2018 Last Minute Tips in Political Law

2018 LAST MINUTE TIPS IN POLITICAL LAW
By: Enrique V. dela Cruz, Jr.
PHILIPPINE CONSTITUTION
Q: Can the plebiscite for the proposed amendments to the 1987

Constitution be held simultaneous with the 2019 elections?
ANSWER: NO.
There is not enough time to sufficiently inform the general public of the proposed
amendments. This will violate the doctrine of fair and proper submission to the
people of proposed constitutional amendments.
In the case of Tolentino vs. Comelec (41 SCRA 702, 729) the Supreme Court held
that "in order that a plebiscite for the ratification of an amendment to the
Constitution may be validly held, it must provide the voter not only sufficient time,
but ample basis for an intelligent appraisal of the nature of the amendment per se as
well as its relation to the other parts of the Constitution with which it has to form a
harmonious whole."
There must be fair submission and intelligent consent or rejection. The people
must be "sufficiently informed of the amendments to be voted upon, to
conscientiously deliberate thereon, to express their will in a genuine
manner."
Q. Congress passed a law changing the design of the Philippine flag and
the lyrics of the Philippine National Anthem. Is the law constitutional.
ANSWER: NO. The law is unconstitutional. Since the design of the flag is
provided for in Section 1, Article XVI of the Constitution, it cannot be changed by
law and may be changed only by constitutional amendment.
Congress may by law adopt a new national anthem, but it shall take effect only upon
ratification by the people in a national referendum (Section 2, Article XVI of the
Constitution).
Q. Congress enacted a law postponing the local and national elections

from May 14, 2019 to May 2020. Is this law constitutional? Explain.
ANSWER: NO. The term of office of local and national officials like Senators and
members of congress is fixed by the 1987 Constitution, as follows:
2018 Last Minute Tips in Political Law by Atty. Enrique V. dela Cruz, Jr. 1|
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(i) Senators, with a term of six years beginning at noon on the thirtieth day of June
next following the day of the election, unless otherwise provided by law, eligible for
two consecutive reelections (Art. VI, Section 4);
(ii) Members of the House of Representatives, with a term of three years beginning
at noon on the thirtieth day of June next following the day of the election, unless
otherwise provided by law, eligible for two consecutive reelections (Art. VI, Section
7); and
(iii) Local officials, except barangay officials, with a term of three years, for a
maximum of three consecutive terms (Art. X, Section 8).
Congress cannot pass a law that will amend the Constitution. If a public office is
created by the Constitution with a fixed term, or if the term of a public office
created by Congress is fixed by the Constitution, Congress is devoid of any power to
change the term of that office. Thus, statutes which extend the term of an elective
office as fixed in the Constitution — either by postponing elections, changing the
date of commencement of term of the successor, or authorizing the incumbent to
remain in office until his successor is elected and qualified — are unconstitutional.
[Kida v. Senate, October 18, 2011]
BILL OF RIGHTS
Q. The PNP launched a campaign against loitering in public streets. They

arrested individuals who are found loitering or are outside their houses in
certain hours of the day. Included were those who are drinking liquor, not
wearing shorts, or are the usual suspects in petty crimes. This was
challenged on the ground that vagrancy has already been decriminalized.
The PNP justified the warrantless arrests on the ground that they are simply
enforcing local ordinances. Is the PNP correct?
Answer: NO. Under the Rules of Court, a warrant of arrest need not be issued if the
information or charge was filed for a violation of an ordinance or an offense
penalized by a fine only. It may be stated as a corollary that neither can a
warrantless arrest be made for such an offense because no warrant of arrest can even
be issued. [Luz v. People, February 29, 2012]
Q. The PNP suspected that Villamor and Bonaobra are engaged in Lotteng
(Jueteng with STL as a front). They decided to conduct a surveillance
operation at the house of Villamor. The house was surrounded with a
bamboo fence 5’9 feet high with two inches in between. From these spaces, at
a distance of 15 to 20 meters, they were able to see Villamor and Bonaobra
holding papelitos and calculators with monies scattered on the table. So they
decided to raid the operations without a warrant and they arrested the two
individuals. They were also able to confiscate monies and gambling
paraphernalias.
1. Was the warrantless search and arrest valid?
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2. Are the gambling paraphernalias admissible as evidence?
Answer: NO. From the circumstances above, it is highly suspect that the police
witnessed any overt act indicating that the petitioners were actually committing a
crime. It appears that the police officers acted based solely on the information
received from an informant and not on personal knowledge that a crime had just
been committed, was actually being committed, or was about to be committed in
their presence. It is doubtful that the police officers witnessed any overt act before
entering the private home of Bonaobra immediately preceding the arrest. From their
position outside the compound, the police could not read the contents of the so-
called "papelitos;" yet, upon seeing the calculator, phone, papers and money on the
table, they readily concluded the same to be gambling paraphernalias. This is an
unreasonable search and arrest. The evidence obtained is inadmissible. [MARTIN
VILLAMOR v. PEOPLE, G.R. No. 200396, March 22, 2017]
Q. The PNP launched an operation against drug peddling where suspected

drug dealers are visited by police operatives in their places of residence
without a warrant and they are invited to voluntarily go with them to the
nearest police station for an interrogation and registration procedure. They
were made to sign an affidavit stating they are voluntarily admitting
themselves into a government rehabilitation program and that they promise
not to engage in drug dealing again. If they sign it, they are detained in a
rehab center for three (3) months. If they refuse, they are detained without
bail and charged in Court for drug dealing. Is this legal?
A: NO. The warrantless arrests are unconstitutional. At the time the

suspected drug dealers were apprehended, they were not doing nor had just done
any criminal act. Neither were they caught in flagrante delicto or had escaped from
confinement.
The fact that the suspected drug dealers were merely invited to the police precinct is
of no moment. Such invitation is actually in the nature of an arrest under RA 7438 as
it is designed for the purpose of conducting an interrogation. The so-called police
“invitation” is covered by the proscription on warrantless arrest because it is
intended for no other reason than to conduct an investigation.
Thus, pursuant to Section 3, Article III of the 1987 Constitution, "any evidence"
obtained in violation of their right under Section 2, Article III (pertaining to invalid
warrantless arrests) "shall be inadmissible for any purpose in any proceeding."
[People v. Olivarez, December 4, 1998]
Q. What is meant by the terms “extra-legal killings” and “enforced

disappearances”?
A: Extralegal killings are killings committed without due process of law, i.e.,
without legal safeguards or judicial proceedings. On the other hand, enforced
disappearance has been defined by the Court as the arrest, detention, abduction or
any other form of deprivation of liberty by agents of the State or by persons or
groups of persons acting with the authorization, support or acquiescence of the
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State, followed by a refusal to acknowledge the deprivation of liberty or by
concealment of the fate or whereabouts of the disappeared person, which place such
a person outside the protection of the law. [Mamba v. Bueno, G.R. No. 191416, 7
February 2017].
Q: What are the elements constituting “enforced disappearances”?
A: The elements constituting "enforced disappearances" as defined in Section 3(g) of

R.A. No. 9851, are to wit:
(a) that there be an arrest, detention, abduction or any form of deprivation of

liberty;
(b) that it be carried out by, or with the authorization, support or acquiescence
of, the State or a political organization;
(c) that it be followed by the State or political organization's refusal to
acknowledge or give information on the fate or whereabouts of the person subject of
the amparo petition; and
(d) that the intention for such refusal is to remove the subject person from the
protection of the law for a prolonged period of time. [Navia v. Pardico, 688 Phil.
266, 279 (2012)]
Q: Can a detained person apply for bail even before charges against him
are filed in court?
Answer: Yes. The rule is that a person deprived of his liberty by virtue of his
arrest or voluntary surrender may apply for bail as soon as he is deprived of his
liberty, even before a complaint or information is filed against him. (Serapio v.
Sandiganbayan, G.R. No. 148468, January 28, 2003)
The right to bail is available from the very moment of arrest (which may be before
or after the filing of formal charges in court) up to the time of conviction by final
judgment (which means after appeal). No charge need be filed formally before one
can file for bail, so long as one is under arrest or detention. (Heras Teehankee v.
Rovira, G.R. No. L-101, Dec. 20, 1945)
Q. The DOJ issued Department Circular No. 41 which empowers the DOJ
Secretary to issue Hold Departure Orders (HDO), Watch List Orders, Allow
Departure Order and Look Out Bulletins, even without court orders. This was
used by then DOJ Secretary De Lima to prevent former President GMA from
leaving the country. Is this Department Circular constitutional?
A: NO. There was no legal basis for the DOJ to issue Department Circular No.
41 because there was no law authorizing the DOJ Secretary to issue such HDO’s or
watch list orders or look out bulletins. The right to travel cannot be impaired except
in the interest of national security, public safety, or public health, as may be
provided by law. (Arroyo v. De Lima, 18 April 2018).
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Q. Two (2) students of STC in Cebu City posted pictures of themselves on
their Facebook page wearing only their inner garments. Their classmates
showed the Facebook page to their teacher and the two (2) erring students
were administratively sanctioned. The subject students questioned the
penalty imposed upon them on the ground that the retrieval of the photos
from their Facebook page was a violation of their right to privacy. Are the
students correct? Is there a right to privacy on Facebook and other online
social network (OSN)? Explain.
ANSWER: NO. Before one can have an expectation of privacy in his or her OSN
activity, it is first necessary that said user manifest the intention to keep certain
posts private, through the employment of measures to prevent access thereto or to
limit its visibility. And this intention can materialize in cyberspace through the
utilization of the OSN's privacy tools. In other words, utilization of these privacy
tools is the manifestation, in cyber world, of the user's invocation of his or her right
to informational privacy.
Considering that the default setting for Facebook posts is "Public," it can be
surmised that the photographs in question were viewable to everyone on Facebook,
absent any proof that petitioners' children positively limited the disclosure of the
photograph.
A person who places a photograph on the Internet precisely intends to forsake and
renounce all privacy rights to such imagery, particularly under circumstances such
as here, where the Defendant did not employ protective measures or devices that
would have controlled access to the Web page or the photograph itself. That the
photos are viewable by "friends only" does not necessarily bolster the petitioners'
contention. In this regard, the cyber community is agreed that the digital images
under this setting still remain to be outside the confines of the zones of privacy
because facebook is a public site. (Read: Vivares v. St. Theresa’s College, G.R. No.
202666, September 29, 2014)
Q. Lee and Ilagan were common law partners. They had bitter arguments that
later turned into ugly scenes and violent quarrels. Ilagan, who was a big man
but very emotional and physically aggressive, would often hit and slap the
hapless female Lee. Thus, Lee filed a criminal case against Ilagan for
violation of RA 9262. Lee used as part of her evidence a sex video of Ilagan
with another woman, which she found in the memory card of their digital
camera. Lee reproduced the video for the purpose of using it as evidence in
other cases she intends to file against Ilagan. In turn, Ilagan applied for a
Writ of Habeas Data in the RTC to compel Lee to return the memory card and
enjoin her from reproducing and distributing the sex video. Should the writ be
issued?
ANSWER: No. Ilagan was not able to sufficiently allege that his right to privacy in
life, liberty or security was or would be violated through the supposed reproduction
and threatened dissemination of the subject sex video. While Ilagan purports a
privacy interest in the suppression of this video — which he fears would somehow
find its way to Quiapo or be uploaded in the internet for public consumption — he
failed to explain the connection between such interest and any violation of his right
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to life, liberty or security. Indeed, courts cannot speculate or contrive versions of
possible transgressions. As the rules and existing jurisprudence on the matter evoke,
alleging and eventually proving the nexus between one's privacy right to the cogent
rights to life, liberty or security are crucial in habeas data cases, so much so that a
failure on either account certainly renders a habeas data petition dismissible, as in
this case. [Lee v. Ilagan, 738 SCRA 59 (2014)]
Q. Six (6) department heads of the provincial government of Ilocos Norte

appeared before the House Blue Ribbon Committee as resource persons in the
investigation being conducted by the said committee with regard to the
alleged mis-use of the excise taxes collected from Tobacco companies in the
province.
These resource persons (Ilocos 6) were cited in contempt and ordered

detained because they refused to provide answers to the questions of the
lawmakers (since most of them said they could no longer remember the
facts). These resource persons (Ilocos 6) then applied for a Writ of Amparo to
protect them from alleged actual and threatened violations of their rights to
liberty and security of person. Should the Writ of Amparo be issued?
A: NO. The privilege of the writ of Amparo is a remedy available ONLY to

victims of extra-judicial killings and enforced disappearances or threats of a similar
nature, regardless of whether the perpetrator of the unlawful act or omission is a
public official or employee or a private individual.
The writ of Amparo is designed to protect and guarantee the (1) right to life; (2)
right to liberty; and (3) right to security of persons, free from fears and threats that
vitiate the quality of life. Petitioners thus failed to establish that their attendance at
and participation in the legislative inquiry as resource persons have seriously
violated their right to liberty and security, for which no other legal recourse or
remedy is available. Perforce, the petition for the issuance of a writ of Amparo must
be dismissed. [Agcaoli v. Hon. Rodolfo Farinas, GR No. 232395, July 3, 2017]
Q: When is a punishment considered cruel, unusual, and inhumane?
A: Settled is the rule that a punishment authorized by statute is not cruel,

degrading or disproportionate to the nature of the offense unless it is flagrantly and
plainly oppressive and wholly disproportionate to the nature of the offense as to
shock the moral sense of the community. It takes more than merely being harsh,
excessive, out of proportion or severe for a penalty to be obnoxious to the
Constitution. Based on this principle, the Court has consistently overruled
contentions of the defense that the penalty of fine or imprisonment authorized by
the statute involved is cruel and degrading. [Lim v. People, September 27, 2002]
Q: Is perpetual disqualification to hold any public office a cruel, unusual

and inhumane punishment?
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A: NO. The prohibition against cruel and unusual punishment is generally
aimed at the form or character of the punishment rather than its severity in respect
of its duration or amount, and applies to punishments which public sentiment
regards as cruel or obsolete. This refers, for instance, to those inflicted at the
whipping post or in the pillory, to burning at the stake, breaking on the wheel,
disemboweling and the like. The fact that the penalty is severe provides insufficient
basis to declare a law unconstitutional and does not, by that circumstance alone,
make it cruel and inhuman. (Maturan v. COMELEC, March 28, 2017]
CITIZENSHIP
Q: Distinguish between RETENTION and RE-ACQUISITION of Philippine

Citizenship under RA 9225.
A: The law makes a distinction between those natural-born Filipinos who

became foreign citizens before and after the effectivity of R.A. 9225
(September 17, 2003). Under the first paragraph are those natural-born Filipinos
who have lost their citizenship by naturalization in a foreign country before RA
9225 - who shall re-acquire their Philippine citizenship upon taking the oath of
allegiance to the Republic of the Philippines. [Citizenship was lost]
The second paragraph covers those natural-born Filipinos who became foreign
citizens after R.A. 9225 took effect, who shall retain their Philippine citizenship
upon taking the same oath. [Citizenship was NEVER LOST]. [David vs. Agbay,
753 SCRA 526 (2015)]
The reacquisition will apply to those who lost their Philippine citizenship by virtue
of Commonwealth Act 63 or before the effectivity of RA 9225. -- the Filipinos who
lost their citizenship is deemed to have reacquired their Philippine citizenship upon
the effectivity of the act.
The second aspect is the retention of Philippine citizenship applying to future

instances. For these citizens, who lost their citizenship after the effectivity of RA
9225 -- they are deemed NEVER to have LOST their Filipino citizenship. Does, upon
taking their oath they are deemed to have retained their NATURAL BORN
status. [David vs. Agbay, 753 SCRA 526 (2015)]
Q: How may a Filipino lose his citizenship?
A: Section 1 of Commonwealth Act No. 63, as amended by Republic Act No. 106,
provides that a Filipino citizen may lose his citizenship by naturalization in a foreign
country; express renunciation of citizenship; subscribing to an oath of allegiance to
support the constitution or laws of a foreign country; rendering service to, or
accepting a commission in, the armed forces of a foreign country; cancellation of the
certificate of naturalization; declaration by competent authority that he is a deserter
of the Philippine armed forces in time of war; in the case of a woman, by marriage to
a foreigner if, by virtue of laws in force in her husband's country, she acquires his
nationality.
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LEGISLATIVE DEPARTMENT
Q. Controversial former assistant secretary Mocha Uson is running for

party-list representative under the AA-Kasosyo party. This party is supposed
to represent the plight of overseas Filipino workers (OFW’s). But this party,
back in 2011, channelled its pork barrel funds to a bogus NGO of pork barrel
queen Janet Lim Napoles. It was blacklisted by the Department of Budget and
Management (DBM) in 2012 from further receiving public funds from the
government due to its connection with Ms. Napoles. Ms. Uson just recently
joined this party a few days ago before she filed her Certificate of Candidacy.
i) Is Mocha Uson qualified to represent the OFW sector even if she does not
belong to the said sector?
ANSWER: Yes. A nominee who does not actually possess the marginalized and
underrepresented status represented by the party-list group but proves to be a
genuine advocate of the interest and concern of the marginalized and
underrepresented sector represented is still qualified to be a nominee.
Since political parties are identified by their ideology or platform of government,

bona fide membership, in accordance with the political party's constitution and by-
laws, would suffice. The nominees of sectoral parties or organizations that represent
the "marginalized and underrepresented," or that represent those who lack "well-
defined political constituencies," either must belong to their respective sectors, or
must have a track record of advocacy for their respective sectors. (Atong Paglaum,
Inc. v. COMELEC, G.R. No. 203766. April 2, 2013.)
ii) Is AA-Kasosyo Party qualified to run in the party-list election?
ANSWER: NO. AA-Kasosyo is not qualified to run in the party-list elections

because it received funding from the government. RA 7941 or the party-list law
states that the party or organization intending to join in the party-list system must
not be an adjunct of, or a project organized or an entity funded or assisted by, the
government.
By the very nature of the party-list system, the party or organization must be a
group of citizens, organized by citizens and operated by citizens. It must be
independent of the government. The participation of the government or its officials
in the affairs of a party-list candidate is not only illegal and unfair to other parties,
but also deleterious to the objective of the law: to enable citizens belonging to
marginalized and underrepresented sectors and organizations to be elected to the
House of Representatives. [Ang Bagong-Bayani-OFW v. COMELEC, June 26,
2001]
Q: Which has jurisdiction over a petition to expel a member of the House

(party-list) – the HRET or COMELEC? How about expulsion from the party-
list?
A: Section 17, Article VI of the 1987 Constitution endows the HRET with jurisdiction
to resolve questions on the qualifications of members of Congress. In the case of
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party-list representatives, the HRET acquires jurisdiction over a disqualification case
upon proclamation of the winning party-list group, oath of the nominee, and
assumption of office as member of the House of Representatives.
In this case, the COMELEC proclaimed Ating Koop as a winning party-list group;
petitioner Lico took his oath; and he assumed office in the House of
Representatives. Thus, it is the HRET, and not the COMELEC, that has jurisdiction
over the disqualification case. [Lico v. Commission on Elections, (G.R. No.
205505, September 29, 2015)]
COMELEC was wrong in upholding the validity of the expulsion of petitioner Lico
from Ating Koop, despite its own ruling that the HRET has jurisdiction over the
disqualification issue. These findings already touch upon the qualification requiring
a party-list nominee to be a bona fide member of the party-list group sought to be
represented. The COMELEC justified its Resolution on the merits of the expulsion,
by relying on the rule that it can decide intra-party matters as an incident of its
constitutionally granted powers and functions (citing Lokin v. COMELEC).
The Lokin case, however, involved nominees and not incumbent members of
Congress. In the present case, the fact that petitioner Lico was a member of
Congress at the time of his expulsion from Ating Koop removes the matter from the
jurisdiction of the COMELEC. [Lico v. Commission on Elections, (G.R. No.
205505, September 29, 2015)]
Q. In the 2007 senatorial election, Koko placed 13th behind Migz. Koko
filed a protest before the Senate Electoral Tribunal (SET) against Migz.
Realizing that the SET is likely to rule against him, Migz resigned his senate
seat on August 3, 2011. On August 11, 2011, little more than a week after Migz’
resignation, the SET proclaimed Koko as the 12th winning senator in the 2007
elections. In the succeeding 2013 senatorial elections, Koko won another six-
year term. In the upcoming 2019 senatorial elections, can Koco run again?
ANSWER: Yes.
"Art. VI, Sec. 4 of the 1987 Constitution states that --- “No Senator shall serve for
more than two consecutive terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of his service for
the full term for which he was elected.”
What is prohibited is the service of a third consecutive full term. Koko was not able
to serve in full his first “term” because he assumed the position only in 2011. He was
only able to serve two (2) years and four (4) months of his supposed first term of six
(6) years from 2007-2013.
The word "term" is a fixed and definite period of time prescribed by law or the
Constitution during which the public officer may claim to hold the office as a right.
It is a fixed and definite period of time to hold office, perform its functions, and
enjoy its privileges and emoluments until the expiration of the period.
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Although both Koko and Migz were able to have discharged the duties of the office
during this fixed six-year period, it does not mean that they have both served the
term. Note that the term of senator is for six years. It is not divided into smaller
terms by the number of incumbents who may fill the office. It is one and indivisible,
and term follows term in successive cycles of six years each. If the incumbent or the
one elected to the office fills a higher vacant office, refuses to assume office, fails to
qualify, dies, is removed from office, voluntarily resigns or is otherwise permanently
incapacitated to discharge the functions of his office, thereby creating a permanent
vacancy, the term would remain unbroken until the recurring election for the office.
Since Koko has only served one full term as senator from 2013-2019, then he is
qualified to run again for Senator in 2019.
Q. Does Congress have the mandatory duty to convene and meet in joint
session upon the President's proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus? Explain.
A: NO. Congress is not constitutionally mandated to convene in joint session

except to vote jointly to revoke the President's declaration or suspension. By the
language of Article VII, Section 18 of the 1987 Constitution, the Congress is only
required to vote jointly to revoke the President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus. If Congress does not want
to revoke or lift the declaration of martial law, then there is no need for them to
meet in joint session.
It is worthy to stress that the provision does not actually refer to a "joint session.”
The requirement of voting jointly explicitly applies only to the situation when the
Congress revokes the President's proclamation of martial law. [Padilla v. Congress,
25 July 2017]
Q. In the exercise of its power to investigate in aid of legislation, can

Congress cite a person in contempt and detain him indefinitely?
ANSWER: No. Congress may cite persons in contempt and order them detained.
But the detention cannot be indefinite. The detention should only last until the
termination of the legislative inquiry under which the said power is invoked or when
Congress adjourns sine die. If Congress decides to extend the period of
imprisonment for the contempt committed by a witness beyond the duration of the
legislative inquiry or after it has already adjourned, then it may file a criminal case
under the existing statute or enact a new law to increase the definite period of
imprisonment. (Arvin Balag v. Senate, GR No. 234608, July 3, 2018)
Q. Can a Senator be held liable for speeches and media interviews he made
outside of Congress?
A: YES. If the utterances were made outside of Congress then the senator is not
protected by his parliamentary privilege. Parliamentary non-accountability cannot
be invoked when the lawmaker's speech or utterance is made outside sessions,
2018 Last Minute Tips in Political Law by Atty. Enrique V. dela Cruz, Jr. 10 |
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hearings or debates in Congress, extraneous to the '"due functioning of the
(legislative) process”.
To deliver speeches in public and participate in or respond to media

interviews is not an official function of any lawmaker; it is not demanded by his
sworn duty nor is it a component of the process of enacting laws. The parliamentary
privilege arises not because the statement is made by a lawmaker, but because it is
uttered in furtherance of legislation. [Senator Antonio Trillanes vs. Hon.
Evangeline Castillo-Marigomen, G.R. No. 223451, March 14, 2018]
Q. Can Congress pass a law abolishing the Court of Appeals?
A: NO. While the law creating the Court of Appeals can be amended or
repealed by Congress, it cannot remove or shorten the tenure of incumbent Justices
of the Court of Appeals or transfer its workload and duties to the Supreme Court or
any other court without the advice and concurrence of the Supreme Court.
The jurisdiction of the Supreme Court may not be reduced by Congress. Neither
may it be increased without the advice and concurrence of the Supreme Court.
[Section 30, Article VI, 1987 Constitution]
Justices may not be removed until they reach the reason age 70 except through
impeachment (for Supreme Court Justices) or administrative proceedings (for all
other Justices of appellate courts). All courts and court personnel are under the
administrative supervision of the Supreme Court. The President may not appoint
any Judge or Justices unless he or she has been nominated by the Judicial and Bar
Council which, in turn, is under the Supreme Court's supervision. Their salaries may
not be decreased during their continuance in office. They cannot be designated to
any agency performing administrative or quasi-judicial functions. The judiciary is
specifically given fiscal autonomy. The Judiciary is not only independent of, but also
co-equal and coordinate with the Executive and Legislative Departments. (Article
VIII, 1987 Constitution); [Bengzon vs. Drilon, (G.R. No. 103524) and In Re
Request of Retired Justices (A.M. No. 91-8-225-CA) jointly decided on April 15,
1992]
Q. Can Congress issue a subpoena to compel attendance of Justices of the

Court of Appeals in its investigation in-aid of legislation, and cite them in
contempt should they refuse to appear?
A: NO. Congressional powers cannot be used to deprive the Supreme Court of

its Constitutional duty to supervise judges of lower courts in the performance of
their official duties. The fact remains that the CA Justices are non-impeachable
officers. As such, authority over them primarily belongs to the Supreme Court and
to no other.
The principle of separation of powers also serves as one of the basic postulates for
exempting the Justices, officials and employees of the Judiciary and for excluding the
Judiciary's privileged and confidential documents and information from any
compulsory processes which very well includes the Congress' power of inquiry in aid
of legislation. Such exemption has been jurisprudentially referred to as judicial
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privilege as implied from the exercise of judicial power expressly vested in one
Supreme Court and lower courts created by law. [Agcaoli v. Hon. Rodolfo Farinas,
GR No. 232395, July 3, 2017]
EXECUTIVE DEPARTMENT
Q. CAN THE PRESIDENT ALONE REVOKE THE AMNESTY GRANTED TO

SEN. ANTONIO TRILLANES?
ANSWER: NO. Since the grant of amnesty requires concurrence of congress, it

cannot be revoked by the president alone. Even assuming that what the President
seeks to declare as “void ab initio” is ONLY the inclusion of Sen. Trillanes in the list
of grantees of amnesty – still, the president has no power to declare his inclusion
VOID. Only the courts can do so because the effects of amnesty has already set in
and recognized by the government when the cases against him were dismissed and
he was released from detention by reason of the grant of amnesty.
Q. DISTINGUISH PARDON FROM AMNESTY

A:
(i). Pardon is a private act and must be pleaded and proved by the person
pardoned; while amnesty is a public act of which courts take judicial notice;
(ii). Pardon does not require the concurrence of Congress, while amnesty requires
the concurrence of Congress;
(iii). Pardon is granted to individuals, while amnesty is granted to classes of persons

or communities;
(iv). Pardon may be granted for any offense, while amnesty is granted for political
offenses;
(v). Pardon is granted after final conviction, while amnesty may be granted at any
time; and
(vi). Pardon looks forward and relieves the offender from the consequences of his
offense, while amnesty looks backward and the person granted it stands before the
law as though he had committed no offense. [People v. Casido, March 7, 1997]
Q: May the president be held liable under the doctrine of “command

responsibility” for enforced disappearances of political dissidents under the
rules on the writ of amparo?
A: No. There is still no Philippine law that provides for criminal liability under
that doctrine. The individual’ criminal liability of respondents, if there be any, is
beyond the reach of amparo proceedings. In other words, the Court does not rule in
such proceedings on any issue of criminal culpability, even if incidentally a crime or
an infraction of an administrative rule may have been committed.
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The writ of amparo was conceived to provide expeditious and effective procedural
relief against violations or threats of violation of the basic rights to life, liberty, and
security of persons; the corresponding amparo suit, however, “is not an action to
determine criminal guilt requiring proof beyond reasonable doubt x x x or
administrative liability requiring substantial evidence that will require full and
exhaustive proceedings.”(Rubrico v. Pres. Macapagal-Arroyo, G.R. No. 183871,
February 18, 2010, 613 SCRA 233.)
Q: Who can challenge the constitutionality of the declaration of martial

law?
A: The Constitution explicitly clothes "any citizen" with the legal standing to
challenge the constitutionality of the declaration of martial law or suspension of the
writ. The Constitution does not make any distinction as to who can bring such an
action. As discussed in the deliberations of the Constitutional Commission, the
"citizen" who can challenge the declaration of martial law or suspension of the writ
need not even be a taxpayer. (Fortun v. Pres. Macapagal-Arroyo, March 20, 2012)
Q: Can the President impose martial law without any concurrence of

Congress?
A: Yes. The Constitution vests exclusively in the President, as Commander-in-

Chief, the emergency powers to declare martial law or suspend the writ in cases of
rebellion or invasion, when the public safety requires it. The imposition of martial
law or suspension of the writ takes effect the moment it is declared by the President.
No other act is needed for the perfection of the declaration of martial law or the
suspension of the writ. (Ampatuan v. Sec. Puno, G.R. No. 190259. June 7, 2011.)
Q: Can the President, on his own, terminate a treaty?
A: NO. While the Constitution is silent on whether a treaty abrogation shall

require the concurrence of the Senate to make it valid and effective, the power of
the Senate to concur on treaties carries with it the power to also concur on its
termination by way of necessary implication.
Under the doctrine of incorporation, a treaty duly ratified by the Senate and
recognized as such by the contracting State shall form an integral part of the law of
the land. The President alone cannot effect the repeal of a law of the land
formed by a joint action of the executive and legislative branches, whether it
be a statute or a treaty. To abrogate a treaty, the President’s action must be
approved by the Senate.
Q: May the President discipline or remove a deputy ombudsman?
A: NO. Subjecting the Deputy Ombudsman to discipline and removal by the

President, whose own alter egos and officials in the Executive Department are
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subject to the Ombudsman's disciplinary authority, cannot but seriously place at
risk the independence of the Office of the Ombudsman itself. The Office of the
Ombudsman, by express constitutional mandate, includes its key officials, all of
them tasked to support the Ombudsman in carrying out her mandate.
What is true for the Ombudsman must be equally and necessarily true for her
Deputies who act as agents of the Ombudsman in the performance of their duties.
The Ombudsman can hardly be expected to place her complete trust in her
subordinate officials who are not as independent as she is, if only because they are
subject to pressures and controls external to her Office. [Emilio Gonzales III vs.
Office of the President, G.R. No. 196232. January 28, 2014].
Q: May the President discipline the Chairman and other officers of the
Commission on Human Rights?
A: No. As the term of office of the Chairman (and Members) of the Commission on
Human Rights, is seven (7) years, without re-appointment, --- their tenure cannot
be made dependent on the pleasure of the President. It is extremely difficult to
conceptualize how an office conceived and created by the Constitution to be
independent — as the Commission on Human Rights — and vested with the
delicate and vital functions of investigating violations of human rights, pinpointing
responsibility and recommending sanctions as well as remedial measures therefor,
can truly function with independence and effectiveness, when the tenure in office of
its Chairman and Members is made dependent on the pleasure of the President.
[Bautista v. Salonga, G.R. No. 86439. April 13, 1989].
Q. In case the President and the Vice President both die simultaneously ---
who shall become acting President? How will the vacancy in their positions be
filled-up? Explain.
A: The Senate President shall be acting President.
ARTICLE VII, SECTION 8. In case of death, permanent disability, removal from

office, or resignation of the President, the Vice-President shall become the President
to serve the unexpired term. In case of death, permanent disability, removal
from office, or resignation of both the President and Vice-President, the
President of the Senate or, in case of his inability, the Speaker of the House
of Representatives, shall then act as President until the President or Vice-
President shall have been elected and qualified.
The vacancy shall be filled up, as follows:
a. Congress shall convene 3 days after the vacancy in the office of both the
President and the VP, without need of a call. The convening of Congress cannot be
suspended.
b. Within 7 days after convening, Congress shall enact a law calling for a special
election to elect a President and a VP. The special election cannot be postponed.
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c. The special election shall be held not earlier than 45 days nor later than 60
days from the time of the enactment of the law.
d. The 3 readings for the special law need not be held on separate days.
e. The law shall be deemed enacted upon its approval on third reading.
No special election shall be called if the vacancy occurs within 18 months before the
date of the next presidential election. In which case, the Senate President shall be
acting President until a new President is elected and qualified.
JUDICIAL DEPARTMENT
Q. The JBC has adopted an unwritten policy that First Level Court judges
must first earn 5 years of service before they are considered for promotion to
the RTC or higher courts. Is this unwritten policy required to be published to
be valid?
A: YES. The assailed JBC policy does not fall within the administrative rules
and regulations exempted from the publication requirement. The assailed policy
involves a qualification standard by which the JBC shall determine proven
competence of an applicant. It is not an internal regulation, because if it were, it
would regulate and affect only the members of the JBC and their staff. Thus, it is but
a natural consequence thereof that potential applicants be informed of the
requirements to the judicial positions, so that they can comply. (Judge Ferdinand
Villanueva vs. the JBC, G.R. No. 211833, 07 April 2015)
Q. Does the 5-year service policy for First Level Judges violate the equal
protection clause?
A: NO. Consideration of experience by JBC as one factor in choosing

recommended appointees does not constitute a violation of the equal protection
clause. The JBC does not discriminate when it employs number of years of service to
screen and differentiate applicants from the competition. The number of years of
service provides a relevant basis to determine proven competence which may be
measured by experience, among other factors. The difference in treatment between
lower court judges who have served at least five years and those who have served
less than five years, is a valid classification based on substantial distinctions. (Judge
Ferdinand Villanueva vs. the JBC, G.R. No. 211833, 07 April 2015)
Q. Using a clustering system, the JBC submitted six separate lists, with five
to seven nominees each, for the six vacancies in the Sandiganbayan. However,
President Aquino disregarded the clustering system and instead chose
nominees at random from all the clusters.
This was assailed by several petitioners who insist that President Aquino
could only choose one nominee from each of the six separate shortlists
submitted by the JBC for each specific vacancy, and no other; and any
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appointment made in deviation of this procedure is a violation of the
Constitution. Is the clustering system of nominees adopted by the JBC
Constitutional? Explain.
ANSWER: NO. The clustering system of nominees is unconstitutional as it

impinges upon the President's power of appointment, as well as restricts the
chances for appointment of the qualified nominees, because (1) the President's
option for every vacancy is limited to the five to seven nominees in the cluster; and
(2) once the President has appointed from one cluster, then he is proscribed from
considering the other nominees in the same cluster for the other vacancies. The said
limitations are utterly without legal basis and in contravention of the President's
appointing power.
The power to recommend of the JBC cannot be used to restrict or limit the
President's power to appoint as the latter's prerogative to choose someone whom
he/she considers worth appointing to the vacancy in the Judiciary is still paramount.
As long as in the end, the President appoints someone nominated by the JBC, the
appointment is valid. The President was not obliged to appoint one new
Sandiganbayan Associate Justice from each of the six shortlists submitted by the
JBC, especially when the clustering of nominees into the six shortlists encroached on
the President’s power to appoint members of the Judiciary from all those whom the
JBC had considered to be qualified for the same positions of Sandiganbayan
Associate Justice. [HON. PHILIP A. AGUINALDO, ET AL. v. PRES. BENIGNO
SIMEON C. AQUINO III, ET AL. G.R. No. 224302, February 21, 2017]
Q. Congress passed a law, R.A. No. 15005, creating an administrative Board

principally tasked with the supervision and regulation of legal education
(“Legal Education Board”). The LEB was attached to the Office of the
President. It was empowered, among others, to prescribe minimum standards
for law admission and minimum qualifications of faculty members, the basic
curricula for the course of study aligned to the requirements for admission to
the Bar. The LEB promulgated a Rule establishing the Philippine Law
Admission Test as a requirement before law students are admitted into law
schools. A petition was filed with the Supreme Court assailing the
constitutionality of the law arguing that it encroached on the prerogatives of
the Supreme Court to promulgate rules relative to admission to the practice
of law. Is the law constitutional?
ANSWER: NO. The LEB is under the Office of the President. It is an executive
office. As such, it usurps the exclusive powers of the Supreme Court to promulgate
rules for the admission to the practice of law. By imposing the PhilSAT tests, the
LEB effectively added a requirement before a student can be admitted into law
school. This will mean that those excluded thereby will no longer be able to enroll
in a law school and will consequently be prevented from taking the bar exams and
be admitted to the practice of law.
The Executive Department may not encroach upon the constitutional prerogative of
the Supreme Court to promulgate rules for admission to the practice of law in the
Philippines.
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Q: Congress enacted a law [RA 10154] which requires all retiring
government employees to first seek Clearance of Pendency/Non-Pendency of
Administrative Case from his/her employer agency, Civil Service Commission
(CSC), Office of the Ombudsman, or in case of presidential appointees, from
the Office of the President – before the retirement benefits are released. Is law
provision applicable to retiring employees of the judiciary?
A: NO. Section 6, Article VIII of the 1987 Constitution exclusively vests in the
SC administrative supervision over all courts and court personnel. As such, it
oversees the court personnel's compliance with all laws and takes the proper
administrative action against them for any violation thereof. As an adjunct thereto,
it keeps in its custody records pertaining to the administrative cases of retiring court
personnel. To apply such provision to the judiciary would disregard the SC’s
constitutionally-enshrined power of administrative supervision over its personnel.
Besides, retiring court personnel are already required to secure a prior clearance of
the pendency/non-pendency of administrative case/s from the Court which makes
the CSC clearance a superfluous and non-expeditious requirement. [Request for
Guidance/Clarification on Section 7, Rule 111 of Republic Act. No. 10154, 706
SCRA 502 (2013)]
Q. Distinguish quo warranto and impeachment as remedies against an

impeachable officer who is alleged not to possess the required constitutional
qualifications for his/her office.
Answer: While both impeachment and quo warranto may result in the ouster
of the public official, the two proceedings materially differ. At its most basic,
impeachment proceedings are political in nature, while an action for quo
warranto is judicial or a proceeding traditionally lodged in the courts.
[Republic v. Sereno, May 11, 2018]
Aside from the difference in their origin and nature, quo warranto and
impeachment may proceed independently of each other as these remedies are
distinct as to (1) jurisdiction (2) grounds, (3) applicable rules pertaining to initiation,
filing and dismissal, and (4) limitations. The causes of action in the two proceedings
are unequivocally different. In quo warranto, the cause of action lies on the
usurping, intruding, or unlawfully holding or exercising of a public office,
while in impeachment, it is the commission of an impeachable offense.
The crux of the controversy in a quo warranto proceeding is the determination of

whether or not the officer legally holds the position to be considered as an
impeachable officer in the first place. [Republic v. Sereno, May 11, 2018]
Simply put, while title to hold a public office is the issue in quo warranto
proceedings, impeachment necessarily presupposes that the official legally holds the
public office and thus, is an impeachable officer, the only issue being whether or not
he/she committed impeachable offenses to warrant his/her removal from office.
[Republic v. Sereno, May 11, 2018]
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IX. NATIONAL PATRIMONY
Q: Does the Constitution prohibit service contracts or joint explorations of

our natural resources with foreign nationals or companies?
A: NO. But Section 2, Article XII of the 1987 Constitution, provides that such service
contracts may be entered into only with respect to minerals, petroleum and
other mineral oils. The grant thereof is subject to several safeguards, among which
are these requirements:
(1) The service contract shall be crafted in accordance with a general law that
will set standard or uniform terms, conditions and requirements, presumably to
attain a certain uniformity in provisions and avoid the possible insertion of terms
disadvantageous to the country.
(2) The President shall be the signatory for the government because, supposedly
before an agreement is presented to the President for signature, it will have been
vetted several times over at different levels to ensure that it conforms to law and can
withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to
Congress to give that branch of government an opportunity to look over the
agreement and interpose timely objections, if any. [Resident Marine Mammals of
the Protected Seascape Tañon Strait v. Reyes, 756 SCRA 513 (2015)]
Q. An alien or foreigner husband of a Filipina bought with his capital

funds a parcel of land in Boracay and also paid for the construction of a house
thereon. This property was registered under the name of the Filipina. Can the
alien husband claim any right of ownership over the said house and lot?
A: NO. Being an alien, he is absolutely prohibited from acquiring private

and public lands in the Philippines. The Filipina wife acquired sole ownership of
both house and lot. This is true even if the alien husband provided the funds for
such acquisition. By entering into such contract knowing that it was illegal, no
implied trust was created in his favor; no reimbursement for his expenses can be
allowed; and no declaration can be made that the subject property was part of the
conjugal/community property of the spouses. He could not even claim ownership
over the house because it would countenance indirect controversion of the
constitutional prohibition. If the property were to be declared conjugal, this would
accord the alien husband a substantial interest and right over the land, as he would
then have a decisive vote as to its transfer or disposition. This is a right that the
Constitution does not permit him to have. [Taina Manigque-Stone v. Cattleya
Land, September 5, 2016]
LAW ON PUBLIC OFFICERS
Q: What is “Misconduct” and when is it considered “Grave”?
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A: Misconduct in office, by uniform legal definition, is such misconduct that
affects his performance of his duties as an officer and not such only as affects his
character as a private individual. To warrant removal from office, it must have direct
relation to and be connected with the performance of official duties amounting
either to maladministration or willful, intentional neglect and failure to discharge
the duties of the office. It becomes grave if it “involves any of the additional
elements of corruption, willful intent to violate the law or to disregard established
rules, which must be established by substantial evidence.” [Garcia v. Molina,
January 11, 2016 (Bersamin)]
Q. What is the rule on conflict of interest for public officer?
A: Section 6 of the Code of Conduct of Public Officials states that “a public

official or employee shall avoid conflicts of interest at all times.”
The law adds: “When a conflict of interest arises, he shall resign from his position in
any private business enterprise within thirty (30) days from his assumption of office
and/or divest himself of his shareholdings or interest within sixty (60) days from
such assumption.”
The law explicitly states that when a conflict of interest arises, an official has 60 days
to resign and/or divest his shares from the time he assumed office. Divestment is
mandatory if the official is a substantial stockholder “even if he has resigned from
his position.”
Q. May public officials engage in the private practice of their profession?
A: NO. Section 12, Rule XVIII of Civil Service Rules provides:
“ Sec. 12. No officer or employee shall engage directly in any private business,
vocation, or profession or be connected with any commercial, credit, agricultural, or
industrial undertaking without a written permission from the head of the
Department: Provided, That this prohibition will be absolute in the case of those
officers and employees whose duties and responsibilities require that their entire
time be at the disposal of the Government…”
However as an exception, Section 90 of the Local Government Code explicitly

provides that sanggunian members "may practice their professions, engage in any
occupation, or teach in schools except during session hours."
Q: Can active members of the AFP be designated or detailed to civilian

positions in the Bureau of Customs?
Answer: NO. Section 5(4), Article XVI of the 1987 Constitution states:
“No member of the AFP in the active service shall, at any time, be appointed or
designated in any capacity to a civilian position in the government including
GOCC’s.” See also Executive Order 371 (September 28, 1989)
Page
Q. Sec. 10, Art. XI of the 1987 Constitution states that the Ombudsman and
his Deputies shall have the rank of Chairman and Members, respectively, of
the Constitutional Commissions, and they shall receive the same salary,
which shall not be decreased during their term of office.
Does this mean that the Ombudsman and his deputies shall also have
the same term of office like all constitutional commissions, such that the
successor to the positions of the Ombudsman and deputies should serve only
the unexpired term of the predecessor?
ANSWER: NO. It is only as to the rank and salary that the Ombudsman and
the deputies shall be the same with the chairman and members, respectively, of the
constitutional commissions. Harmonizing Sec. 11, Art. XI of the 1987 Constitution
with Sec. 8 (3) of R.A. No. 6770, in any vacancy for the positions of Ombudsman and
the deputies, whether as a result of the expiration of the term or death, resignation,
removal, or permanent disability of the predecessor, the successor shall always be
appointed for a full term of seven years.
Unlike the constitutional commissions in Art. IX of the 1987 Constitution, the seven-
year term of office of the first appointees for Ombudsman and the deputies is not
reckoned from 2 February 1987, but shall be reckoned from their date of
appointment. Accordingly, the present Ombudsman and deputies shall serve a full
term of seven years from their date of appointment unless their term is cut short by
death, resignation, removal, or permanent disability. [Ifurung v. Ombudsman, GR
No. 232131, April 24, 2018]
Q: Is the PNRC (Red Cross) a GOCC, therefore its employees are within the
jurisdiction of the CSC?
A: Yes. The PNRC is sui generis in character. The CSC has jurisdiction over the
PNRC because the issue at hand is the enforcement of labor laws and penal statutes,
thus, in this particular matter, the PNRC can be treated as a GOCC, and as such, it is
within the ambit of Rule I, Section 1 of the Implementing Rules of Republic Act 6713.
Thus, having jurisdiction over the PNRC, the CSC had authority to modify the
penalty and order the dismissal of petitioner from the service. [Torres v. De Leon,
G.R. No. 199440. January 18, 2016]
Q: What is the Doctrine of Administrative Condonation? Is this still

applicable?
A: The rule that public official cannot be removed for administrative misconduct
committed during a prior term, since his re-election to office operates as a
condonation of the officer’s previous misconduct to the extent of cutting off the
right to remove him therefore. Note that this has no application to pending criminal
cases. (Aguinaldo v. Santos, G.R. No. 94115, Aug. 21, 1992). This Doctrine was already
abandoned by the Supreme Court in the case of Mayor Junjun Binay. But the effect
is prospective. [Carpio-Morales, vs. CA, November 10, 2015]
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NOTE: The abandonment of the doctrine of condonation is prospective in
application, hence, the same doctrine is still applicable in cases that transpired prior
to the ruling of the SC in Carpio-Morales v. CA and Binay Jr. on November 10, 2015.
The most important consideration in the doctrine of condonation is the fact that the
misconduct was done on a prior term and that the subject public official was
eventually re-elected by the same body politic. It is inconsequential whether the
said re-election be on another public office or on an election year that is not
immediately succeeding the last, as long as the electorate that re-elected the public
official be the same. [OFFICE OF THE OMBUDSMAN v MAYOR JULIUS CESAR
VERGARA G.R. No. 216871. December 6, 2017]
Q. Is the Commission on Human Rights (CHR) considered as a Constitutional

Body enjoying fiscal autonomy? Explain.
ANSWER: NO. From the 1987 Constitution and the Administrative Code, it is
abundantly clear that the CHR is not among the class of Constitutional
Commissions. As expressed in the oft-repeated maxim expressio unius est exclusio
alterius, the express mention of one person, thing, act or consequence excludes all
others. Stated otherwise, expressium facit cessare tacitum what is expressed puts an
end to what is implied.
Nor is there any legal basis to support the contention that the CHR enjoys fiscal
autonomy. In essence, fiscal autonomy entails freedom from outside control and
limitations, other than those provided by law. It is the freedom to allocate and
utilize funds granted by law, in accordance with law, and pursuant to the wisdom
and dispatch its needs may require from time to time. Only the Judiciary, the Civil
Service Commission, the Commission on Audit, the Commission on Elections, and
the Office of the Ombudsman, which enjoy fiscal autonomy. [CHREA vs. CHR, G.R.
No. 155336. November 25, 2004]
Q: Can the period of preventive suspension be credited to the imposed penalty

of suspension?
A: It depends on whether it is pending investigation or pending appeal.
Preventive suspension pending investigation is merely a preventive measure, a

preliminary step in an administrative investigation. It is not a penalty. Thus, the
period within which one is under preventive suspension pending investigation is not
considered part of the actual penalty of suspension—service of the preventive
suspension cannot be credited as service of the penalty. [QUIMBO v. GERACIO
G.R. No. 155620, 9 August 2005]
Preventive suspension pending appeal is actually part of the service of the penalty.
Thus, the period when an employee was preventively suspended pending appeal
shall be credited to form part of the penalty of suspension imposed. Such
preventive suspension is punitive in nature and the period of suspension becomes
part of the final penalty of suspension or dismissal. [Yamson v. Castro, July 20,
2016]
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Q: Will the filing of a Motion for Reconsideration or an appeal stay the
execution of a decision of the Ombudsman in an administrative case?
A: No. Appeals from decisions of the Ombudsman in administrative cases do

not stay the execution of the penalty imposed. This is pursuant to Section 7, Rule III
of the Rules of Procedure of the Ombudsman which explicitly states that an appeal
shall not stop the decision from being executor. No vested right is violated because
pending appeal the appellant is considered as preventively suspended and will be
paid backwages in case he wins in his appeal. (Facura, et al., v. CA, GR No. 166495,
Feb. 16, 2011)
Q: Is the preventive suspension of an elected public official an

interruption of his term of office for purposes of the three-term limit rule?
A: No. A preventive suspension cannot simply be a term interruption because

the suspended official continues to stay in office although he is barred from
exercising the functions and prerogatives of the office within the suspension period.
The best indicator of the suspended official’s continuity in office is the absence of a
permanent replacement and the lack of the authority to appoint one since no
vacancy exists.
Term limitation is triggered after an elective official has served his three terms in
office without any break. Preventive suspension, by its nature, is a temporary
incapacity to render service during an unbroken term; in the context of term
limitation, interruption of service occurs after there has been a break in the term.
A serious extended illness, inability through force majeure, or the enforcement of a

suspension as a penalty, may prevent an office holder from exercising the
functions of his office for a time without forfeiting title to office. Preventive
suspension is no different because it disrupts actual delivery of service for a time
within a term. All these instances will not interrupt the term for purposes of
applying the 3-term limit rule. (Aldovino v. COMELEC, G.R. No. 184836, 23
December 2009)
ADMINISTRATIVE LAW
Q: Do review centers for professional licensure examinations enjoy

academic freedom?
A: NO. Under Article XIV Section 5(2), academic freedom shall be enjoyed in
all institutions of higher learning. A review center is not an institution of higher
learning. It does not offer a degree-granting program. A review course is only
intended to “refresh and enhance the knowledge of competencies and skills of
reviewees.” (Review Centers Association v. Ermita, G.R. No. 180046, April 2,
2009).
Q. Is the right to counsel available in administrative proceedings?
Page
A: NO. There is nothing in the 1987 Constitution stating that a party in a non-
litigation proceeding is entitled to be represented by counsel. The assistance of a
lawyer, while desirable, is not indispensable. A party in an administrative inquiry
may or may not be assisted by counsel, irrespective of the nature of the charges and
of the respondent's capacity to represent himself, and no duty rests on such body to
furnish the person being investigated with counsel. Hence, the administrative body
is under no duty to provide the person with counsel because assistance of counsel is
not an absolute requirement. [First Class Cadet Aldrin Jeff Cudia vs. The
Superintendent of the PMA, G.R. No. 211362, 25 February 2015.]
Q. Is the right against self-incrimination available in administrative

proceedings?
A: Yes. In the case of Cabal v. Kapunan, 6 SCRA 1064, the Supreme Court
held that since the administrative charge of unexplained wealth may result in the
forfeiture of property, the complainant cannot call the respondent to the witness
stand without encroaching on his right against self-incrimination. In the case of
Pascual v. Board of Medical Examiners, 28 SCRA 345, the same rule was followed
since the proceedings could possibly result in the loss of his privilege to practice
medicine.
Q: What is the Doctrine of Operative Fact?
A: The general rule is that a void law or administrative act cannot be the source
of legal rights or duties. The doctrine of operative fact is an exception to the general
rule, such that a judicial declaration of invalidity may not necessarily obliterate all
the effects and consequences of a void act prior to such declaration. [CIR v. San
Roque Power Corp., October 8, 2013]
Q: Can an “administrative practice” be considered for the application of

the Doctrine of Operative Fact?
A: NO. For the operative fact doctrine to apply, there must be a

"legislative or executive measure," meaning a law or executive issuance, that
is invalidated by the court. From the passage of such law or promulgation of such
executive issuance until its invalidation by the court, the effects of the law or
executive issuance, when relied upon by the public in good faith, may have to be
recognized as valid. A mere administrative practice, not formalized into a rule or
ruling, will not suffice because such a mere administrative practice may not be
uniformly and consistently applied. [CIR v. San Roque Power Corp., October 8, 2013]
LOCAL GOVERNMENT
Q: Can the Mayor order the demolition of a hotel for lack of a business
permit, without any judicial proceedings?
Page
A: YES. In the exercise of police power and the general welfare clause, the Mayor can
abate a nuisance without need of a court order. This power applies when the
property is built on government land or property. Property rights of individuals may
be subjected to restraints and burdens in order to fulfil the objectives of the
government. The LGC authorizes LGU’s, acting through their local chief executives,
to issue demolition orders. Sec. 444 (b) (3) (vi) of the LGC, empowers the mayor to
order the closure and removal of illegally constructed establishments for failing to
secure the necessary permits. Otherwise stated, the government may enact
legislation that may interfere with personal liberty, property, lawful businesses and
occupations to promote the general welfare. (Aquino v. Municipality of Malay,
Aklan, G.R. No. 211356, September 29, 2014)
Q: The City of Marikina enacted an ordinance that requires property owners

to lower fences, re-build it with 6 meters setback and make it 80% see
through. Is this ordinance valid?
A: NO. The State may not, under the guise of police power, permanently divest
owners of the beneficial use of their property solely to preserve or enhance the
aesthetic appearance of the community. The SC ruled that the ordinance is
unreasonable and oppressive as it will substantially divest the property owner of the
beneficial use of their property solely for aesthetic purposes.
The real intent of the setback requirement was to make the parking space free for
use by the public, considering that it would no longer be for the exclusive use of
SSC. Section 9 of Article III of the 1987 Constitution, provides that private property
shall not be taken for public use without just compensation. [Fernando v. SSC,
March 12, 2013]
Q: Do LGU’s have an inherent power to tax?
A: NO. LGUs have no inherent power to tax except to the extent that such
power might be delegated to them either by the basic law or by the statute. Under
the 1987 Constitution, where there is neither a grant nor a prohibition by statute,
the tax power must be deemed to exist although Congress may provide statutory
limitations and guidelines. Under the 1987 Constitution, where there is neither a
grant nor a prohibition by statute, the tax power must be deemed to exist
although Congress may provide statutory limitations and guidelines. (Ferrer v.
Bautista, G.R. No. 210551, June 30, 2015)
For sure, fiscal decentralization does not signify the absolute freedom of the
LGUs to create their own sources of revenue and to spend their revenues
unrestrictedly or upon their individual whims and caprices. Congress has subjected
the LGUs’ power to tax to the guidelines set in Section 130 of the LGC and to the
limitations stated in Section 133 of the LGC.
The concept of local fiscal autonomy does not exclude any manner of intervention
by the National Government in the form of supervision if only to ensure that the
local programs, fiscal and otherwise, are consistent with the national goals. [Gov.
Mandanas v. Executive Secretary, GR No. 199802, July 3, 2018]
Page
Q: Who determines the legality or propriety of a local tax ordinance or
revenue measure?
A: It is the Secretary of Justice who shall determine questions on the legality and
constitutionality of ordinances or revenue measures. The appeal must be filed
within thirty (30) days from the effectivity of the tax ordinance. The Secretary of
Justice has sixty (60) days from the date of receipt of the appeal to issue a ruling;
otherwise, the aggrieved party may file appropriate proceedings with a court of
competent jurisdiction (RTC). The appeal shall not have the effect of suspending the
effectivity of the ordinance. (Sec. 187 R.A. 7160)
ELECTION LAW
Q: On October 25, 2012, Luis Villafuerte (LV) filed with the COMELEC a
Verified Petition to deny due course to or cancel the Certificate of
Candidacy (COC) of his grandson Miguel, Jr. on the ground of intentional and
material misrepresentation of a false and deceptive name or nickname that
would mislead the voters. LV alleged that Miguel deliberately omitted his first
name “Miguel”, which was recorded in his Birth Certificate, and instead used
“MigzBaby” as nickname. This is also the nick name of his father Miguel, Sr.
who is the incumbent Governor of the province. Should the COC of Miguel, Jr.
be canceled? Decide.
A: No. Section 78 of the Omnibus Election Code states that the false
representation in the contents of the Certificate of Candidacy (COC) must refer to
material matters in order to justify the cancellation of the COC. Material
misrepresentation under the Omnibus Election Code refers to “qualifications for
elective office” (residency, age, citizenship, or any other legal qualifications
necessary to run for local elective office as provided in the Local Government Code)
coupled with a showing that there was an intent to deceive the electorate.
The nickname written in the COC cannot be considered a material fact, which
pertains to his eligibility and thus qualification to run for public office. Moreover,
the false representation under Section 78 must consist of a deliberate attempt to
mislead, misinform, or hide a fact, which would otherwise render a candidate
ineligible.
There is no substantial evidence showing that in writing the nickname “MigzBaby”

in his COC, Miguel, Jr. had the intention to deceive the voters as to his identity
which has an effect on his eligibility or qualification for the office he seeks to
assume. (LUIS R. VILLAFUERTA v. COMELEC and MIGUEL VILLAFUERTE, G.R.
No. 206698. February 25, 2014)
Q: Does the COMELEC have jurisdiction to rule on the validity of the

election of a political party president?
A: YES. The COMELEC's jurisdiction over intra-party leadership disputes

has already been settled by the Court in Kalaw v. COMELEC (1987) stating that the
COMELEC's powers and functions under Section 2, Article IX-C of the Constitution,
Page
"include the ascertainment of the identity of the political party and its legitimate
officers responsible for its acts."
The Court also declared in Palmares vs. COMELEC (1989) that the
COMELEC's power to register political parties necessarily involved the
determination of the persons who must act on its behalf. Thus, the COMELEC may
resolve an intra-party leadership dispute, in a proper case brought before it, as an
incident of its power to register political parties. (Atienza v. COMELEC, GR No.
188920, February 16, 2010)
Q: If the name of a nuisance candidate whose certificate of candidacy had

been cancelled by the Commission on Elections (COMELEC) was still included
or printed in the official ballots on election day, should the votes cast for such
nuisance candidate be considered stray or counted in favor of the bona fide
candidate?
A: The votes cast for a nuisance candidate declared as such in a final judgment,
particularly where such nuisance candidate has the same surname as that of the
legitimate candidate, are not stray but must be counted in favor of the legitimate
candidate. The voters’ constructive knowledge of such cancelled candidacy made
their will more determinable, as it is then more logical to conclude that the votes
cast for the nuisance could have been intended only for the legitimate candidate.
(Dela Cruz v. COMELEC, G.R. No. 192221, November 13, 2012 )
Q: Pichay was convicted of Libel by final judgment and his sentence of

imprisonment was reduced to payment of fine. Is he disqualified from running
for public office?
A: YES. Having been convicted of the crime of libel, Pichay is disqualified under
Section 12 of the Omnibus Election Code for his conviction for a crime involving
moral turpitude. A crime still involves moral turpitude even if the penalty of
imprisonment imposed is reduced to a fine. Thus, Pichay made a false material
representation as to his eligibility when he filed his certificate of candidacy.
Since Pichay's ineligibility existed on the day he filed his certificate of candidacy and
he was never a valid candidate for the position of Member of the House of
Representatives, the votes cast for him were considered stray votes. [Ty-Delgado v.
HRET, G.R. No. 207851 July 8, 2014]
Q: Salvador, who belonged to a local political party, was a mayoralty

candidate in San Jose City, Nueva Ecija in 2010. Salvador spent a total of
P449,000.00 in the 2010 election, when the maximum expenditure allowed by
law is P275,667.00. Salvador now argues that under R.A. 7166, he was allowed
to spend P5.00 per voter (instead of P3.00 per voter) since he received no
support from his party although he was a member thereof. Is Salvador guilty
of overspending?
Page
ANSWER: YES. The law is clear — the candidate must both be without a
political party and without support from any political party for the P5.00 cap
to apply. In the absence of one, the exception does not apply. Thus, his limit is
P3.00 per registered voter. To allow Salvador’s contention is to deviate from the
intention of the legislature in enacting the law, as the same would find all
candidates on equal footing, whether member of a political party or not.
[SALVADOR v. COMELEC, G.R. No. 230744, September 26, 2017]
Q: Maturan failed to file his Statement of Contributions and Expenditures

(SOCE) in the 2010 elections. Accordingly, the COMELEC imposed upon him
an administrative fine, which he paid immediately. Likewise, for his 2013
candidacy, Maturan does not have a SOCE on record. Maturan argues that by
virtue of the withdrawal of his candidacy on 12 May 2013, just a day before the
elections, he is not required to file his SOCE. He again filed a certificate of
candidacy in the 2016 elections. The COMELEC disqualified him. Is the
COMELEC correct?
A: YES. The COMELEC is correct. In Pilar v. Commission on Elections (July

11, 1995), the Supreme Court held that every candidate, including one who lost or
withdraws his candidacy, is required to file his SOCE pursuant to Section 14 of R.A.
No. 7166. Good faith is not a defense.
Failure to file the SOCE shall constitute an administrative offense for which the
offenders shall be liable to pay an administrative fine. For the commission of a
second or subsequent offense the offender shall be subject to perpetual
disqualification to hold public office. [Maturan v. COMELEC, March 28, 2017)
PUBLIC INTERNATIONAL LAW
Q. Distinguish the right of innocent passage with the freedom of transit

passage.
A: Under the UNCLOS right of transit passage, vessels enjoy the right of
unimpeded, continuous and expeditious transit through international waters
without delay and while refraining from threats or use of force against the
sovereignty of the coastal nation. Innocent passage is for travel within territorial
waters while transit passage is for any zone. Innocent passage applies only to ships
while transit passage applies to aircrafts as well. In transit passage, military
vessels are also allowed which are not allowed in innocent passage.
Q. After days of stonewalling, Saudi Arabia has now admitted its

involvement in the murder of journalist Jamal Khashoggi (a Saudi national)
while he was inside the Saudi consulate in Istanbul, Turkey. Khashoggi
sought political asylum in Turkey because he feared for his life in Saudi under
its new Prince Mohammed bin Salman. Considering that the gruesome
murder happened inside the premises of the Saudi consulate and the supposed
victim is a Saudi national, can the government of Turkey exercise jurisdiction
over the case?
Page
A: Yes. Article 31 of VCCR provides that consular premises are inviolable “to the
extent provided in this article.” The principle of inviolability limits what Turkey
can do on the premises of Saudi Arabia’s consulate without Saudi Arabia’s consent;
but it does not give Saudi Arabia carte blanche to engage in unlawful conduct.
Article 41 of the VCCR provides that “consular officers shall not be liable to arrest or
detention pending trial, except in the case of a grave crime and pursuant to a
decision by the competent judicial authority.” There is no prohibition on instituting
criminal proceedings against a consular officer, and the alleged conduct here would
certainly amount to a “grave crime.”
Q. Distinguish Diplomatic vs. Consular Immunity
A: Under Article 32 of the Vienna Convention on Diplomatic Relations, a

diplomatic agent shall enjoy immunity from the criminal, civil and administrative
jurisdiction of the receiving state. On the other hand, under Article 41 of the Vienna
Convention on Consular Relations, a consular officer enjoys immunity from the civil
and administrative, but not criminal, jurisdiction of the receiving state.
Q: What is meant by “Agreation” and “Exequatur”?

A:
Agreation - It is a practice of the States before appointing a particular individual to
be the chief of their diplomatic mission in order to avoid possible embarrassment.
Exequatur - An authorization from the receiving State admitting the head of a

consular post to the exercise of his functions. For example, if the Philippines
appoints a consul general for New York, he cannot start performing his functions
unless the US President issues an exequatur to him.
Q. On April 19, 2018 the Philippine Embassy in Kuwait organized a rapid

response team to rescue at least two abused Filipino domestic workers in
separate locations in that country. A team that covered the rescue operations
took video clips of the rescue missions and disseminated them online. The
video clips went viral.
On April 21, the Kuwaiti government, reacting to the online video, denounced
the rescue operations as a violation of Kuwaiti sovereignty. Did the
Philippines violate any international law?
A: Yes. The first rule, one of customary law, prohibits states from sending their
agents to the territory of another state to execute their own laws or policies. This
ban on the extraterritorial enforcement of a state’s laws or policies comes from
international law’s basic rules on jurisdiction. While states enjoy jurisdiction to
prescribe laws governing some conduct beyond their borders—e.g., by their own
nationals—and states can use their courts to adjudicate matters taking place abroad,
enforcement of a state’s laws or policies on another state’s territory without the
permission of the other state is unlawful.
Page
The second rule violated is the Principle on Non-intervention in the internal
affairs of other states. While states and scholars disagree as to the scope of that
rule—whether it covers electoral aid to opposition groups, for example—
extraterritorial enforcement clearly crosses the line because of its blatantly coercive
nature. As co-equals, states are not allowed to even comment on the domestic
affairs of a sovereign state.
Q: Can the President unilaterally withdraw the Philippines from the Rome
Statute (treaty establishing the ICC)?
A: YES. Article 127 of the Rome Statute, ratified and signed by the Philippines, lays
out the terms which member-states need to follow if they want to withdraw:
"1. A State Party may, by written notification addressed to the Secretary-General of

the United Nations, withdraw from this Statute. The withdrawal shall take effect
one year after the date of receipt of the notification, unless the notification
specifies a later date.”
Q: Does this mean that the ICC did not acquire jurisdiction over President
Duterte and the cases filed against him can now be dismissed?
A: NO.
Article 127 of the Rome Statute states:
“2. A State shall not be discharged, by reason of its withdrawal, from the obligations
arising from this Statute while it was a Party to the Statute, including any financial
obligations which may have accrued.
Its withdrawal shall not affect …. criminal investigations and proceedings …

which were commenced prior to the date on which the withdrawal became
effective, nor shall it prejudice in any way the continued consideration of any
matter which was already under consideration by the Court prior to the date on
which the withdrawal became effective."
Q. What is the Doctrine of Specialty?

A:
This doctrine bars the requesting State from prosecuting the extraditee for any
offense other than that for which the extraditee was surrendered. Here the
extraditee cannot be tried for offenses not included in the list of extraditable
offenses between the states.
Q. What is the Principle of Double Criminality?

A:
It is a rule in extradition which states that for a request to be honored the crime for
which extradition is requested must be a crime in both the requesting state and the
state to which the fugitive has fled.
Page
Q. Distinguish Extradition from Deportation
A:
Extradition is effected for the benefit of the state to which the person to be
extradited will be surrendered because he is a fugitive criminal in that state, while
deportation is effected for the protection of the State expelling an alien because his
presence is not conducive to the public good.
Extradition is effected on the basis of an extradition treaty, while deportation is

the unilateral act of the state expelling an alien. In extradition, the alien will be
surrendered to the State asking for his extradition, while in deportation the
undesirable alien may be sent to any state willing to accept him.
Q. Distinguish Exclusion from Deportation

A:
Under Philippine immigration laws, exclusion is the authorized removal of an alien
by immigration officers, performing primary inspection, or by the immigration
boards of special inquiry, by secondary inspection, of any foreigner arriving in the
Philippines who, upon inspection and prior to entry or admission, is barred by
immigration laws, rules and regulations from entering or being admitted to the
Philippines. When an alien is excluded he is immediately sent back to the country
where he came from on the same vessel which transported him. Under certain
circumstances, when an alien is excluded, he may be detained until such time that
the Bureau of Immigration has determined that he is qualified for entry and/or
admission.
Deportation applies when an alien has already physically gained entry in the country, but
such entry is later found unlawful or devoid of legal basis. Every sovereign power has the
inherent power to deport aliens from its territory upon such grounds as it may deem proper
for its self-preservation or public interest. The power to deport aliens is an act of State, an act
done by or under the authority of the sovereign power. It is a police measure against
undesirable aliens whose continued presence in the country is found to be injurious
to the public good and the domestic tranquility of the people. [Rosas v. Montor,
October 14, 2015]
Q: What constitutes perfidy? Is it prohibited? Give examples.
A: Perfidy consists of acts is inviting the confidence of an adversary to lead him

to believe that he is entitled to, or is obliged to accord, protection under the rules of
International Law applicable in armed conflict, with intent to betray that
confidence. It is prohibited to kill, injure or capture an adversary by resort to
perfidy. The following acts are examples of perfidy:
a) The feigning of an intent to negotiate under a flag of truce or of a surrender;

b) The feigning of an incapacitation by wounds or sickness;
c) The feigning of civilian, non-combatant status; and
d) The feigning of protected status by the use of signs, emblems or uniforms of the
United Nations or of neutral or other States not Parties to the conflict.
Page
Q: What are ruses of war? Are they prohibited? Give examples.
A: Ruses of war are acts which are intended to mislead an adversary or to induce
him to act recklessly but which infringe no rule of International Law applicable in
armed conflict and which are not perfidious because they do not invite the
confidence of an adversary with respect to protection under that law.
Ruses of war are legal. The following are examples of ruses of war:
a) The use of camouflage;
b) Decoys;
c) Mock operations;
d) Misinformation.
Q: What is the principle of “Non-Refoulement”?
A: It is a customary principle of international law which prohibits the expulsion

or return of refugees to their state of origin. Article 31 of the UN Charter states:
1. No Contracting State shall expel or return a refugee in any manner whatsoever to

the frontiers of territories where his life or freedom would be threatened on account
of his race, religion, nationality, membership of a particular social group or political
opinion.
2. The benefit of the present provision may not, however be claimed by a refugee
whom there are reasonable grounds for regarding as a danger to the security of the
country in which he is, or who, having been convicted by a final judgment of a
particularly serious crime, constitutes a danger to the community of that country.
Q: Who is a refugee?
1. The person must be outside their country of origin or habitual residence.

2. The person must have a well founded fear of persecution for reasons of: race,
religion, nationality, political opinion, membership of a particular social group
3. The person must be unable or unwilling to avail of the protection of their own
State for reasons of such persecution. (Article 1A of the 1951 Convention On
Migrants and Refugees)
Page

2018 Last Minute Tips in Political Law

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2018 Last Minute Tips in Political Law

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2018 LAST MINUTE TIPS IN POLITICAL LAW

By: Enrique V. dela Cruz, Jr.

Q: Can the plebiscite for the proposed amendments to the 1987

Q. Congress enacted a law postponing the local and national elections

Q. The PNP launched a campaign against loitering in public streets. They

1. Was the warrantless search and arrest valid?

Q. The PNP launched an operation against drug peddling where suspected

A: NO. The warrantless arrests are unconstitutional. At the time the

Q. What is meant by the terms “extra-legal killings” and “enforced

Q: What are the elements constituting “enforced disappearances”?

A: The elements constituting "enforced disappearances" as defined in Section 3(g) of

(a) that there be an arrest, detention, abduction or any form of deprivation of

Q. Six (6) department heads of the provincial government of Ilocos Norte

These resource persons (Ilocos 6) were cited in contempt and ordered

A: NO. The privilege of the writ of Amparo is a remedy available ONLY to

Q: When is a punishment considered cruel, unusual, and inhumane?

A: Settled is the rule that a punishment authorized by statute is not cruel,

Q: Is perpetual disqualification to hold any public office a cruel, unusual

Q: Distinguish between RETENTION and RE-ACQUISITION of Philippine

A: The law makes a distinction between those natural-born Filipinos who

The second aspect is the retention of Philippine citizenship applying to future

Q: How may a Filipino lose his citizenship?

Q. Controversial former assistant secretary Mocha Uson is running for

Since political parties are identified by their ideology or platform of government,

ii) Is AA-Kasosyo Party qualified to run in the party-list election?

ANSWER: NO. AA-Kasosyo is not qualified to run in the party-list elections

Q: Which has jurisdiction over a petition to expel a member of the House

A: NO. Congress is not constitutionally mandated to convene in joint session

Q. In the exercise of its power to investigate in aid of legislation, can

To deliver speeches in public and participate in or respond to media

Q. Can Congress pass a law abolishing the Court of Appeals?

Q. Can Congress issue a subpoena to compel attendance of Justices of the

A: NO. Congressional powers cannot be used to deprive the Supreme Court of

Q. CAN THE PRESIDENT ALONE REVOKE THE AMNESTY GRANTED TO

ANSWER: NO. Since the grant of amnesty requires concurrence of congress, it

Q. DISTINGUISH PARDON FROM AMNESTY

(iii). Pardon is granted to individuals, while amnesty is granted to classes of persons

Q: May the president be held liable under the doctrine of “command

Q: Who can challenge the constitutionality of the declaration of martial

Q: Can the President impose martial law without any concurrence of

A: Yes. The Constitution vests exclusively in the President, as Commander-in-

Q: Can the President, on his own, terminate a treaty?

A: NO. While the Constitution is silent on whether a treaty abrogation shall

Q: May the President discipline or remove a deputy ombudsman?

A: NO. Subjecting the Deputy Ombudsman to discipline and removal by the

A: The Senate President shall be acting President.

ARTICLE VII, SECTION 8. In case of death, permanent disability, removal from

The vacancy shall be filled up, as follows:

A: NO. Consideration of experience by JBC as one factor in choosing

ANSWER: NO. The clustering system of nominees is unconstitutional as it

Q. Congress passed a law, R.A. No. 15005, creating an administrative Board

Q. Distinguish quo warranto and impeachment as remedies against an

The crux of the controversy in a quo warranto proceeding is the determination of

Q: Does the Constitution prohibit service contracts or joint explorations of

Q. An alien or foreigner husband of a Filipina bought with his capital

A: NO. Being an alien, he is absolutely prohibited from acquiring private

LAW ON PUBLIC OFFICERS

Q: What is “Misconduct” and when is it considered “Grave”?

Q. What is the rule on conflict of interest for public officer?

A: Section 6 of the Code of Conduct of Public Officials states that “a public

Q. May public officials engage in the private practice of their profession?

A: NO. Section 12, Rule XVIII of Civil Service Rules provides:

However as an exception, Section 90 of the Local Government Code explicitly