay
P10M in damages for the losses suffered by
Bombo Radyo as a result of the illegal closure.
(NEWSOUNDS BROADCASTING NETWORK
INC. and CONSOLIDATED BROADCASTING
SYSTEM, INC. vs. HON. CEASAR G. DY,
FELICISIMO G. MEER, BAGNOS MAXIMO,
RACMA FERNANDEZ-GARCIA and THE CITY
OF CAUAYAN, G.R. Nos. 170270 &179411,
April 2, 2009)
 Green Notes 2015
54-b. Distinguish ―clear and present
danger‖, ―dangerous tendency rule‖ and
―balancing of interest test‖.
Clear and present danger and
dangerous tendency rule (whether the words
used in such circumstances and are of such a
nature as to create a clear and present danger
that they will bring about the substantive evils
that the State has the right to prevent)
Dangerous tendency rule (If the words
uttered create a dangerous tendency which the
State has the right to prevent, then such words
are punishable)
The balancing-of-interest test (When a
particular conduct is regulated in the interest of
the public order, and the regulation results in
an indirect, conditional, partial abridgment of
speech, the duty of the courts is to determine
which of the 2 conflicting interests demand
greater protection under the circumstances
presented.)
55. May Senator Juan Ponce Enrile
prevent the movie producer of the EDSA I
Revolution movie from including his
participation during the uprising since it
violates his right to privacy?
No, as between Enrile‘s right to
privacy and the freedom of expression on the
part of the movie producer, the latter‘s right
prevail because Enrile‘s part in the movie deals
solely on his acts as a public officer then. To
exclude him as integral part of the revolution
would be a distortion of history. (AYER
PRODUCTION VS. JUDGE CAPULONG,
JUAN PONCE ENRILE, ET AL., 160 SCRA 861)
56. May the mother of a murdered
Mayor stop the filming of the life story of her
son which would include his alleged love
affairs which would blacken his memory?
Yes. As between the right to privacy
invoked by the mother and the freedom of
expression invoked by the movie producer,
the state shall balance their respective interests.
Since the movie producer is primarily after
profits only, the right to privacy shall prevail.
(Lagunzad vs. Gonzales).
57. What are the two (2) aspects of
the RIGHT TO RELIGIOUS PROFESSION AND
WORSHIP ? Distinguish each.
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a. Freedom to believe; and
b. Freedom to act.
IN the first, such freedom is absolute.
He may indulge in his own theories about life
and death; worship any god he chooses or
none at all. He may not be punished even if
he cannot prove what he believes.
In the second, if the individual
externalizes what he believes, his freedom to
do so becomes subject to the authority of the
State. This is so because religious freedom can
be exercised only with due regard to the rights
of others. Example: ―Go forth and multiply---
cannot marry several times just to comply.
58. May a Jehovah‘s Witnesses
Member who is the Court Interpreter of RTC
Branch 253, Las Pinas City, be held liable for
―grossly immoral conduct‖ for living with a
married man while her very own marriage was
still subsisting?
No. As held in ESTRADA VS.
SOLEDAD ESCRITOR, 492 SCRA 1 (Resolution
of the Motion for Reconsideration), 408 SCRA
1, the Supreme Court held that she is not liable
for grossly immoral conduct because:
1. She is a member of the Jehovah‘s
Witnesses and the Watch Tower
Society;
2. That the conjugal arrangement was
in conformity with their religious
beliefs;
3. That the conjugal arrangement with
Quilapio has the approval of her
congregation.
Escritor likewise claimed that [4] she
had executed a ―DECLARATION OF
PLEDGING FAITHFULNESS‖ in accordance
with her religion which allows members of the
Jehovah‘s witnesses who have been
abandoned by their spouses to enter into
marital relations. The Declaration thus makes
the resulting union moral and binding within
the congregation all over the world except in
countries where divorce is allowed. Escritor‘s
conjugal arrangement cannot be penalized as
she has made out a case for exemption from
the law based on her fundamental right to
religion. However, this mode of living with
another other than his or her spouse by a
 Green Notes 2015
married person does not apply in places where
divorce is allowed.
59. May children of Jehovah‘s
Witnesses in public schools be forced to sing
the National Anthem; recite the Patriotic
Pledge; and Salute the Flag under pain of
being expelled for non-compliance?
No since such is in violation of their
religious beliefs. (ROEL EBRALINAG, ET AL VS.
THE DIVISION SUPERINTENDENT OF
SCHOOLS OF CEBU, March 1, 1993). Religious
freedom is superior to the statute requiring the
pupils to sing the National Anthem; recite the
Patriotic Pledge; and Salute the Flag. The
doctrine laid down in Gerona vs. Secretary of
Education was reversed.
59-a. May LGBT Party of lesbians, gays
bisexuals and transgenders be denied
accreditation as a party-list group because it
allegedly espouses an obscene doctrine of
―same sex marriage‖ which is allegedly
contrary to the teachings of the Bible and the
Koran?
Our Constitution provides in Article III,
Section 5 that ―[n]o law shall be made
respecting an establishment of religion, or
prohibiting the free exercise thereof.‖ At
bottom, what our non-establishment clause
calls for is ―government neutrality in religious
matters.‖ Clearly, ―governmental reliance on
religious justification is inconsistent with this
policy of neutrality.‖ We thus find that it was
grave violation of the non-establishment clause
for the COMELEC to utilize the Bible and the
Koran to justify the exclusion of Ang Ladlad.
(ANG LADLAD LGBT PARTY VS. COMELEC,
G.R. No. 190582, April 7, 2010)
60. How may the right to travel be
impaired?
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.
61. Is the right to travel affected by the
Human Security Act?
Yes, Section 26 provides that persons
who have been charged with terrorism or
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conspiracy to commit terrorism---even if they
have been granted bail because evidence of
guilt is not strong—can be:
 Detained under house arrest;
 Restricted from traveling; and/or
Upon application of the prosecutor,
the suspect‘s right to travel shall be limited to
the municipality or city where he resides or
where the case is pending, in the interest of
national security and public safety. Travel
outside of said municipality or city, without
the authorization of the court, shall be deemed
a violation of the terms and conditions of the
bail which shall then be forfeited as provided
in the Rules of Court.
These restrictions shall be terminated
upon acquittal of the accused; or the dismissal
of the case filed against him; or earlier upon
the discretion of the court or upon motion of
the prosecutor.
62. May Former President Marcos
validly compel the government to issue him his
travel papers in order that he could return to
the Philippines from his US exile in accordance
with his constitutional right to travel?
No. (FERDINAND MARCOS, ET AL.
VS. HON. RAUL MANGLAPUS, ET AL., G.R.
NO. 88211, September 15, 1989 and the
Resolution of the Motion for Reconsideration
dated October 27, 1989). What is provided
by the Philippine Constitution is the right to
travel and not the right to return. These two
(2) rights are different under the Universal
Declaration of Human Rights and International
Covenant on Civil and Political Rights. THE
RIGHT TO RETURN TO ONE'S COUNTRY IS
NOT AMONG THE RIGHTS SPECIFICALLY
GUARANTEED BY THE BILL OF RIGHTS,
WHICH TREATS ONLY OF THE LIBERTY OF
ABODE AND THE RIGHT TO TRAVEL, BUT
IT IS OUR WELL-CONSIDERED VIEW THAT
THE RIGHT TO RETURN MAY BE
CONSIDERED AS A GENERALLY ACCEPTED
PRINCIPLE OF INTERNATIONAL LAW,
UNDER OUR CONSTITUTION, IS PART OF
THE LAW OF THE LAND.
 Green Notes 2015
Political Law
Prepared by: Atty. Lauro D. Gacayan

63. What is the ―residual power‖ of
the President?
It is the power of the President in
balancing the general welfare and the common
good against the exercise of rights of certain
individuals. The power involved is the
President‘s RESIDUAL POWER to protect the
general welfare of the people.
64. May a person out on bail be
validly allowed to travel abroad?
Yes, subject to the following requisites
( Manotoc vs. CA, 142 SCRA 149):
He must however [1] convince
courts of the urgency of his travel, [2]
duration thereof, and [3] that his sureties
willing to undertake the responsibility
allowing him to travel.
65. Is the right to information on
matters of public concern absolute?
No. Such would violate the right of the
people to information on matters of public
concern. It is only through said investigations
that the people will be informed of the
workings of the different departments of the
government. (SENATE OF THE PHILIPPINES,
represented by SENATE PRESIDENT
FRANKLIN DRILON, ET AL., VS. EXEC. SEC.
EDUARDO ERMITA, ET AL., G.R. No. 16977,
April 20, 2006 )
68. May a Barangay validly exercise
the power of eminent domain?
Yes, subject to the approval by the
President. ( Barangay Matictic vs. Elbinias, 148
the SCRA 83)
the
are 69. What are the requisites before an
of expropriator may validly obtain a writ of
possession to take over possession of the
expropriated property?
It depends:

No. While the right of the people to
information on matters of public concern shall
be recognized and access to official
records…shall be afforded the citizen, it must
be subject to such limitations as may be
provided by law as well as reasonable
conditions imposed by public officials in
custody of said records like the payment of the
expenses of reproduction of public documents;
the request must be done during office hours,
etc.
66. May the COMELEC be compelled
to publish the names of the nominees of the
different party-list groups for the May 14,
2007 elections despite the prohibition on such
publication as embodied by the Party-List Act?
YES, the COMELEC must publish the
same despite the prohibition in the law. Such
prohibition violates the right to information
on matters of public concern on the part of the
citizen. (BANTAY REPUBLIC VS. COMELEC,
MAY 4, 2007)
67. May the President validly prohibit
members of her Cabinet as well as other
officers in the executive department from
attending investigations in aid of legislation by
Congress?
1. If the expropriation is for a ―National
government projects‖ or ―national
infrastructure projects‖, like those
covered by the ―Build-Operate-
Transfer‖, RA 8974 shall be followed.
This means that there must be a [a]
Complaint for expropriation which is
sufficient in form and in substance; and
[2] the 100% of the market value of
the property sought to be
expropriated must first be paid to the
owner of the property. (REPUBLIC OF
THE PHILIPPINES VS. JUDGE
GINGOYON, 478 SCRA 474)
2. In ordinary expropriation cases, the
rule is that in the case of BIGLANG-
AWA VS. JUDGE BACALLA, 354 SCRA
562. It provides:
PURSUANT TO SECTION 2, RULE 67
OF THE 1997 RULES OF CIVIL PROCEDURE
AND THE DOCTRINE LAID DOWN IN THE
ROBERN DEVELOPMENT CASE, THE ONLY
REQUISITES FOR THE IMMEDIATE ENTRY BY
THE GOVERNMENT IN EXPROPRIATION
CASES ARE:
1. the filing of a complaint for
expropriation sufficient in form and
substance; and

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 Green Notes 2015
2. the making of a deposit equivalent
to the ASSESSED VALUE OF THE
PROPERTY SUBJECT TO
EXPROPRIATION.
3. If the expropriation is being done by a
Local Government Unit, the Supreme
Court decision in the case of THE CITY OF
ILOILO VS. JUDGE LEGASPI, RTC 22,
ILOILO CITY, 444 SCRA 269, shall be
complied with:
1. The complaint for expropriation filed in
court is sufficient in form and substance;
and
2. The expropriator must deposit the
amount equivalent to 15% of the fair
market value of the property to be
expropriated based on its current tax
declaration.
70. Who determines the just
compensation in expropriation cases? What
are the factors to be considered in determining
the same?
Determination of just compensation is
a judicial function with the assistance or
recommendation of the court-appointed
commissioners. (Manotok vs. CA, May
21,1987)
The factors to be considered in
determining the just compensation/market
value are:
1. cost of acquisition;
2. the current value of like
properties;
3. its actual or potential uses;
4. particular case of lands;
5. their size, shape, location; and
6. the tax declarations thereon.
Finally, note that as held in the case
of Republic vs. Santos, 141 SCRA 30, the
market value as recommended by the board
of commissioners appointed by the court
were at best only ADVISORY AND
PERSUASIVE AND BY NO MEANS FINAL OR
BINDING. (BERKENKOTTER, INC. VS.
COURT OF APPEALS AND REPUBLIC OF THE
PHILIPPINES, December 14, 1992).
71. What are the requisites of ―taking‖
in expropriation cases?
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The Requisites of taking are:
a. the expropriator must enter the
property;
b. the entrance must not be for just a
momentary period;
c. the entry must be under warrant of
color or title;
d. the property must be devoted for
public use; and
e. the owner must be ousted from
beneficial use of his land. (Rep. vs.
Castellvi, 58 SCRA 336)
72. May a private property already
used as a private cemetery be expropriated for
another public purpose?
No, a private property which is
already devoted to public use may not be
expropriated for another public purpose. (City
of Manila vs. Chinese Community, 40 Phil.
349).
72-a. In case the government will not
be able to use the land expropriated for the
purpose for which it was intended, may the
landowner ask for its reversion to him?
Yes, provided he complies with the
following:
1. Return the just compensation paid by
the government;
2. pay the legal interest;
3. pay the necessary expenses incurred by
the government in maintaining the lot;
and
4. pay the pecuniary value of the services
in managing it to the extent that the
landowner will be benefited thereby.
(MACTAN CEBU INTERNATIONAL
AIRPORT AUTHORITY VS. LOZADA,
February 25, 2010)
73. What are the rights of a person
under custodial investigation under the
―Mahinay Doctrine‖ or the ―Expanded
Miranda Doctrine‖?
The rights are:
1. The person arrested, detained, invited or
under custodial investigation must be
informed in a language known to and
understood by him of the reason for the
arrest and he must be shown a copy of the
warrant of arrest, if any; Every other
 Green Notes 2015
warnings, information or communication
must be in a language known to and
understood by said person;
2. He must be warned that he has the right to
remain silent and that any statement he
makes may be used as evidence against
him;
3. He must be informed that he has the right
to be assisted at all times and have the
presence of an independent and
competent lawyer, preferably of his own
choice;
4. He must be informed that if he has no
lawyer or cannot afford the services of a
lawyer, one will be provided for him; and
that a lawyer may also be engaged by any
person in his behalf, or may be appointed
by the court upon petition of the person
arrested or one acting in his behalf;
5. That whether or not the person arrested
has a lawyer, , he must be informed that
no custodial investigation in any form shall
be conducted except in the presence of his
counsel or after a valid waiver has been
made;
6. The person arrested must be informed
that, at any time, he has the right to
communicate or confer by the most
expedient means---telephone, radio, letter
or messenger---with his lawyer (either
retained or appointed), any member of his
immediate family; or any medical doctor,
priest or minister chosen by him or by any
one from his immediate family or by his
counsel, or be visited by/confer with duly
accredited national or international non-
governmental organization. IT SHALL BE
THE RESPONSIBILITY OF THE OFFICER
TO ENSURE THAT THIS IS
ACCOMPLISHED;
7. He must be informed that he has the right
to waive any of said rights provided it is
made voluntarily, knowingly and
intelligently and ensure that he understood
the same;
8. In addition, if the person arrested waives
his right to a lawyer, he must be informed
that it must be done in writing AND in the
presence of counsel, otherwise, he must be
warned that the waiver is void even if he
insist on his waiver and chooses to speak;
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9. That the person arrested must be informed
that he may indicate in any manner at any
time or state of the process that he does
not wish to be questioned with the
warning that once he makes such
indication, the police may not interrogate
him if the same had not yet commenced,
or the interrogation has begun;
10. The person arrested must be informed that
his initial waiver of his right to remain
silent, the right to counsel or any of his
rights does not bar him from invoking it at
any other time during the process,
regardless of whether he may have
answered some questions or volunteered
some information or statements;
11. He must be informed that any statement
OR EVIDENCE, as the case may be,
obtained in violation of any of the
foregoing, whether inculpatory or
exculpatory, in whole or in part, SHALL BE
INADMISSIBLE IN EVIDENCE.
74. What are the rights of a person
under ―custodial detention‖ or for one
suspected or arrested as a terrorist under the
Human Security Act?
The rights of an accused under the
Anti-Terrorism Act are embodied under
Section 21 thereof which states:
Section 21. Rights of a person under
custodial detention.- The moment a
person charged with or suspected of
the crime of terrorism or the crime of
conspiracy to commit terrorism is
apprehended or arrested and detained,
he shall forthwith be informed by the
arresting police or law enforcement
officers to whose custody the person
concerned is brought, of his or her
right:
1. To be informed of the nature and
cause of his arrest, to remain silent and to have
competent and independent counsel
preferably of his own choice. If the person
cannot afford the services of counsel of his or
her choice, the police or law enforcement
officers concerned shall immediately contact
the free legal assistance unit of the IBP or the
Public attorney‘s office (PAO). It shall be the
duty of the free legal assistance unit of the IBP
or the PAO‘s thus contacted to immediately

visit the person detained and provide him with
legal assistance. These rights cannot be waived
except in writing and in the presence of the
counsel of choice;
2. Informed of the cause or causes of his
detention in the presence of his legal counsel;
3. Allowed to communicate freely with
his legal counsel and to confer with them at
any time without restriction;
4. Allowed to communicate freely and
privately without restrictions with the
members of his family or with his nearest
relatives and be visited by them; and
5. Allowed freely to avail of the services
of a physician or physicians of choice.
75. Are the above rights available to a
suspect if he is under investigation by a
private person?
No. (THE PEOPLE OF
PHILIPPINES VS. JOSE TING LAN UY, JR., et
al., 475 SCRA 248). The claim that his affidavit
is inadmissible in evidence in accordance with
section 12 [1] of the Bill of Rights is not
tenable. The ―investigation‖ under said
provision refers to ―custodial investigation
where a suspect has already been taken into
police custody and that the investigating
officers begin to ask questions to elicit
information and confessions or admissions
from the suspect. Succinctly stated, custodial
investigation refers to the critical pre-trial stage
when the investigation ceases to be a general
inquiry into an unsolved crime but has begun
to focus on a particular person as a suspect
(People vs. Duenas, Jr., 426 SCRA 666).
Clearly, therefore, the rights enumerated by
the accused are not available BEFORE
GOVERNMENT INVESTIGATORS ENTER THE
PICTURE. The protective mantle of section 12,
article III does not apply:
[1] to administrative investigations
(People vs. Judge Ayson, 175 SCRA 216);
[2] confession to a private individual
(Kimpo vs. CA, 232 SCRA 53);
[3] verbal admission made to a radio
announcer who was not a part of the
investigation (People vs. Ordono, 334 SCRA
673);
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[4] or even to a Mayor approached as
a personal confidante and not in his official
capacity (People vs. Zuela, 323 SCRA 589).
[5] In fact, even a videotaped
interview where the accused willingly admit
his guilt in the presence of newsmen is not
covered by the said provision though the trial
courts were warned by the supreme Court to
take extreme caution in admitting similar
confessions because of the distinct possibility
that the police, with the connivance of
unscrupulous media practitioners, may attempt
to legitimize coerced extrajudicial confessions
and place them beyond the exclusionary rule
by having an accused admit an offense on
television (People vs. Endino, 353 SCRA 307).
76. When is custodial investigation
deemed to have started so as to entitle the
suspect to be informed of his rights under the
―Mahinay Doctrine‖ or the ―Expanded
Miranda Doctrine‖? How about if the suspect
THE is walking towards the police station with the
policemen who invited him to the police
station, is he entitled to be informed of his
rights already if the latter will ask him
questions regarding the commission of a crime
where he is the suspect?
Custodial investigation begins when it
is no longer a general inquiry into an unsolved
crime but starts to focus on a particular person
as a suspect, i.e., when the police investigator
starts interrogating or exacting confession from
the suspect in connection with an alleged
offense.
THE PLACE OF INTERROGATION IS
NOT DETERMINATIVE OF THE EXISTENCE
OR ABSENCE OF CUSTODIAL
INVESTIGATION BUT THE TONE AND
MANNER OF QUESTIONING BY THE POLICE
AUTHORITIES. Thus, there was custodial
investigation when the police authorities, upon
their arrest of some of the accused,
immediately asked them regarding their
participation in the commission of the crime,
even while they were still walking along the
highway on their way to the police station.
(PEOPLE VS. BARIQUIT, 341 SCRA 600)
77. Are spontaneous admissions made
before a person could be informed of his rights
during custodial investigation admissible as
evidence?
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 Green Notes 2015
Yes. Spontaneous statements
voluntarily given, as where appellant orally
admitted killing the victim before the barangay
captain (who is neither a police officer nor a
law enforcement agent), do not fall under
custodial investigation. Such admission, even
without the assistance of a lawyer, does not
violate appellant‘s constitutional rights AND
THEREFORE ADMISSIBLE IN EVIDENCE.
(PEOPLE VS. DANO, G.R. NO. 117690, 339
SCRA 515, SEPT. 1, 2000; PEOPLE VS.
MAYORGA, G.R. NO. 135405, 346 SCRA
458, NOVEMBER 29, 2000).
78. What are the requisites before an
extrajudicial confession is admissible?
To be admissible in evidence, an
extrajudicial confession must be: (i) voluntary;
(ii) made with the assistance of competent and
independent counsel; (iii) express; and (iv) in
writing.
A suspect‘s confession, whether verbal
or non-verbal, when taken without the
assistance of counsel, without a valid waiver of
such assistance, regardless of the absence of
coercion or the fact that it had been
voluntarily given, is inadmissible in evidence,
even if appellant‘s confession were gospel
truth. (PEOPLE VS. DANO, G.R. NO. 117690,
339 SCRA 515, SEPT. 1, 2000; PEOPLE VS.
SAMOLDE, G.R. NO. 128551, 336 SCRA 632,
JUL. 31, 2000).
To be admissible in evidence, an
extrajudicial confession must be: (i) voluntary;
(ii) made with the assistance of competent and
independent counsel; (iii) express; and (iv) in
writing.
A suspect‘s confession, whether verbal
or non-verbal, when taken without the
assistance of counsel, without a valid waiver of
such assistance, regardless of the absence of
coercion or the fact that it had been
voluntarily given, is inadmissible in evidence,
even if appellant‘s confession were gospel
truth.
79. Is the presence of a lawyer to assist
the suspect during custodial investigation
sufficient to comply with the requirements of
the Constitution?
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No. As held in PEOPLE VS.
PATUNGAN, 354 SCRA 413, the mere
presence of a lawyer is not sufficient
compliance with the constitutional
requirement of assistance of counsel. Assistance
of counsel must be effective, vigilant and
independent. A lawyer who could just hear
the investigation going on while working on
another case hardly satisfies the minimum
requirements of effective assistance of counsel.
Not only was the accused subjected to
custodial investigation without counsel, he was
likewise denied effective assistance of counsel
during the taking of his extra-judicial
confession.
80. From what time must the counsel
assist the suspect during custodial
investigation? Who must select such counsel?
In PEOPLE V. JIMENEZ, G.R. No.
82604. December 12, 1991, it was held that
the counsel must be present from the inception
of the custodial investigation not at any time
thereafter. Also, the lawyer who assists the
suspect under custodial interrogation should be
of the latter's own choice, not one foisted on
him by the police investigators or other
parties. In this case, the former judge whose
assistance was requested by the police was
evidently not of Marcos Jimenez' own choice;
she was the police officers' own choice; she did
not ask Marcos if he was willing to have her
represent him. This is not the mode of
solicitation of legal assistance contemplated by
the Constitution. Furthermore, the former
judge was not present when Marcos was being
interrogated by the police. While she asked
him if he had voluntarily given the statements
contained in the typewritten document, this is
far from being substantial compliance with the
constitutional duty of police investigators
during custodial interrogation.
81. Is the extrajudicial confession of a
suspect obtained without the assistance of a
lawyer, but speaks of gospel truth, admissible
in evidence?
No. In PEOPLE VS. GALIT, 135 SCRA
465, PEOPLE VS. PANFILO CABILES, 284
SCRA 199; and PEOPLE VS. TAN, 286 SCRA
207, it was held that even if the confession of
the accused speaks the truth, if it was made
without the assistance of counsel, it is
inadmissible in evidence regardless of the
 Green Notes 2015
absence of coercion or even if it was
voluntarily given.
In order that a confession is admissible,
the following requisites must be present:
a. the confession must be voluntary;
b. the confession must be made with
the assistance of a competent and
independent counsel;
c. the confession must be express;
and
d. the confession must be in writing.
The above requirements, however, are
not applicable when the suspect makes a
spontaneous statement, not elicited through
questioning by the authorities, BUT GIVEN IN
AN ORDINARY MANNER WHEREBY THE
ACCUSED ORALLY ADMITTED HAVING
COMMITTED THE CRIME. This was the
decision of the Supreme Court in the case of
PEOPLE VS. ANDAN, March 3, 1997 when the
accused made a voluntary and verbal
confession to the Municipal Mayor that he
committed the crime imputed to him. As such,
his uncounselled confession is admissible in
evidence.
82. What are the two (2) kinds of
coerced or involuntary confessions under
Section 12, Art. III of the Constitution?
The two (2) kinds of involuntary or
coerced confessions under Art. III, Section 12
of the Constitution. These are:
a. confession which are the product
of third degree methods such as
torture, force, violence, threat,
intimidation; and
b. those which are given without the
benefit of Miranda Warnings.
PEOPLE VS. OBRERO, 332 SCRA
190
83. What is the status of coerced
confessions as evidence in court?
Coerced or involuntary confessions are
inadmissible as evidence being the ―fruit of the
poisoned tree.‖
84. Is the right to counsel satisfied if
the suspect was assisted by the Station
Commander of the Western Police District
while he was being investigated by the
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policemen of the same station? How about if
the investigation is being conducted by the
NBI and the suspect was ordered assisted by a
lawyer-applicant therein?
There is no compliance of the
constitutional requirement of competent and
independent counsel to assist an accused
during custodial investigation when the
accused was assisted by the Station
Commander of the WPD, Atty. De los Reyes,
while being investigated by other policemen of
the same police station because the interest of
the police is naturally adverse to the accused.
In fact, the SC in the case of PEOPLE VS.
JANUARIO, 267 SCRA 608 held that a lawyer
applying for a position in the NBI could not
validly assist an accused being investigated
then by the NBI. (PEOPLE VS. OBRERO, 332
SCRA 190)
85. Is the right to counsel available to
a suspect during a police line-up?
The Supreme Court had conflicting
decisions on this aspect but ended up with the
rule that since the accused will not be made to
make any testimony or statement during the
police line-up, then he is not under custodial
investigation and therefore, there is no need
for him to be assisted by a lawyer. ( P vs.
Usman Hassan, 157 SCRA 261; Gamboa vs.
Judge Cruz, 162 SCRA 642; DE LA TORRE VS.
CA, 294 SCRA 196 and PEOPLE VS. HATTON)
86. Is there a valid custodial
investigation if the lawyer who assisted him
during custodial investigation is a public
attorney who was not chosen by the accused
himself but given to him free of charge? Could
the Fiscal also represent the accused during
custodial investigation to satisfy the
requirement of the Constitution that the
accused is assisted by counsel?
The counsel must be the choice of the
accused or suspect. (P. vs. Alegria, September
28, 1990) Also, the Fiscal could not have
protected the rights of the suspect, even if they
are known to each other, since the Fiscal is
there for the private complainant. (P. vs.
Matos-Viduaya, September 11, 1990)
 Green Notes 2015
86-a. The appellants were arrested by
the PAOCTF for Kidnapping and Murder of
two (2) minor children of a businessman from
Bulacan. While under custodial investigation
by Col. Cesar Mancao, the lawyers given to
assist them tare the lawyers of PAOCTF. Was
the confessions obtained during the custodial
investigation admissible in evidence?
Yes. As held in the case of PEOPLE OF
THE PHILIPPINES VS. DOMINGO REYES, ET
AL., G.R. No. 178300, March 17, 2009, the
Supreme Court held that since the evidence
shows that the lawyers of PAOCTF assisted
them from the start up to the end of their
custodial investigation and that their rights
were protected, the same is admissible as
evidence especially so that there is no evidence
of compulsion.
86-b. What are the evidence of
voluntariness in the suspect‘s extrajudicial
confession making it admissible in evidence?
May such confession be used against a co-
accused? Up to what extent?
In People vs. Pia, 229 Phil. 577 and
PEOPLE VS. REYES, G.R. No. 178300, March
17, 2009, the Supreme Court enumerated the
following as evidence of voluntariness in the
extrajudicial confession of a suspect:
Their physical examination reports
certify that no external signs of physical injury
or any form of trauma were noted during their
examination In People v. Pia, we held that
the following factors indicate voluntariness of
an extra-judicial confession:
(1) where the accused failed to present
credible evidence of compulsion or duress or
violence on their persons;
(2) where they failed to complain to
the officers who administered the oaths;
(3) where they did not institute any
criminal or administrative action against their
alleged intimidators for maltreatment;
(4) where there appeared to be no
marks of violence on their bodies; and
(5) where they did not have
themselves examined by a reputable physician
to buttress their claim.
It should also be noted that the extra-
judicial confessions of appellants Arnaldo and
Flores are replete with details on the manner
in which the kidnapping was committed,
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thereby ruling out the possibility that these
were involuntarily made. Their extra-judicial
confessions clearly state how appellants and
their cohorts planned the kidnapping as well as
the sequence of events before, during and after
its occurrence. The voluntariness of a
confession may be inferred from its language
if, upon its face, the confession exhibits no
suspicious circumstances tending to cast doubt
upon its integrity, it being replete with details
which could only be supplied by the accused.
With respect to appellant Reyes‘s claim
that the extra-judicial confessions of appellants
Arnaldo and Flores cannot be used in evidence
against him, we have ruled that although an
extra-judicial confession is admissible only
against the confessant, jurisprudence makes it
admissible as corroborative evidence of other
facts that tend to establish the guilt of his co-
accused. In People v. Alvarez, we ruled that
where the confession is used as circumstantial
evidence to show the probability of
participation by the co-conspirator, that
confession is receivable as evidence against a
co-accused
86-c. If a lawyer applying for a
position in the NBI will be the one to assist
during the custodial investigation of a person
arrested by the NBI, is his confession
admissible in evidence?
No. There is violation of the
constitutional right to a competent and
independent counsel of his own choice.
(PEOPLE VS. JUANERIO, 267 SCRA 608)
86-d. Is the right to counsel during
custodial investigation carries with it the
obligation of preventing the suspect from
admitting the commission of a crime or
incriminating himself?
No. The presence of a lawyer during
custodial investigation is not intended to stop
an accused from saying anything which might
incriminate him; but rather, it was adopted in
our Constitution to preclude the slightest
coercion on the accused to admit something
else. THE COUNSEL SHOULD NEVER
PREVENT AN ACCUSED FROM FREELY AND
VOLUNTARILY TELLING THE TRUTH.
(PEOPLE VS. BASE, 385 Phil. 803 (2000) and
reiterated in People vs. Domingo Reyes.
 Green Notes 2015
87. If the extrajudicial admission or
confession of the accused is declared
inadmissible as evidence, must the accused be
acquitted as a matter of right?
If there is no other evidence aside from
the extrajudicial confession, yes, as held by the
Supreme Court in People vs. Galit, supra.
However, if there are other evidence to prove
his guilt beyond reasonable doubt, no. In
PEOPLE VS. ROLANDO FELIXMINIA y
CAMACHO, GR No. 125333, March 20,
2002, the Supreme Court held that though the
extrajudicial confession of the accused was
declared inadmissible for violation of his right
to counsel, if there are evidence sufficient to
prove his guilt beyond reasonable doubt, like
circumstantial evidence, then he can still be
convicted of the crime charged. This is so
because [1] the compromising circumstances
were duly proven which were consistent with
each other and which lead with moral
certainty to the conclusion that he was guilty
of the crime charged; and [2] the totality of
such circumstances eliminated beyond doubt
the possibility of his innocence. In People vs.
Mahinay, it was held that conviction may be
had on circumstantial evidence provided the
following requisites are present: [a] there is
more than one circumstance; [b] the facts from
which the inferences are derived are proven;
and [c] the combination of all circumstances is
such as to produce a conviction beyond
reasonable doubt.
88. May a convicted person be
released from jail through recognizance?
No. In ATTY. JULIANA
ADALIM-WHITE VS. JUDGE ARNULFO
BUGTAS, RTC 2 BORONGAN, SAMAR, 475
SCRA 175, it was held that respondent Judge is
guilty of gross ignorance of the law for
ordering the release of Bagaporo pending the
approval of his application for parole and
before the completion of the minimum period
of the sentence imposed upon him. It is
patently erroneous to release a convict on
recognizance. Section 24, Rule 114 provides
that there shall no bail for a convict after final
judgment. The only exception is when the
convict applies for Probation before he
commences to serve his sentence and that the
offense and the penalty for the offense is
within the purview of the Probation Law.
. be granted bail if:
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Sections 5 and 16 of Rule 114 of the
Rules of Court (on the different kinds of bail)
APPLIES ONLY TO AN ACCUSED
UNDERGOING PREVENTIVE
IMPRISONMENT DURING TRIAL OR ON
APPEAL. THEY DO NOT APPLY TO A
PERSON CONVICTED BY FINAL JUDGMENT
AND ALREADY SERVING SENTENCE.
89. May a judge require ―cash bond‖
only?
No. The Rules provide for four (4)
ways of posting bond (cash, property, surety
and recognizance) and it is grave abuse of
discretion on the part of the judge to require
cash bond only. (Almeda vs. Villaluz, 66 SCRA
38).
90. May an accused charged of a
capital offense and the evidence of guilt is
strong be granted bail?
Yes. It is a matter of discretion on the
part of the court. The purpose of the bond is
to assure the court of the presence of the
accused during the trial of his case. If the
probability of ―flight‖ is nil, then the accused
may be allowed to post bail. (BELTRAN VS.
THE SECRETARY OF JUSTICE, April, 2007)
91. May a person subject of extradition
from another country and where the cases
against him in said country are bailable, be
allowed to post bail pending the extradition
hearings?
No. As held in UNITED STATES VS.
JUDGE PURUGGANAN & MARK JIMENEZ,
389 SCRA 623 through former Chief justice
Panganiban, the Supreme Court held that a
person facing extradition proceedings is not
entitled to bail even if the crime he was
charged of in a foreign country is bailable. This
is so because the constitutional provision on
the right to bail under Art. III of the 1987
Constitution applies only to criminal cases, not
in extradition proceedings. (EDUARDO
RODRIGUEZ VS. THE PRESIDING JUDGE,
RTC 17, MANILA, 483 SCRA 290). This is so
because of the possibility of flight.
BUT IN THE CASE OF GOVERNMENT
OF HONGKONG VS. OLALIA, 521 SCRA 470,
it was held that the potential extraditee may
 Green Notes 2015
[1] he can prove by clear and
convincing evidence that he is not a flight risk;
and
[2] will abide with all the orders and
processes of the extradition court. ―Clear and
convincing evidence‖ is evidence with a
standard lower than proof beyond reasonable
doubt but more than preponderance of
evidence.
92. In extradition cases, is the
respondent therein entitled to notice and
hearing before the issuance of a warrant of
arrest against him?
No. In SECRETARY OF JUSTICE VS.
JUDGE LANTION, 322 SCRA 160 (The Mark
Jimenez Case), the Supreme Court on a 9-6
vote held that the extraditee is entitled to
notice and hearing when a request for
extradition by another country is still being
evaluated. However, on Motion for
Reconsideration in the same case, in a 9-6
decision, the Supreme Court held that the
prospective extraditee is not entitled to notice
and hearing while his case is still under
evaluation because this would defeat the
purpose of the arrest warrant since it could
give warning that respondents would be
arrested and even encourage them to flee but
entitled to notice and hearing if the case is
already filed in court. However, if bail was
granted to an extradite, the same may not be
cancelled without notice and hearing.
Otherwise, his right to due process will be
violated. (EDUARDO RODRIGUEZ VS. THE
PRESIDING JUDGE, RTC 17, MANILA, 483
SCRA 290)
93. What is the ―EQUIPOISE RULE‖?
If the evidence in a criminal case is
evenly balanced, the constitutional
presumption of innocence tilts the scale of
justice in favor of the accused and he should
be acquitted from the crime charged. Where
the inculpatory facts and circumstances are
capable of two or more interpretations one of
which is consistent with the innocence of the
accused and the other consistent with his guilt,
then the evidence does not fulfill the test of
moral certainty and is not sufficient to support
a conviction because of the accused‘s
constitutional presumption of innocence.
(PEOPLE VS. DE LOS SANTOS, 355 SCRA 415)
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94. May the court reverse the order of
trial in a criminal case?
No. such would violate the right of the
accused to presumption of innocence. To be
required to present his evidence first would be
making him prove his innocence and not the
State proving his guilt. (Alejandro vs. Pepito,
96 SCRA 322) However, if the accused does
not object to such a procedure, then a reverse
order of trial is allowed by the Rules. (Sacay
vs. Sandiganbayan, July 10, l986) In fact it
should be noted that under the newly adopted
1985 Rules of Criminal Procedure (Sec. 3e),
Rule 119) the said procedure is now expressly
sanctioned. Thus:
"However, when the accused admits the
act or omission charged in the complaint or
information but interposes a lawful defense,
the order of trial may be modified
accordingly."
95. What is the extent of the
obligation of a counsel de oficio for an accused
in a criminal case?
While an accused may be given a
counsel de oficio which is not a lawyer of his
own choice because he could not afford the
services of a de parte lawyer, only the faithful
performance by counsel of his duty towards
his client can give meaning and substance to
the accused‘s right to due process and to be
presumed innocent until proven otherwise.
Hence, a lawyer‘s duty, especially that of a
defense counsel, must not be taken lightly. It
must be performed with all the zeal and vigor
at his command to protect and safeguard the
accused‘s fundamental rights. The cavalier
attitude of Atty. Manolo Brotonel of the PAO
cannot go unnoticed. It is discernible in [a] his
refusal to cross-examine Oleby Nadera (the
complainant for RAPE); [b] the manner in
which he conducted Maricris Nadera‘s cross-
examination; and [c] his failure not only to
present evidence for the accused but to inform
the accused of his right to do so, if he desires.
(PEOPLE VS. NADERA, JR., 324 SCRA 490)
96. If the accused has the right to be
present during the trial of his case, can he also
refuse to appear during the hearings of his
case?
No. During arraignment, promulgation
of the decision and when he is to be identified
 Green Notes 2015
by the witnesses for the prosecution, he must
be present. However, he can validly waive his
presence after arraignment when he state in
open court or in an affidavit that whenever a
witness mentions his name during the
presentation of the prosecution‘s evidence, he
admits that he is the one being referred to.
(Aquino vs. Military Commission, 63 SCRA
546; P vs. Judge, 125 SCRA 269)
96-a. May a Judge direct the witnesses
for the prosecution to appear before him and
examined them anew regarding their
testimonies in a Homicide case, without notice
to the prosecution and the counsel for the
accused, and after the latter had already filed a
Demurrer to Evidence with leave of court by
the previous judge?
No. The judge committed gross
ignorance of the law. It is also violative of the
right to impartial trial on the part of the
accused. (GACAYAN VS. JUDGE
PAMINTUAN, September 17, 1999)
97. When may ―speedy trial‖ be raised
by the accused to cause the dismissal of his
case? What kind of delays must occur before
the same could be invoked?
In JAIME BERNAT VS.
SANDIGANBAYAN, May 20, 2004, it was
held that the right to speedy trial is violated
only if the proceedings were attended by
vexatious, capricious and oppressive delays.
The determination of whether the delays are
of said nature is relative and cannot be based
on mere mathematical reckoning of time.
Particular regard to the facts and circumstances
of the case. As held in the case of DE LA PENA
VS. SANDIGANBAYAN, certain factors shall be
considered and balanced to determine if there
is delay, as follows:
Length of the delay;
Reasons for the delay;
Assertion or failure to assert such right by the
accused; and
Prejudiced caused by the delay.
There is no violation of the right to
speedy disposition of his case because
petitioner failed to assert his constitutional
right to a speedy disposition of his case. During
the 8-year period prior to April 19, 2002,
petitioner did not complain about the long
delay in deciding his case.
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98. May the right to speedy
disposition of cases be invoked for the
dismissal of cases pending before quasi-judicial
bodies like the Office of the Ombudsman?
Yes, unreasonable delays like failure to
decide a complaint against the respondent for
more than three (3) years from the time all the
pleadings were filed violates the respondent‘s
right to a speedy disposition of his case and
the case must be dismissed. (DUTERTE VS.
SANDIGANBAYAN, 289 SCRA 721;
ANGCHANGCO VS. OMBUDSMAN, 269
SCRA 301)
The determination of whether an
accused had been denied the right to speedy
trial depends on the surrounding circumstances
of each case, not a mathematical computation
of the years, months and days. Although it
took about 8 years before the trial of this case
was resumed, such delay did not amount to
violation of petitioner‘s right to speedy trial
considering that such delay was not
attributable to the prosecution.
The factors to consider in determining
whether or not such right has been violated:
1. length of delay,
2. reasons for such delay, and
3. assertion or failure to assert such rights by
the accused and the prejudice caused by the
delay.
(ii) Speedy Trial Act of 1998. The
authority of the Secretary of Justice to review
resolutions of his subordinates even after an
information has already been filed in court
does not present an irreconcilable conflict with
the 30-day period prescribed in Sec. 7 of the
Speedy Trial Act of 1998. (SUMBANG VS.
GEN. COURT MARTIAL, G.R. NO. 140188,
337 SCRA 227, AUG. 3, 2000; BLANCO VS.
SANDIGANBAYAN, G.R. NOS. 136757 – 58,
346 SCRA 108, NOV. 27, 2000; SOLAR TEAM
ENTERTAINMENT, INC. HON. HOW, G.R.
NO. 140863, 338 SCRA 51, AUG. 22, 2000).
99. Was the failure of the court to
have a ―sign language expert‖ to inform the
accused who is a deaf-mute of the contents of
the criminal information fatal to the validity of
the proceedings which resulted in the
conviction of the said accused?
 Green Notes 2015
Yes because the accused was denied of
the right to be informed of the nature and
cause of the accusation against him. As such,
the entire proceedings is null and void and
another trial be conducted in the presence of a
sign language expert to inform the accused of
the proceedings. (Sales vs. CA, 164 SCRA 717;
P vs. Crisologo, 150 SCRA 653)
100. In an Information for ―RAPE‖, is
there violation of the right to be informed of
the nature and cause of accusation against the
accused if the alleged rape took place
―sometime from January 1990 up to December
6, 1998‖ or a period of almost nine (9) years,
without specifying the exact date when the
alleged rape took place?
None. The accused should have filed a
Motion for a Bill of Particular or a Motion to
Quash. When he failed to do any of the two
(2), he is deemed to have waived the defect in
the information. Clearly, he slumbered on his
rights and awakened too late. Finally, the date
is not an element in rape cases. (PEOPLE VS.
JERRY NAZARENO, April 8, 2008)
100-a. May an accused in a
―Homicide‖ case be convicted of ―Murder‖
without violating his right to be informed of
the nature and cause of accusation against
him?
Yes. Even if the Information was
captioned ―For: Homicide‖ only but the body
of the Information alleges ―treachery‖ or
―evident premeditation‖ and the same was
read to the accused, he could be convicted of
Murder. This is so because it is the body of the
Information that is binding, not the caption
thereof and therefore, the accused was duly
informed of the nature and cause of accusation
against him. (P vs. Resavaga, 159 SCRA 426)
100-b. May an accused for alleged
―sale‖ of marijuana be convicted of
―possession‖ of marijuana without violating his
right to informed of the nature and cause of
accusation against him?
No. While no conviction for the
unlawful sale of prohibited drugs may be had
under the present circumstances, the
established principle is that possession of
marijuana is absorbed in the sale thereof,
except where the seller is further apprehended
in possession of another quantity of the
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prohibited drugs not covered by or included in
the sale and which are probably intended for
some future dealings or use by the seller.
(PEOPLE OF THE PHILIPPINES vs. CHAD
MANANANSALA, G.R. No. 175939, April 3,
2013) The rule is that when there is a variance
between the offense charged in the complaint
or information, and that proved or established
by the evidence, and the offense as charged
necessarily includes the offense proved, the
accused shall be convicted of the offense
proved included in that which is charged.
According to Section 5, Rule 120, Rules of
Court (1985), the rule then applicable, an
offense charged necessarily includes that which
is proved, when some of the essential elements
or ingredients of the former, as this is alleged
in the complaint or information, constitute the
latter.
101. What is the effect of the testimony
of a witness who did not return to court for
his cross examination? How about if there is
only partial cross-examination?
A witness who did not return to court
for his cross-examination would render his
entire testimony inadmissible for being
hearsay. It likewise violated the right of
confrontation on the part of the accused.
(Ortigas, JR. vs. Lufthansa, 64 SCRA 610; DELA
CRUZ VS. PAPA, December 8, 2010) If the
witness was partially examined, only the
portion of his direct testimony where he was
cross-examined shall be admissible as
evidence.( P vs. Seneris, 99 SCRA 92).
102. What are the requisites of a valid
trial in absentia? May an accused who jumped
bail after arraignment be validly convicted by
the trial court?
The requisites of a valid trial in
absentia are the following:
The accused was duly arraigned;
The accused was notified of the
hearing; and
The accused‘s absence [during the trial]
is unjustifiable.
103. May an accused compel the trial
court to issue subpoena to a Physician who is
already working in the United States to testify
on his treatment of the accused? Would the
failure of said witness to appear and testify for
 Green Notes 2015
the accused violates his right to subpoena
witnesses and the production of evidence in
his favor?
No. Such witness is beyond the
jurisdiction of the Philippine Courts. Further,
his right to subpoena witnesses and the
production of evidence will not be violated
since the hospital could produce said records
and another physician could testify on the
contents thereof. (Cavili vs. Hon. Florendo,
154 SCRA 610; Fajardo vs. Garcia, 98 SCRA
514)
104. May the accused be presented by
the prosecution as the latter‘s witness?
No. Such would violate the right of the
accused against self-incrimination and if such
happened, the proceedings shall be null and
void. (Chavez vs. CA, 24 SCRA 663)
105. Generally, to what kind of
evidence does the right against self-
incrimination applies?
Generally, it applies only to
―testimonial compulsion.‖ As such, forcing a
person to give a sample of his urine to
determine whether a woman is pregnant
(Villaflor vs. Summers, 41 Phil. 62); whether a
person is suffering from sexually transmitted
disease (US vs. Tang Teng, 23 Phil. 145) or
under the influence of prohibited drugs
(PEOPLE VS. BANIHIT, G.R. NO. 132045, 339
SCRA 86, AUG. 25, 2000; PEOPLE VS.
CONTINENTE, G.R. NOS. 100801- 02, 339
SCRA 1, AUG. 25, 2000) does not violate the
person‘s right against self-incrimination.
Likewise forcing one to try a pair of shoes,
pants or shirt does not fall under the above
proscription.
106. How about forcing a person to
give a sample of his handwriting?
Though the same does not require
testimonial compulsion, the right against self-
incrimination will be violated by said act. This
is so because it involves the use of the
intelligence of the person. (Beltran vs. Samson,
50 Phil. 570)
107. Does the right against self-
incrimination applicable to civil and
administrative cases also?
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Yes but unlike in criminal cases where
the accused could not be presented by the
prosecution and his right not to take the
witness stand is absolute, an adverse party in a
civil or administrative cases may be presented
by the other party but could refuse to answer
only if the question propounded calls for an
incriminatory answer.
108. May a court stenographer who
had resigned from the government be
compelled to transcribe her notes under pain
of contempt without violating her right against
involuntary servitude?
Yes. This is so because the testimony
was taken while she was still in the
government and as such, it was her obligation
to transcribe the same, having received her
salary for the day when the testimony was
taken. (Aclaracion vs. Gatmaitan, 64 SCRA
131)
109. Is the Death Penalty already
abolished by the 1987 Constitution?
While the Supreme Court answered
the same in the affirmative in the cases of P
vs. Gavarra, 155 SCRa 327; P vs. Masangkay,
155 SCRA 113; P vs. Atencio, 156 SCRA 242; P
vs. Intino, September 26, 1988 it held in
People vs. Munoz, 170 SCRA 107, that it was
merely suspended.
110. Is death as a penalty a cruel or
unuasual punishment?
No. (P vs. Estoista, 93 Phil. 647). It is
only when the punishment is shocking to the
conscience of the community and
disproportionate to the offense charged that
the penalty becomes cruel and unusual. In fact,
the Supreme Court held in ECHEGARAY VS.
SECRETARY OF JUSTICE that death through
Lethal Injection is the most humane way of
implementing the death penalty.
111. What are the requisites before an
accused may validly invoke double jeopardy?
There is double jeopardy when there
is:
[1] valid complaint of information;
[2] filed in a court of competent
jurisdiction;
 Green Notes 2015
[3] the accused was validly arraigned;
and
[4] the accused was convicted or
acquitted, or the case was dismissed or
otherwise terminated without the
express consent of the accused.
(PEOPLE VS. ALMARIO, 355 SCRA 1)
112. If the dismissal was with the
express consent of the accused, may the
dismissal result in double jeopardy?
Yes in two (2) instances.
As a general rule, if the dismissal is
through the instance of the accused or with his
express consent, there is no double jeopardy.
However, this rule admits of two (2)
exceptions:
7. the motion to dismiss is based
on insufficiency of evidence or
Demurrer to Evidence; and
8. the motion to dismiss is based
on the denial of the accused‘s
right to speedy trial. (PEOPLE
VS. ALMARIO, 355 SCRA 1)
-double jeopardy has set in. In these
two (2) instances, the correct description of
what happened is that the accused was
―acquitted‖ and not ―the case was dismissed
with his consent‖.
It must be pointed out, however, that
in PEOPLE VS. TAMPAL, 244 SCRA 202 and
PEOPLE VS. LEVISTE, 255 SCRA 238, the SC
reversed the dismissal of the criminal case by
the trial court based on ―speedy trial‖ since the
same was not predicated ―on the clear right of
the accused to speedy trial.‖ It is only when
there is a clear violation of the accused‘s right
to speedy trial that the dismissal results in
double jeopardy.
112-a. The accused was arrested with
an unlicensed firearm in Mabalacat,
Pampanga. He was charged for violation of
PD 1866 with the RTC of Pampanga in an
Information signed by the City Prosecutor of
Angeles City. At the middle of the trial, the
Judge dismissed the case without the consent
of the accused. When another information for
the same offense was filed by the Provincial
prosecutor of Pampanga, the accused moved
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for the dismissal of the 2nd case based on
double jeopardy. Decide.
Double jeopardy has not set in because
the first requisite of valid complaint or
information is not present. The City Prosecutor
of Angeles City has no jurisdiction to file
information for an offense that took place in
Mabalacat, Pampanga. (CUDIA VS. CA, 284
SCRA 173)
113. The accused was charged of theft
of electricity based on the City Ordinance of
Batangas City. After arraignment, the case was
dismissed because it was found out that the
same has prescribed because it was filed after
more than 60 days. The Fiscal filed another
information based on the Revised Penal Code.
Has double jeopardy set in?
Yes. If the accused was charged of
―theft of electricity‖ based on the City
Ordinance of Batangas and not based on the
Revised Penal Code and later on the case is
dismissed by the judge due to the fact that the
crime has prescribed, the government can no
longer charge the accused of the same crime
under the Revised Penal Code since double
jeopardy has set in. If an act is punished by law
and an ordinance, acquittal or conviction in
one shall bar prosecution from the other.
(PEOPLE VS. RELOVA, 148 SCRA 292)
114. The accused was charged of grave
coercion before the MTC and was duly
arraigned. The Judge dismissed it without any
motion form the accused because the case is
allegedly outside the MTC‘s jurisdiction.
Another information for the same offense was
filed with the RTC which was likewise
dismissed because of lack of jurisdiction. As
such, the Fiscal filed a 3rd information for
grave coercion before the MTC. The accused
pleaded double jeopardy. Is he correct?
Yes. Since the accused was already
arraigned in the 1st information before the
MTC which has jurisdiction over the same and
the case was subsequently dismissed without
his express consent, then double jeopardy has
set in.
115. The accused was arraigned of
homicide and entered a plea of guilty but
prayed that he be given the chance to prove
incomplete self-defense which the court
granted. After presenting his evidence to prove
 Green Notes 2015
―incomplete self-defense‖, the court acquitted
him because what was allegedly proven by
him was complete self-defense. May the
accused validly invoke double jeopardy if the
Prosecutor moves for the reinstatement of the
case for him to present the evidence of the
prosecution?
No because one of the requisites of
double jeopardy is missing. There was no valid
arraignment. This is so because his plea was
one of guilty and yet, he was acquitted. In this
case, he has to be re-arraigned for him to enter
a plea of ―not guilty‖ in order that he could be
validly acquitted.(PEOPLE VS. BALISACAN, 17
SCRA 1119)
116. The accused was convicted of
frustrated murder. Within 15 days from
promulgation, he filed a Motion for New Trial
based on a ―newly-discovered evidence‖
which was granted by the court. After the
presentation of the alleged ―newly-discovered
evidence‖, the accused was acquitted. May the
prosecution appeal the acquittal since the
evidence presented was not really a newly-
discovered evidence but a forgotten one and
that even assuming that the same is a newly-
discovered evidence, it was insufficient to
overturn the evidence of guilt as proven by
the prosecution.
In the case of P vs. Judge Hernando,
108 SCRA 121, the Supreme Court held that
indeed, the evidence presented was not
―newly-discovered evidence‖ and that
assuming it to be so, it was not sufficient to
overturn the evidence of guilt as shown by the
prosecution‘s evidence. However, though the
decision was erroneous, double jeopardy has
set in and the government could no longer
appeal the decision. So even if the court
obviously erred in the appreciation of the
evidence resulting in a decision of acquittal
instead of conviction, appeal would put the
accused in double jeopardy. (Mazo vs. Mun.
Court, 113 SCRA 217)
117. May the government appeal a
judgment of acquittal or for the increase of
the penalty imposed?
As a general rule, No since double
jeopardy has set in. (PEOPLE VS. HON.
VELASCO, G.R. NO. 127444, 340 SCRA 207,
SEPT. 13, 2000). As mandated by the
Constitution, statutes and cognate
jurisprudence, an acquittal is final and
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unappealable on the ground of double
jeopardy, whether it happens at the trial court
of a judgment of acquittal brought before the
Supreme Court on certiorari cannot be had
unless there is a finding of mistrial, as in
Galman vs. Sandiganbayan.
However, if the accused was the one
who appealed the decision of the CFI
convicting him of homicide (though he was
charged of murder), the appellate court may
convict him of murder if the evidence warrants
and that the lower court mis-appreciated the
evidence. This is so because if the accused
appeals the decision, the same will be subject
to a complete re-examination of the evidence
on record. (PEOPLE VS. DOMINGO, March 2,
2009)
Please take note, however, that in the
case of [1] ARTEMIO VILLAREAL VS. PEOPLE
OF THE PHILIPPINES, G.R. No. 151258,
February 1, 2012 ; [2] PEOPLE OF THE
PHILIPPINES VS. THE HOMORABLE COURT
OF APPEALS, et al., G.R. No. 154954,
February 1, 2012; [3] PEOPLE OF THE
PHILIPPINES VS. SANDIGANBAYAN, IMELDA
MARCOS, JOSE CONRADO BENITEZ and
GILBERT DULAY, G.R. No. 153304-05,
February 7, 2012; and [4] YSIDORO VS.
HON. TERESITA CASTRO, February 6, 2012,
the Supreme Court held that a PETITION FOR
CERTIORARI UNDER RULE 65 IS ALLOWED
IF THERE IS GRAV E ABUSE OF DISCRETION
ON THE PART OF THE LOWER COURT IN
DISMISSING THE CRIMINAL CASE OR IN
IMPOSING A LOWER PENALTY.
118-a. May the government , by way
of Petition for Certiorari under Rule 65,
question the Decision of Acquittal by the trial
court, or for the increase of the penalty
imposed by the trial court?
Yes. In cases of: [1] in a judgment of
acquittal rendered with grave abuse of
discretion amounting to lack or in excess of
jurisdiction [PEOPLE VS. SANDIGANBAYAN,
491 SCRA 185, June 16, 2000]; and [2] where
the prosecution had been deprived of due
process due to misfeasance of the prosecutor.
[MERCIALES VS. COURT OF APPEALS, 379
SCRA 345; PEOPLE VS. VELASCO, 340 SCRA
207, September 13, 2000], cited PEOPLE VS.
SANDIGANBAYAN & IMELDA MARCOS, ET
AL., February 7, 2012; VILLAREAL VS. PEOPLE,
 Green Notes 2015
February 1, 2012; YSIDORO VS. HON.
TERESITA CASTRO, February 6, 2012.
Likewise if the penalty was wrong like
imposing slight physical injuries to some
accused and Homicide for the others when all
of them participated in inflicting injuries
resulting into the death of Lenny during his
initiation rites, the defense of double jeopardy
is unavailing and the Supreme Court increased
the penalties for those earlier sentenced to
slight physical injuries only. (VILLAREAL VS.
PEOPLE, February 1, 2012)
118-b. Jason Ivler was charged of: [1]
Reckless imprudence resulting to slight physical
injuries; and [2] Reckless imprudence resulting
to Homicide and Damage to Property as a
result of his single negligent act of bumping the
vehicle of the victims. He entered a plea of
guilty in the first case and was sentenced to
CENSURE. When he was about to be
arraigned in the second case, he invoked
double jeopardy and prayed for the dismissal
of the said 2nd case. Decide.
Yes, double jeopardy has set in. He
could not be tried again for the 2nd case. A
single negligent act could not be the subject of
two (2) criminal informations. [IVLER VS.
JUDGE PEDRO, G.R. No. 172716, November
17, 2010] (NOTE: Very important in your
Criminal Law. Article 48 of the Revised Penal
Code allows complexing a crime if it involves
grave and less grave felonies but the Ivler case
does not involve grave or less grave felonies.
The Supreme Court held that Art. 48 does not
apply to negligence cases and should be
complexed regardless of the kind of felonies
involved)
118-c. May the private complainant
validly file a Motion for Reconsideration of a
Decision of the Supreme Court ACQUITTING
Hubert Webb and company of Rape with
Homicide and Murder without violating the
rule on double jeopardy?
No. The acquittal of Hubert Webb and
his co-accused by the Supreme Court in the
Vizconde Rape/Murder cases is final. Double
jeopardy has set in. (LEJANO VS. PEOPLE &
PEOPLE VS. HUBERT WEB ET AL., January 18,
2011)
118-d. Sharon Cuneta filed two (2)
cases of Libel against the editors and columnist
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of the tabloid Bandera. After the prosecution
rested its case, the accused filed a Demurrer to
Evidence which the trial court granted. Sharon
questioned the dismissal before the Court of
Appeals on Certiorari under Rule 65 which
was granted by the latter and ordered the trial
court shall proceed to receive the evidence of
the accused. The editors went to the Supreme
Court alleging that their right against double
jeopardy was violated.
Yes, the right of said accused against
double jeopardy will be violated by
remanding the case for the reception of
evidence for the said accused. Dismissal of a
criminal case based on demurrer to evidence
amounts to acquittal and as such, double
jeopardy has set in.
Finally, the Court of Appeals should
not have entertained Sharon‘s petition because
only the Solicitor General could file such a
petition questioning the decision of the lower
court in criminal cases before the CA or SC,
not the private complainant. (BAUTISTA VS.
Sharon Cuneta-Pangilinan, October 24, 2012)
118-e. What is the "Supervening Fact
Doctrine."
It simply provides that an accused‘s
conviction shall not be a bar to another
prosecution for an offense which necessarily
includes the offense charged in the former
complaint or information when the graver
offense developed due to supervening facts
arising from the same act or omission
constituting the former charge or that the facts
constituting the graver charge became known
only or were discovered after a plea was
entered in the former complaint or
information. (Section 7, Rule 117, 2000 Rules
of Criminal Procedure; P vs. Tarok, 73 Phil.
260; P vs. Villasis, 46 O.G. 268; Melo vs.
People, 85 Phil. 766; P vs. Buling, 107 Phil.
712; P vs. Adil, 76 SCRA 462; P. vs. Tac-an,
182 SCRA 601; and P vs. City Court of
Manila, 121 SCRA 637
118-f. If the same libelous article will be
published by the author in the internet and in
a daily newspaper, can he be charged
separately for Libel under the Revised Penal
Code and Libel under the Cybercrime
Prevention Act of 2012 since the acts are
covered by two (2) different laws?
 Green Notes 2015
Political Law
Prepared by: Atty. Lauro D. Gacayan

No, that would violate his right against e. every law which, in relation to the offense
double jeopardy. (DISINI VS. SECRETARY OF or its consequences, alters the situation of a
JUSTICE, GR No. 203335, February 18, 2014) person to his disadvantage;

118-g. May a person be criminally f. that which assumes to regulate civil rights
charged separately under the Cybercrime and remedies but in effect imposes a
Prevention Act of 2012 and Anti-Child penalty or deprivation of a right which
Pornography Act since they are punished by when done was lawful;
different laws?
g. deprives a person accused of a crime of
No, that would violate his right against some lawful protection to which he has
double jeopardy. (DISINI VS. SECRETARY OF become entitled, such as the protection of
JUSTICE, GR No. 203335, February 18, 2014) a former conviction or acquittal, or a
proclamation of amnesty (KAY VILLEGAS
119. When may the ―ex-post facto KAMI, 35 SCRA 429; MEJIA VS.
law‖ rule be invoked? PAMARAN, 160 SCRA 457; TAN VS.
BARRIOS, 190 SCRA 686; PEOPLE VS.
Only if the law sought to be applied is SANDIGANBAYAN, 211 SCRA 241).
a ―[1] criminal law or penal in nature; [2] it is
applied retroactively; and that [3] it is
prejudicial to the accused‖. Otherwise, the
same may not be invoked as when the -- God Bless --
questioned law involves the jurisdiction of the
Sandiganbayan which is not a penal law. Ex
post facto law prohibits the retrospectivity of
penal laws. RA 8249 is not a penal law. It is a
substantive law on jurisdiction which is not
penal in character. (PANFILO M. LACSON VS.
THE EXECUTIVE SECRETARY, THE
SANDIGANBAYAN, ET AL., ROMEO ACOP &
FRANCISCO ZUBIA, JR., G.R. No. 128096,
January 20, 1999)

120. What are the different forms of

ex-post facto law?

In order that a law is an ex post facto

law, the same must be one—

a. which makes an act done criminal before

the passing of the law and which was
innocent when committed, and punishes
such action;

b. which aggravates a crime or makes it

greater than when it was committed;

c. which changes the punishment and inflicts

a greater punishment than the law
annexed to the crime when it was
committed;

d. which alters the legal rules of evidence and

receives less or different testimony than the
law required a the time of the commission
of the offense in order to convict the
defendant;

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