BOC Political Law Reviewer PDF

POLITICAL LAW
POLITICAL LAW
POLITICAL LAW
POLITICAL LAW
TABLE OF CONTENTS The President Under Martial Law or in

a Revolutionary Government ............. 25
B. Houses of Congress...................................... 25
CONSTITUTIONAL LAW I................... 1 Senate ...................................................... 25
I. THE PHILIPPINE CONSTITUTION..... 2 House of Representatives .................... 25
A. Constitution: Definition, Nature, and C. Legislative Privileges, Inhibitions,
Concepts .......................................................... 2 Disqualifications ............................................ 29
Political Law ............................................ 2 Privileges ................................................. 29
Constitutional Law ................................. 2 Inhibitions and Disqualifications ....... 30
Constitution Defined ............................. 2 Duty to Disclose ................................... 30
Classes of Constitutions ........................ 2 D. Quorum and Voting Majorities .................. 31
Basic Principles ....................................... 3 Quorum .................................................. 31
Types of Judicial Review ....................... 3 Voting Majorities................................... 31
B. Parts of a Constitution................................... 3 E. Discipline of Members ................................. 32
C. Amendments and Revisions ......................... 4 F. Electoral Tribunal and the Commission on
Concepts .................................................. 4 Appointments ................................................ 33
Procedure ................................................. 4 Nature ..................................................... 33
Summary of Two Stages of Powers..................................................... 34
Amendatory/Revision Process ............ 5 G. Powers of Congress ...................................... 36
D. Self-Executing and Non-Self-Executing Legislative ............................................... 36
Provisions ........................................................ 8 Non-legislative ....................................... 42
E. General Provisions ......................................... 9 IV. EXECUTIVE DEPARTMENT ............... 43
II. GENERAL CONSIDERATIONS ............ 10 A. Privileges, Inhibitions, Disqualifications ... 43
A. National Territory......................................... 10 Presidential Immunity .......................... 43
Archipelagic Doctrine .......................... 10 Presidential Privilege............................. 44
B. State Immunity .............................................. 11 B. Powers ............................................................ 46
Summary of Rule .................................. 11 Executive and Administrative Powers in
Concepts ................................................ 11 General.................................................... 46
Suits Against the State ......................... 11 Power of Appointment ........................ 47
Specific Rules ........................................ 12 Power of Control and Supervision .... 51
Suits against Public Officers ............... 13 Military Powers ...................................... 52
Exceptions to Prior Consent Rule ..... 13 Pardoning Powers ................................. 56
Scope of Consent ................................. 13 Diplomatic Power ................................. 58
Estoppel ................................................. 14 Powers Relative to Appropriation
C. General Principles and Policies .................. 14 Measures ................................................. 60
Principles ................................................ 14 Delegated Powers ................................. 61
Policies.................................................... 15 Veto Power ............................................ 62
D. Separation of Powers ................................... 19 Residual Power ...................................... 62
E. Checks and Balances .................................... 20 Executive Privilege................................ 62
F. Delegation of Powers .................................. 21 Emergency Powers ............................... 63
Rule of Non-Delegation of Legislative C. Rules on Succession (Presidency) .............. 64
Power ...................................................... 21 Constitutional Duty of Congress in Case
Tests for Valid Delegation .................. 21 of Vacancy in the Offices of the
G. Forms of Government ................................ 22 President and the Vice-Presidence ..... 65
Definition ............................................... 22 Vacancy in the Office of the Vice-
As to the Existence or Absence of president ................................................. 65
Control ................................................... 22 V. JUDICIAL DEPARTMENT .................... 66
As to Concentration of Powers.......... 23 A. Concepts ......................................................... 66
As to Centralization ............................. 23 Judicial Power ........................................ 66
III. LEGISLATIVE DEPARTMENT............. 24 Judicial Review....................................... 66
A. Who May Exercise Legislative Power ....... 24 B. Safeguards of Judicial Independence ......... 70
Congress ................................................. 24 C. Judicial Restraint ........................................... 71
Regional/Local Legislative Power ..... 24 D. Appointments to the Judiciary .................... 72
People’s Initiative on Statutes............. 24 E. Supreme Court .............................................. 74
En Banc and Division Cases ................ 74
Procedural Rule-Making ...................... 75
POLITICAL LAW
Administrative Supervision Over Lower B. Commission on Human Rights ................ 107

Courts ..................................................... 75
X. EDUCATION, SCIENCE,
Original and Appellate Jurisdiction ... 76
TECHNOLOGY, ARTS, CULTURE AND
VI. CONSTITUTIONAL COMMISSIONS ... 79 SPORTS ................................................... 108
A. Constitutional Safeguards to Ensure A. Academic Freedom ..................................... 108
Independence of Commissions.................. 79
B. Powers and Functions of Each Commission CONSTITUTIONAL LAW II ..............110
80 XI. BILL OF RIGHTS ................................... 111
Civil Service Commission ................... 80 A. Fundamental Powers of the State ............ 111
Commission on Elections ................... 82 Police Power ........................................ 111
Commission on Audit.......................... 84 Eminent Domain ................................ 112
C. Prohibited Offices and Interests ................ 86 Taxation ................................................ 113
D. Jurisdiction ..................................................... 86 B. Private Acts and Bill of Rights.................. 115
Civil Service Commission ................... 86 The Bill of Rights, In General .......... 115
Commission on Elections ................... 87 Basis and Purpose ............................... 115
Commission on Audit.......................... 87 Application to Private Individuals.... 115
E. Review of Final Orders, Resolutions, and C. Due Process ................................................. 116
Decisions........................................................ 88 Definition ............................................. 116
Rendered in Exercise of Quasi-Judicial Scope and Limitations ........................ 117
Functions ............................................... 88 Relativity of Due Process .................. 117
Rendered in the Exercise of Distinction between Procedural and
Administrative Functions .................... 89 Substantive Due Process ................... 117
VII. CITIZENSHIP ................................... 90 Procedural Due Process ..................... 118
A. Who are Filipino Citizens ........................... 90 Substantive Due Process ................... 120
B. Modes of Acquiring Citizenship ................ 91 Judicial Standards of Review ............. 120
C. Naturalization and Denaturalization ......... 93 Void for Vagueness Doctrine ........... 121
Naturalization ........................................ 93 D. Equal Protection ......................................... 122
Denaturalization.................................... 94 Concept................................................. 122
D. Dual Citizenship and Dual Allegiance ...... 95 Scope ..................................................... 122
Dual Citizenship ................................... 95 Requisites for Valid Classification .... 122
Dual Allegiance ..................................... 95 Presumption of Validity ..................... 122
E. Loss and Re-acquisition............................... 96 Aliens..................................................... 122
Grounds ................................................. 96 Standards for Judicial Review ........... 122
Reacquisition ......................................... 96 E. Searches and Seizures ................................. 123
F. Natural-born Citizens and Public Office.. 97 Concept................................................. 123
Search Warrant .................................... 124
VIII. NATIONAL ECONOMY AND Valid Warrantless Searches ................ 126
PATRIMONY ........................................... 98 Arrest..................................................... 128
A. Regalian Doctrine ......................................... 98 Drug, Alcohol, and Blood Tests ....... 129
B. Nationalist and Citizenship Requirement Routine Security Checks .................... 130
Provisions ...................................................... 98 F. Privacy of Communications and
C. Exploration and Development, and Correspondence .......................................... 130
Utilization of Natural Resources.............. 100 Private and Public Communications131
D. Franchises, Authority, and Certificates for Intrusion, When Allowed .................. 131
Public Utilities ............................................. 102 Writ of Habeas Data........................... 133
E. Acquisition, Ownership, and Transfer of G. Freedom of Expression ............................. 134
Public and Private Lands........................... 102 Concept and Scope ............................. 134
F. Practice of Professions .............................. 104 Content-based and Content-neutral
G. Organization and Regulation of Regulations ........................................... 138
Corporations, Private and Public Facial Challenges and the Overbreadth
(Stewardship Concept) .............................. 104 Doctrine ................................................ 141
H. Monopolies, Restraint of Trade and Unfair Tests ...................................................... 141
Competition................................................. 105 State Regulation of Different Types of
IX. SOCIAL JUSTICE AND HUMAN RIGHTS Mass Media........................................... 142
.................................................................. 106 Commercial Speech ............................ 144
A. Concept of Social Justice........................... 106 Political Speech.................................... 144
POLITICAL LAW
Private v. Government Speech ........ 145 U. Excessive Fines and Cruel Punishment .. 182
Heckler’s Veto ..................................... 145 V. Non-Imprisonment for Debts .................. 183
H. Freedom of Religion .................................. 146 W. Double Jeopardy ......................................... 184
Non-establishment Clause ................ 146 Requisites .............................................. 184
Standards used in Deciding Religion What is Barred by the Double Jeopardy
Clause Cases ........................................ 147 Rule? ...................................................... 184
Free Exercise Clause .......................... 148 Motions for Reconsideration and
Tests ...................................................... 149 Appeals ................................................. 185
I. Liberty of Abode and Freedom of Dismissal with Consent of Accused 185
Movement .................................................... 150 X. Ex Post Facto Laws and Bill of Attainder
Limitations ........................................... 150 186
Right to Travel .................................... 150 Ex Post Facto Law.............................. 186
J. Right to Information.................................. 151 Bill of Attainder ................................... 187
Limitations ........................................... 152
Publications of Laws and Regulations LAW ON PUBLIC OFFICERS ........... 189
153 XII. LAW ON PUBLIC OFFICERS ........ 190
Access to Court Records ................... 153 A. General Principles ....................................... 190
Right to Information Relative to Concept and Application ................... 190
Government Contract Negotiations 153 Characteristics of a Public Office ..... 191
Right to Information Relative to Creation, Modification and Abolition of
Diplomatic Negotiations ................... 154 Public Office ........................................ 192
K. Right of Association................................... 155 Public Officers ..................................... 192
L. Eminent Domain ........................................ 157 Classification of Public Officers and
Concept ................................................ 157 Public Officers ..................................... 193
Expansive Concept of Public Use ... 159 B. Modes of Acquiring Title to Public Office
Just Compensation ............................. 159 194
Abandonment of Intended Use and C. Kinds of Appointment............................... 195
Right of Repurchase ........................... 161 1. Nature and Characteristics of
Miscellaneous Application ................ 161 Appointments ...................................... 195
M. Contract Clause ........................................... 162 2. Classification of Appointments ........ 197
N. Legal Assistance and Free Access to Courts 3. Rules on Acceptance and Revocation
163 200
O. Rights of Persons under Custodial D. Eligibility and Qualification Requirements
Investigation ................................................ 165 202
Availability ........................................... 165 Definition ............................................. 202
Requisites ............................................. 166 2. Power to Prescribe Qualifications .... 202
Waiver................................................... 168 3. Time of Possession of Qualifications
P. Rights of the Accused ................................ 169 203
Criminal Due Process ........................ 169 4. Qualifications Prescribed by the
Bail ........................................................ 169 Constitution ......................................... 204
Presumption of Innocence ............... 171 5. Particular Qualifications..................... 205
Right to be Heard ............................... 171 E. Disabilities and Inhibitions of Public
Assistance of Counsel ........................ 172 Officers ......................................................... 206
Right to be Informed ......................... 172 Disqualifications to Hold Public Office
Right to a Speedy, and Impartial Trial 206
172 Constitutional Disqualifications ....... 206
Right to Confrontation ...................... 173 Other Disqualifications and
Trial In Absentia ................................. 173 Prohibitions .......................................... 208
Q. Writ of Habeas Corpus.............................. 175 F. Rights and Liabilities of Public Officers . 210
R. Writs of Amparo, Habeas Data, Kalikasan Rights of Public Officers ................... 210
176 Liabilities of Public Officers ............. 212
Writ of Amparo .................................. 176 Classification of Powers and Duties 214
Writ of Habeas Data .......................... 178 G. De Facto Officers vs. De Jure Officers ..... 216
Writ of Kalikasan ................................ 178 De Facto Doctrine .............................. 216
S. Self-Incrimination Clause .......................... 179 De Facto Officer Defined ................... 216
T. Involuntary Servitude and Political Prisoners Elements of a De Facto Officership .. 216
181
POLITICAL LAW
Distinguished from Other Officers . 216 Definition ............................................. 238

Officer Created under an 2 Historical Considerations .................. 238
Unconstitutional Statute .................... 217 B. Administrative Agencies ............................ 238
Legal Effects of Acts of De Facto Definition ............................................. 238
Officers................................................. 217 When is an Agency Administrative? 238
De Facto Officer’s Official Acts are Not Manner of Creation ............................ 239
Subject to Collateral Attack .............. 217 Kinds ..................................................... 239
Liability of De Facto Officers............. 217 C. Powers of Administrative Agencies ......... 239
Right to Compensation of De Facto Quasi-Legislative (Rule-Making Power)
Officer .................................................. 218 240
H. Termination of Official Relation ............. 218 Quasi-Judicial (Adjudicatory) Power244
Expiration of the Term or Tenure of the Fact-Finding, Investigative, Licensing,
Office .................................................... 218 and Rate-Fixing Powers ..................... 250
Reaching the Age Limit (Retirement) D. Judicial Recourse and Review ................... 252
218 Doctrine of Primary Administrative
Death or Permanent Disability......... 218 Jurisdiction ........................................... 253
Resignation .......................................... 219 Doctrine of Exhaustion of
Acceptance of an Incompatible Office Administrative Remedies ................... 254
219 Doctrine of Finality of Administrative
Abandonment of Office .................... 220 Action.................................................... 256
Prescription of Right to Office ........ 220
Removal ............................................... 220 ELECTION LAW ................................ 257
Impeachment....................................... 221 XIV. ELECTION LAW ............................. 258
Abolition .............................................. 221 A. Suffrage ......................................................... 258
Conviction for a Crime ...................... 221 Definitions............................................ 258
Non-User ............................................. 222 Sources of Election Law .................... 258
Recall..................................................... 222 Kinds of Elections .............................. 258
Filing of a Certificate of Candidacy by Election Period .................................... 258
an Appointive Official ....................... 222 B. Qualification and Disqualification of Voters
I. The Civil Service ......................................... 222 259
1. Scope..................................................... 222 Qualifications in General ................... 259
2. Jurisdiction of the Civil Services Disqualifications in General .............. 260
Commission (CSC) ............................. 222 Special Rules for Overseas Absentee
3. Appointments to the Civil Service... 223 Voters .................................................... 260
4. Personnel Actions............................... 224 C. Registration of Voters ................................ 261
J. Accountability of Public Officers ............ 226 Definition and Nature ........................ 261
Discipline [Cruz] ................................. 226 System of Continuing Registration of
Jurisdiction ........................................... 227 Voters .................................................... 262
Dismissal, preventive suspension, Remedy in Case of
reinstatement and back salaries ........ 228 Approval/Disapproval of Application
Impeachment....................................... 230 for Registration .................................... 263
Ombudsman [Secs. 5 to 14, Art. XI, Deactivation of Registration ............. 263
Constitution in relation to R.A. 6770] Certified List of Voters ...................... 263
231 Special Rules for Overseas Absentee
Office of the Special Prosecutor ...... 233 Voters .................................................... 264
The Sandiganbayan............................. 234 D. Inclusion and Exclusion Proceedings...... 265
K. Ill-Gotten Wealth ....................................... 235 Jurisdiction in Inclusion and Exclusion
L. Term Limits ................................................. 236 Case ....................................................... 265
All Elective Local Officials Except Process .................................................. 265
Barangay Officials............................... 236 Special Rules on Overseas Absentee
D. Barangay and Sanggunuang Kabataan Voters .................................................... 265
Officials ........................................................ 236 E. Political Parties ............................................ 266
Legal Basis and Purpose .................... 266
ADMINISTRATIVE LAW .................. 237
Definitions............................................ 266
XIII. ADMIN LAW ................................... 238 Jurisdiction of the COMELEC Over
A. General Principles ...................................... 238 Political Parties .................................... 267
POLITICAL LAW
Registration .......................................... 267 Taxing Power ....................................... 312

F. Candidacy..................................................... 270 Closure and Opening of Roads ........ 313
Qualifications of Candidates............. 270 Legislative Power ................................ 314
Filing of Certificates of Candidacy .. 272 Corporate Powers ............................... 319
G. Campaign ..................................................... 277 Liability of Local Government Units
Premature Campaigning .................... 277 322
Prohibited Contributions .................. 279 Settlement of Boundary Disputes .... 323
Lawful and Prohibited Election Succession of Elective Officials........ 324
Propaganda .......................................... 280 Discipline of Local Officials ............. 327
Limitations on Expenses ................... 280 Recall ..................................................... 331
Statement of Contributions and Term Limits ......................................... 332
Expenses .............................................. 281
H. Board of Election Inspectors (BEI) and PUBLIC INTERNATIONAL LAW ... 335
Board of Canvassers (BOC) ..................... 281 XVI. PUBLIC INTERNATIONAL LAW . 336
Board of Election Inspectors ........... 281 A. Concepts ....................................................... 336
Board of Canvassers........................... 282 1. Obligations Erga Omnes ...................... 336
Proclamation ....................................... 283 2. Jus Cogens ............................................ 337
I. Remedies and Jurisdiction in Election Law 3. Concept of Ex Aequo Et Bono ........ 337
....................................................................... 284 B. International and National Law................ 338
Petition not to Give Due Course to or International Law v. National
Cancel a Certificate of Candidacy .... 284 (Municipal) Law................................... 338
Petition for Disqualification ............. 284 Relationship ......................................... 338
Petition to Declare Failure of Elections C. Sources .......................................................... 339
285 In general .............................................. 339
Pre-Proclamation Controversy ......... 286 Treaties and Conventions .................. 339
Election Protest .................................. 289 Customary International Law ........... 340
Quo warranto ...................................... 290 General Principles of Law ................. 341
J. Prosecution of Election Offenses ........... 292 Judicial Decisions and Teachings of
Jurisdiction over Election Offenses 292 Highly Qualified Publicists ................ 341
Preferential Disposition of Election Non-Sources ........................................ 342
Offenses ............................................... 292 Jurisdiction of the International Court
Arrests in Connection with Election of Justice ............................................... 342
Campaign ............................................. 294 D. Subjects ......................................................... 343
Prescription.......................................... 294 1. States ..................................................... 343
Grant of Transactional Immunity.... 294 2. International Organizations .............. 346
Prohibited Acts under R.A. 9369 ..... 294 3. Natural or Juridical Persons .............. 347
E. Diplomatic and Consular Law .................. 347
LOCAL GOVERNMENTS ................. 296
Diplomatic Intercourse ...................... 347
XV. LOCAL GOVERNMENTS .................... 297 Consular Relations .............................. 350
A. Public Corporations ................................... 297 F. General Principles of Treaty Law ............ 353
1. Concept ................................................ 297 Concept................................................. 353
Classifications ...................................... 298 Treaty-Making Process ....................... 355
B. Municipal Corporations............................. 299 G. Nationality and Statelessness .................... 357
Elements .............................................. 299 Nationality ............................................ 357
Nature and Function .......................... 299 Statelessness ......................................... 358
Requisites for Creation, Conversion, H. State Responsibility ..................................... 359
Division, Merger, or Dissolution ..... 299 Doctrine of State Responsibility ....... 359
C. Principles of Local Autonomy ................. 306 Consequences of State Responsibility
Decentralization v. Devolution ........ 306 360
President’s Power of Supervision over I. Jurisdiction of States ................................... 362
Local Governments............................ 307 Kinds of Jurisdiction .......................... 362
Local Fiscal Autonomy ...................... 307 Principles of State Jurisdiction .......... 362
D. Powers of Local Government Units ....... 310 Reserved Domain of Domestic
Police Power (General Welfare Clause) Jurisdiction ........................................... 363
310 State Immunity .................................... 363
Eminent Domain ................................ 311
POLITICAL LAW
Immunity of International
Organizations and Their Officers .... 364
J. Treatment of Aliens ................................... 365
Standard of Treatment ....................... 365
State Responsibility ............................ 365
Calvo Clause ........................................ 366
Extradition ........................................... 366
K. International Human Rights Law ............ 367
Universal Declaration of Human Rights
367
International Covenant on Civil and
Political Rights .................................... 368
International Covenant on Economic,
Social and Cultural Rights ................. 368
L. International Humanitarian Law.............. 369
General ................................................. 369
Armed Conflict ................................... 369
Obligations of States .......................... 370
Principles of IHL ................................ 371
Law on Neutrality ............................... 372
Jurisdiction of the International
Criminal Court .................................... 373
R.A. No. 9851 ..................................... 373
M. Law of the Sea............................................. 375
Baselines ............................................... 375
Archipelagic states .............................. 375
Internal waters..................................... 376
Territorial Sea ...................................... 376
Contiguous Zone ................................ 376
Exclusive Economic Zone................ 377
Continental Shelf ................................ 377
The Area............................................... 378
International Tribunal for the Law of
the Sea (ITLOS) .................................. 378
N. International Environmental Law ........... 379
O. Madrid Protocol and Paris Convention .. 380
Madrid Protocol .................................. 380
Paris Convention ................................ 380
P. International Economic Law .................... 381
U.P. LAW BOC CONSTITUTIONAL LAW I POLITICAL LAW
CONSTITUTIONAL LAW I
Political Law
Page 1 of 382
I. THE PHILIPPINE fundamental powers of the government are

established, limited, and defined, and by which those
CONSTITUTION powers are distributed among the several departments
for their safe and useful exercise, for the benefit of the
body politic [MALCOLM, Phil. Constitutional Law].
A. Constitution: Definition, “A law for the government, safeguarding individual
Nature, and Concepts rights, set down in writing” [Hamilton].
According to Schwartz, "a constitution is seen as an

Political Law organic instrument, under which governmental
powers are both conferred and circumscribed. Such
Political law: This is the branch of public law which stress upon both grant and limitation of authority is
deals with the organization and operations of the fundamental in American theory. 'The office and
governmental organs of the State and defines the purpose of the constitution is to shape and fix the
relations of the State with the inhabitants of its limits of governmental activity'" [FERNANDO, The
territory [People v. Perfecto, 43 Phil 88 (1922)]. Constitution of the Philippines 20-21(2nd ed., 1977)].
The entire field of political law may be subdivided
into: Classes of Constitutions
a. The law of public administration – organization
and management of the different branches of the a. Written v. Unwritten
government
b. Constitutional law – guaranties of the A written constitution’s precepts are embodied in one
constitution to individual rights and the document or set of documents. An unwritten
limitations on governmental action constitution consists of rules which have not been
c. Administrative law – exercise of executive power integrated into a single, concrete form but are
in the making of rules and the decision of scattered in various sources, such as statutes of
questions affecting private rights fundamental character, judicial decisions,
d. The law of public corporations – governmental commentaries of publicists, customs and traditions
agencies for local government or for other special [CRUZ, Constitutional Law 4-5; Nachura, Outline
purposes [SINCO] Reviewer in Political Law 2].
Constitutional Law b. Enacted (Conventional) v.

Evolved (Cumulative)
This is the law embodied in the Constitution and the
legal principles growing out of the interpretation and A conventional constitution is enacted formally at a
application of its provisions by the courts in specific definite time and place following a conscious or
cases. It is the study of the maintenance of the proper deliberate effort taken by a constituent body or ruler.
balance between the authority as represented by the A cumulative body is the result of political evolution,
three inherent powers of the State and liberty as not inaugurated at any specific time but changing by
guaranteed by the Bill of Rights. accretion rather than by any systematic method
[CRUZ].
Constitution Defined
c. Rigid v. Flexible
This refers to the body of rules and maxims in
accordance with which the powers of sovereignty are A constitution is classified as rigid when it may not be
habitually exercised [COOLEY, The General Principles amended except through a special process distinct
of Law in the United States of America]. from and more involved than the method of changing
ordinary laws. It is supposed that by such a special
It is the document which serves as the fundamental procedure, the constitution is rendered difficult to
law of the state; that written instrument enacted by change and thereby acquires a greater degree of
the direct action of the people by which the stability. A constitution is classified as flexible when it
Page 2 of 382
may be changed in the same manner and through the

same body that enacts ordinary legislation. The
B. Parts of a Constitution
Constitution of the UK is flexible.
1. Constitution of Government: establishes the
Note: The Philippine Constitution is written, enacted, structure of government, its branches and their
and rigid. operation; e.g. Art. VI, VII, VIII, IX
2. Constitution of Sovereignty: provides how the
Date of Effectivity of the 1987 Const.: February 2, Constitution may be changed; i.e. Art. XVII
1987, the date of the plebiscite, and not on the date its 3. Constitution of Liberty: states the fundamental
ratification was proclaimed [De Leon v. Esguerra, G.R. rights of the people; e.g. Art. III [Lambino v.
No. 78059 (1987)]. COMELEC, G.R. No. 174153. October 25,
2006]
Basic Principles
a. Verba legis: Whenever possible, the words used
in the Constitution must be given their ordinary
meaning except where technical terms are
employed.
b. Ratio legis est anima: Words of the
Constitution should be interpreted in accordance
with the intent of the framers.
c. Ut magis valeat quam pereat: The
Constitution should be interpreted as a whole
[Francisco v. House of Representatives, 415 SCRA 44
(2003)].
Types of Judicial Review

Europe Judicial US Judicial Review
Review (Followed by the PHL)
US Supreme Court:
Constitutional Courts:
decentralized; all courts
centralized, only one
can exercise judicial
court can exercise
review
Incidenter: question that is
Principaliter: questions
recognized by the Court
are independent of
must be part of the
disputes
controversy
Page 3 of 382
C. Amendments and
Procedure
Revisions
There are two steps in the amendatory process:
Refer to ART. XVIII – AMENDMENTS OR
REVISIONS a. Proposal: This refers to the adoption of the
suggested change in the Constitution.
Concepts 1. Congress (as a Constituent Assembly) – a
vote of 3/4 of ALL its members.
Amendments: An addition or change within the lines 2. Constitutional Convention – Called into
of the original constitution as will effect an existence by (i) 2/3 of all members of
improvement, or better carry out the purpose for Congress OR (ii) the electorate, in a referendum
which it was framed; a change that adds, reduces or called for by a majority of all members of
deletes without altering the basic principles involved; Congress [Sec. 3, Art. XVII]
affects only the specific provision being amended 3. People (through a People’s Initiative) –
[Lambino v. COMELEC, supra]. petition of at least 12% of the total number
of registered voters; every legislative district
Revisions: A change that alters a basic principle in must be represented by at least 3% of the
the constitution, like altering the principle of registered voters therein
separation of powers or the system of checks-and- i. Limitation on Initiative: No
balances; alters the substantial entirety of the amendment in this manner shall be
constitution, as when the change affects substantial authorized (1) within 5 years following
provisions of the constitution [Id.]. the ratification of the 1987 Const. nor
(2) more often than once every 5 years
Difference: Revision generally affects several thereafter.
provisions of the constitution, while amendment ii. Enabling Law: Constitutional
generally affects only the specific provision being provision on amendments via People’s
amended [Id.]. This distinction is significant because Initiative are not self-executory
the 1987 Constitution allows people’s initiative only [Defensor-Santiago v. COMELEC, 270
for the purpose of amending, not revising, the SCRA 170 (1997)]
Constitution [See Lambino v. COMELEC, supra]. b. Ratification: The proposed amendment shall be
submitted to the people and shall be deemed
Legal Tests ratified by the majority of the votes cast in a
plebiscite, held not earlier than 60 days nor later
Lambino considered the two-part test: the quantitative test than 90 days:
and the qualitative test. a. After approval of the proposal by
Congress or ConCon;
a. Quantitative test: The court examines only the b. After certification by the COMELEC of
number of provisions affected and does not sufficiency of petition of the people.
consider the degree of the change.
b. Qualitative test: The court inquires into the Doctrine of Proper Submission: A plebiscite may
qualitative effects of the proposed change in the be held on the same day as a regular election [Gonzales
constitution. The main inquiry is whether the v. COMELEC, G.R. No. L-28196 (1967)]. The entire
change will “accomplish such far reaching Constitution must be submitted for ratification at one
changes in the nature of our basic governmental plebiscite only. The people must have a proper “frame
plan as to amount to a revision.” The changes of reference” [J. Barredo’s Dissent in Tolentino v.
include those to the “fundamental framework or COMELEC, G.R. No. L-34150 (1971)]. No
the fundamental powers of its Branches,” and “piecemeal submission” is allowed e.g. submission of
those that “jeopardize the traditional form of age amendment ahead of other proposed
government and the system of check and amendments [Lambino v. COMELEC, supra].
balances.” Whether there is an alteration in the
structure of government is a proper subject of Note: The process of revision is the same in all respects
inquiry [Lambino v. COMELEC, supra]. except that it cannot be proposed via a People’s
Initiative [See Lambino v. COMELEC, supra].
Page 4 of 382
Judicial Review of Amendments: The validity of processes were followed [See Lambino v. COMELEC,
the process of amendment is not a political question supra].
because the Court must review if constitutional
Summary of Two Stages of Amendatory/Revision Process

By Proposal Ratification
Congress as
Constituent By a vote of ¾ of all its members
Assembly
(In practice) Per internal rules, Via Plebiscite, 60-90 days after
Amendments Constitutional
limited by the Doctrine of Proper submission of the amendments
Convention
Submission
Upon COMELEC’s certification of
People’s Initiative
the sufficiency of the petition
Congress as
Constituent By a vote of ¾ of all its members
Assembly Via Plebiscite, 60-90 days after
Revisions
(In practice) Per internal rules, submission of the revision
Constitutional
limited by the Doctrine of Proper
Convention
Submission
TABLE OF CASES RE: CONSTITUTIONAL AMENDMENTS AND CHANGES IN GOVERNMENT
Title Facts Held and Ratio

Mabanag v.
Petition dismissed. Proposal of amendments to
Lopez Vito [G.R.
the constitution is a political question. The
No. L- Resolution of Congress proposing the
enrolled copy of the resolution in which it was
1123(1947)]: Parity Amendment was assailed on the
certified that the proposal had been approved
Congressional ground that it did not comply with the
by the required vote was conclusive upon the
Resolution 3/4 rule prescribed by the Constitution.
courts.
proposing the
Parity
Modified by Gonzales, infra, and Tolentino, infra.
Amendment
RBH No. 1 called for an increase in the
Gonzales v.
membership of the HOR; RBH No. 2 Petition denied.
COMELEC,
called for a Constitutional Convention; 1. Proposal of amendments is not a political but a
supra:
and RBH No. 3 called for the justiciable question subject to judicial review.
Resolutions of
amendment of Sec. 16, Art.VI to allow 2. Congress may propose amendments and at
Both Houses
members of Congress to become the same time call for a Constituent
(RBH) calling for
delegates to the CONCON without Assembly.
the 1971
losing their seats. Petitioners seek to 3. Ratification may be done simultaneously
Constitutional
restrain respondents from enforcing the with a general election or in a special
Convention and
law passed by Congress submitting RBH election called specifically for that purpose.
amendments to
Nos. 1 and 2 for ratification during the
the 1935
general elections scheduled on Nov. There was proper submission.
Constitution
1967.
Tolentino v. Validity of a CONCON Resolution
COMELEC, (submitting, for ratification, the proposal Petition granted. All amendments proposed by
supra: to lower the voting age to 18) was the same Constitutional Convention shall be
1971 assailed. The question here is whether submitted to the people in a single election.
Constitutional piecemeal amendments to the
Page 5 of 382

Convention Constitution could be submitted to the
convened people for ratification or rejection.
Petitioners seek to enjoin respondents
from implementing PD 73, which called
Planas v.
for a plebiscite (to be held on January 15,
COMELEC Petition dismissed.The issue of validity of calling
1973) for the constitution approved by
[G.R. No. L- for a plebiscite (submission) is justiciable; BUT,
the CONCON on 1972, on the theory
35925(1973)]: issue became moot.
that: (a) the power to submit is lodged
Plebiscite cases
exclusively in Congress, and (b) there is
no proper submission to the people.
Petitioners seek to enjoin the
Javellana v.
respondents from implementing any of Although the question of whether a
Executive
the provisions of the “new constitution” Constitution was validly ratified is a justiciable
Secretary [G.R.
not found in the 1935 Constitution, on question, the question of whether a Constitution has
No. L-36142
the theory that it was not validly ratified come into force and effect is a political question
(1973)]:
in accordance with the provisions of beyond the competence of the Court to decide.
Ratification cases
Art.1, Section XV.
The amending process, both as to proposal and
Sanidad v. Petitioners question the authority of the
ratification, raises a justiciable question.
COMELEC President in issuing several PDs
[G.R. No. L- proposing amendments to the New
In a crisis government, the President shall have
44640 (1976)]: Constitution and calling for a national
the power to assume the constituent power to
1976 referendum-plebiscite for the said
propose amendments lodged in the Legislative
Amendments amendments.
body.
Even without valid ratification, a new
Constitution could come into force and effect
by the acquiescence of the people. Popular
Petitioners argue that the 1973
Mitra v. acquiescence to a new Constitution gives the
Constitution never validly took effect,
COMELEC document the force and effect of the
Javellana aside, on the theory that the
[G.R. No. 56503 Fundamental Law of the Land, regardless of the
1973 Constitution was still and is still at
(1981)]: method of ratification. If it is accepted by the
the stage of proposal. They ask the Court
1973 Constitution, people (as shown by their participation in
to order a plebiscite for the ratification of
effective several elections and referenda since then), in
the 1973 Constitution.
whom sovereignty resides according to the
Constitution, the courts cannot refuse to yield
assent to such a political decision.
Lawyers’ League
for a Better The question of legitimacy of a new
Philippines v. Petitioners questioned legitimacy of the government arising from a successful
Aquino [G.R. No. Aquino government. revolution is a political question beyond the
76180 (1986)]: pale of review by the courts.
EDSA Revolution
Petitioners question the appointment of
De Leon v. Date of effectivity of 1987 Constitution
respondents as barangay officials and
Esguerra [G.R. retroacts to the date of the plebiscite, i.e. 2 Feb.
maintain that with the ratification of the
No. 78059(1987)]: 1987. Provisional Constitution deemed to have
1987 Constitution, the OIC did not have
1987 Constitution been superseded by 1987 Constitution on said
the authority to simply appoint their
ratified date of effectivity.
replacements.
Defensor- COMELEC was permanently enjoined from
Petitioners seek to enjoin respondent
Santiago v. entertaining or taking cognizance of any
COMELEC from acting on the petition
COMELEC petition for initiative until a sufficient law shall
by the PIRMA group asking for an order
[G.R. No. 127325 have been validly enacted to provide for the
fixing details on how to collect signatures
(1997)]: implementation of the system.
Page 6 of 382

PIRMA case for a people’s initiative to amend the
Constitution The system of initiative found in Article XVII,
Sec. 2 is not self-executory. It needs an enabling
law before the right of the people could be
exercised. However, an examination of its
provisions reveals that RA 6735 is incomplete,
inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments
to the Constitution is concerned.
(Legal distinction between EDSA I and EDSA
Estrada v.
Estrada questions legitimacy of Arroyo II) The government arising from EDSA I was
Desierto [G.R.
government and claims, inter alia, that he extra-constitutional, while EDSA II was a
Nos. 146710-15
did not resign from position and that constitutional exercise of the right to free
(2001)]:
Arroyo is merely an acting president. speech, freedom of assembly, and to petition
EDSA II
the government for redress.
The constituent power reserved to people
under Art. XVII Sec. 2 is limited to the power
Lambino v. to propose amendments to, not revision of, the
Petitioners seek review of COMELEC
COMELEC, Constitution.
decision denying due course to a people’s
supra:
initiative to amend the 1987
Lambino Group Moreover, “direct proposal by the people”
Constitution.
People’s Initiative means that the petition signed by the people
should contain the full text of the proposed
amendments to the Constitution.
Page 7 of 382
implementation, nor may its exercise be limited,

D. Self-Executing and Non- much less withdrawn, by the legislature [Ocampo v.
Self-Executing Enriquez, G.R. No. 225973 (2016)].
Provisions
General Presumption: All provisions of the constitution
are self-executing. “Unless the contrary is clearly
intended, the provisions of the Constitution should
be considered self-executing” [Manila Prince v. GSIS,
335 Phil. 82 (1997)].
Exception: Statements of general principles, such as those in

Art. II, are usually not self-executing. [Id.]
• Other examples in jurisprudence:
constitutional provisions on personal
dignity, sanctity of family life, vital role of
the youth in nation-building, values of
education, social justice and human rights,
promotion of general welfare, vital role of
the youth in nation-building, promotion of
total human liberation and development are
merely guidelines for legislation [Id; citations
omitted.]
Exception to the Exception: The (1) right to a

balanced and healthful ecology is self-executing [Oposa v.
Factoran, G.R. No. 101083(1993)]. The (2) promotion
and protection of health [Const., art. II, sec. 15] is also
self-executory [Imbong v. Ochoa, G.R. No. 204819,
(2014)].
N.B. Other “exceptions” to the exception, e.g. (1)

right to information in Art. III [See Legaspi v. CSC,
G.R. No. L-72119(1987)] and the (2) Filipino First
Policy [See Manila Prince, supra] are self-executing
because they actually fall under the general rule.
Non-Self Executing: Provisions which merely

“la[y] down a general principle.” [Manila Prince, supra].
Declaration of principles and state policies are not
self-executing [Espina v. Zamora, G.R. No. 143855
(2010)].
The legislative’s failure to pursue policies does not

give rise to a cause of action [Id.].
N.B. A provision may be self-executing in one part,

and non-self-executing in another [Manila Prince,
supra].
The presidential power of control over the Executive

Branch of Governmentis a self-executing provision
of the Constitution and does not require statutory
Page 8 of 382
or associations at least 70% of

E.General Provisions which is owned by Filipino citizens
b. Participation of foreign investors is
Refer to ART. XVI – GENERAL PROVISIONS limited to their proportionate share
in the capital
1. Flag of the Philippines [Sec. 1] c. Managing officers must be Filipino
a. Red, white and blue, with a sun and citizens
three stars
b. Design of the flag may be changed
only by constitutional amendment
[BERNAS]
2. Name of the country, national anthem,
and national seal [Sec. 2]
a. May be changed by Congress by law
b. Such law will only take effect upon
ratification by the people in a
national referendum
3. Armed Forces of the Philippines [Sec. 4]
a. Composed of a citizen armed force
b. Shall take an oath or affirmation to
uphold and defend the
Constitution [Sec. 5(1)]
c. May not be appointed or
designated to a civilian position in
the government including GOCCs
or their subsidiaries [Sec. 5(4)]
d. Laws on retirement of military
officers shall not allow extension of
their service [Sec. 5(5)]
e. Recruited proportionately from all
provinces and cities as far as
practicable [Sec.5(6)]
f. Tour of duty of the Chief of Staff
shall not exceed three years [Sec.
5(7)] except when extended by the
President in times of war or other
national emergency declared by the
Congress [Id.]
4. Police Force [Sec. 6]
a. One police force
b. National in scope
c. Civilian in character
5. Consumer Protection [Sec. 9]
6. Mass Media [Sec.11]
a. Ownership and management
limited to (i) citizens of the
Philippines or (ii) corporations,
cooperatives or associations wholly-
owned and managed by Filipino
citizens
7. Advertising Industry [Sec. 11]
a. Can only be engaged in by (i)
Filipino citizens or (ii) corporations
Page 9 of 382
II. GENERAL c. Treaty of 12 January 1930 between the United

States and Great Britain: Ceding the Turtle and
CONSIDERATIONS Mangsee Islands. [Bernas (2003), cited in Justice
Velasco’s concurring opinion in Magallona v.
Ermita, G.R. No. 187167 (2011)].
A. National Territory Straight Baseline Method: consists of drawing
straight lines connecting appropriate points on the
What comprises the national territory? What does it consist of?
coast without departing to any appreciable extent
The national territory is comprised of:
from the general direction of the coast, in order to
1. The Philippine archipelago, with all the islands
delineate the internal waters from the territorial
and waters embraced therein; Internal waters, or
waters of an archipelago [NOTE: This is the method
waters around, between, and connecting the
prescribed under the UNCLOS].
islands of the archipelago, regardless of breadth
and dimension; and
See R.A. No. 9522: Amended R.A. No. 3046, entitled
2. All other territories over which the Philippines
"An Act to Define the Baselines of the Territorial Sea
has sovereignty or jurisdiction
of the Philippines;" specified that baselines of
Kalayaan Group of Islands and Bajo de Masinloc
It consists of:
(Scarborough Shoal) shall be determined as “Regime
1. Territorial sea, seabed, subsoil, insular shelves,
of Islands” under the Republic of the Philippines,
and other submarine areas
consistent with the UNCLOS.
2. Terrestrial, fluvial, and aerial domains
R.A. No. 9522 is not unconstitutional: (1) it is a
Note: From the text of EDCA itself, Agreed
statutory tool to demarcate the maritime zone and
Locations are territories of the Philippines that the
continental shelf of the Philippines under UNCLOS
U.S. forces are allowed to access and use. By
III, and does not alter the national territory. (2) While
withholding ownership of these areas and retaining
UNCLOS III does not bind the Philippines to pass a
unrestricted access to them, the government asserts
baselines law, Congress may do so. (3) The law also
sovereignty over its territory. That sovereignty exists
does not abandon the country’s claim to Sabah, as it
so long as the Filipino people exist [Saguisag v.
does not expressly repeal the entirety of R.A. No.
Executive Secretary, G. R. No. 212426 (2016)].
5446 [Magallona v. Ermita,supra].
Archipelagic Doctrine
A body of water studded with islands, or the islands
surrounded with water, is viewed as a unity of islands
and waters together forming one integrated unit.
[N.B. Embodied in Art. II, specifically by the
mention of the “Philippine archipelago” and the
specification on “internal waters.”]
Treaty limits of the Philippine archipelago

a. Treaty of Paris of 10 December 1898: “Spain
cedes to the United States the archipelago known
as the Philippines Islands, and comprehending
the islands lying within the following line” xxx
Article 3 defines the metes and bounds of the
archipelago by longitude and latitude, degrees
and seconds. Technical descriptions are made of
the scope of the archipelago as this may be found
on the surface of the earth.
b. Treaty of Washington of 7 November 1900
between the United States and Spain: Ceding
Cagayan, Sibuto and Sulu.
Page 10 of 382
Jurisprudential Basis:
B. State Immunity a. Positivist Theory – There can be no legal right
as against the authority that makes the laws on
Summary of Rule which the right depends. Also called the
doctrine of Royal Prerogative of Dishonesty.
General Rule: The State cannot be sued. [Department of Agriculture v. NLRC, G.R. No.
104269 (1993)]
Exception: When the State consents to be sued. How b. Sociological Theory – If the State is amenable
consent is given: to suits, all its time would be spent defending
a. Express consent itself from suits and this would prevent it from
1. General law; or performing its other functions [Republic v.
2. Special law Villasor, G.R. No. L-30671 (1973)].
b. Implied consent
1. When the State commences litigation, it Suits Against the State
becomes vulnerable to a counterclaim;
2. State enters into a business contract (it is When against the state
exercising proprietary functions); A suit is against the State regardless of who is named
3. When it would be inequitable for the State the defendant if:
to invoke immunity; a. It produces adverse consequences to the public
4. In eminent domain cases. treasury in terms of disbursement of public funds
and loss of government property.
Concepts b. It cannot prosper unless the State has given its
consent.
State
A community of persons, more or less numerous, Note: To compel the City of Manila to consider the
permanently occupying a definite portion of territory, standards to the Torre de Manila project will be an
independent of external control, and possessing a empty exercise since these standards cannot apply
government to which a great body of the inhabitants outside of the Rizal Park - and the Torre de Manila is
render habitual obedience; a politically organized outside the Rizal Park. Mandamus will lie only if the
sovereign community independent of outside control officials of the City of Manila have a ministerial duty
bound by ties of nationhood, legally supreme within to consider these standards to buildings outside of
its territory, acting through a government functioning the Rizal Park. There can be no such ministerial duty
under a regime of law [Collector of Internal Revenue v. because these standards are not applicable to
Campos Rueda, G.R. No. 13250 (1971)]. buildings outside of the Rizal Park [Knights of Rizal v.
DMCI Homes, G.R. No. 213948 (2017)].
The state as a person of international law should
possess the following qualifications: (a) a permanent When not against the state
population; (b) a defined territory; (c) government; It was held that the suit is not against the State:
and (d) capacity to enter into relations with the other 1. When the purpose of the suit is to compel an
states [Art. 1, Montevideo Convention]. officer charged with the duty of making payments
pursuant to an appropriation made by law in favor
Bases of the plaintiff to make such payment, since the
Constitutional (Textual) Basis: suit is intended to compel performance of a ministerial
duty [Begosa v. Philippine Veterans Association, G.R.
Sec. 3, Art. XVI. The State may not be sued No. L-25916(1970)].
without its consent. 2. When, from the allegations in the complaint, it is
clear that the respondent is a public officer sued
in a private capacity;
International Law Basis:
3. When the action is not in personam with the
“Par in parem non habet imperium.”
government as the named defendant, but an
action in rem that does not name the government
in particular.
Page 11 of 382
Express Consent 3. Liability under the Local Government

Effected only by the will of the legislature through Code
the medium of a duly enacted statute; may be Local government units and their officials
embodied either in a general law or a special law. are not exempt from liability for death or
injury to persons or damage to property
General Law [Sec. 24, LGC].
Authorizes any person who meets the conditions
stated in the law to sue the government in accordance Special Agent – One who receives a definite and
with the procedure in the law; e.g. fixed order or commission, foreign to the exercise of
the duties of his office if he is a special official [Merritt
a. Money claims arising from contract express v. Government of the Philippine Islands, G.R. No. L-
or implied 11154(1916)]. One who performs his regular
functions, even if he is called a “special agent”, is not
Act No. 3083: An Act Defining the Conditions a special agent within the context of Government
under which the Government of the Philippines liability [USA v. Guinto, G.R. No. 76607, (1990)].
may be sued.
Special Law– May come in the form of a private bill
Sec. 1. Subject to the provisions of this Act, the authorizing a named individual to bring suit on a
Government of the Philippines hereby consents special claim
and submits to be sued upon any moneyed claim
involving liability arising from contract, express or Implied consent
implied, which could serve as a basis of civil action a. In instances when the State takes private
between private parties. property for public use or purpose (eminent
domain)
Sec. 2. A person desiring to avail himself of the b. When the State enters into a business contract (in
privilege herein conferred must show that he has jure gestionis or proprietary functions)
presented his claim to the Commission on Audit c. When it would be inequitable for the State to
and that the latter did not decide the same within invoke its immunity.
two months from the date of its presentation. xxx d. If the government files a complaint, defendant
may file a counterclaim against it. When the state
files a complaint, suability will result only where
Sec. 5. When the Government of the Philippines the government is claiming affirmative relief
is plaintiff in an action instituted in any court of from the defendant.
original jurisdiction, the defendant shall have the
right to assert therein, by way of set-off or Note: When the DOTC constructed the encroaching
counterclaim in a similar action between private structures and subsequently entered into the FLA
parties. xxx with Digitel for their maintenance, it was carrying out
a sovereign function. Therefore, these are acts jure
b. TORTS imperii that fall within the cloak of state immunity.
However, the doctrine of state immunity cannot
1. Liability of local government units serve as an instrument for perpetrating an injustice to
Provinces, cities and municipalities shall be a citizen. The SC, citing Ministerio v CFI (1971), held
liable for damages for the death or injuries that when the government takes any property for
suffered by any person by reason of the public use, which is conditioned upon the payment
defective conditions of roads, streets, public of just compensation, to be judicially ascertained, it
buildings and other public works under their makes manifest that it submits to the jurisdiction of a
control and supervision [Art. 2189, CC]. court. The Department's entry into and taking of
possession of the respondents' property amounted to
2. Vicarious liability for special agents an implied waiver of its governmental immunity from
The Government is only liable for the acts suit. [DOTC v. Sps. Abecina, G.R. No. 206484 (2016)]
of its agents, officers and employees, when
they act as special agents within the meaning
of the provision [Art. 2180(6), CC]. Specific Rules
Page 12 of 382
Suits against Government Agencies: Depends on disrupted by the diversion of public fund from their
whether the agency is incorporated (i.e. there is a legitimate and specific objects, and as appropriated by
separate charter) or unincorporated (i.e. no separate law. The rule is based on obvious considerations of
personality). public policy [National Housing Authority v. Roxas, G.R.
a. Incorporated: If the charter provides that the No. 171953 (2015)].
agency can sue, then the suit will lie. The
provision in the charter constitutes express Suits against Public Officers
consent. [See SSS v. Court of Appeals, 120 SCRA
707 (1983)]
General Rule: The doctrine of state immunity also
b. Unincorporated: There must be an inquiry unto
applies to complaints filed against officials of the
the principal functions of government.
State for acts performed by them in the discharge of
1. If governmental: No suit without consent.
their duties within the scope of their authority.
[Bureau of Printing v. Bureau of Printing
Employees Association (1961)]
Exception: The doctrine of immunity from suit will
2. If proprietary: Suit will lie, because when
not apply and may not be invoked where the public
the state engages in principally proprietary
official is being sued in his (1) private and personal
functions, it descends to the level of a
capacity as an ordinary citizen, for (2) acts without
private individual, and may, therefore be
authority or in excess of the powers vested in him
vulnerable to suit. [Civil Aeronautics
[Lansang v. CA, G.R. No. 102667 (2000)].
Administration v. Court of Appeals, G.R. No. L-
51806 (1988)]. State may only be liable for
Note: Acts done without authority are not acts of the
proprietary acts (jure gestionis) and not for
State.
sovereign acts (jure imperii).
Type Function Rule Exceptions to Prior Consent

Governmental
CAN
sued
be
IF
Rule
Incorporated
or proprietary charter
Case law provides that the following are well-
allows
recognized exceptions when the state/public officer
CANNOT MAY be sued without prior consent:
be sued
1. To compel him to do an act required by law;
Governmental unless
2. To restrain him from enforcing an act claimed to
Unincorporated consent is
be unconstitutional;
given
3. To compel the payment of damages from an
CAN be already appropriated assurance fund or to refund
Proprietary
sued tax over-payments from a fund already available
for the purpose;
Note: The mantle of the State's immunity from suit 4. To secure a judgment that the officer impleaded
did not extend to the NHA despite its being a may satisfy by himself without the State having
government-owned and -controlled corporation. to do a positive act to assist him;
Under Sec. 6(i) of PD No. 757, which was its charter, 5. Where the government itself has violated its own
the NHA could sue and be sued. There is no question laws [Sanders v. Veridiano II, G.R. No. L-46930
that the NHA could sue or be sued, and thus could (1988)].
be held liable under the judgment rendered against it.
But the universal rule remains to be that the State,
although it gives its consent to be sued either by Scope of Consent
general or special law, may limit the claimant's action
only up to the completion of proceedings anterior to Consent to be sued is not concession of liability:
the stage of execution. The power of the court ends Suability depends on the consent of the state to be
when the judgment is rendered because government sued, and liability on the applicable law and the
funds and property may not be seized pursuant to established facts. The circumstance that a state is
writs of execution or writs of garnishment to satisfy suable does not necessarily mean that it is liable, but
such judgments. The functions and public services of it can never be held liable if it does not first consent
the State cannot be allowed to be paralyzed or to be sued. When the state does waive its sovereign immunity,
Page 13 of 382
it is only giving the plaintiff the chance to prove that it is liable.

[United States of America v. Guinto, 182 SCRA 644
C. General Principles and
(1990)] Policies
Estoppel Refer to ART. II – DECLARATION OF
PRINCIPLES AND STATE POLICIES
General Rule: The State cannot be estopped by the
omission, mistake or error of its officials or agents Principles
[Republic v. Galeno, G.R. No. 215009 (2017)].
[Secs. 1-6]: Binding rules which must be observed in
Exception: While estoppel generally does not apply the conduct of government [BERNAS]
against government, especially when the case
involves the collection of taxes, an exception can be
made when the application of the rule will cause a. The Philippines is a democratic
injustice against an innocent party. and republican state
Respondent had already acquired a vested right on Sec. 1. The Philippines is a democratic and
the tax classification of its San Mig Light as a new republican State. Sovereignty resides in the people
brand. To allow petitioner to change its position will and all government authority emanates from
result in deficiency assessments in substantial them.
amounts against respondent to the latter's prejudice
[Commissioner of Internal Revenue v. San Miguel The Philippines, under the Const., is not just a
Corporation, G.R. Nos. 205045 & 205723 (2017)]. representative government but also shares some
aspects of direct democracy such as, for instance, the
“initiative and referendum” under Art. VI, Sec. 32
[BERNAS].
b. Renunciation of war
Sec. 2. The Philippines renounces war as an
instrument of national policy, adopts the generally
accepted principles of international law as part of
the law of the land and adheres to the policy of
peace, equality, justice, freedom, cooperation, and
amity with all nations.
This only refers to wars of aggression, not defensive

war.
c. Adoption of generally-accepted
principles of international law
[Sec. 2, supra]
Under the 1987 Constitution, international law can
become part of the sphere of domestic law either by
transformation or incorporation.
Transformation: This requires that an international

law be transformed into a domestic law through a
constitutional mechanism such as local legislation.
Page 14 of 382
Incorporation: This occurs when, by mere

constitutional declaration, international law is g. Compulsory military and civil
deemed to have the force of domestic law
[Pharmaceutical and Health Care Assoc. of the Philippines v. service
Duque III, G.R. No. 173034 (2007)].
Sec. 4. The prime duty of the Government is to
Generally accepted principles of international law, by serve and protect the people. The Government
virtue of the incorporation clause of the Constitution, may call upon the people to defend the State and,
form part of the laws of the land even if they do not in the fulfillment thereof, all citizens may be
derive from treaty obligations. required, under conditions provided by law, to
render personal, military or civil service.
“Generally accepted principles of international
law”: These are norms of general or customary N.B. Under conditions provided by law.
international law which are binding on all states, such
as – h. Maintenance of peace and order,
1. Renunciation of war as an instrument of
national policy;
promotion of general welfare
2. The principle of sovereign immunity;
3. A person's right to life, liberty and due Sec. 5. The maintenance of peace and order, the
process; protection of life, liberty, and property, and
4. Pacta sunt servanda (international agreements promotion of the general welfare are essential for
must be performed in good faith) the enjoyment by all the people of the blessings of
democracy.
d. Adherence to a policy of peace,
freedom, and amity with all i. Recognition of hierarchy of
nations [Sec. 2, supra] rights [BERNAS; Sec. 5, supra]
1. Life
e. Civilian supremacy 2. Liberty
3. Property
Sec. 3. Civilian authority is, at all times, supreme
over the military. The Armed Forces of the j. Separation of Church and State
Philippines is the protector of the people and the
State. Its goal is to secure the sovereignty of the
Sec. 6. The separation of Church and State shall
State and the integrity of the national territory.
be inviolable.
Civilian authority (Sec. 3, Art. II) is not defeated in a
joint task force between the PNP and Marines for the Policies
enforcement of law and order in Metro Manila as
long as control is left to the PNP [Integrated Bar of the [Secs. 7-28]: Guidelines for the orientation of the state
Philippines v. Zamora, G.R. No. 141284(2000)]. [Bernas]
f. Role of the armed forces [Sec. 3, a. Independent foreign policy

supra]
Sec. 7. The State shall pursue an independent
1. Protector of the people and the State foreign policy. In its relations with other states, the
2. Secure the sovereignty of the State and the paramount consideration shall be national
integrity of the national territory sovereignty, territorial integrity, national interest,
and the right to self-determination.
Page 15 of 382
b. Freedom from nuclear weapons e. Personal dignity and human

rights
Sec. 8. The Philippines, consistent with the
national interest, adopts and pursues a policy of Sec. 11. The State values the dignity of every
freedom from nuclear weapons in its territory. human person and guarantees full respect for
human rights.
c. Promote a just and dynamic
social order f. Family as basic social institution
and natural and primary right
Sec. 9. The State shall promote a just and dynamic and duty of parents in the
social order that will ensure the prosperity and
independence of the nation and free the people rearing of the youth
from poverty through policies that provide
adequate social services, promote full Sec. 12. The State recognizes the sanctity of family
employment, a rising standard of living, and an life and shall protect and strengthen the family as
improved quality of life for all. a basic autonomous social institution. It shall
equally protect the life of the mother and the life
d. Promote social justice in all of the unborn from conception. The natural and
primary right and duty of parents in the rearing of
phases of national development the youth for civic efficiency and the development
of moral character shall receive the support of the
Sec. 10. The State shall promote social justice in Government.
all phases of national development.
The right and duty referred to here is primary, not
As an exception, case law instructs that in certain exclusive. The State as parens patriae has an inherent
circumstances, the grant of separation pay or right to aid parents in the moral development of the
financial assistance to a legally dismissed employee youth. Hence, the provision in the RH Law
has been allowed as a measure of social justice or on mandating the teaching of age- and development-
grounds of equity. Thus, in the PLDT case, the Court appropriate reproductive health education is not per
required that the grant of separation pay as financial se unconstitutional; a ruling on its constitutionality
assistance given in light of social justice be allowed would be premature absent an actual curriculum
only when the dismissal: (a) was not for serious formulated by the Dept. of Education [Imbong v.
misconduct; and (b) does not reflect on the moral Ochoa, G.R. No. 204819, Apr. 8, 2014, on the
character of the employee or would involve moral constitutionality of the RH Law].
turpitude. xxx. However, Padao is not entitled to
financial assistance. In Toyota Motor Phils. Corp. No less than our Constitution declares that marriage,
Workers Association v. NLRC, the Court reaffirmed the as an in violable social institution, is the foundation
general rule that separation pay shall be allowed as a of the family and shall be protected by the State. It
measure of social justice only in those instances must, therefore, be safeguarded from the whims and
where the employee is validly dismissed for causes caprices of the contracting parties. Thus, marriages
other than serious misconduct, willful disobedience, entered into for other purposes, limited or otherwise,
gross and habitual neglect of duty, fraud or willful such as convenience, companionship, money, status,
breach of trust, commission of a crime against the and title, provided that they comply with all the legal
employer or his family, or those reflecting on his requisites, are equally valid [Republic v. Albios, G.R.
moral character [Security Bank Savings Corporation v. No. 198780 (2013)].
Singson, G.R. No. 214230, February 10, 2016].
g. Protection of the life of the
mother and the life of the unborn
from conception [Sec. 12, supra]
Page 16 of 382
The question of when life begins is a scientific and

medical issue that should not be decided [in the RH m. Priority to education, science
petitions] without proper hearing and evidence
[Imbong v. Ochoa, supra]. and technology, arts, culture,
and sports
h. Vital role of youth in nation-
building Sec. 17. The State shall give priority to education,
science and technology, arts, culture, and sports to
foster patriotism and nationalism, accelerate social
Sec. 13. The State recognizes the vital role of the progress, and promote total human liberation and
youth in nation-building and shall promote and development.
protect their physical, moral, spiritual, intellectual,
and social well-being. It shall inculcate in the youth
patriotism and nationalism and encourage their n. Labor as a primary social
involvement in public and civic affairs. economic force
i. Role of women in nation- Sec. 18. The State affirms labor as a primary social
economic force. It shall protect the rights of
building workers and promote their welfare.
Sec. 14. The State recognizes the role of women
in nation-building and shall ensure the o. Self-reliant and independent
fundamental equality before the law of women national economy
and men.
Sec. 19. The State shall develop a self-reliant and
j. Fundamental equality before the independent national economy effectively
controlled by Filipinos.
law of women and men [Sec. 14,
supra] 1. Role of private sector
k. Right to health [Sec. 15, Imbong Sec. 20. The State recognizes the indispensable
v. Ochoa, supra] role of the private sector, encourages private
enterprise, and provides incentives to needed
Sec. 15. The State shall protect and promote the investments.
right to health of the people and instill health
consciousness among them. p. Comprehensive rural
development and agrarian
l. Right to a balanced and reform
healthful ecology
Sec. 21. The State shall promote comprehensive
Sec. 16. The State shall protect and advance the rural development and agrarian reform.
right of the people to a balanced and healthful
ecology in accord with the rhythm and harmony q. Recognition and promotion of
of nature.
rights of indigenous cultural
See also: Oposa v. Factoran communities
Sec. 22. The State recognizes and promotes the
rights of indigenous cultural communities within
the framework of national unity and development.
Page 17 of 382
r. Community-based, sectoral See discussion, vis-à-vis the Right to information

(Art. III, Sec. 7) under Constitutional Law II.
organizations
Sec. 23. The State shall encourage non-
governmental, community-based, or sectoral
organizations that promote the welfare of the
nation.
s. Role of communication and

information in nation-building
Sec. 24. The State recognizes the vital role of
communication and information in nation-
building.
t. Autonomy of local governments

Sec. 25. The State shall ensure the autonomy of
local governments.
u. Equal access for public service

and prohibition of political
dynasties
Sec. 26. The State shall guarantee equal access to
opportunities for public service and prohibit
political dynasties as may be defined by law.
The state policy against political dynasties is not self-

executing. It does not provide a judicially enforceable
constitutional right but merely specifies a guideline
for legislative or executive action [Belgica v. Ochoa,
G.R. No. 208566 (2013)].
v. Honesty and integrity in public

service
Sec. 27. The State shall maintain honesty and
integrity in the public service and take positive and
effective measures against graft and corruption.
w. Policy of full public disclosure

Sec. 28. Subject to reasonable conditions
prescribed by law, the State adopts and
implements a policy of full public disclosure of all
its transactions involving public interest.
Page 18 of 382
that it shall promote national healing and

D. Separation of Powers forgiveness. There being no taint of grave abuse
in the exercise of such discretion, as discussed
The government established by the Constitution below, President Duterte's decision on that
follows fundamentally the theory of separation of political question is outside the ambit of judicial
powers into the legislative, the executive and the review [Ocampo v. Enriquez, G.R. No. 225973
judicial [Angara v. Electoral Commission, G.R. No. (2016)].
45081 (1936)]. 3. The task of determining probable cause is lodged
with the public prosecutor and ultimately, the
Separation of powers is not expressly provided for in the Secretary of Justice. Under the doctrine of
Constitution. But it obtains from actual division [found in separation of powers, courts have no right to
Sec. 1 of Articles VI, VII, and VIII]. Each directly decide matters over which full
department has exclusive cognizance of matters discretionary authority has been delegated to the
within its jurisdiction and is supreme within its own Executive Branch of the Government. [Forietrans
sphere [Angara v. Electoral Commission, supra]. Manufacturing Corporation v. Davidoff Et Cia. SA,
G.R. No. 197482 (2017)]
Separation of powers is founded on the belief that, 4. The legislative power imposing policies through
by establishing equilibrium among the three power laws is subject to the substantive and
holders, harmony will result, power will not be constitutional limitations. It cannot limit the
concentrated and thus tyranny will be avoided Court’s power to impose disciplinary actions
[BERNAS]. against erring justices, judges and court personnel.
Neither should such policy be used to restrict the
The separation of powers is a fundamental principle Court’s power to preserve and maintain the
in our system of government. Any system that is Judiciary’s honor, dignity and integrity and public
violative of this principle is unconstitutional and void confidence that can only be achieved by imposing
[See Belgica v. Ochoa, supra, on the unconstitutionality strict and rigid standards of decency and propriety
of the PDAF]. governing the conduct of justices, judges and
court employees [OCA v. Reyes, A.M. No. P-08-
Application 2535 (2010)].
1. The Pork Barrel System violates the separation of
powers because it is a form of post-enactment
authority in the implementation or enforcement
of the budget.
a. By giving individual legislators the (a) power
to determine projects after the General
Appropriations Act (GAA) is passed, and, (b)
through congressional committees, authority
in the areas of fund release and realignment,
the system encroaches on the Executive’s power
to implement the law.
b. Furthermore, identification of a project by a
legislator being a mandatory requirement before
his PDAF can be tapped as a source of funds,
his act becomes indispensable in the entire
budget execution process [Belgica, supra].
2. In the exercise of his powers under the
Constitution and the Executive Order (E.O.) No.
292 (otherwise known as the Administrative Code
of 1987) to allow the interment of Marcos at the
LNMB, which is a land of the public domain
devoted for national military cemetery and
military shrine purposes, President Duterte
decided a question of policy based on his wisdom
Page 19 of 382
investigating, or monitoring the

E.Checks and Balances implementation of the law, when they are no
longer disinterested observers [Belgica, supra].
It does not follow from the fact that the three powers 2. Section 8(2) of R.A. No. 6770, providing that the
are to be kept separate and distinct that the President may remove a Deputy Ombudsman, is
Constitution intended them to be absolutely unconstitutional. Subjecting the Deputy
unrestrained and independent of each other. The Ombudsman to discipline and removal by the
Constitution has provided for an elaborate system of President, whose own alter egos and officials in
checks and balances to secure coordination in the the Executive department are subject to the
workings of the various departments of the Ombudsman’s disciplinary authority, cannot but
government [Angara v. Electoral Commission, supra]. seriously place at risk the independence of the
Office of the Ombudsman itself. Section 8(2) of
Congressional oversight is not per se violative, but is R.A. No. 6770 intruded upon the constitutionally-
integral, to separation of powers. However, for a post- granted independence of the Office of the
enactment congressional measure to be valid, it must Ombudsman. By so doing, the law directly
be limited to: collided not only with the independence that the
1. Scrutiny: Congress’ power of appropriation, i.e. Constitution guarantees to the Office of the
budget hearings, and power of confirmation Ombudsman, but inevitably with the principle of
2. Investigation and monitoring of checks and balances that the creation of an
implementation of laws: using its power to Ombudsman office seeks to revitalize. What is
conduct inquiries in aid of legislation [Abakada true for the Ombudsman must equally and
Guro Partylist v. Purisima, G.R. No. 166715 (2008)]. necessarily be true for her Deputies who act as
agents of the Ombudsman in the performance of
A legislative veto, i.e. statutory provision (which their duties. The Ombudsman can hardly be
may take the form of a congressional oversight committee) expected to place her complete trust in her
that requires the President or an agency to submit the subordinate officials who are not as independent
proposed implementing rules and regulations of a law as she is, if only because they are subject to
to Congress for approval, is unconstitutional. It pressures and controls external to her Office
encroaches on: [Gonzales III v. Office of the President, G.R. No.
1. The executive: it allows Congress to take a direct 196231 (2014)].
role in the enforcement of its laws;
2. The judiciary: administrative issuances enjoy a
presumption of validity, and only the courts may
decide whether or not they conform to statutes or
the Constitution [Abakada Guro Partylist v.
Purisima, supra]
Application
1. The Pork Barrel system is unconstitutional,

among others, because it violates the system of
checks and balances.
a. It deprives the president of his item-veto
power. As lump-sum appropriations, the actual
projects under each congressman’s PDAF are
determined (by the congressman) only after the
GAA is passed. The president, then, would
not be able to discern whether or not he
should veto the appropriation.
b. It has a detrimental effect on Congressional
Oversight. Because legislators effectively
intervene in project implementation, it
becomes difficult for them to exercise their
(valid) post-enactment role of scrutinizing,
Page 20 of 382
not “law-making” power, but rule-making power,

F. Delegation of Powers limited to (a) filling up the details of the law; or (b)
ascertaining facts to bring the law into actual
Rule of Non-Delegation of operation.
Legislative Power Traditional/Simplified Formulation: Who may
exercise legislative powers:
Principle: Delegata potestas non potest delegari – What has
been delegated can no longer be delegated. General Rule: Congress only.
Rationale: Since the powers of the government have Exceptions:
been delegated to them by the people, who possess a. Delegated power to local governments
original sovereignty, these powers cannot be further b. Delegated emergency powers of the president
delegated by the different government departments c. Delegated taxing powers of the president
to some other branch or instrumentality of the d. Subordinate legislation of administrative
government. agencies
e. Power reserved to people for initiative and
General Rule: Only Congress (as a body) may referendum
exercise legislative power.
Note: The President did not proclaim a national
Exceptions: emergency, only a state of emergency in the three
a. Delegated legislative power to local places in ARMM. And she did not act pursuant to any
governments: Local governments, as an law enacted by Congress that authorized her to
immemorial practice, may be allowed to legislate on exercise extraordinary powers. The calling out of the
purely local matters [See Rubi v. Provincial Board, armed forces to prevent or suppress lawless violence
G.R. No. L-14078 (1919),cited in Belgica, supra. in such places is a power that the Constitution
See also Const., Art. X, Sec. 9, explicitly mentioning directly vests in the President. She did not need a
“legislative bodies of local governments;” and congressional authority to exercise the same
Sec. 20 providing for the coverage of legislative [Ampatuan v. Puno, G.R. No. 190259 (2011)].
powers delegated to autonomous regions via the
latter’s organic acts]. There is neither an express prohibition nor an express
b. Constitutionally-grafted Exceptions grant of authority in the Constitution for Congress to
1. Emergency power delegated to the delegate to regional or local legislative bodies the
Executive during State of War or National power to create local government units. However,
Emergency [Sec. 23(2), Art. VI]; and under its plenary legislative powers, Congress can
2. Certain taxing powers of the President delegate to local legislative bodies the power to create
[Sec. 28(2), Art. VI]. The Congress may local government units, subject to reasonable
authorize the President to fix, within standards and provided no conflict arises with any
specified limits, and subject to such provision of the Constitution [Sema v. COMELEC,
limitations and restrictions as it may impose, G.R. No. 177597 (2008)].
tariff rates, import and export quotas,
tonnage and wharfage dues, and other duties
or imposts within the framework of the Tests for Valid Delegation
national development program of the
Government. Rule: There is a valid delegation of legislative power
c. The extent reserved to the people by the when it passes the following tests –
provision on initiative and referendum [Sec. a. Completeness test: The law sets forth the
1, Art. VI] policy to be executed, carried out, or
implemented by the delegate (Abakada, supra),
N.B. Subordinate legislation made by such that there is nothing left for the delegate to
administrative agencies – The principle of non- do but to enforce the law [Pelaez v. Auditor
delegability should not be confused with the delegated General, G.R. No. L-23825(1965)]; and
rule-making authority of implementing agencies b. Sufficient Standard Test: The standard is
[Belgica, supra]. Strictly speaking, what is delegated is sufficient if it defines legislative policy, marks its
limits, maps out its boundaries and specifies the
Page 21 of 382
public agency to apply it. It indicates the

circumstances under which the legislative
G.Forms of Government
command is to be effected [Edu v. Ericta, G.R.
No. L-32096 (1970)]. Definition
Note: Acts which are purely legislative in character “Government of the Philippines” is defined as the
(e.g. making of laws) cannot be delegated to an corporate governmental entity through which the
administrative body (in contrast to the ascertainment functions of government are exercised throughout
of facts or the filling in of details which can be the Philippines, including the various arms through
delegated to administrative agencies). which political authority is made effective in the
Philippines, whether pertaining to:
a. the autonomous regions,
b. the provincial, city, municipal, or barangay
subdivisions, or
c. other forms of local government [Sec. 2(1), Bk. I,
Administrative Code].
“Government” is that institution or aggregate of

institutions by which an independent society makes
and carries out those rules of action which are
necessary to enable men to live in a social state or
which are imposed upon the people forming that
society by those who possess the power or authority
of prescribing them [US v. Dorr, G.R. No.
1049(1903)].
As to the Existence or
Absence of Control
a. De jure
1.
Has rightful title;
2.
But has no power or control, either because
this has been withdrawn from it, or because
it has not yet actually entered into the
exercise thereof [In re Letter of Associate Justice
Puno, A.M. No. 90-11-2697-CA (1992)].
b. De facto: Government of fact, that is, it actually
exercises power or control without legal title [Co
Kim Cham v. Valdes, G.R. No. L-5(1945)].
1. De Facto Proper – The government that gets
possession and control of, or usurps, by
force or by the voice of the majority, the
rightful legal government and maintains
itself against the will of the latter.
2. Independent Government – That
established as an independent government
by the inhabitants of a country who rise in
insurrection against the parent state.
3. That which is established and maintained by
military forces who invade and occupy a
territory of the enemy in the course of war,
and which is denominated as a government
of paramount force.
Page 22 of 382
Aquino Government
As to Centralization
a. Unitary – One in which the control of the
The legitimacy of the Aquino government is not a
national and local affairs is exercised by the
justiciable matter. It belongs to the realm of politics
national and local government
where only the people of the Philippines are the
b. Federal – One in which the powers of the
judge. And the people have made the judgment; they
government are divided between two sets of
have accepted the government of President Corazon
organs, one for national affairs and one for local
C. Aquino which is in effective control of the entire
affairs [DE LEON].
country so that it is not merely a de facto government
but in fact and law a de jure government. Moreover,
the community of nations has recognized the
legitimacy of the present government [In re Bermudez,
G.R. No. 76180(1986),citing Lawyers League for a Better
Philippines v. Aquino, G.R. No. 73748(1986)].
EDSA I v. EDSA II
EDSA I involves the exercise of the people power of
revolution which overthrew the whole government.
EDSA II is an exercise of people power of freedom of speech
and freedom of assembly to petition the government for
redress of grievances which only affected the office
of the President. EDSA I is extra-constitutional and
the legitimacy of the new government that resulted
from it cannot be the subject of judicial review, while
EDSA II is intra-constitutional and the resignation of the
sitting President that it caused and the succession of the Vice
President as President are subject to judicial review. EDSA I
presented a political question; EDSA II involved
legal questions.
Even if the petitioner can prove that he did not

resign, still, he cannot successfully claim that he is a
President on leave on the ground that he is merely
unable to govern temporarily. That claim has been
laid to rest by Congress and the decision that
respondent Arroyo is the de jure president, made by
a co-equal branch of government, cannot be
reviewed by this Court [Estrada v. Desierto, G.R. No.
146710-15 (2001)].
As to Concentration of
Powers
a. Presidential – There is a separation of executive
and legislative branches of government.
b. Parliamentary – There is a fusion of executive
and legislative powers in the Parliament,
although the actual exercise of the executive
powers is vested in the Prime Minister [DE
LEON].
Page 23 of 382
III. LEGISLATIVE INITIATIVE

a. Local initiative; voter requirements
DEPARTMENT Not less than x
Region
registered voters
A. Who May Exercise Autonomous regions 2,000
Provinces 1,000
Legislative Power Municipalities 100
Barangays 50
Legislative power is the authority to make laws and
to alter and repeal them. Where to file: Regional Assembly or local legislative
body, as the case may be [Sec. 13, RA 6735].
Congress b. Limitations on local initiative
Cannot be exercised more than once a year; extends
Legislative power is vested in the Congress, which
only to subjects or matters which are within the legal
consists of a Senate and a House of Representatives.
powers of the local legislative bodies to enact; and if
[Sec. 1, Art. VI].
at any time before the initiative is held, the local
legislative body should adopt in toto the proposition
Grant of legislative power to Congress is plenary.
presented, the initiative shall be cancelled [Sec. 15,
Congress may legislate on any subject matter
RA 6735].
provided that constitutional limitations are observed.
REFERENDUM
Regional/Local Legislative
Power This refers to the power of the electorate to approve
or reject legislation through an election called for that
purpose [Sec. 3(c), RA 6735].
N.B. A regional assembly exists for the ARMM.
Classes of Referendum
People’s Initiative on a. Referendum on statutes: petition to approve
or reject an act or law, or part thereof, passed by
Statutes Congress;
b. Referendum on local laws: legal process
Legislative power is also vested in the people by the whereby the registered voters of the LGUs may
system of initiative and referendum [Sec. 1, Art. VI]. approve, amend, or reject any ordinance enacted
The power of initiative and referendum is the power by the Sanggunian [Sec. 126, LGC]
of the people directly to “propose and enact laws or
approve or reject any act or law or part thereof passed Is the power of to hold a referendum plenary?
by the Congress or local legislative body” [Sec. 32, No, such power is circumscribed by the following
Art. VI]. The provision is not self-executing [Defensor- limitations:
Santiago v. COMELEC, G.R. No. 127325 (1997)]. a. No petition embracing more than one subject
shall be submitted to the electorate; and
R.A. 6735: “An Act Providing for a System of b. Statutes involving emergency measures, the
Initiative and Referendum and Appropriating Funds enactment of which is specifically vested in
Therefor” Congress by the Constitution, cannot be subject
to referendum until 90 days after their effectivity
This is valid for (a) laws, (b) ordinances, and (c) [Sec. 10, RA 6735].
resolutions, but not amendments to the Constitution
[Defensor-Santiago, supra].
Page 24 of 382
The President Under Martial B. Houses of Congress

Law or in a Revolutionary
Government Senate
See comparison below.
Sec. 23. (1) The Congress, by a vote of two-thirds
of both Houses in joint session assembled, voting
The Senate is a continuing institution. However, in
separately, shall have the sole power to declare the
the conduct of its day-today business, the Senate of
existence of a state of war.
each Congress acts separately and independently of
the Senate of the Congress before it. Due to the
(2) In times of war or other national emergency,
termination of the business of the Senate during the
the Congress may, by law, authorize the President,
expiration of one (1) Congress, all pending matters
for a limited period and subject to such
and proceedings, such as unpassed bills and even
restrictions as it may prescribe, to exercise powers
legislative investigations, of the Senate are considered
necessary and proper to carry out a declared
terminated upon the expiration of that Congress and
national policy. Unless sooner withdrawn by
it is merely optional on the Senate of the succeeding
resolution of the Congress, such powers shall
Congress to take up such unfinished matters, not in
cease upon the next adjournment thereof.
the same status, but as if presented for the first time.
The termination of the Senate’s business and
Congress may delegate legislative powers to the proceedings after the expiration of Congress was
president in times of war or in other national utilized by the Court in ruling that the Senate needs
emergency [David v. Macapagal-Arroyo, G.R. No. to publish its rules for its legislative inquiries in each
171396 (2006)]. Congress. The pronouncement in Neri was reiterated
in Garcillano v. House of Representatives and
A state of martial law is peculiar because the Romero v. Estrada, 602 Phil.312 (2009) (Balag v.
President, at such a time, exercises police power, Senate of the Philippines, G.R. 234608, July 3, 2018)
which is normally a function of the Legislature. In
particular, the President exercises police power, with
the military’s assistance, to ensure public safety and House of Representatives
in place of government agencies which for the time
being are unable to cope with the condition in a a. Composition, Qualifications,
locality, which remains under the control of the State
[Lagman v. Medialdea, G.R. No. 231658 (2017); citing
Term of Office
BERNAS, Constitutional Structure and Powers of
Government, Notes and Cases Part I, at p. 473]. SENATE v. HOUSE OF
REPRESENTATIVES
House of
Senate
Representatives
(Secs. 2-4, Art. VI)
Composition
Not more than 250
members, unless
otherwise provided by
24 senators elected at law, consisting of:
large a. District
Representatives
b. Party-List
Representatives
Qualifications
a. Natural-born a. Natural-born
citizen citizens
Page 25 of 382
House of 3. Each legislative district shall comprise, as far as

Senate
Representatives practicable, contiguous, compact, and
(Secs. 5-8, Art. VI) adjacent territory. (N.B. Anti-gerrymandering
b. At least 35 years old b. At least 25 years old provision)
on the day of the on the day of the
election election 4. Re-apportionment by Congress within 3 years
c. Able to read and c. Able to read and after the return of each census.
write write
d. A registered voter d. A registered voter in Note: “Apportionment” refers to the
e. Resident of the the district he seeks determination of the number of representatives
Philippines for at to represent which a State, county, or other subdivision may
least 2 years e. A resident of the send to a legislative body, while
immediately said district for at “reapportionment” refers to the realignment or
preceding the day least 1 year change in legislative districts brought about by
of the election immediately changes in population and mandated by the
preceding the day of constitutional requirement of equality of
the election representation [Bagabuyo v. COMELEC, supra].
Term of Office
6 years 3 years c. Party-List System
Term Limits
2 consecutive terms 3 consecutive terms Party-List Representatives: They shall constitute
20% of the total number of representatives, elected
b. District Representatives and through a party-list system of registered national,
regional, and sectoral parties or organizations.
Questions of Apportionment
Sectoral Representatives: For 3 consecutive terms
District Representatives - Elected from legislative from 2 February 1987, ½ of the party-list seats shall
districts apportioned among the provinces, cities, and be allotted to sectoral representatives to be chosen by
Metro Manila area. appointment or election, as may be provided by law.
Until a law is passed, they are appointed by the
Rules on Apportionment of Legislative Districts: President from a list of nominees by the respective
1. Apportionment of legislative districts must be by sectors [Sec. 7, Art. XVIII].
law which could be a:
a. General Apportionment Law; or Note: The party-list system is not synonymous with
b. Special Law (i.e. creation of new provinces) sectoral representation [Atong Paglaum v. COMELEC,
G.R. No. 203766 (2013), citing the 1986
Note: The power to apportion legislative districts Constitutional Commission Records].
is textually committed to Congress by the
Constitution. Thus, it cannot be validly delegated Atong Paglaum Guidelines
to the ARMM Regional Assembly [Sema v. 1. Three different parties or organizations may
COMELEC, G.R. No. 177597 (2008)]. Under participate in the party-list system:
the Constitution and the LGC, apportionment a. national;
and reapportionment do not require a plebiscite b. regional;
[Bagabuyo v. COMELEC, G.R. No. 176970 c. or sectoral;
(2008)]. 2. National and regional parties or orgs do not need to (a)
organize along sectoral lines, or (b) represent any
2. Proportional representation based on number “marginalized or underrepresented” sector;
of inhabitants: 3. Political parties may participate in the party-list
a. Each city with a population of at least 250,000 system provided:
shall have at least 1 representative. a. they register under the party-list system;
b. Each province, irrespective of the number of b. they do not field candidates in legislative
inhabitants, shall have at least 1 representative. district elections.
Page 26 of 382
i. A party that participates in the legislative Qualified Sectors:

district elections may still participate in the
party-list through a sectoral wing. Note: This qualification applies only to sectoral parties.
ii. The sectoral wing can be part of the Participating national or regional parties need not fall
political party’s coalition, but the former under any of these sectors [Atong Paglaum, supra].
must be registered independently in the 1. Labor
party-list system. 2. Peasant
4. Sectoral parties or orgs may either be (a) 3. Fisherfolk
“marginalized or underrepresented” (e.g. labor, 4. Urban Poor
peasant, fisherfolk); or (b) “lacking in well-defined 5. Indigenous Cultural Communities
political constituencies” (e.g. professionals, 6. Elderly
women, elderly, youth) 7. Handicapped
5. The nominees of sectoral parties or orgs, of either 8. Women
type, must (a) belong to their respective sectors, or 9. Youth
(b) have a track record of advocacy for their 10. Veterans
respective sectors. Majority of the members of a 11. Overseas Workers
sectoral party, of either type, must belong to the 12. Professionals
sector they represent.
6. National, regional, or sectoral parties or orgs shall Four parameters of the party-list system:
not be disqualified if some of their nominees are 1. 20% Allocation: 20% of the total number of the
disqualified, provided they have at least 1 nominee membership of the House of Representatives is
who remains qualified [AtongPaglaum, supra]. the maximum number of seats available to party-
list organizations.
DISQUALIFICATIONS AND 2. 2% Threshold:Garnering 2% of the total votes
QUALIFICATIONS cast in the party-list elections guarantees a party-
list organization one (1) seat.
See R.A. 7941: An Act Providing For The Election 3. Additional Seats:The additional seats, that is, the
Of Party-List Representatives Through The remaining seats after allocation of the guaranteed
Party-List System, And Appropriating Funds seats, shall be distributed to the party-list
Therefor organizations including those that received less
than two percent of the total votes. This
Disqualified Parties: distribution will continue until all the seats have
1. Religious sects been filled.
2. Foreign organizations
3. Advocating violence or unlawful means N.B. The continued operation of the 2%
4. Receiving support from any foreign government, threshold to the allocation of the additional seats
foreign political party, foundation, organization, is unconstitutional because this threshold
whether directly or through any of its officers or mathematically and physically prevents the filling
members or indirectly through third parties for up of the available party-list seats.
partisan election purposes.
5. Violating or failing to comply with laws, rules or 4. 3-Seat Cap: The three-seat cap is constitutional.
regulations relating to elections;
6. Declaring untruthful statements in its petition; Note: It is intended by the Legislature to prevent
7. Ceased to exist for at least one (1) year; or any party from dominating the party-list system.
8. Failing to participate in the last two (2) preceding There is no violation of the Constitution because
elections or fails to obtain at least 2 per centum of the 1987 Constitution does not require absolute
the votes cast under the party-list system in the proportionality for the party-list system
two (2) preceding elections for the constituency [BANAT v. COMELEC, G.R. No. 179271
in which it has registered. (2009)].
Page 27 of 382
Percentage of votes = seats

Rules on Computation of Seats: Two-Round Garnered by awarded
Allocation
Step 1: Compute total number of seats allocated for

party-list representatives
Step 2: Rank all party-list candidates from highest to

lowest based on the number of votes they garnered.
Step 3: Compute for each party-list candidate’s

percentage of votes garnered in relation to the total
number of votes cast for party-list candidates.
Step 4: Round 1 – Allocate one (1) seat each for party-

list that garnered at least 2% of the total number of
votes.
Step 5: Round 2 – Assign additional seats from the

balance (i.e. total number of party-list seats minus
Round 1 allocations) by:
a. Allocating one (1) seat for every whole integer
(e.g. if a party garners 2.73% of the vote, assign it
two (2) more seats; if 1.80%, assign it one (1)
more seat); then
b. Allocating the remaining seats (i.e. total seats
minus Round 1 and Round 2a allocations) to
those next in rank until all seats are completely
distributed.
Step 6: Apply the 3-Seat Cap, if necessary [See

BANAT v. COMELEC,supra].
In ARARO v. COMELEC, GR No. 192803, December

10, 2013, the Supreme Court further modified the
formula used and interpreted in BANAT v.
COMELEC. Thus, the formula to determine the
proportion garnered by the party-list group would
now henceforth be:
Number of votes of party list

____________________ = Proportion or
percentage of votes garnered by party-list
Total number of valid votes
for party-list candidates
The formula to determine the additional seats to be

awarded would be:
Total number of Number of seats

Party-list seats _ seats allocated x
Available in the first round
Proportion or Additional
Page 28 of 382
allowed to attend legislative sessions. The denial was

C. Legislative Privileges, premised on the following: (a) membership in
Inhibitions, Congress does not exempt an accused from statutes
and rules which apply to validly incarcerated persons;
Disqualifications (b) one rationale behind confinement is public self-
defense; (c) it would amount to creation of a
privileged class, without justification in reason; and
Privileges (d) he was provided with an office in the New Bilibid
Prison.
a. Salaries
c. Speech and Debate Clause
The salaries of Senators and Representatives shall be
determined by law; no increase in said compensation
Sec. 11. […] No Member shall be questioned nor
shall take effect until after the expiration of the full
be held liable in any other place for any speech or
term of all the Members of the Senate and the House
debate in the Congress or in any committee
of Representatives approving such increase [Sec. 10,
thereof.
Art. VI].
“Expiration of the full term of all Members of the To come under the guarantee, the speech or debate
Senate and the House of Representatives” is singular must be one made "in Congress or in any committee
and means that the increase may only take effect thereof." Publication of an allegedly libelous letter is
upon the expiration of the terms of both houses who not covered by the privilege [Jimenez v. Cabangbang,
passed the law increasing said salary. This means that G.R. No. L-15905 (1966)].
even if the House of Representatives term has already
expired but the senate has not, the salary increase While the immunity of a Member of Congress is
cannot yet take effect even if the increase is different absolute and thus the even the Supreme Court cannot
for each house [PHILCONSA v. Mathay, G.R. No. L- discipline a lawyer-senator for remarks made against
25554 (1966)]. the court, it does not shield said member from the
authority of Congress to discipline its own
This prohibition also applies to the benefits a members [Defensor-Santiago v. Pobre, A.C. No. 7399
member of congress will attain upon retirement. (2009)].
Thus, a member of congress may not compute his
retirement benefits based on the salary increase The Speech or Debate Clause in our Constitution did
which he was not able to reach because his term has not tum our Senators and Congressmen into "super-
already expired before said increase took effect [Ligot citizens" whose spoken words or actions are rendered
v. Mathay, G.R. No. L-34676 (1974)] absolutely impervious to prosecution or civil action.
The Constitution conferred the privilege on members
of Congress "not for their private indulgence, but for
b. Freedom from Arrest the public good." It was intended to protect them
against government pressure and intimidation aimed
Sec. 11. A Senator or Member of the House of at influencing their decision-making prerogatives.
Representatives shall, in all offenses punishable by Such grant of legislative privilege must perforce be
not more than six years imprisonment, be viewed according to its purpose and plain language.
privileged from arrest while the Congress is in Indeed, the privilege of speech or debate, which may
session. […] "(enable) reckless men to slander and even destroy
others," is not a cloak of unqualified impunity; its
Preventive suspension is not a penalty. Order of invocation must be "as a means of perpetuating
suspension under R.A. 3019 (Anti-Graft and Corrupt inviolate the functioning process of the legislative
Practices Act) is distinct from the power of Congress department." [Trillanes v. Castillo-Marigomen, G.R. No.
to discipline its own members, and did not exclude 223451 (2018)]
members of Congress from its operation [Defensor-
Santiago v. Sandiganbayan, G.R. No. 128055(2001)].
In People v. Jalosjos [G.R. No. 132875 (2000)], the SC

denied the request of Cong. Jalosjos that he be
Page 29 of 382
What speech is covered under this provision? to intervene in the various phases of project
Generally anything a member of Congress says in line implementation – a matter before another
with his legislative function [Jimenez v. Cabangbang, office of government – [Pork Barrel]
supra]. In particular: renders them susceptible to taking undue
a. Speeches made, advantage of their own office” [Belgica,
b. Utterances, supra].
c. Bills signed, and
d. Votes passed. 2. Cannot personally appear as counsel
before any court, electoral tribunal, quasi-
Inhibitions and judicial and administrative bodies during his
term of office [Sec. 14, Art. VI]
Disqualifications
This prohibition is absolute. Thus, when an
a. May not hold any other office or employment in assemblyman acting as counsel for one
the government during his term without group in an internal dispute in a company
forfeiting his seat [Sec. 13, Art. VI] was denied leave to intervene, the court held
that his action of buying 10 stocks in order
The provision refers to an Incompatible Office. to be able to intervene in the company’s
Forfeiture of the seat in Congress shall be dispute as a stock holder was an indirect
automatic upon the member’s assumption of such violation of this rule and still
office deemed incompatible. Thus, when a unconstitutional [Puyat v. De Guzman Jr.,
governor-elect ran for the Batasang Pambansa G.R. No. L-51122 (1982)].
and won, he could not hold both offices [Adaza v.
Pacana, G.R. No. L-68159 (1985)]. The office of Note: There is a distinction between an ineligible
the Philippine National Red Cross (PNRC) office (for elective officials) where the appointment
Chairman is not a government office or an office is invalid since it is contrary to the Constitution,
in a government-owned or -controlled regardless if the official resigns or not [Sec. 7, Art.
corporation for purposes of the prohibition in IX–B], and an incompatible office (for members of
Sec. 13, Art. VI [Liban v. Gordon, G.R. No. 175352 Congress and the Senate) where the appointment is
(2009 & 2011); but note that the structure of the valid and the official may hold the appointed office
PNRC is sui generis being neither strictly private provided that he/she resigns his/her current office.
nor public in nature].
b. May not be appointed to any office created or

Duty to Disclose
whose emoluments were increased during the
a. SALN
term for which he was elected [Sec. 13, Art. VI]
The provision refers to a Forbidden Office. He Sec. 17, Art. XI. A public officer or employee
cannot validly take the office even if he is willing shall, upon assumption of office and as often
to give up his seat. thereafter as may be required by law, submit a
declaration under oath of his assets, liabilities, and
c. Shall not be financially interested, directly or net worth. In the case of the President, the Vice-
indirectly, in any contract with, or franchise or President, the Members of the Cabinet, the
special privilege granted by the government Congress, the Supreme Court, the Constitutional
during his term of office[Sec. 14, Art. VI] Commissions and other constitutional offices, and
officers of the armed forces with general or flag
d. Shall not intervene in any – rank, the declaration shall be disclosed to the
1. matter before any office of the government public in the manner provided by law.
when it is for his pecuniary benefit or where
he may be called upon to act on account of What: Declaration under oath of assets, liabilities,
his office [Sec. 14, Art. VI] and net worth
The Pork Barrel System “runs afoul” of Sec. When:

14, Art. VI, because in “allowing legislators 1. Upon assumption of office
Page 30 of 382
2. As often as may be required by law

D. Quorum and Voting
Who must declare:
1. President
Majorities
2. Vice-President
3. Members of the Cabinet Quorum
4. Members of Congress
5. Members of the Supreme Court Majority of each House shall constitute a quorum,
6. Members of the Constitutional Commissions and although a smaller number may adjourn from day
other constitutional offices to day and may compel the attendance of absent
7. Officers of the Armed Forces with general or flag members.
rank [Sec. 17, Art. XI]
In computing a quorum, members who are outside
b. Financial and business interests: Members the country, thus outside of each House’s coercive
must make full disclosure upon assumption of jurisdiction, are not included.
office
“Majority” refers to the number of members within
Sec. 12, Art. VI. All Members of the Senate and the “jurisdiction” of the Congress (those it can order
the House of Representatives shall, upon arrested for the purpose of questioning). In Avelino v.
assumption of office, make a full disclosure of Cuenco [G.R. No. L-2821 (1949)], one Senator was out
their financial and business interests. They shall of the Philippines which is not within the
notify the House concerned of a potential conflict “jurisdiction” of the Senate, so that the working
of interest that may arise from the filing of a majority was 23 Senators. There is a difference
proposed legislation of which they are authors. between a majority of "all members of the House"
and a majority of "the House", the latter requiring less
c. Potential conflicts of interest: Members must number than the first. Therefore, an absolute
notify House, if conflict arises from the filing of majority (12) of all members of the Senate less one
a proposed legislation which they authored [Id.] (23) constitutes constitutional majority of the Senate
for the purpose of the quorum.
d. Amounts paid to/expenses incurred by each
member:To be reported annually by the COA Voting Majorities
Sec. 20, Art. VI. The records and books of Doctrine of Shifting Majority: For each House of
accounts of the Congress shall be preserved and Congress to pass a bill, only the votes of the majority
be open to the public in accordance with law, and of those present in the session, there being a quorum,
such books shall be audited by the Commission is required.
on Audit which shall publish annually an itemized
list of amounts paid to and expenses for each Exceptions to Doctrine of Shifting Majority:
Member.
a. Votes where requirement is based on “ALL
THE MEMBERS OF CONGRESS”:
requirement is based on the entire composition of
a House or Congress (in its entirety), regardless of
the number of Members present or absent
Vote
Required Houses
Action Basis
(all voting
members)
Separately
Art.
Override (House
VI,
presidential 2/3 where bill
Sec.
veto originated
27(1)
votes first)
Page 31 of 382
Grant of tax
Art.
VI,
E. Discipline of Members
Majority (Silent)
exemptions Sec.
28(4) Each house may punish its members for disorderly
Art. behavior, and with the concurrence of 2/3 of ALL its
Elect members, with: [SED-FIC]
VII,
President in Majority Separately Suspension (shall not exceed 60 days)
Sec. 4,
case of tie Expulsion
par. 5
Confirm Art.
appointment Majority Separately VII, Other disciplinary measures:
of VP Sec. 9 1. Deletion of unparliamentary remarks from the
record
Revoke or
2. Fine
extend (a)
3. Imprisonment
Martial Law
4. Censure
or (b) the
Art.
suspension
Majority Jointly VII, The suspension contemplated in the Constitution is
of the
Sec. 18 different from the suspension prescribed in the Anti-
privilege of
Graft and Corrupt Practices Act (R.A. No. 3019).
the writ of
The former is punitive in nature while the latter is
Habeas
preventive. [Defensor-Santiago v. Sandiganbayan, G.R. No.
Corpus
118364, (1995)].
Art.
Confirm VII,
The determination of Congress when it comes to
amnesty Majority (Silent) Sec.
disciplining its members is respected by the court. As
grant 19,
such, the Supreme Court does not have the power to
par. 2
compel congress to reinstate a member who has been
Submit
expelled by it [Alejandrino v. Quezon, G.R. No. 22041
question of (Silent) (1924)].
calling a Art.
Const. Majority Prevailing XVII,
The immunity for speech given to a member of
Convention view: by Sec. 3
Congress is not a bar to the power of Congress to
to the default, discipline its members [Osmeña v. Pendatun, G.R. No.
electorate houses L-17144 (1960)].
Call for vote Art.
Const. 2/3 separately XVII,
Convention (because Sec. 3
Propose Congress Art.
amendments is XVII,
3/4
as Const. bicameral) Sec.
Assembly 1(1)
b. Other Special Cases, i.e. NOT out of all

members
Action Vote Required Basis

Determine 2/3 of both Houses, Art. VII,
President’s voting separately Sec. 11,
disability par. 4
Declaring a 2/3 of both Houses (in Art. VI,
State of joint session), voting Sec.
War separately 23(1)
Page 32 of 382
2. Members chosen enjoy security of tenure and cannot

F. Electoral Tribunal and be removed by mere temporary change of party
the Commission on affiliation [Bondoc v. Pineda, G.R. No. 97710
(1991)].
Appointments
Electoral Tribunals Valid grounds/just cause for termination of
membership to the tribunal:
Sec. 17, Art. VI. The Senate and the House of 1. Expiration of Congressional term of office;
Representatives shall each have an Electoral 2. Death or permanent disability;
Tribunal which shall be the sole judge of all 3. Resignation from political party which one
contests relating to the election, returns, and represents in the tribunal;
qualifications of their respective Members. Each 4. Removal from office for other valid reasons.
Electoral Tribunal shall be composed of nine
Members, three of whom shall be Justices of the Note: Disloyalty to party and breach of party discipline
Supreme Court to be designated by the Chief are not valid grounds for the expulsion of a member
Justice, and the remaining six shall be Members of of the tribunal [Bondoc v. Pineda, supra].
the Senate or the House of Representatives, as the
case may be, who shall be chosen on the basis of Nature
proportional representation from the political
parties and the parties or organizations registered Jurisdiction: Sole judge of all contests relating to the
under the party-list system represented therein. election, returns, and qualifications of their respective
The senior Justice in the Electoral Tribunal shall members.
be its Chairman.
When does it acquire jurisdiction:
Two Types
1. Senate Electoral Tribunal (SET) Traditional formulation – ET has jurisdiction only (1)
2. House Electoral Tribunal (HRET) when there is an election contest, and (2) only after
the proclamation of a candidate [Lazatin v. HRET,
Note: There is a Presidential Electoral Tribunal G.R. No. 84297(1988)].
(PET), but it is governed by different provisions.
In the absence of election contest, and before
The tribunals which have jurisdiction over the proclamation, jurisdiction remains with COMELEC
question of the qualifications of the President, the [Id.]. But the proclamation of a congressional
Vice-President, Senators and the Members of the candidate following the election divests the
House of Representatives was made clear by the COMELEC of jurisdiction over the proclaimed
Constitution. There is no such provision for representative in favor of the HRET [Tañada v.
candidates for these positions [Poe-Llamanzares v. COMELEC, G.R. No. 207199 (2013)].
COMELEC, G.R. No. 221697 (2016)].
But see Ongsiako-Reyes v. COMELEC [G.R. No.
Composition 207264 (2013)] where the Court held that an
1. 3 Supreme Court justices, designated by Chief Electoral Tribunal acquires jurisdiction only after (1)
Justice; Senior Justice in the Electoral Tribunal a petition is filed before it, and (2) a candidate is
shall be its Chairman already considered a member of the House.
2. 6 members of the Senate or House, as the case
may be, chosen on the basis of proportional To be considered a member, in turn, there must
representation from parties be a concurrence of the following: (1) a valid
proclamation; (2) a proper oath (a) before the Speaker and (b)
Composition Rules in open session; and (3) assumption of office. [Id.]
1. The ET shall be constituted within 30 days after
the Senate and the House shall have been The Court in Ongsiako-Reyes clarified that the doctrine
organized with the election of the President and that once a proclamation has been made,
the Speaker [Sec. 19, Art. VI]. COMELEC’s jurisdiction is already lost and the
HRET’s own jurisdiction begins only applies in the
Page 33 of 382
context of a candidate who has not only been

proclaimed and sworn in, but has also assumed office [Id.]. Powers
Election Contest: One where a defeated candidate
As constitutional creations invested with necessary
challenges the qualification and claims for himself the
power, the Electoral Tribunals are, in the exercise of
seat of a proclaimed winner.
their functions, independent organs — independent
of Congress and the Supreme Court. The power
The Supreme Court has jurisdiction over the
granted to HRET by the Constitution is intended to
Electoral Commission for the purpose of
be as complete and unimpaired as if it had remained
determining the character, scope, and extent of the
originally in the legislature [Co v. HRET, G.R. Nos.
constitutional grant to the Electoral Commission as
92191-92(1991),citing Angara v. Electoral Commission,
"the sole judge of all contests relating to the election,
supra].
returns. and qualifications of the members of the
National Assembly" [Angara v. Electoral Commission,
Judicial Review of Decisions of Electoral
supra].
Tribunals
With the Supreme Court only insofar as the decision
Note: The Constitution mandates that the HRET
or resolution was rendered:
“shall be the sole judge of all contests relating to the
a. Without or in excess of jurisdiction; or
election, returns and qualifications” of its members.
b. With grave abuse of discretion tantamount to
By employing the word “sole,” the Constitution is
denial of due process.
emphatic that the jurisdiction of the HRET in the
adjudication of election contests involving its
COMMISSION ON APPOINTMENTS
members is exclusive and exhaustive. Its exercise of
power is intended to be its own — full, complete and
Sec. 18, Art. VI. There shall be a Commission on
unimpaired [Duenas, Jr. v. HRET, G.R. No. 185401
Appointments consisting of the President of the
(2009)].
Senate, as ex officio Chairman, twelve Senators, and
twelve Members of the House of Representatives,
Independence of the Electoral Tribunals
elected by each House on the basis of proportional
Since the ET’s are independent constitutional bodies,
representation from the political parties and parties
independent even of the respective House, neither
or organizations registered under the party-list system
Congress nor the Courts may interfere with
represented therein. The chairman of the
procedural matters relating to the functions of the
Commission shall not vote, except in case of a tie.
ET’s. [Macalintal v. Presidential Electoral Tribunal, G.R.
The Commission shall act on all appointments
No. 191618, Nov. 23, 2010]
submitted to it within thirty session days of the
Congress from their submission. The Commission
The HRET was created to function as a nonpartisan
shall rule by a majority vote of all the Members.
court although two-thirds of its members are
politicians.
Composition
a. Senate President as ex-officio chairman (shall not
To be able to exercise exclusive jurisdiction, the
vote except in case of a tie)
House Electoral Tribunal must be independent. Its
b. 12 Senators
jurisdiction to hear and decide congressional election
c. 12 Members of the HOR
contests is not to be shared by it with the Legislature
nor with the courts. "The Electoral Commission is a
The CA shall be constituted within 30 days after the
body separate from and independent of the
Senate and the House of Representatives shall have
legislature and though not a power in the tripartite
been organized with the election of the President and
scheme of government, it is to all intents and
the Speaker [Sec. 19, Art. VI].
purposes, when acting within the limits of its
authority, an independent organ; while composed of
The CA shall act on all appointments within 30
a majority of members of the legislature it is a body
session days from their submission to Congress.
separate from and independent of the
legislature”[Bondoc v. Pineda, G.R. No. 97710(1991)].
The CA shall rule by a majority vote of all its members.
Page 34 of 382
It is NOT mandatory to elect 12 Senators to the 1.

Heads of Executive departments (except if
Commission before it can discharge its functions. it is the Vice-President who is appointed to
What the Constitution requires is at least a majority a cabinet position, as this needs no
of the membership [Guingona v. Gonzales, G.R. No. confirmation);
106971 (1992)]. 2. Ambassadors, other public ministers or
consuls;
The power to approve or disapprove appointments is 3. Officers of the AFP from the rank of
conferred on the CA as a body and not on the Colonel or Naval Captain;
individual members [Pacete v. Secretary of the Commission 4. Other officers whose appointments are
on Appointments, G.R. No. L-25895(1971)]. vested in him by the Constitution (e.g.
members of constitutional commissions);
Rule on Proportional Representation – The 12 [Sarmiento v. Mison, G.R. No. 79974 (1987)]
Senators and 12 Representatives are elected on the b. Congress cannot require that the appointment of
basis of proportional representation from the a person to an office created by law shall be
political parties and party-list organizations. subject to CA confirmation [Calderon v. Carale,
G.R. No. 91636 (1992)].
The HOR has authority to change its representation
in the Commission on Appointments to reflect at any Appointments extended by the President to the
time the changes that may transpire in the political above-mentioned positions while Congress is not in
alignments of its membership. It is understood that session (ad-interim appointments) shall only be
such changes in membership must be permanent and effective:
do not include the temporary alliances or factional a. Until disapproval by the Commission on
divisions not involving severance of political loyalties Appointments; or
or formal disaffiliation and permanent shifts of b. Until the next adjournment of Congress.
allegiance from one political party to another [Daza v.
Singson, G.R. No. 86344(1989)].
The provision of Sec. 18 on proportional

representation is mandatory in character and does not
leave any discretion to the majority party in the
Senate to disobey or disregard the rule on
proportional representation.
By requiring proportional representation in the

Commission on Appointments, Sec. 18 in effect
works as a check on the majority party in the Senate and
helps to maintain the balance of power. No party can
claim more than what it is entitled to under such rule
[Guingona, Jr. v. Gonzales, G.R. No. 106971(1993)].
Meetings
a. The CA shall meet only while Congress is in
session.
b. Meetings are held either (a) at the call of the
Chairman or (b) by a majority of all its members.
Note: Since the CA is also an independent

constitutional body, its rules of procedure are also
outside the scope of congressional powers as well as
that of the judiciary.
Jurisdiction
a. CA shall confirm the appointments by the
President with respect to the following positions:
Page 35 of 382
Comparison between Legislative Inquiries and

G.Powers of Congress Question Hour [See also Senate v. Ermita, G.R.
No. 169777(2006)]
INHERENT POWERS Legislative Inquiries Question Hour
These are inherent powers of the State which are Constitutional Provision
reposed in Congress. Sec. 21, Art. VI Sec. 22, Art. VI
Topic
1. Police Power
On any matter
a. Make, ordain, and establish all manner of
In aid of legislation pertaining to the
wholesome and reasonable laws, statutes
subject’s department
and ordinances as they shall judge for the
good and welfare of the constituents.
Persons Subjected
b. Includes maintenance of peace and order, Any person upon Heads of departments
protection of life, liberty and property and subpoena only
the promotion of general welfare. Appearance of Exec. Officials
2. Power of Taxation Appearance of
3. Power of Eminent Domain executive officials
4. Contempt power Appearance of 1. Via request
executive officials 2. Upon executive
SPECIFIC POWERS generally mandatory official’s volition with
1. Constituent power, or the power to propose the consent of the
amendments to the Constitution President
2. Legislative Inquiries
3. Appropriation The mere filing of a criminal or an administrative
4. Taxation complaint before a court or quasi-judicial body
5. Concurrence in treaties and international should not automatically bar the conduct of
agreements legislative inquiry [Standard Chartered Bank v. Senate
6. War powers and delegation power Committee on Banks, G.R. No. 167173 (2007)].
The requirement of securing prior consent of the

Legislative President prior to appearing before either House of
Congress applies only to Cabinet Members and not
1. Appropriation to other public officials and only when either House
2. Taxation of Congress conducts a Question Hour and not in
3. Expropriation cases of inquiries in aid of legislation as the latter
4. Authority to make, frame, enact, amend, and should be untrammelled because it is co-extensive
repeal laws with the power to legislate.(Senate of the Philippines vs.
5. Ancillary powers (e.g. conduct inquiry and Ermita, GR No. 169777, April 20, 2006)
punish for contempt [See Arnault v. Nazareno, 87
Phil. 29 (1950)] However, in Gudani vs. Senga, GR No. 170165, August
15, 2006, the Supreme Court en banc clarified the
a. Legislative Inquiries and the above ruling and upheld the President’s
Oversight Functions constitutional authority over the military and to stop
the two officers from attending the Senate hearing by
virtue of her power as Commander in Chief, and that
Requisites of Legislative Inquiries:
as a consequence, a military officer who defies such
1. Must be in aid of legislation;
an injunction was liable under the military justice. In
2. In accordance with duly published rules of
the same case, the Supreme Court also ruled that any
procedure;
chamber of Congress which seeks the appearance
3. Right of persons appearing in or affected by such
before it of a military officer against the consent of
inquiries shall be respected [Bengson v. Senate Blue
the President, has adequate remedies under the law to
Ribbon Committee, G.R. No. 89914 (1991)]
compel such attendance. Any military official whom
Congress summons to testify before it may be
compelled to do so by the President. If the President
is not so inclined, the President may be commanded
Page 36 of 382
by judicial order to compel the attendance of the his appearance. (Senate of the Philippines vs. Ermita,
military officer. Final judicial orders have the force supra)
of the law of the land which the President has the
duty to faithfully execute. But the Supreme Court said The claim of privilege must be specific, e.g., whether
that the two officers could have been allowed to the information sought to be withheld involves
testify before the Senate without having to defy their military or diplomatic secrets, closed-door Cabinet
Commander in Chief and superior officers. And if meetings, etc. A claim of privilege, being a claim of
emphasis be needed, if the courts so rule, the duty exemption from an obligation to disclose
falls on the shoulder of the President, as Commander information must be clearly asserted. Congress has
in Chief, to authorize the appearance of military the right to know why the executive considers the
officials before Congress. requested information privileged. It does not suffice
to merely declare that the President, or an authorized
Additional limitation: Executive Privilege head of office, has determined that it is so. If the
President and Congress cannot agree on whether the
Executive privilege is the right of the President and matter is privileged or not, then the Court must come
highlevel officials authorized by her to withhold in to determine the validity of the claim of privilege.
information from Congress, from the courts, and (Senate of the Philippines vs. Ermita, supra)
ultimately from the public. The privilege is a function
of separation of powers. Among the types of Elements of Presidential Communications
information which have been judicially recognized as privilege
privileged are state secrets regarding military, In Neri vs. Senate Committees, GR No. 180643, March 25,
diplomatic and other national security matters. 2008, the Court ruled that the claim of executive
Certain information in the possession of the privilege was properly invoked by Secretary Neri,
executive may validly be claimed as privileged even specifically under what is called “presidential
against Congress, such as Presidential conversations, communication privilege.” The elements of
correspondences, or discussions during closed-door presidential communications privilege are: (1) The
Cabinet meetings. (Chavez vs. PEA, 384 SCRA 152) protected communication must relate to a
Since the privilege belongs to the President, only the “quintessential and non-delegable presidential
President can invoke it. The Supreme Court ruling power.” (2) The communication must be authored or
limited to the President the power to invoke the “solicited and received” by a close advisor of the
privilege. She may also authorize the Executive President or by the President himself. The judicial
Secretary to invoke the privilege on her behalf, in test is that an advisor must be in “operational
which case, the Executive Secretary must state that proximity” with the President. (3) The presidential
the Act is “By order of the President,” which means communications privilege remains a qualified
that he personally consulted with the President such privilege that may be overcome by a showing of
matter of concern. The privilege being an adequate need, such that information sought “likely
extraordinary power, it must be wielded only by the contains important evidence” and by the
highest official in the executive hierarchy. (Senate of the unavailability of the information elsewhere by an
Philippines vs. Ermita, supra) appropriate investigating authority. Neri had been
asked three explosive questions: (a) Whether the
When an official is being summoned by Congress on President followed up the (NBN) project; (b)
a matter which, in his own judgment, might be Whether the President directed him to prioritize the
covered by executive privilege, he must be afforded ZTE: and (c) Whether the President said to go ahead
reasonable time to inform the President or the and approve the project after being told about the
Executive Secretary of the possible need for invoking alleged bribe. It was held that the claim of executive
the privilege. This is necessary to provide the privilege on the ground that the communication
President or the Executive Secretary with fair elicited by the three (3) questions “fall under
opportunityto consider whether the matter indeed conversation and correspondence between the
calls for a claim of executive privilege. If, after the President and public officials” necessary in “her
lapse of that reasonable time, neither the President executive and policy decisions-making process” and,
nor the Executive Secretary invokes the privilege, that “the information sought to be disclosed might
Congress is no longer bound to respect the failure of impair our diplomatic as well as economic relations
the official to appear before Congress and may then with the People’s Republic of China.
opt to avail of the necessary legal means to compel
Page 37 of 382
a. Simultaneously: houses take up a bill at the

Contempt Power same time
The Senate has no power to impose the indefinite b. Sequentially: bill originates from one house
detention of a person cited in contempt during its and, upon proper passage, is transmitted to
inquiries. As long as there is legitimate inquiry, then the other house for the latter’s own passage.
the inherent power of contempt by the Senate may In case of conflict between the two houses’
be properly exercised. Conversely, once the versions, a bicameral conference committee is
legislative inquiry concludes, the exercise of the organized.
inherent power of contempt ceases and there is no
more genuine necessity to penalize the detained Bicameral Conference Committee (BCC):
witness. The legislative inquiry ends upon the 1. Composed of equal number of members from the
approval or rejection of the committee report and/or Senate and the HOR
upon the expiration of one Congress. (Balag v. Senate 2. Makes recommendations to houses on how to
of the Philippines, G.R. 234608, July 3, 2018) reconcile conflicting provisions/versions
3. BCC members are usually granted blanket
authority to negotiate/reconcile the bills.
Categories of congressional oversight functions 4. At the end of the process, the BCC comes up
1. Scrutiny: Passive inquiry, the primary purpose with a Conference Committee Report, which is then
of which is to determine economy and efficiency submitted to the respective chambers for
of the operation of government activities. In the approval. Upon approval, the bill may be
exercise of legislative scrutiny, Congress may engrossed.
request information and report from the other
branches of government. It can give The Bicam report need not pass through 3 readings.
recommendations or pass resolutions for The Bicam may also include entirely new provisions
consideration of the agency involved. and substitutions [See Tolentino v. Secretary of Finance,
2. Congressional Investigation: More intense G.R. No. 115455 (1994); Philippine Judges Association v.
digging of facts, compared to scrutiny. Power of Prado, G.R. No. 105371(1993)].
investigation recognized by Sec. 21, Art. VI.
3. Legislative supervision (Legislative Veto): Enrolled bill doctrine: The (a) signing of a bill by
Most encompassing form. Connotes a the Speaker of the House and the President of the
continuing and informed awareness on the part Senate, and the (b) certification by the secretaries of
of a congressional committee regarding both Houses of Congress that it was passed, are
executive operations in a given administrative conclusive of its due enactment.
area. Allows Congress to scrutinize the exercise
of delegated law-making authority, and permits Note: While Tolentino v. Secretary of Finance does NOT
Congress to retain part of that delegated hold that the enrolled bill embodies a conclusive
authority. Through this, Congress exercises presumption, “where there is no evidence to the
supervision over the executive agencies. contrary, the Court will respect the certification of the
presiding officers of both Houses that a bill has been
Note: Legislative supervision is NOT allowed under duly passed” [Arroyo v. De Venecia, 277 SCRA 278
the Constitution [Abakada Guro Partylist v. Purisima, (1997)].
G.R. No. 166715 (2008)]. See also discussion under
Checks and Balances, supra. c. Limitations on Legislative Power
b. Bicameral Conference Formal/Procedural Limitations
Committee 1. Prescribes manner of passing bills and form they
should take.
Ways of passing bills: Rider clause: Every bill passed by the Congress
1. Jointly: In a joint session; required by the shall embrace only one subject, which shall be
Constitution in special and specific cases expressed in the title [Sec. 26(1), Art. VI].
2. Separately: Each house takes up the bill on its 2. The title is not required to be an index of the
own contents of the bill. It is sufficient compliance if
the title expresses: (1) the general subject; and (2)
all the provisions of the statute are germane to
Page 38 of 382
that subject [Tio v. Videogram Regulatory

Commission, 151 SCRA 208 (1987)]. Exception: if the priest etc. is assigned to:
3. No bill passed by either house shall become law a. The Armed Forces;
unless it has passed 3 readings on separate days b. Any penal institution;
[Sec. 26(2), Art. VI]. c. Government orphanage;
4. Printed copies in its final form must have been d. Leprosarium.
distributed to its members 3 days before the
passage of the bill [Sec. 26(2), Art. VI]. Note: The Government is not prohibited from
appropriating money for a valid secular purpose,
Exception: President certifies to the necessity of its even if it incidentally benefits a religion, e.g.
immediate enactment to meet a public calamity or appropriations for a national police force is valid
emergency. even if the police also protects the safety of
clergymen. Also, the temporary use of public
Presidential certification dispenses with (1) the property for religious purposes is valid, as long
printing requirement; and (2) the requirement for as the property is available for all religions.
readings on separate days [Kida v. Senate, G.R. No.
196271 (2011), citing Tolentino v. Secretary of Finance, 2. Specific Limitations
supra]. a. For General Appropriations Bills[Sec.
25(1)(5)]
Substantive Limitations • Congress may not increase the
Circumscribe both the exercise of the power itself appropriations recommended by the
and the allowable subject of legislation. President for the operation of the
Government as specified in the budget.
Express limitations: • Form, content and manner of
1. On general powers – Bill of Rights [Art. III] preparation of the budget shall be
2. On taxation [Secs. 28 and 29(3), Art. VII] prescribed by law.
3. On appropriation [Secs. 25 and 29(1) and (2), Art • No provision or enactment shall be
VI] embraced in the general appropriations
4. On appellate jurisdiction of the SC [Sec. 30, Art. bill unless it relates specifically to some
VI] particular appropriation therein.
5. No law granting title of royalty or nobility shall
• Procedure in approving appropriations
be passed [Sec. 31, Art. VI]
for the congress shall strictly follow the
procedure for approving appropriations
Implied Limitations:
for other departments and agencies.
1. No power to pass irrepealable law
2. Non-encroachment on powers of other • No law shall be passed authorizing any
departments transfer of appropriations. However,
3. Non-delegation of powers the following may, by law, be
authorized to augment any item in the
LIMITATIONS ON REVENUE, general appropriations law for their
APPROPRIATIONS, AND TARIFF respective offices from savings in other
MEASURES items of their respective appropriations:
1) President
APPROPRIATIONS 2) Senate President
1. General Limitations: 3) Speaker of the HOR
a. Appropriations must be for a public purpose. 4) Chief Justice of the Supreme Court
b. The appropriation must be by law. 5) Chairs of Constitutional
c. Cannot appropriate public funds or Commissions
property, directly or indirectly, in favor of b. For Special Appropriations Bills
• Any sect, church, denomination, or • Shall specify the purpose for which it is
sectarian institution or system of intended
religion or • Shall be supported by funds
• Any priest, preacher, minister, or other 1) actually available as certified by the
religious teacher or dignitary as such. National Treasurer; or
Page 39 of 382
2) to be raised by corresponding
revenue proposal therein Four phases of Government’s budgeting process:
1. Budget preparation
Principles in ascertaining the meaning of savings 2. Legislative authorization
1. Congress wields the power of the purse. 3. Budget execution
2. The Executive is expected to faithfully execute 4. Budget accountability
the GAA and to spend the budget in accordance
with the provisions of the GAA. TAXATION [Sec. 28]
3. Congress does not allow the Executive to
override its authority over the purse as to let the Nature of provision
Executive exceed its delegated authority. Sec. 28 is a listing of the limits on the inherent and
4. Savings should be actual, real or substantial, or otherwise unlimited power of taxation of Congress.
something that exists presently in fact, not
merely theoretical, possible, potential or Purposes of taxation
hypothetical [Araullo v. Aquino, G.R. No. 209287 1. Pay debts and provide for the common defense
(2014)]. and general warfare;
2. Raise revenue;
So long as there is an item in the GAA for which Congress 3. Instrument of national and social policy;
had set aside a specified amount of public fund, 4. Instrument for extermination of undesirable acts
savings may be transferred thereto for augmentation purposes. and enterprises;
[Araullo v. Aquino, supra] 5. Tool for regulation;
6. Imposition of tariffs designed to encourage and
To be valid, an appropriation must indicate a specific amount protect locally produced goods against
and a specific purpose. However, the purpose may be specific competition for imports.
even if it is broken down into different related sub-
categories of the same nature (e.g. “conduct elections” Limitations
covers regular, special, or recall elections) [Goh v. 1. Public purpose: Power to tax should be
Bayron, G.R. No. 212584 (2014)]. exercised only for a public purpose.
2. Uniform and equitable
Guidelines for disbursement of discretionary a. Operates with the same force and effect in
funds appropriated for particular officials: [Sec. every place where the subject of it is found
25(6)] b. Classification for the purpose of taxation is
1. For public purposes not prohibited per se, BUT it must comply
2. To be supported by appropriate vouchers with the Test of Valid Classification [See
3. Subject to such guidelines as may be prescribed Ormoc Sugar Central v. Ormoc City, G.R. No. L-
by law 23794 (1968), on equal protection and local
taxes].
If Congress fails to pass the general
appropriations bill by the end of any fiscal Test of Valid Classification
year:[Sec. 25(7)] 1. Based on substantial distinctions which make
1. The general appropriations bill for the previous real differences
year is deemed reenacted 2. Germane to the purpose of law
2. It shall remain in force and effect until the 3. Applies to present and future conditions
general appropriations bill is passed by Congress. substantially identical to those of the present
4. Applies equally to those who belong to the same
Limitation on Use of Public Funds[Sec. 29] class
1. No money shall be paid out of the National
Treasury except in pursuance of an appropriation Progressive
made by law. • The rate increases as the tax base increases
2. However, this rule does not prohibit continuing • Tax burden is based on the taxpayers’ capacity to
appropriations, e.g. for debt servicing, for the pay
reason that this rule does not require yearly or • Suited to the social conditions of the people
annual appropriation. [See Guingona v.
• Reflects aim of the Convention that legislature
Carague(1991)]
following social justice command should use
Page 40 of 382
taxation as an instrument for more equitable To override the veto, at least 2/3 of ALL the members of
distribution of wealth each house must agree to pass the bill. In such case,
the veto is overridden and becomes a law without
Progressive taxation is a directive to Congress and is not need of presidential approval.
a judicially enforceable right [Tolentino v. Secretary of
Finance, supra]. General Rule: Partial veto is invalid
Exceptions:
Constitutional Tax Exemptions: 1. Veto of particular items of an appropriation,
1. Charitable institutions, churches and parsonages tariff, or revenue bill
or convents appurtenant thereto, mosques, non- 2. Doctrine of Inappropriate Provisions
profit cemeteries, and all lands, buildings, and
improvements actually, directly, and exclusively ITEM VETO
used for religious, charitable, or educational The President may veto particular items in an
purposes shall be exempt from taxation [Sec. appropriation, revenue or tariff bill. The whole item (and
28(3), Art. VI]. not just a portion) must be vetoed [Bengzon v. Drilon, G.R.
2. All revenues and assets of non-stock, non-profit No. 103524(1992)].
educational institutions are exempt from taxes and
duties PROVIDED that such revenues and Item: In a bill, this refers to the particulars, the
assets are actually, directly and exclusively used for details, the distinct and severable parts; an indivisible
educational purposes [Sec. 4(3), Art. XIV]. sum of money dedicated to a stated purpose; in itself,
3. Grants, endowments, donations or a specific appropriation of money, not some general
contributions used actually, directly and exclusively provision of law, which happens to be in an
for educational purposes shall be exempt from appropriation bill.
tax, subject to conditions prescribed by law [Sec.
4(4), Art. XIV]. The president cannot veto unavoidable obligations, i.e.
already vested by another law (e.g. payment of
Special Funds pensions, see Bengzon v. Drilon, supra).
1. Money collected on a tax levied for a special
purpose shall be treated as a special fund and This veto will not affect items to which he does not
paid out for such purpose only. object.
2. Once the special purpose is fulfilled or
abandoned, any balance shall be transferred to
the general funds of the Government VETO OF A RIDER
A rider is a provision which does not relate to a
PRESIDENTIAL VETO AND particular appropriation stated in the bill.
CONGRESSIONAL OVERRIDE
Since it is an invalid provision under Sec. 25(2), Art. VI,
Submission to the President; President’s Veto power [Sec. 27, the President may veto it as an item.
Art. VI]
The executive's veto power does not carry with it the
Rule on Presentment: Every bill, in order to power to strike out conditions or restrictions. If the
become a law, must be presented to and signed by the veto is unconstitutional, it follows that the same produced no
President. effect whatsoever, and the restriction imposed by the
If the President does not approve of the bill, he shall appropriation bill, therefore, remains [Bolinao
veto the same and return it with his objections to the Electronics Corp v. Valencia, G.R. No. L-20740(1964)].
house from which it originated. The House shall enter the
objections in the journal and proceed to reconsider it. Doctrine of Inappropriate Provisions: A provision
that is constitutionally inappropriate for an
The President must communicate his decision to veto appropriation bill may be singled out for veto (i.e.
within 30 days from the date of receipt thereof. treated as an item) even if it is not an appropriation
Otherwise, the bill shall become a law as if he signed it or revenue item [Gonzales v. Macaraig, G.R. No.
(“lapsed into law”). 87636(1990)].
Page 41 of 382
the stringent standards it asks of justices and judges

Non-legislative when it comes to inhibition from hearing cases.
• Constitutional requirement that HOR shall
promulgate its rules on impeachment [Sec. 3(8),
a. Informing Function Art. XI] is different from the publication
requirement in Tañada v. Tuvera[G.R. No. L-
Via legislative inquiries: The conduct of legislative 63915 (1985)]. (In the Gutierrez case,
inquiries is intended to benefit not only Congress but promulgation was found to be sufficient.)
the citizenry, who are equally concerned with the
proceedings [Sabio v. Gordon, G.R. No. 174340(2006)]. Trial
The SENATE shall have the sole power to try and
decide all cases of impeachment.[Sec. 3(6), Art. XI
b. Power of Impeachment
By virtue of the expanded judicial review (Art. VIII,
The HOR shall have the exclusive power to initiate all sec. 1[2]), the Court’s power of judicial review extends
cases of impeachment. [Sec. 3(1)] over justiciable issues arising in impeachment
proceedings [Francisco v. House of Representatives, supra].
Initiation: Regular Procedure [Sec. 3(2)(3), Art.
XI] BUT the question of whether or not Senate Impeachment
Rules were followed is a political question [Corona v. Senate,
FILING by (a) any member of the HOR or (b) any G.R. No. 200242 (2012)].
citizen upon endorsement by a member of the
HOR; followed by REFERRAL to the proper c. Other Non-Legislative Powers
HOR Committee (i.e. HOR Committee on
Justice) 1. Power to canvass the presidential elections;
 2. Declare the existence of war;
COMMITTEE REPORT by proper committee, 3. Give concurrence to treaties and amnesties;
which either favorably or unfavorably resolves the 4. Propose constitutional amendments;
complaint
5. Implied powers such as the power to punish
 contempt in legislative investigations.
Above resolution Is AFFIRMED (if favorable) or
OVERRIDDEN (if unfavorable) by vote of 1/3
of all the members of the HOR
Verified complaint or resolution [Sec. 3(4), Art. XI]

FILED by 1/3 of all the members of the HOR; trial
by Senate forthwith proceeds
Notes on Initiation [Gutierrez v. HOR Committee on Justice,

G.R. No. 193459 (2011)]:
• Basic limitation: No impeachment proceeding
shall be initiated against the same official more
than once within a period of one year [Sec. 2(5),
Art. XI]
• Initiation means filing coupled with referral to
the Committee on Justice.
• Court cannot make a determination of what
constitutes an impeachable offense; it is a purely
political question [Francisco v. House of
Representatives, G.R. No. 160261(2003)].
• On motion to inhibit: Impeachment is a political
exercise. The Court cannot apply (to Congressmen)
Page 42 of 382
IV. EXECUTIVE qualifications of the President or Vice-President, and

may promulgate its rules for the purpose.
DEPARTMENT Term of Office: 6 years, which shall begin at noon on
the 30th day of June next following the day of the
THE PRESIDENT election and shall end at noon of the same day 6 years
thereafter [Sec. 4, Art. VII].
Qualifications:
a. Natural-born citizen of the Philippines; The President is not eligible for re-election.
b. A registered voter;
c. Able to read and write; Note: No person who has succeeded as President and
d. At least 40 years of age on the day of the election; has served for more than 4 years shall be qualified for
and election to the same office for any length of time [Sec.
e. A resident of the Philippines for at least 10 years 4, Art. VII].
immediately preceding such election. [Sec. 2, Art.
VII]
A. Privileges, Inhibitions,
Election:
a. Regular Election: Second Monday of May
Disqualifications
b. National Board of Canvassers (President
and Vice-President): Congress THE PRESIDENT
1. Returns shall be transmitted to Congress,
directed to the Senate President Official residence
2. Joint public session: not later than 30 days The president shall have an official residence [Sec. 6].
after election date; returns to be opened in
the presence of the Senate and HOR in joint Salary
session This shall be determined by law. It shall not be
decreased during tenure. No increase shall take effect
Jurisprudence on Canvassing until after the expiration of the term of the incumbent
Congress may validly delegate the initial during which such increase was approved [Sec. 6].
determination of the authenticity and due execution
of the certificates of canvass to a Joint Congressional Presidential Immunity
Committee, composed of members of both houses
[Lopez v. Senate, G.R. No. 163556 (2004)]. The President as such cannot be sued, enjoying as he
does immunity from suit. But the validity of his acts
Even after Congress has adjourned its regular can be tested by an action against other executive officials
session, it may continue to perform this [Carillo v. Marcos, G.R. No. L-21015(1981)].
constitutional duty of canvassing the presidential and
vice-presidential election results without need of any The privilege may be invoked only by the President.
call for a special session by the President. Only when — Immunity from suit pertains to the President by
the board of canvassers has completed its functions virtue of the office and may be invoked only by the
is it rendered functus officio [Pimentel, Jr. v. Joint Committee holder of the office; not by any other person in the
of Congress, G.R. No. 163783 (2004)]. President's behalf. The President may waive the
protection afforded by the privilege and submit to the
If the COMELEC is proscribed from conducting an court's jurisdiction [Soliven v. Makasiar, G.R. No.
official canvass of the votes cast for the President and 82585, and Beltran v. Makasiar, G.R. No.
Vice-President, it is, with more reason, prohibited 82827(1988)].
from making an “unofficial” canvass of said votes.
[Brillantes v. COMELEC, G.R. No. 163193 (2004)]. But presidential decisions may be questioned before
the courts where there is grave abuse of discretion or that
The Supreme Court as Presidential Electoral Tribunal: The the President acted without or in excess of jurisdiction
Supreme Court, sitting en banc, shall be the sole judge [Gloria v. CA, G.R. No. 119903 (2000)].
of all contests relating to the election, returns and
Page 43 of 382
Immunity co-extensive with tenure and covers only

official duties. After tenure, the Chief Executive Prohibited Acts
cannot invoke immunity from suit for civil damages a. Shall not receive any other emoluments from the
arising out of acts done by him while he was government or any other source [For President
President which were not performed in the exercise of and Vice-President, Sec. 6].
official duties [Estrada v. Desierto, G.R. Nos. 146710-15 b. Unless otherwise provided in the constitution,
(2001)]. shall not hold any other office or employment
[Sec. 13].
Cannot be invoked by a non-sitting president. This 1. The prohibition does not include posts
presidential privilege of immunity cannot be invoked occupied by executive officials without
by a non-sitting president even for acts committed additional compensation in an ex-officio capacity,
during his or her tenure. Courts look with disfavor as provided by law or as required by the
upon the presidential privilege of immunity, primary functions of the said official’s
especially when it impedes the search for truth or office.
impairs the vindication of a right [Saez v. Macapagal- 2. The ex-officio position being actually (i.e.
Arroyo, G.R. No. 183533 (2012)]. merely additional duty) and in legal
contemplation part of the principal office, it
Exception: The president may be sued if the act is one follows that the official concerned has no
not arising from official conduct [See Estrada v. right to receive additional compensation for
Desierto, supra]. his services in said position [National Amnesty
Commission v. COA, G.R. No. 156982
Presidential Privilege (2004)].
c. Shall not directly or indirectly (a) practice any
other profession; (b) participate in any business;
This refers to the power of the government to
or (c) be financially interested in any contract
withhold information from the public, the courts,
with, or in any franchise or special privilege
and the Congress [SCHWART].
granted by the government or any subdivision,
agency, or instrumentality thereof, including
It is "the right of the President and high-level
government-owned or controlled corporations
executive branch officers to withhold information
or their subsidiaries [Sec. 13].
from Congress, the courts, and ultimately the public"
d. Strictly avoid conflict of interest in the conduct
[ROZELL].
of their office [Sec. 13].
e. May not appoint (a) spouse; or (b) relatives by
N.B. Case law uses the term presidential privilege to refer
consanguinity or affinity within the fourth civil
to either (1) immunity from suit (i.e. immunity from
degree as members of Constitutional
judicial processes, see Neri v. Senate, infra, and Saez v.
Commissions, or the Office of the Ombudsman,
Macapagal-Arroyo, supra); or (2) executive privilege
or as Secretaries, Undersecretaries, chairmen or
[Akbayan v. Aquino, infra].
heads of bureaus or offices, including
government-owned or controlled corporation
THE VICE-PRESIDENT
and their subsidiaries.
Qualifications, election and term of office and
removal are same as the President, except that no Vice-
The stricter prohibition applied to the President and
President shall serve for more than 2 successive terms.
his official family under Art. VII, Sec. 13, as
The Vice-President may be appointed as member of
compared to the prohibition applicable to appointive
the Cabinet; such requires no confirmation by the
officials in general under Art. IX-B, Sec. 7, par. 2, is
Commission of Appointments.
proof of the intent of the 1987 Constitution to treat
them as a class by itself and to impose upon said class
PROHIBITIONS ON THE EXECUTIVE
stricter prohibitions [Civil Liberties Union v. Executive
DEPARTMENT
Secretary, G.R. No. 83896(1991)].
The following prohibitions apply to:
a. President
Exceptions to rule prohibiting executive officials
b. Vice-President,
from holding additional positions:
c. The members of the Cabinet, and their deputies
a. President
or assistants
Page 44 of 382
1. The President can assume any or all Cabinet 3. Such is allowed by law. [Civil Liberties Union v.
posts (because the departments are mere Executive Secretary, supra]
extensions of his personality, according to
the Doctrine of Qualified Political Agency, Note: Sec. 7, Art. IX-B is the general rule for
hence no objection can be validly raised appointed officials. It is not an exception to Sec. 13,
based on Sec. 13, Art. VII). Art. VII, which is a specific rule for members of the
2. The President can assume ex officio Cabinet, their deputies and assistants inter alia [See
positions. (e.g. The President is the Civil Liberties Union v. Executive Secretary, supra].
Chairman of NEDA) [Sec. 9, Art. XII].
b. Vice-President: “The Vice-President may be
appointed as member of the Cabinet. Such
appointment requires no confirmation” [Sec. 3,
Art. VII].
c. Cabinet
Sec. 13, Art. VII. The President, Vice-President,

the Members of the Cabinet, and their deputies or
assistants shall not, unless otherwise provided
in this Constitution, hold any other office or
employment during their tenure. […]
Sec. 7, Art. IX-B. No elective official shall be

eligible for appointment or designation in any
capacity to any public office or position during
his tenure.
Unless otherwise allowed by law or by the

primary functions of his position, no
appointive official shall hold any other office or
employment in the Government or any
subdivision, agency or instrumentality thereof,
including Government-owned or controlled
corporations of their subsidies.
"[U]nless otherwise provided by the

Constitution." – the only cases contemplated are:
1. The Vice-President being appointed as member
of the cabinet.
2. The Vice-President acting as president when one
has not yet been chosen or qualified [Sec. 7(2)(3),
Art. VII].
3. The Secretary of Justice sitting as ex-officio
member of the Judicial and Bar Council [Sec.
8(1), Art. VIII; Civil Liberties Union v. Executive
Secretary, supra].
The Constitution allows a Cabinet member to hold

another office provided:
1. It is in an ex-officio capacity and without additional
compensation;
2. Such is necessitated by the primary functions of his
position (e.g. Secretary of Trade and Industry as
Chairman of NDC; Secretary of Agrarian
Reform as Chairman of the Land Bank); AND
Page 45 of 382
5. Commander-in-Chief Powers [Sec. 18, Art.

B. Powers VII]:
a. Call Out Power: Armed forces to suppress
Executive and lawless violence
b. Suspension of the privilege of the Writ of
Administrative Powers in Habeas Corpus: Only (a) in times of
General rebellion or invasion; AND (b) when
required by public safety
Executive power c. Martial law: Does not suspend the
This refers to the President’s power to enforce, Constitution
implement, and administer laws. The President shall 6. Power of Legislation
ensure that the laws be faithfully executed [Sec. 17, a. Veto Power
Art. VII]. b. Power to Declare Emergency: Declare only;
exercise of emergency power vested in
The President’s power to conduct investigations to aid him Congress, but may be delegated by it to the
in ensuring the faithful execution of laws – in this President
case, fundamental laws on public accountability and c. Integrative Power: powers shared with
transparency – is inherent in the President’s powers legislative (e.g. appointments requiring
as the Chief Executive. [T]he purpose of allowing ad confirmation, rule-making); legislation
hoc investigating bodies to exist is to allow an inquiry during times of emergency
into matters which the President is entitled to know 7. Diplomatic Powers: Including Power to Enter
so that he can be properly advised and guided in the into Treaties
performance of his duties relative to the execution 8. Residual Power: To protect the general welfare
and enforcement of the laws of the land [Biraogo v. of people; founded on duty of President as
Philippine Truth Commission, G.R. Nos. 192935- steward of the people; includes powers unrelated
36(2010)]. to execution of any provision of law [See Marcos
v. Manglapus, G.R. No. 88211 (1989)]
One Executive: This power is exercised by the 9. Other Powers
President [Sec. 1, Art. VII]. a. Power to Pardon: Reprieve, commute,
pardon, remit fines and forfeitures after final
As administrative head of the government, the President judgment [Sec. 19(1), Art. VII]
is vested with the power to execute, administer and b. Power to Grant Amnesty: With
carry out laws into practical operation [National concurrence of majority of all members of
Electrification Commission v. CA, G.R. No. Congress
103585(1997)]. c. Borrowing Power: Contract or guarantee
foreign loans with concurrence of Monetary
Summary of Presidential Powers Board [Sec. 20, Art. VII]
1. Executive Power: This is the power to enforce d. Budgetary Power: Submit to congress
and administer laws. budget of bills and expenditures [Sec. 22,
2. Power of Appointment: The Legislative can Art. VII]
create office, but only Executive can fill it; Congress 10. Informing Power: Address Congress during
cannot circumvent this by setting very narrow opening of session, or at any other time [Sec. 23,
qualifications, such that only one person is Art. VII]
qualified to hold office [Flores v. Drilon, G.R. No.
104732 (1993)]. Note: The presidential power of control over the
3. Power of Control: The President may(a) nullify, Executive Branch of Government is a self-executing
modify judgments of subordinates [See Sec. 17, provision of the Constitution and does not require
Art. VII]; (b) undo or redo actions of statutory implementation, nor may its exercise be
subordinates; and (c) lay down rules for the limited, much less withdrawn, by the legislature. This
performance of subordinates’ duties. is why President Duterte is not bound by the alleged
4. Power of Supervision: This refers to the 1992 Agreement between former President Ramos
oversight function. The Executive must see to it that and the Marcos family to have the remains of Marcos
rules, which it did not make, are followed. interred in Batac, Ilocos Norte. As the incumbent
President, he is free to amend, revoke or rescind
Page 46 of 382
political agreements entered into by his predecessors, during the appointment ban [Velicaria-Garafil v. Office
and to determine policies which he considers, based of the President, G.R. No. 203372 (2015)].
on informed judgment and presumed wisdom, will be
most effective in carrying out his mandate [Ocampo v. Classification of Power of Appointment:
Enriquez, G.R. No. 225973 (2016)]. There are four groups of officers whom the President
may appoint:
Power of Appointment 1. Heads of the Executive Department,
ambassadors, other public ministers and consuls,
officers of the armed forces from the rank of
a. In General colonel or naval captain and other officers whose
appointments are vested in him;
Sec. 16. The President shall nominate and, with
the consent of the Commission on Appointments, Note: Heads of bureaus were deliberately
appoint the heads of the executive departments, removed from this group and effectively
ambassadors, other public ministers and consuls, transferred to the fourth group [Sarmiento v.
or officers of the armed forces from the rank of Mison, G.R. No. 79974(1987)].
colonel or naval captain, and other officers whose
appointments are vested in him in this 2. All other officers of the government whose
Constitution. He shall also appoint all other appointments are not otherwise provided by law;
officers of the Government whose appointments 3. Those whom the President may be authorized by
are not otherwise provided for by law, and those law to appoint; and
whom he may be authorized by law to appoint. 4. Officers lower in rank whose appointments
The Congress may, by law, vest the appointment Congress may by law vest in the President alone.
of other officers lower in rank in the President
alone, in the courts, or in the heads of Only the first group of appointees needs the
departments, agencies, commissions, or boards. confirmation of the Commission on
[…] Appointments.
Definition: The selection, by the authority vested with b. Commission on Appointments

the power, of an individual who is to exercise the
functions of a given office.
Confirmations
Appointment is distinguished from: From the rulings in Sarmiento III v. Mison (1987)
[supra], Bautista v. Salonga[G.R. No. 86439 (1989)], and
1. Designation: Imposition of additional duties,
Quintos-Deles v. Commission on Constitutional Commissions
usually by law, on a person already in the public
[G.R. No. 83216 (1989)], these doctrines are
service.
deducible:
2. Commission:Written evidence of the
appointment.
1. Confirmation by the Commission on
Elements for a valid appointment: Appointments is required only for presidential
1. Authority to appoint and evidence of the appointees as mentioned in the first sentence of
Sec. 16, Art. VII,including those officers whose
exercise of the authority;
appointments are expressly vested by the
2. Transmittal of the appointment paper and
Constitution itself in the President:
evidence of the transmittal (preferably through
a. Heads of the executive departments
the Malacañang Records Office);
3. Vacant position at the time of appointment; and b. Ambassadors, other public ministers and
4. Receipt of the appointment paper and consuls
acceptance of the appointment by the appointee c. Officers of the Armed Forces of the
who possesses all the qualifications and none of Philippines with the rank of colonel or naval
captain (Rationale: These are officers of a
the disqualifications.
sizeable command enough to stage a coup)
All these elements should always apply, regardless of when the
Note: Appointments to the Philippine Coast
appointment is made, whether outside, just before, or
Guard, which is no longer under the AFP, need
Page 47 of 382
not undergo confirmation. [Soriano v. Lista, G.R. Appointments upon Recommendation of the
No. 153881 (2003)] Judicial and Bar Council: do not require
confirmation by the Commission on Appointments.
The Philippine National Police (PNP, Section 4, 1. Members of the Supreme Court and all other
Article XVI, PC) is separate and distinct from the courts [Sec. 9, Art. VIII]
Armed Forces of the Philippine (AFP, Section 6, For the Supreme Court, the appointment must
Article XVI, PC). The police force is different be made 90 days from when the vacancy occurs
from and independent of the armed forces and [Sec. 4(1), Art VIII]
that the ranks in the military are not similar to For lower courts, appointment shall be issued
those in the PNP Thus, directors and chief within 90 days from submission of the list
superintendents of the PNP, do not fall under 2. Ombudsman and his 5 deputies (for Luzon,
the first category of presidential appointees Visayas, Mindanao, general and military) [Sec. 9,
requiring confirmation by the Commission on Art. XI]
Appointments. Manalo v. Sistoza, G.R. No.
107369, August 11, 1999) All vacancies shall be filled within 3 months after they
occur.
2. Other officers whose appointments are vested in
the President by the Constitution: "The Congress may, by law, vest in the appointment
a. Chairman and Commissioners of the of other officers lower in rank in the President alone".
Constitutional Commissions [Art. IX] • This means that, until a law is passed giving such
b. Regular members of the Judicial and Bar appointing power to the President alone, then
Council [Sec. 8(2), Art. VIII] such appointment has to be confirmed.
c. Sectoral Congressional representatives (Sec. • The inclusion of the word "alone" was an
7, Art. XVIII) (Note: Provision no longer in force) oversight. Thus, the Constitution should read:
"The Congress may, by law, vest the
When confirmation is not required: appointment of other officers lower in rank in
1. When the President appoints other government the President." [Sarmiento v. Mison, supra]
officers whose appointments are not otherwise
provided for by law; In its Decision dated November 29, 2016, the Court
2. Those officers whom he may be authorized by law ruled that the clustering impinged upon the
to appoint (e.g. Chairman and Members of the President's appointing power in the following ways:
Commission on Human Rights); The President's option for every vacancy was limited
3. When Congress creates inferior offices but omits to to the five to seven nominees in each cluster. Once
provide for appointment thereto, or provides in an the President had appointed a nominee from one
unconstitutional manner for such appointments cluster, then he was proscribed from considering the
[See Sarmiento v. Mison, supra] other nominees in the same cluster for the other
4. Appointment of the Vice-President as member of vacancies. All the nominees applied for and were
the Cabinet [Sec. 3, Art. VII] found to be qualified for appointment to any of the
5. Appointments upon recommendation of the vacant Associate Justice positions in the
Judicial and Bar Council (see below) Sandiganbayan, but the JBC failed to explain why one
6. Appointments solely by the President (see below) nominee should be considered for appointment to
the position assigned to one specific cluster only.
Appointments solely by the President [Sec. 16, Art. Correspondingly, the nominees' chance for
VII] appointment was restricted to the consideration of
1. Those vested by the Constitution on the the one cluster in which they were included, even
President alone (e.g. appointment of Vice- though they applied and were found to be qualified
President to the Cabinet) [Sec. 3(2), Art. VII] for all the vacancies. Moreover, by designating the
2. Those whose appointments are not otherwise numerical order of the vacancies, the JBC established
provided by law. the seniority or order of preference of the new
3. Those whom he may be authorized by law to Sandiganbayan Associate Justices, a power which the
appoint. law [Par. 3, Sec. 1, Presidential Decree No. 1606],
4. Those other officers lower in rank whose rules [(Rule II, Section 1(b) of the Revised Internal
appointment is vested by law in the President. Rules of the Sandiganbayan], and jurisprudence [Re:
Seniority Among the Four Most Recent
Page 48 of 382
Appointments to the Position of Associate or non-action on its part for the confirmation to
Justices of the Court of Appeals, A.M. No. 10-4- be recalled.
22-SC], vest exclusively upon the President
[Aguinaldo v. Aquino, G.R. No. 224302, Resolution on Ad interim appointment
the MR (2017)]. 1. Made by the President while Congress is not in
session
Steps in the appointing process: 2. Takes effect immediately, BUT ceases to be valid
(1) if disapproved by the CA or (2) upon the next
Nomination by the President adjournment of Congress. [Sec. 16, par. 2, Art.
 VII]
Confirmation by the Commission on 3. Ad interim appointments are permanent appointments.
Appointments Ad Interim appointments to the Constitutional
 Commissions (e.g. COMELEC) are permanent
Issuance of the Commission as these take effect immediately and can no
longer be withdrawn by the President once the
 appointee has qualified into office. The fact that
Acceptance by the appointee it is subject to the confirmation of the CA does
not alter its permanent character. [Matibag v.
Note: In the case of ad interim appointments, steps 1, Benipayo, G.R. No. 149036(2002)]
3 and 4 precede step 2.
Acting/Temporary appointment
An appointment is deemed complete only upon Can be withdrawn or revoked at the pleasure of the appointing
acceptance [Lacson v. Romero, G.R. No. L-3081 (1949)]. power. The appointee does not enjoy security of
tenure.
Appointment is essentially a discretionary power, the
only condition being that the appointee, if issued a Limitation: President constitutionally prohibited
permanent appointment, should possess the minimum from making such appointments to the
qualification requirements, including the Civil Service Constitutional Commissions (in order to preserve the
eligibility prescribed by law for the position. This latter’s independence).
discretion also includes the determination of the
nature or character of the appointment. Temporary Designations
The President may designate an officer already in the
REGULAR AND RECESS (AD INTERIM) gov’t service or any other competent person to perform the
APPOINTMENTS functions of any office in the executive branch,
appointment to which is vested in him by law, when:
Two Kinds of Appointments Requiring 1. The officer regularly appointed to the office is
Confirmation: unable to perform his duties by reason of illness,
1. Regular: if the CA (Congress) is in session; and absence or any other cause; or
2. Ad Interim: during the recess of Congress 2. There exists a vacancy.
(because the CA shall meet only while Congress
is in session [Sec. 19, Art. VI] In no case shall a temporary designation exceed 1 year
[Sec. 17, Book III, Admin Code of 1987].
Regular appointment
1. Made by the President while Congress is in Congress cannot impose on the president the
session obligation to appoint an incumbent Undersecretary
2. Takes effect only after confirmation by the as [the President’s] Acting Secretary. The President
Commission on Appointments (CA) shall have the freedom to choose who shall be his
3. Once approved, continues until the end of the temporary alter ego [Pimentel v. Ermita, G.R. No.
term. Note: The mere filing of a motion for 164978 (2005)].
reconsideration of the confirmation of an
appointment cannot have the effect of recalling
or setting aside said appointment. The
Constitution is clear – there must either be a
rejection by the Commission on Appointments
Page 49 of 382
Note: In re: Valenzuela [A.M. No. 98-5-01-SC (1998)],

Ad Interim and Acting Appointments which extended the prohibition for midnight
Ad Interim (Recess) Acting appointments to the judiciary, was effectively overturned.
Effective upon acceptance
Extended only when May be extended even Limited to Caretaker Capacity: While "midnight
Congress is in recess if Congress is in session appointments" (i.e. made by outgoing President near
Submitted to the CA Not submitted to the the end of his term) are not illegal, they should be
for confirmation CA for confirmation made in the capacity of a "caretaker" [a new president
Permanent Way of temporary filling being elected], doubly careful and prudent in making
appointments up vacancies the selection, so as not to defeat the policies of the
incoming administration. Hence, the issuance of 350
Limitations on appointing power of the appointments in one night and the planned induction
President of almost all of them a few hours before the
1. Art. VII, Sec. 13, par. 2:The spouse and inauguration of the new President may be regarded as
relatives by consanguinity or affinity within the abuse of presidential prerogatives [Aytona v. Castillo,
4th civil degree of the President shall not, during G.R. No. L-19313(1962)].
his "tenure", be appointed as:
a. Members of the Constitutional (Note: The 1935 Const. did not contain an explicit
Commissions; prohibition on midnight appointments)
b. Member of the Office of Ombudsman;
c. Secretaries; Applies only to President: Ban does not extend to
d. Undersecretaries; appointments made by local elective officials. There
e. Chairmen or heads of bureaus or offices, is no law that prohibits local elective officials from
including government-owned or controlled making appointments during the last days of his or
corporations and their subsidiaries. her tenure [De Rama v. CA, G.R. No. 131136(2001)].
2. Recess (Ad Interim) appointments: The Appointing power of the ACTING

President shall have the power to make PRESIDENT
appointments during the recess of the Congress, 1. Appointments extended by an Acting President
whether voluntary or compulsory, but such shall remain effective unless revoked by the
appointments shall be effective only until elected President within ninety days from his
disapproval by the Commission on assumption or re-assumption of office [Sec. 14,
Appointments or until the next adjournment of Art. VII].
the Congress [Sec. 16(2), art. VII]. 2. Midnight appointments ban applies to the acting
president.
c. Midnight Appointments Ban Power of Removal
General Rule: The power of removal may be implied
General Rule: 2 months immediately before the next from the power of appointment.
presidential elections (2nd Monday of March), and up
to the end of his "term" (June 30), a President (or Exception: The President cannot remove officials
Acting President) shall not make appointments [Sec. appointed by him where the Constitution prescribes
15, Art. VII]. certain methods for separation of such officers from
public service, e.g. Chairmen and Commissioners of
Exception: Temporary appointments to executive Constitutional Commissions who can be removed
positions, when continued vacancies will: (a) only by impeachment, or judges who are subject to
prejudice public service; or (b) endanger public the disciplinary authority of the Supreme Court.
safety.
Career Civil Service: Members of the career civil
Limited to Executive Department: The service of the Civil Service who are appointed by the
prohibition against midnight appointment applies only President may be directly disciplined by him [Villaluz
to positions in the executive department [De Castro v. JBC, v. Zaldivar, G.R. No. L-22754 (1964)].
G. R. No. 191002 (2010)].
Page 50 of 382
Serve at the pleasure of the president: Cabinet a. Doctrine of Qualified Political

members and such officers whose continuity in office
depends upon the pleasure of the president may be replaced Agency (Alter Ego Principle)
at any time, but legally speaking, their separation is
effected not by removal but by expiration of their term of the All the different executive and administrative
appointee. organizations are mere adjuncts of the Executive
Department. This is an adjunct of the Doctrine of One
Executive.
Power of Control and
Supervision The heads of the various executive departments are
assistants and agents of the Chief Executive [Villena v.
Supervision v. Control Secretary of the Interior, G.R. No. L-46570(1939)].
Supervision Control In the regular course of business, acts of executive

departments, unless disapproved or reprobated by the
Overseeing or the power
Chief Executive, are presumptively acts of the Chief
or authority of the
Executive [Free Telephone Workers Union v. Minister of
officer to see that
Labor and Employment, G.R. No. L-58184(1981)].
subordinate officers
perform their duties,
and if the latter fail or b. Executive Departments and
Power of an officer to
neglect to fulfill them,
alter, modify, nullify or set Offices
then the former may
aside what a subordinate
take such action or General Rule: The multifarious executive and
officer had done and to
steps as prescribed by administrative functions of the Chief Executive are
substitute the judgment
law to make them performed by and through the executive
of the former for that
perform these duties. departments.
of the latter.
This does not include Exceptions:
the power to overrule 1. Cases where the Chief Executive is required by
their acts, if these acts the Constitution or by the law to act in person;
are within their or
discretion. 2. The exigencies of the situation demand that he
act personally.
CONTROL OF EXECUTIVE
DEPARTMENTS Power to Abolish Offices
[Sec. 17, Art. VII] Generally, the power to abolish a public office is
legislative. BUT, as far as bureaus, offices, or agencies
Control is essentially the power to [1] alter or modify or of the executive department are concerned, power of
nullify or set aside what a subordinate officer had done in the control may justify him to inactivate functions of a
performance of his duties; and to [2] substitute the particular office [See Buklod ng Kawaning EIIB v.
judgment of the former with that of the latter [Biraogo v. Zamora, 360 SCRA 718 (2001),where the President
Philippine Truth Commission, supra]. effectively abolished the Economic Intelligence
Bureau by “deactivating” it, transferring its functions
The President may, by executive or administrative to other agencies].
order, direct the reorganization of government entities under
the Executive Department. This is also sanctioned under In establishing an executive department, bureau or
the Constitution, as well as other statutes [e.g. Admin. office, the legislature necessarily ordains an executive
Code]. This recognizes the recurring need of every agency’s position in the scheme of administrative
President to reorganize his or her office “to achieve structure. Such determination is primary, but subject to
simplicity, economy and efficiency,” in the manner the President’s continuing authority to reorganize the
the Chief Executive deems fit to carry out administrative structure [Anak Mindanao v. Executive
presidential directives and policies [Tondo Medical Secretary, G.R. No. 166052(2007)].
Employees v. CA, G.R. No. 167324(2007)].
Page 51 of 382
c. General Supervision over Local Graduated Powers: Sec. 18, Art. VII grants the
President, as Commander-in-Chief, a “sequence” of
Government Units and the “graduated power[s].” From the most to the least
Autonomous Regions benign, these are: (1) the calling out power, (2) the
power to suspend the privilege of the writ of habeas
The President shall exercise general supervision over corpus, and the (3) power to declare martial law. In
local governments [Sec. 4, Art. X]. the exercise of the latter two powers, the Constitution
requires the concurrence of two conditions, namely,
The President shall exercise general supervision over an actual invasion or rebellion, and that public safety
autonomous regions to ensure that laws are faithfully requires the exercise of such power. However, these
executed [Sec. 16, Art. X]. conditions are not required in the exercise of the
calling out power. The only criterion is that
The President may suspend or remove local officials ‘whenever it becomes necessary,’ the President may
by virtue of the power delegated to him by Congress call the armed forces ‘to prevent or suppress lawless
through the Local Government Code. The violence, invasion or rebellion.’ [Sanlakas v. Executive
Constitution also places local governments under the Secretary, G.R. No. 159085(2004)].
general supervision of the president [supra], and also
allows Congress to include in the local government CALL OUT THE AFP TO PREVENT
code provisions for removal of local officials [see Sec. LAWLESS VIOLENCE
3, Art. X and Ganzon v. CA, G.R. No. 93252(1991)]. This is merely a police measure meant to quell
disorder. As such, the Constitution does not regulate
Military Powers its exercise radically.
State of Rebellion
Commander-in-chief powers[Sec. 18, Art. VII]
While the Court may examine whether the power was
a. He may call out such armed forces to prevent or
exercised within constitutional limits or in a manner
suppress lawless violence, invasion or rebellion.
constituting grave abuse of discretion, none of the
b. He may suspend the privilege of the writ of habeas cor-
petitioners here have, by way of proof, supported
pus, or
their assertion that the President acted without
c. He may proclaim martial law over the entire
factual basis. The President, in declaring a state of
Philippines or any part thereof.
rebellion and in calling out the armed forces, was
merely exercising a wedding of her Chief Executive
The President shall be the Commander-in-Chief of
and Commander-in-Chief powers. These are purely
all armed forces of the Philippines.
executive powers, vested on the President by Sections
1 and 18, Article VII, as opposed to the delegated
The ability of the President to require a military
legislative powers contemplated by Section 23(2),
official to secure prior consent before appearing
Article VI [Sanlakas v. Executive Secretary, supra].
before Congress pertains to a wholly different and
independent specie of presidential authority — the
Since the Constitution did not define the term
commander-in-chief powers of the President. By
"rebellion," it must be understood to have the same
tradition and jurisprudence, the commander-in-chief
meaning as the crime of "rebellion" in the Revised
powers of the President are not encumbered by the
Penal Code (RPC).
same degree of restriction as that which may attach
to executive privilege or executive control.
In determining the existence of rebellion, the
President only needs to convince himself that there is
Outside explicit constitutional limitations, the
probable cause or evidence showing that more likely
commander-in-chief clause vests in the President, as
than not a rebellion was committed or is being
commander-in-chief, absolute authority over the persons
committed. To require him to satisfy a higher
and actions of the members of the armed forces. Such
standard of proof would restrict the exercise of his
authority includes the ability of the President to
emergency powers. [Lagman v. Medialdea, G.R. No.
restrict the travel, movement and speech of military
231658 (2017)].
officers, activities which may otherwise be sanctioned
under civilian law [Gudani v. Senga, G.R. No. 170165
(2006)].
Page 52 of 382
SUSPEND THE PRIVILEGE OF THE WRIT 2. What happens if he is not judicially charged
OF HABEAS CORPUS nor released after 72 hours? The public
officer becomes liable under RPC Art. 125
"Writ of habeas corpus": an order from the court com- for "delay in the delivery of detained
manding a detaining officer to inform the court: persons."
a. If he has the person in custody; and c. The right to bail shall not be impaired even when the
b. His basis in detaining that person privilege of the writ of habeas corpus is
suspended [Sec. 13, Art. III].
"Privilege of the writ": portion of the writ requiring
the detaining officer to show cause why he should not The suspension of the privilege does not destroy
be tested. Note that it is the privilege that is suspended, not petitioners' right and cause of action for damages for
the writ itself. illegal arrest and detention and other violations of
their constitutional rights. The suspension does not
Requisites for Suspension of the Privilege of the render valid an otherwise illegal arrest or detention.
Writ: What is suspended is merely the speedy means of
a. There must be actual invasion or rebellion; and obtaining his liberty [Aberca v. Ver, G.R. No. L-
b. The public safety requires the suspension. 69866(1988)].
The President may exercise the power to call out the

Duration of the suspension of the writ and of Armed Forces independently of the power to
Martial Law: Not to exceed 60 days unless extended suspend the privilege of the writ of habeas corpus
by Congress. and to declare martial law, although, of course, it may
also be a prelude to a possible future exercise of the
Effects of the Suspension of the Privilege: latter powers, as in this case [Lagman v. Medialdea, G.R.
a. The suspension of the privilege of the writ No. 231658 (2017)].
applies only to persons "judicially charged" for
rebellion or offenses inherent in or directly PROCLAIM MARTIAL LAW
connected with invasion [Sec. 18(5), Art. VII].
1. Such persons suspected of the above crimes The requisites in proclaiming Martial Law are:
can be arrested and detained without a a. There must be an invasion or rebellion, and
warrant of arrest. b. Public safety requires the proclamation of
2. The suspension of the privilege does not make the martial law all over the Philippines or any part
arrest without warrant legal. But the military is, thereof.
in effect, enabled to make the arrest anyway
since, with the suspension of the privilege, The power to declare martial law and to suspend the
there is no remedy available against such privilege of the writ of habeas corpus involve
unlawful arrest (arbitrary detention). curtailment and suppression of civil rights and
3. The arrest without warrant is justified by the individual freedom. Thus, the declaration of martial
emergency situation and the difficulty in law serves as a warning to citizens that the Executive
applying for a warrant considering the time Department has called upon the military assist in the
and the number of persons to be arrested. maintenance of law and order, and while the
4. The crime for which he is arrested must be emergency remains, the citizens must, under pain of
one related to rebellion or invasion. As to others, arrest and punishment, not act in a manner that will
the suspension of the privilege does not render it more difficult to restore order and enforce
apply. the law. As such, their exercise requires more
b. During the suspension of the privilege of the stringent safeguards by the Congress, and review by
writ, any person thus arrested or detained shall the Court [Lagman v. Medialdea, G.R. No. 231658
be judicially charged within 3 days, or otherwise he (2017)].
shall be released [Sec. 18(6), Art. VII].
1. The effect therefore is only to extend the The following cannot be done by a proclamation
periods during which he can be detained without a of Martial Law [Sec. 18, Art. VII]:
warrant. When the privilege is suspended, a. Suspend the operation of the Constitution.
the period is extended to 72 hours. b. Supplant the functioning of the civil courts and
the legislative assemblies.
Page 53 of 382
c. Confer jurisdiction upon military courts and

agencies over civilians, where civil courts are able If Congress extends the measure, but before the
to function. period of extension lapses the requirements for the
proclamation or suspension no longer exist, Congress
"Open Court" Doctrine: Civilians cannot be can lift the extension, since the power to confer
tried by military courts if the civil courts are open implies the power to take back.
and functioning. If the civil courts are not
functioning, then civilians can be tried by the THE ROLE OF THE SUPREME COURT [See
military courts. Martial law usually contemplates Sec. 18, par. 3, Art. VII]
a case where the courts are already closed and the a. The Supreme Court may review, in an
civil institutions have already crumbled, i.e. a appropriate proceeding filed by any citizen, the
"theater of war." If the courts are still open, the sufficiency of the factual basis of:
President can just suspend the privilege and 1. the proclamation of martial law or the
achieve the same effect [Olaguer v. Military suspension of the privilege of the writ, or
Commission No. 34, 150 SCRA 144 (1987)]. 2. the extension thereof. It must promulgate
its decision thereon within 30 days from its
d. Automatically suspend the privilege of the writ filing.
of habeas corpus. The President must expressly
suspend the privilege. An “appropriate proceeding” does not refer
to a certiorari petition since a petition for
The Role of Congress [See Sec. 18, par. 1, 2, Art. certiorari does not contemplate what is
VII] required under the Constitution: a review of
a. Congress may revoke the proclamation of the factual basis of the Constitution [Lagman
martial law or suspension of the privilege of the v. Medialdea, G.R. 231658, (2017)].
writ of habeas corpus before the lapse of 60 days Note: Calling-out power is purely
from the date of suspension or proclamation. discretionary on the President; the
b. Upon such proclamation or suspension, Constitution does not explicitly provide for a
Congress shall convene at once. If it is not in judicial review of its factual basis [IBP v. Zamora,
session, it shall convene in accordance with its G.R. No. 141284(2001)].
rules without need of a call within 24 hours
following the proclamation or suspension. b. The jurisdiction of the SC may be invoked in
c. Within 48 hours from the proclamation or the a proper case.
suspension, the President shall submit a report,
in person or in writing, to the Congress (meeting The Court may strike down the presidential
in joint session of the action he has taken). proclamation in an appropriate proceeding filed
by any citizen on the ground of lack of sufficient
d. The Congress shall then vote jointly, by a factual basis. On the other hand, Congress may
majority of all its members. It has two options: revoke the proclamation or suspension, which
1. To revoke such proclamation or suspension. revocation shall not be set aside by the President.
When it so revoked, the President cannot set
aside (or veto) the revocation as he normally In reviewing the sufficiency of the factual basis
would do in the case of bills. of the proclamation or suspension, the Court
2. To extend it beyond the 60-day period of its considers only the information and data available
validity. to the President prior to or at the time of the
declaration; it is not allowed to "undertake an
Congress can only so extend the proclamation or independent investigation beyond the
suspension upon the initiative of the President. pleadings." On the other hand, Congress may
The period need not be 60 days; it could be more, as take into consideration not only data available
Congress would determine, based on the persistence prior to, but likewise events supervening the
of the emergency. declaration. Unlike the Court I which does not
look into the absolute correctness of the factual
Note: If Congress fails to act before the measure basis as will be discussed below, Congress could
expires, it can no longer extend it until the President probe deeper and further; it can delve into the
again re-declares the measure. accuracy of the facts presented before it.
Page 54 of 382
Philippine National Police, Repealing for the

In addition, the Court's review power is passive; Purpose Certain Presidential Decrees"
it is only initiated by the filing of a petition "in an
appropriate proceeding" by a citizen. On the RA 7055 effectively placed upon the civil courts the
other hand, Congress' review mechanism is jurisdiction over certain offenses involving members of
automatic in the sense that it may be activated by the AFP and other members subject to military law.
Congress itself at any time after the proclamation
or suspension was made. RA 7055 provides that when these individuals
commit crimes or offenses penalized under the RPC,
Thus, the power to review by the Court and the other special penal laws, or local government
power to revoke by Congress are not only totally ordinances, regardless of whether civilians are co-
different but likewise independent from each accused, victims, or offended parties which may be
other although concededly, they have the same natural or juridical persons, they shall be tried by the
trajectory, which is, the nullification of the proper civil court, except when the offense, as determined
presidential proclamation. Needless to say, the before arraignment by the civil court, is service-connected
power of the Court to review can be exercised in which case it shall be tried by court-martial.
independently from the power of revocation of
Congress. [Lagman v. Medialdea G.R. No. The assertion of military authority over civilians
231658 (2017)] cannot rest on the President's power as Commander
in Chief or on any theory of martial law. As long as
c. Petition for habeas corpus civil courts remain open and are regularly
a. When a person is arrested without a warrant functioning, military tribunals cannot try and exercise
for complicity in the rebellion or invasion, jurisdiction over civilians for offenses committed by
he or someone else in his behalf has the them and which are properly cognizable by civil
standing to question the validity of the courts. To hold otherwise is a violation of the right
proclamation or suspension. to due process [Olaguer v. Military Commission No. 34,
b. Before the SC can decide on the legality of G.R. No. L-54558(1987)].
his detention, it must first pass upon the
validity of the proclamation or suspension. Do Letters of Instruction (LOI) and Presidential Decrees
issued by the President under the 1973 Constitution during
Martial Law form part of the laws of the land?
d. Limit on Calling out Power: Test of LOIs are presumed to be mere administrative
Arbitrariness - The question is not whether the issuances except when the conditions set out in
President or Congress acted correctly, but Garcia-Padilla v. Enrile exist. To form part of the law
whether he acted arbitrarily in that the action had of the land, the decree, order or LOI must be (1)
no basis in fact. [IBP v. Zamora, supra]. This issued by the President in the exercise of his
amounts to a determination of whether or not extraordinary power of legislation as contemplated in
there was grave abuse of discretion amounting to Section 6 of the 1976 Amendments to the
lack or excess of jurisdiction. Constitution, (2)(a) whenever in his judgment there
exists a grave emergency or a threat or imminence
There are 4 ways, then, for the proclamation or thereof, or (b) whenever the interim Batasang
suspension to be lifted: Pambansa or the regular National Assembly fails or
a. Lifting by the President himself is unable to act adequately on any matter for any
b. Revocation by Congress reason that in his judgment requires immediate
c. Nullification by the Supreme Court action. LOIs that are mere administrative issuances
d. By operation of law, after 60 days may be repealed, altered, or modified by way of an
executive order [PASEI v Torres, G.R. No. 101279
Cf. RA 7055 (1991) "An Act Strengthening (1993)].
Civilian Supremacy over the Military by
Returning to the Civil Courts the Jurisdiction
over Certain Offenses involving Members of the
Armed Forces of the Philippines, other Persons
Subject to Military Law, and the Members of the
Page 55 of 382
suspension of sentence for violation of election

Pardoning Powers laws, rules, and regulations shall be grander by
the President without the favorable
recommendation by the Commission on
a. Nature and Limitations Election [Sec. 5, Art. IX].
3. In cases of legislative and civil contempt.
Par. 1, Sec. 19, Art. VII. Except in cases of 4. Before conviction by final judgment (except
impeachment, or as otherwise provided in this amnesty)
Constitution, the President may grant reprieves, 5. Without concurrence of a majority of all
commutations, and pardons, and remit fines and members of Congress (in case of amnesty) [Sec.
forfeitures, after conviction by final judgment. 5, Art. IX].
He shall also have the power to grant amnesty with the PARDON
concurrence of a majority of all the Members of the
Congress Plenary or partial
1. Plenary: Extinguishes all the penalties imposed
b. Forms of Executive Clemency upon the offender, including accessory
disabilities.
1. Reprieves: A temporary relief from or 2. Partial: Does not extinguish all penalties
postponement of execution of criminal penalty imposed
or sentence or a stay of execution [Black’s Law
Dictionary]. It is the withholding of a sentence Conditional or Absolute
1. Conditional: The offender has the right to reject
for an interval of time, a postponement of
the same since he may feel that the condition
execution, a temporary suspension of execution
imposed is more onerous than the penalty
[People v. Vera, G.R. No. L-45685(1937)].
sought to be remitted.
2. Commutations: Reduction of sentence [Black’s
Law Dictionary]. It is a remission of a part of the
punishment; a substitution of a less penalty for The determination of whether the conditions
the one originally imposed [People v. Vera, supra]. had been breached rests exclusively in the sound
3. Amnesty: A sovereign act of oblivion for past judgment of the Chief Executive. Such
determination would not be reviewed by the
acts, granted by government generally to a class
courts. A judicial pronouncement stating that the
of persons who have been guilty usually of
conditionally pardoned offender has committed
political offenses and who are subject to trial but
a crime is not necessary before the pardon may
have not yet been convicted, and often
conditioned upon their return to obedience and be revoked [Torres v. Gonzales, G.R. No.
duty within a prescribed time [Black’s Law 76872(1987)].
Dictionary; Brown v. Walker, 161 US 602]. 2. Absolute: Pardonee has no option at all and
4. Requires concurrence of majority of all members must accept it whether he likes it or not. In this
sense, an absolute pardon is similar to
of Congress [Sec. 19, Art. VII]
commutation, which is also not subject to
5. Remit fines and forfeitures, after conviction by
acceptance by the offender.
final judgment
6. Pardons: Permanent cancellation of sentence
[Black’s Law Dictionary]. It is an act of grace Limitations on Pardon
proceeding from the power entrusted with the 1. Cannot be granted for impeachment [Sec. 19,
execution of the laws, which exempts the Art. VII]
individual on whom it is bestowed, from the 2. Cannot be granted in cases of violation of
election laws without the favorable recommendation of
punishment the law inflicts for the crime he has
the COMELEC [Sec. 5, Art. IX-C]
committed. It is a remission of guilt, a
3. Can be granted only after convictionby final judgment
forgiveness of the offense [People v. Vera, supra].
[People v. Salle, G.R. No. 103567 (1995)]
General Exceptions to Executive Clemencies
1. In cases of impeachment; and Sec. 19, Art. VII prohibits the grant of pardon,
2. As otherwise provided in this Constitution e.g. whether full or conditional, to an accused during
for election offenses: No pardon, amnesty, parole or the pendency of his appeal from his conviction
Page 56 of 382
by the trial court. Any application therefor

should not be acted upon or the process toward However, the fact that respondent Roque was
its grant should not be begun unless the appeal still a probationer when he applied for the
is withdrawn. Agencies concerned must require position of Utility Worker and accomplished his
proof from the accused that he has not appealed Personal Data Sheet did not disqualify him from
from his conviction or that he has withdrawn his applying for the position. In Moreno v. Commission
appeal. [People v. Bacang, G.R. No. 116512(1996)] on Elections [530 Phil. 279 (2006)], the Court
clarified that the grant of probation suspends the
4. Cannot absolve the convict of civil liability [People imposition of the principal penalty of
v. Nacional, G.R. Nos. 111294-95(1995)] imprisonment as well as the accessory penalties
5. Cannot be granted to cases of legislative of suspension from public office and from the
contempt or civil contempt right to follow a profession or calling, and that
6. Cannot restore public offices forfeited, even if of perpetual special disqualification from the
pardon restores the eligibility for said offices right of suffrage [Re: Anonymous Letter-Complaint
[Monsanto v. Factoran, G.R. No. 78239(1989)] versus Judge Divina T. Samson,A.M. No. MTJ-16-
1870 (2017)].
However, if a pardon is given because he did not
commit the crime, reinstatement and back wages 2. Parole – Suspension of the sentence of a convict
would be due [Garcia v. COA, G.R. No. L-75025 granted by a Parole Board after serving the
(1993)]. minimum term of the indeterminate sentence
penalty, without granting a pardon, prescribing
The right to seek public elective office is the terms upon which the sentence shall be
unequivocally considered as a political right. suspended [REYES].
Hence, upon acceptance of the pardon, the
pardonee regained his full civil and political Application of Pardoning Powers to Admin.
rights – including the right to seek elective office, Cases
even though that right is not expressly 1. If the President can grant reprieves,
mentioned as provided under Article 36 of the commutations and pardons, and remit fines and
Revised Penal Code [Risos-Vidal v. COMELEC, forfeitures in criminal cases, with much more
G.R. No. 206666 (2015)]. reason can she grant executive clemency in
administrative cases, which are clearly less
Pardon v. Amnesty serious than criminal offenses.
Pardon Amnesty 2. However, the power of the President to grant
Infractions of peace of Addressed to Political executive clemency in administrative cases refers
the state Offenses only to administrative cases in the Executive branch
Granted to individuals To classes of persons [Llamas v. Executive Secretary, G.R. No.
Exercised solely by the Requires concurrence 99031(1991)].
executive of Congress
Public act which the Removal of Administrative Penalties or
Private act which must Disabilities
courts could take
be pleaded and proved In meritorious cases and upon recommendation of
judicial notice
Looks forward and the (Civil Service) Commission, the President may
Looks backward and commute or remove administrative penalties or
relieves the pardonee of
puts into oblivion the disabilities imposed upon officers or employees in
the consequences of the
offense itself. disciplinary cases, subject to such terms and
offense
Extended after final May be extended at any conditions as he may impose in the interest of the
judgment stage service [Sec. 53, Chapter 7, Subtitle A, Title I, Book
V, Administrative Code of 1987].
Differentiated from
1. Probation – Disposition where a defendant Denial of Commission of Offenses
after conviction and sentence is released subject Persons invoking the benefit of amnesty must first
to (1) conditions imposed by the court and (2) admit to their complicity in the crimes charged.
supervision of a probation officer. [PD No. 968, Amnesty presupposes the commission of a crime,
Sec. 3(a)] and when the accused maintains that he has not
Page 57 of 382
committed the crime, he cannot have any use for

amnesty. [Vera v. People, G.R. No. L-1814 (1963)]. The President is vested with the authority to:
a. Deal with foreign states and governments;
AMNESTY b. Extend or withhold recognition;
c. Maintain diplomatic relations;
Who May Avail d. Enter into treaties; and
Generally: Individuals who form part of the class of e. Transact the business of foreign relations
persons covered by an amnesty proclamation whose [Pimentel v. Executive Secretary, G.R. No. 158088
acts constitute the political offenses covered by the (2005)].
same.
Treaty-making power
Jurisprudence No treaty or international agreement shall be valid
Amnesty Proclamation No. 76 applies even to and effective unless concurred in by at least two-
Hukbalahaps already undergoing sentence upon the thirds of all the members of the Senate [Sec. 21, Art.
date of its promulgation. The majority of the Court VII].
believes that by its context and pervading spirit the
proclamation extends to all members of the Treaty – As defined by the Vienna Convention on
Hukbalahap [Tolentino v. Catoy, G.R. No. L- the Law of Treaties, “an international instrument
2503(1948)]. concluded between States in written form and
governed by international law, whether embodied in
The SC agreed with the Sandiganbayan that in fact a single instrument or in two or more related
the petitioners were expressly disqualified from instruments, and whatever its particular designation.”
amnesty. The acts for which they were convicted [Bayan v. Executive Secretary, G.R. No. 138570 (2000)]
were ordinary crimes without any political com-
plexion and consisting only of diversion of public Other terms for a treaty: act, protocol, agreement,
funds to private profit. The amnesty proclamation compromis d’ arbitrage, concordat, convention,
covered only acts in the furtherance of resistance to declaration, exchange of notes, pact, statute, charter
duly constituted authorities of the Republic and and modus vivendi.
applies only to members of the MNLF, or other anti-
government groups [Macagaan v. People, G.R. No. Note: It is the President who ratifies a treaty (not the
77317-50(1987)]. Senate), the Senate merely concurs [Bayan v. Executive
Secretary, supra]. Thus, the President cannot be compelled
Tax Cases to submit a treaty to the Senate for concurrence; she
[Respondents] may avail of the tax amnesty even if has the sole power to submit it to the Senate and/or to
they have pending tax assessments. A tax amnesty, ratify it [Bayan Muna v. Romulo, G.R. No.
being a general pardon or intentional overlooking by 159618(2011)].
the State of its authority to impose penalties on
persons otherwise guilty of evasion or violation of a Military Bases Treaty
revenue or tax law, partakes of an absolute
forgiveness or waiver by the Government of its right Sec. 25, Art. XVIII. After the expiration in 1991
to collect what otherwise would be due it [Republic v. of the Agreement between the Philippines and the
IAC, G.R. No. L-69344(1991)]. United States of America concerning Military
Bases, foreign military bases, troops, or facilities
Diplomatic Power shall not be allowed in the Philippines except
under a treaty duly concurred in by the Senate and,
Scope of Diplomatic Power when the Congress so requires, ratified by a
The President, being the head of state, is regarded as majority of the votes cast by the people in a
the sole organ and authority in external relations and national referendum held for that purpose, and
is the country’s sole representative with foreign recognized as a treaty by the other contracting
nations. As the chief architect of foreign policy, the State.
President acts as the country’s mouthpiece with
respect to international affairs. The President, however, may enter into an executive
agreement on foreign military bases, troops, or
facilities, if:
Page 58 of 382
a. it is not the instrument that allows the presence form of executive agreements[Commissioner of Customs
of foreign military bases, troops, or facilities; or v. Eastern Sea Trading, G.R. No. L-14279(1961)].
b. it merely aims to implement an existing law or
treaty However, from the point of view of international
law, there is no difference between treaties and
Sec. 25 refers solely to the initial entry of the foreign executive agreements in their binding effect
military bases, troops, or facilities. upon states concerned as long as the negotiating
functionaries have remained within their powers.
To determine whether a military base or facility in the The distinction between an executive agreement and a
Philippines, which houses or is accessed by foreign treaty is purely a constitutional one and has no
military troops, is foreign or remains a Philippine international legal significance [USAFFE Veterans
military base or facility, the legal standards are: Assn. v. Treasurer, G.R. No. L-10500 (1959)].
a. independence from foreign control;
b. sovereignty and applicable law; and Note: An executive agreement that does not require
c. national security and territorial integrity [Saguisag the concurrence of the Senate for its ratification
v. Executive Secretary, G.R. No. 212426 (2016)]. may not be used to amend a treaty that, under
the Constitution, is the product of the ratifying
Visiting Forces Agreement (VFA) acts of the Executive and the Senate [Bayan Muna
The VFA, which is the instrument agreed upon to v. Romulo, supra].
provide for the joint RP-US military exercises, is
simply an implementing agreement to the main RP-US Two Classes of Executive Agreements
Military Defense Treaty. The VFA is therefore valid a. Agreements made purely as executive acts
for it is a presence “allowed under” the RP-US affecting external relations and independent of
Mutual Defense Treaty. Since the RP-US Mutual or without legislative authorization, which may
Defense Treaty itself has been ratified and concurred be termed as presidential agreements; and
in by both the Philippine Senate and the US Senate, b. Agreements entered into in pursuance of acts of
there is no violation of the Constitutional provision Congress, or congressional-executive agreements.
resulting from such presence [Nicolas v. Romulo, G.R.
No. 175888(2009)]. Although the President may, under the American
constitutional system enter into executive agreements
Note: The Venice Charter is not a treaty and therefore without previous legislative authority, he may not, by
does not become enforceable as law. The Philippines executive agreement, enter into a transaction which is prohibited
is not legally bound to follow its directive, as in fact, by statutes enacted prior thereto. He may not defeat
these are not directives but mere guidelines - a set of legislative enactments that have acquired the status of
the best practices and techniques that have been law by indirectly repealing the same through an
proven over the years to be the most effective in executive agreement providing for the performance
preserving and restoring historical monuments, sites of the very act prohibited by said laws. It must be
and buildings [Knights of Rizal v. DMCI Homes, Inc., noted that prohibitions of laws are applicable to all
G.R. No. 213948 (2017)]. public officials, even the President. Hence, the
President cannot enter into Executive Agreements
Executive Agreements that are contrary to such statutes [Gonzales v.
a. Entered into by the President Hechanova, G.R. No. L-21897(1963)].
b. May be entered into without the concurrence of
the Senate. Once the Senate performs the power to concur with
c. Distinguished from treaties – International treaties or exercise its prerogative within the
agreements involving political issues or changes boundaries prescribed by the Constitution, the
in national policy and those involving concurrence cannot be viewed as an abuse of power,
international agreements of permanent character much less a grave abuse of discretion [Bayan v.
usually take the form of treaties. But the Executive Secretary, supra, on the constitutionality of the
international agreements involving adjustments in Visiting Forces Agreement].
detail carrying out well-established national
policies and traditions and those involving a
more or less temporary character usually take the
Page 59 of 382
DEPORTATION OF UNDESIRABLE Cf. R.A. 4860: An Act Authorizing The President

ALIENS Of The Philippines To Obtain Such Foreign
The President may deport only according to grounds Loans And Credits, Or To Incur Such Foreign
enumerated by law, otherwise it would be Indebtedness, As May Be Necessary To Finance
unreasonable and undemocratic [Qua Chee Gan v. Approved Economic Development Purposes Or
Deportation Board, G.R. No. L-10280(1963)]. Projects, And To Guarantee, In Behalf Of The
Republic Of The Philippines, Foreign Loans
2 Ways of Deporting an Undesirable Alien Obtained Or Bonds Issued By Corporations
a. By order of the President after due investigation [Ch. Owned Or Controlled By The Government Of
3, Bk. III of the Admin. Code of 1987]; The Philippines For Economic Development
b. By the Commissioner of Immigration under Section Purposes Including Those Incurred For
37 of the Immigration Law [Qua Chee Gan v. Purposes Of Re-Lending To The Private Sector,
Deportation Board, supra] Appropriating The Necessary Funds Therefor,
And For Other Purposes (Approved, September
Scope of the power 8, 1966.)
a. The Deportation Board can entertain
deportation based on grounds not specified in Role of Congress in such foreign loans
Sec. 37 of the Immigration Law. The Board has The President does not need prior approval by the
jurisdiction to investigate the alien even if he had Congress
not been convicted yet. a. Because the Constitution places the power to
b. The President’s power to deport aliens and to check the President’s power on the Monetary
investigate them subject to deportation are Board;
provided in Chapter 3, Book III, of the Admin. b. BUT Congress may provide guidelines and have
Code of 1987. them enforced through the Monetary Board
c. The State has inherent power to deport
undesirable aliens. This power is exercised by The Philippine Debt Negotiating Team, composed
the President. of the Secretary of Finance, Governor of Central
d. There is no legal or constitutional provision Bank, and the National Treasurer, may contract and
defining the power to deport aliens because the guarantee foreign loans under the Doctrine of Qualified
intention of the law is to grant the Chief Political Agency. However, the President may repudiate
Executive the full discretion to determine the very acts performed in this regard by the alter ego
whether an alien’s residence in the country is so [Constantino v. Cuisia, G.R. No. 106064(2005)].
undesirable as to affect the security, welfare or
interest of the state. Preparing and Submitting the Budget
e. The Chief Executive is the sole and exclusive
judge of the existence of facts which would Sec. 22, Art. VII. The President shall submit to
warrant the deportation of aliens [Go Tek v. Congress within thirty days from the opening of
Deportation Board, G.R. No. L-23846(1977)]. every regular session, as the basis of the general
appropriations bill, a budget of expenditures and
Powers Relative to sources of financing, including receipts from
existing and proposed revenue measures.
Appropriation Measures
The budget is the plan indicating:
Contracting and guaranteeing foreign loans a. Expenditures of the government,
Requisites for contracting and guaranteeing foreign loans: b. Sources of financing, and
a. With the concurrence of the monetary board c. Receipts from revenue-raising measures.
[Sec. 20, Art. VII]
b. Subject to limitations as may be provided by law The budget is the upper limit of the appropriations bill
[Sec. 2, Art. XII] to be passed by Congress. Through the budget,
c. Information on foreign loans obtained or therefore, the President reveals the priorities of the
guaranteed shall be made available to the public government.
[Sec. 2, Art. XII]
Page 60 of 382
Program of Expenditure
Even upon the enactment of the General Meaning of “power necessary and proper”:
Appropriations Act, the release of funds from the Power to issue rules and regulations
Treasury is still subject to a Program of Expenditure,
proposed by the Secretary of Budget, to be approved This power is:
by the President, and such approved program of a. For a limited period; and
expenditure is to be the basis for the release of funds b. Subject to such restrictions as Congress may
[TESDA v. COA, G.R. No. 204869(2014); Section provide.
34, Chapter 5, Book VI of the Administrative Code].
When Emergency Powers Cease
Fixing of tariff rates[Art. VI, Sec. 28] a. According to the text of the Constitution:
The Congress may, by law, authorize the President to fix (1) The power ceases:
within specified limits, and (2) subject to such 1. Upon being withdrawn by resolution of the
limitations and restrictions as it may impose: Congress; or
a. Tariff rates; 2. If Congress fails to adopt such resolution,
b. Import and export quotas; upon the next (voluntary) adjournment of
c. Tonnage and wharfage dues; Congress.
d. Other duties or imposts within the framework of b. According to Cases:
the national development program of the 1. The fact that Congress is able to meet in
Government. session uninterruptedly and adjourn of its
own will prove that the emergency no longer
Rationale for delegation: Highly technical nature of exists to justify the delegation. [See Araneta v.
international commerce, and the need to constantly Dinglasan, G.R. No. L-2044 (1949)], on
and with relative ease adapt the rates to prevailing Congress’ grant of emergency powers under
commercial standards. C.A. 671; Court held that C.A. 671, being
temporary, need not be expressly repealed
Delegated Powers by a law)
2. This rule or the termination of the grant of
emergency powers is based on decided cases,
Principle: The President, under martial rule or in a
which in turn became Art. VII, Sec. 15 of
revolutionary government, may exercise delegated
the 1973 Constitution.
legislative powers [See Art. VI, Sec. 23(2)]. Congress
3. The specific power to continue in force laws
may delegate legislative powers to the president in
and appropriations which would lapse or
times of war or in other national emergency
otherwise become inoperative is a limitation
[BERNAS].
on the general power to exercise such other
powers as the executive may deem necessary
Emergency powers[Art. VI, Sec. 23.]
to enable the government to fulfill its
a. In times of war or other national emergency, the
responsibilities and to maintain and enforce
Congress, may, by law, authorize the President,
its authority [Rodriguez v. Gella, G.R. No. L-
for a limited period, and subject to such
6266 (1953)].
restrictions as it may prescribe, to exercise
powers necessary and proper to carry out a
Inconsistency between the Constitution and the cases
declared national policy
[BARLONGAY]:
b. Unless sooner withdrawn by resolution of the
a. The Constitution states that the emergency
Congress, such powers shall cease upon the next
powers shall cease upon the next adjournment of
adjournment thereof
Congress unless sooner withdrawn by resolution
of Congress
Different from the Commander-in-Chief clause:
b. Cases tell us that the emergency powers shall
a. When the President acts under the Commander-
cease upon resumption of session.
in-Chief clause, he acts under a constitutional grant
c. Reconciling the two: it would not be enough for
of military power, which may include the law-
Congress to just resume session in order that the
making power.
emergency powers shall cease. It has to pass a
b. When the President acts under the emergency
resolution withdrawing such emergency powers,
power, he acts under a Congressional delegation of
otherwise such powers shall cease. If no
law-making power.
Page 61 of 382
resolution withdrawing such emergency powers

is passed, such powers shall cease upon the next Exception: In appropriation, revenue, or tariff bills,
adjournment of Congress. the President may veto particular items.
Veto Power It is true that the Constitution provides a mechanism

for overriding a veto [Sec. 27(1), Art. VI]. Said
remedy, however, is available only when the presidential
Sec. 27, Art. VI. veto is based on policy or political considerations but not
1. Every bill passed by the Congress shall, when the veto is claimed to be ultra vires. In the latter
before it becomes a law, be presented to the case, it becomes the duty of the Court to draw the
President. If he approves the same he shall dividing line where the exercise of executive power
sign it; otherwise, he shall veto it and return ends and the bounds of legislative jurisdiction begin
the same with his objections to the House [PHILCONSA v. Enriquez, G.R. No. 113105(1994)].
where it originated, which shall enter the
objections at large in its Journal and proceed
to reconsider it. If, after such reconsideration, Residual Power
two-thirds of all the Members of such House
shall agree to pass the bill, it shall be sent, General doctrine: The President has unstated residual
together with the objections, to the other powers, which are implied from the grant of executive power
House by which it shall likewise be necessary for her to comply with her Constitutional
reconsidered, and if approved by two-thirds duties, such as to safeguard and protect the general
of all the Members of that House, it shall welfare. It includes powers unrelated to the execution
become a law. In all such cases, the votes of of any provision of law [See Marcos v. Manglapus, G.R.
each House shall be determined by yeas or No. 88211(1988)].
nays, and the names of the Members voting
for or against shall be entered in its Journal. In Marcos v. Manglapus, supra, the Court held that then-
The President shall communicate his veto of President Corazon Aquino had the power to prevent
any bill to the House where it originated the Marcoses from returning to the Philippines on
within thirty days after the date of receipt account of the volatile national security situation.
thereof, otherwise, it shall become a law as if This was limited only by two standards: (1) there must
he had signed it. be a factual basis for the impairment of the Marcoses’
right to return (as distinguished from their right to
2. The President shall have the power to veto travel, which is a constitutional right); and (2) the
any particular item or items in an impairment must not be arbitrary. [Note: The decision
appropriation, revenue, or tariff bill, but the was pro hac vice.]
veto shall not affect the item or items to
which he does not object. Executive Privilege
General Rule: All bills must be approved by the Presi- 2 Kinds of Executive Privilege in Neri v. Senate
dent before they become law. Committee [G.R. No. 180643 (2008)]:
a. Presidential Communications Privilege
Exceptions: (President): communications are presumptively
a. The veto of the President is overridden by 2/3 privileged; president must be given freedom to
vote of all the Members of the House where it explore alternatives in policy-making.
originated; b. Deliberative Process Privilege (Executive
b. The bill lapsed into law because of the Officials): refer to materials that comprise part
President’s failure to act on the bill within thirty of a process by which governmental decisions
(30) days; and and policies are formulated. This includes
c. The bill passed is the special law to elect the diplomatic processes [See Akbayan v. Aquino,
President and Vice-President. G.R. No. 170516(2008)].
Limitations to the Veto Power: Varieties of Executive Privilege (US):
The President may only veto bills as a whole. (See a. State secrets privilege: Invoked by U.S.
Legislative Power of Congress) Presidents, beginning with Washington, on the
Page 62 of 382
ground that the information is of such nature preference or priority, in the absence of proof of a
that its disclosure would subvert crucial military or compelling or critical need for disclosure by the one
diplomatic objectives. assailing such presumption [Neri v. Senate, supra].
b. Informer’s privilege: The privilege of the
Government not to disclose the identity of Requisites for validity of claim of privilege:
persons who furnish information of violations of law to a. Quintessential and non-delegable
officers charged with the enforcement of that presidential power:Power subject of the
law. legislative inquiry must be expressly granted by
c. Generic privilege for internal deliberations: the Constitution to the President, e.g
has been said to attach to intragovernmental commander-in-chief, appointing, pardoning, and
documents reflecting advisory opinions, diplomatic powers;
recommendations and deliberations comprising part b. Operational Proximity Test: It must be
of a process by which governmental decisions and authored, solicited, and received by a close
policies are formulated [Senate v. Ermita, G.R. advisor of the President or the President himself.
No. 163783 (2004)]. The judicial test is that an advisor must be in
“operational proximity” with the President (i.e.
Scope: This jurisdiction recognizes the common law officials who stand proximate to the President,
holding that there is a "governmental privilege against not only by reason of their function, but also by
public disclosure with respect to state secrets reason of their positions in the Executive’s
regarding military, diplomatic and other national organizational structure);
security matters." Closed-door Cabinet meetings are c. No adequate need to limit privilege:The
also a recognized limitation on the right to privilege may be overcome by a showing of adequate
information. need, such that the information sought “likely
contains important evidence,” and by the
Note: Executive privilege is properly invoked in unavailability of the information elsewhere by an
relation to specific categories of information and not to appropriate investigating authority [Neri v. Senate,
categories of persons—it attaches to the information and supra; see Akbayan v. Aquino, supra, for
not the person. Only the [1] President (and the [2] application of this principle].
Executive Secretary, by order of the President) can
invoke the privilege [Senate v. Ermita, supra. Diplomatic Negotiations Privilege
While the final text of the Japan-Philippines
Synthesis of Jurisprudential Doctrines Economic Partnership Agreement (JPEPA) may not
The following are the requisites for invoking be kept perpetually confidential, the offers exchanged
presidential privilege: by the parties during the negotiations continue to be
a. Formal claim of privilege: For the privilege to privileged even after the JPEPA is published. The
apply there must be a formal claim of the Japanese representatives submitted their offers with
privilege. Only the President or the Executive the understanding that “historic confidentiality”
Secretary (by authority of the President) can would govern the same. Disclosing these offers could
invoke the privilege; and impair the ability of the Philippines to deal not only
b. Specificity requirement: A formal and proper with Japan but with other foreign governments in
claim of executive privilege requires a specific future negotiations. The objective of the privilege is
designation and description of the documents to enhance the quality of agency decisions. In
within its scope as well as precise and certain reasons assessing claim of privilege for diplomatic
for preserving confidentiality. Without this specificity, negotiations, the test is whether the privilege being
it is impossible for a court to analyze the claim claimed is indeed supported by public policy. This
short of disclosure of the very thing sought to be privilege may be overcome upon “sufficient showing
protected. [Senate v. Ermita, supra] of need” [Akbayan v. Aquino, supra].
Once properly invoked, a presumption arises that it

is privileged. If what is involved is the presumptive
Emergency Powers
privilege of presidential communications when
Background: Presidential Proclamation 1017
invoked by the President on a matter clearly within
(Declaring a State of National Emergency) is
the domain of the Executive, the said presumption
different from the law in Sanlakas as this
dictates that the same be recognized and be given
proclamation was woven out of the “calling out” and
Page 63 of 382
“take care” powers of the President joined with the absence of a Congressional enactment, the exercise of
“temporary takeover” provision under Section 17, Art. the emergency powers, such as the taking over of
XII. PP1017 purports to grant the President, without privately-owned public utility or business affected
authority or delegation from Congress, to take over with public interest, requires a delegation from Congress
or direct the operation of any privately-owned public which is the repository of emergency powers [David
utility or business affected with public interest. v. Macapagal-Arroyo, G.R. No. 171396(2006)].
While the President could validly declare the

existence of a state of national emergency even in the
C. Rules on Succession (Presidency)

Death or permanent
Vice-President-elect shall become
disability of the President-
President
elect
Vice-President-elect shall act as
President-elect fails to
President until the President-elect
qualify
Vacancy shall have qualified
at the Vice-President-elect shall act as
President shall not have
beginning President until a President shall
been chosen
of the have been chosen and qualified.
term In the event of inability of the
Senate President or, in case of SP and Speaker, Congress
No President and Vice-
his inability, Speaker of the shall, by law, provide for the
President chosen nor shall
House of Representatives, shall manner in which one who
have qualified, or both
act as President until a President is to act as President shall
shall have died or become
or a Vice-President shall have be selected until a President
permanently disabled
been chosen and qualified. or Vice-President shall have
qualified.
Death, permanent
disability, removal from Vice-President shall become
office, or resignation of the President
President
Congress shall, by law,
Vacancy provide who shall serve as
Senate President or, in case of
during Death, permanent Presidentin case of death,
his inability, the Speaker of the
the term disability, removal from permanent disability, or
House of Representatives, shall
office, or resignation of resignation of the Acting
act as President until a President
President AND Vice- President. He shall serve until
or Vice-President shall be elected
President the President or the Vice-
and qualified.
President shall have been
elected and qualified.
When President transmits
to the Senate President Such powers and duties shall be
and the Speaker of the discharged by the Vice-
House his written President as Acting President,
declaration that he is until the President transmits to
Temporary unable to discharge the them a written declaration to the
disability powers and duties of his contrary
office
When a Majority of all the The Vice-President shall
members of the Cabinet immediately assume the powers
Page 64 of 382
transmit to the Senate and duties of the office as Acting

President and the Speaker President until the President
their written declaration transmits to the Senate President
that the President is and Speaker his written
unable to discharge the declaration that no inability
powers and duties of his exists.
office
If after the President
transmits his declaration
of his ability to discharge
Congress determines by a 2/3
his office, and a majority of
vote of both houses, voting Congress shall convene, if not
members of the Cabinet
separately, that the President is in session, within 48 hours.
transmit within 5 days to
unable to discharge the powers And if within 10 days from
the Senate President and
and duties of his office, the Vice- receipt of the last written
Speaker their written
President shall act as President; declaration or, if not in
declaration that the
otherwise, the President shall session, within 12 days after it
President is unable to
continue exercising the powers is required to assemble.
discharge the powers and
and duties of his office
duties of his office,
Congress shall decide the
issue.
Constitutional Duty of vacancy occurs within eighteen months before the

date of the next presidential election.
Congress in Case of Vacancy
in the Offices of the Vacancy timetable:
a. 0 days – vacancy occurs
President and the Vice- b. 3 days – Congress convenes
Presidence c. 10 days – Law providing for special elections
should be enacted
d. 55 – 70 days – Elections should be held within
Art. VII. Sec. 10. The Congress shall, at 10AM of
this period
the 3rd day after the vacancy in the offices of the
e. 85 – 100 days – Canvassing by Congress should
President and Vice-President occurs:
be done within this period
1. Convene in accordance with its rules without
need of a call; and
2. Within seven days, enact a law calling for a Vacancy in the Office of the
special election to elect a President and a Vice- Vice-president
President to be held not earlier than forty-five
days nor later than sixty days from the time of
such call. Art. VII. Sec. 9. The President shall nominate a
Vice-President from among the members of the
The bill calling such special election shall be Senate and the House of Representatives who shall
deemed certified under paragraph 2, Section 26, assume office upon confirmation by a majority
Article VI of this Constitution and shall become vote of all the members of both houses of
law upon its approval on third reading by the Congress voting separately.
Congress. Appropriations for the special election
shall be charged against any current appropriations
and shall be exempt from the requirements of
paragraph 4, Section 25, Article V1 of this
Constitution. The convening of the Congress
cannot be suspended nor the special election
postponed. No special election shall be called if the
Page 65 of 382
V. JUDICIAL jurisdiction on the part

of any branch or
DEPARTMENT instrumentality of the
government [Sec. 1(2),
Art. VIII, Constitution]
A. Concepts Requisites for exercise
a. Actual case or
controversy
Judicial Power Jurisdiction –Power to
b. Locus Standi
decide and hear a case
c. Question raised at
Judicial power includes the duty of the courts of and execute a decision
the earliest
justice to: thereof
opportunity
a. Settle actual controversies involving rights which d. Lis mota of the case
are legally demandable and enforceable; and
b. To determine whether or not there has been a Note: The power of judicial review does not extend to
grave abuse of discretion amounting to lack or calibrating the President's decision pertaining to
excess of jurisdictionon the part of any branch or which extraordinary power to avail given a set of facts
instrumentality of the Government. or conditions (i.e., declaration of martial law). To do
so would be tantamount to an incursion into the
The second clause effectively limits the doctrine of exclusive domain of the Executive and an
“political question.” [See Francisco v. House of infringement on the prerogative that solely, at least
Representatives, G.R. No. 16021 (2003)] initially, lies with the President [Lagman v. Medialdea,
G.R. No. 231658 (2017)].
Vested in: (a) Supreme Court and (b) such lower courts
as may be established by law. Judicial Supremacy
When the judiciary mediates to allocate constitutional
Judicial Review boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or
If a law be in opposition to the constitution: if both invalidate an act of the legislature, but only asserts the
the law and the constitution apply to a particular case, solemn and sacred obligation assigned to it by the
so that the court must either decide that case Constitution to determine conflicting claims of
conformably to the law, disregarding the constitution; authority under the Constitution and to establish for
or conformably to the constitution, disregarding the the parties in an actual controversy the rights which
law: the court must determine which of these that instrument secures and guarantees to them. This
conflicting rules governs the case. This is of the very is in truth all that is involved in what is termed "judicial
essence of judicial duty [Marbury v Madison, 5 U.S. 137 supremacy" which properly is the power of judicial
(1803)]. review under the Constitution [Angara v. Electoral
Commission, supra].
Judicial Power Judicial Review
Functions of JudicialReview
Where vested
1. Checking
Supreme Court Supreme Court
2. Legitimating
Lower courts Lower courts
3. Symbolic
Definition
Duty to settle actual Power of the courts to ESSENTIAL REQUISITES FOR JUDICIAL
controversies involving test the validity of executive REVIEW
rights which are legally and legislative acts in light
demandable and of their conformity with a. Actual case or controversy
enforceable, and to the Constitution This means that there must be a genuine conflict
determine whether or [Angara v. Electoral of legal rights and interests which can be resolved
not there has been a Commission, G.R. No. L- through judicial determination [John Hay v. Lim,
grave abuse of 45081 (1936)] G.R. No. 119775 (2003)].
discretion amounting to
lack or excess of
Page 66 of 382
This precludes the courts from entertaining the 2. Government of the Philippines, when
following: questioning the validity of its own laws.
1. Request for an advisory opinion [People v. Vera, G.R. No. L-45685 (1937)]
[Guingona v. CA, G.R. No. 125532 3. Legislators, when the powers of Congress
(1998)]; are being impaired. [PHILCONSA v.
2. Cases that are or have become moot and Enriquez, GR No. 113105 (1994)]
academic, i.e. cease to present a 4. Citizens, when the enforcement of a public
justiciable controversy due to right is involved. [Tañada v. Tuvera, GR No.
supervening events [David v. Macapagal- L- 63915 (1985)]
Arroyo, supra]. 5. Any Filipino citizen in representation of
others, including minors or generations yet
b. Locus standi unborn, may file an action to enforce rights
Legal standing or locus standi refers to a party’s or obligations under environmental laws
personal and substantial interest in a case, arising [Resident Marine Mammals of the Protected
from the direct injury it has sustained or will Seascape Tanon Strait v. Reyes, G.R. No. 180771
sustain as a result of the challenged governmental (2015)]
action. Legal standing calls for more than just a
generalized grievance. The term “interest” means Special Rules on Standing (Requisites):
a material interest, an interest in issue affected by 1. Appropriation;
Taxpayer
the governmental action, as distinguished from 2. Disbursement
mere interest in the question involved, or a mere 1. Direct injury,
incidental interest. Unless a person’s 2. Public right; OR Sec. 18,
constitutional rights are adversely affected by a Art. VII (on the sufficiency
statute or governmental action, he has no legal Citizen of the factual basis for
standing to challenge the statute or governmental martial law or suspension
action [CREBA v. Energy Regulatory Commission, of the privilege of the writ
G.R. No. 174696 (2010)]. of Habeas Corpus)
Voter Right of suffrage is involved
A proper party is one who has sustained or is in 1. Authorized;
imminent danger of sustaining a direct injury as a 2. Affects legislative
result of the act complained of [IBP v. Zamora, Legislator
prerogatives (i.e. a derivative
GR No. 141284 (2000)]. The alleged injury must suit)
also be capable of being redressed by a favorable 1. Litigants must have injury
judgment [Tolentino v. COMELEC, G.R. No. in-fact;
148334 (2004)]. 2. Litigants must have close
relation to the third-party; and
Requires partial consideration of the merits of the Third-Party 3. There is an existing hindrance
case in view of its constitutional and public policy Standing to the third party’s ability
underpinnings [Kilosbayan v. Morato, G.R. No. to protect its own interest.
118910 (1995)]. [White Light v. City of
Manila, G.R. No. 122846
May be brushed aside by the court as a mere (2009)]
procedural technicality in view of paramount 1. Any Filipino citizen;
public interest or transcendental importance of 2. In representation of
the issues involved [Kilosbayan v. Guingona G.R. Enforcement others, including minors or
No. 113375 (1994)]; Tatad v. DOE, G.R. No. of generations yet unborn
114222 (1995); Mamba v. Lara, G.R. No. 165109 Environmental [Resident Marine Mammals of
(2009)]. Laws the Protected Seascape Tanon
Strait v. Reyes, G.R. No.
Who are proper parties? 180771 (2015)]
1. Taxpayers, when public funds are involved.
[Tolentino v. Comelec, G.R. No. 148334 (2004)] Note: Despite its lack of interest, an association has
the legal personality to file a suit and represent its
members if the outcome of the case will affect
Page 67 of 382
their vital interests. Similarly, an organization has General Rule: The interpretation (or declaration) of
the standing to assert the concern of its unconstitutionality is retroactive in that it applies
constituents [Bayan Muna v. Mendoza, G.R. No. from the law’s effectivity
190431 (2017)].
Exception: Operative fact doctrine Subsequent
c. Constitutional question must be raised at the declaration of unconstitutionality does not nullify all
earliest possible opportunity acts exercised in line with [the law]. The past cannot
always be erased by a new judicial declaration
Exceptions: [Municipality of Malabang v. Benito, G.R. No. L-28113,
1. In criminal cases, at the discretion of the (1969)].
court;
2. In civil cases, if necessary for the EFFECT OF A DECLARATION OF
determination of the case itself; and UNCONSTITUTIONALITY
3. When the jurisdiction of the court is
involved Orthodox View: An unconstitutional act is not a law;
it confers no rights; it imposes no duties; it affords no
Note: The reckoning point is the first competent protection; it creates no office; it is inoperative, as if
court. The question must be raised at the first it had not been passed at all.
court with judicial review powers. Hence, the
failure to raise the constitutional question before Modern View: Certain legal effects of the statute
the NLRC is not fatal to the case [See Serrano v. prior to its declaration of unconstitutionality may be
Gallant Maritime Services, G.R. No. 167614, recognized.
(2009)].
b. Moot Questions
d. Lis Mota
A case becomes moot and academic when there is no
The decision on the constitutional question must more actual controversy between the parties or no
be determinative of the case itself. useful purpose can be served in passing upon the
merits [Quino v. COMELEC, G.R. No. 197466 (2012)]
The reason for this is the doctrine of separation
of powers which requires that due respect be When a case is moot, it becomes non-justiciable
given to the co-equal branches, and because of [Pormento v Estrada, G.R. No. 191988 (2010)]. It ceases
the grave consequences of a declaration of to present a justiciable controversy by virtue of
unconstitutionality [De la Llana v. Alba, G.R. No. supervening events, so that a declaration thereon
57883 (1982)]. would be of no practical use or value [Quizon v.
COMELEC, G.R. No. 177927 (2008)].
The constitutionality of an act of the legislature
will not be determined by the courts unless that Ripeness of the controversy
question is properly raised and presented
inappropriate cases and is necessary to a The sue must be raised not too early that it is
determination of the case; i.e., the issue of conjectural or anticipatory, nor too late that it
constitutionality must be the very lis mota becomes moot.
presented.
General Rule: Courts will not decide questions that
a. Operative Fact Doctrine have become moot and academic.
The doctrine is applicable when a declaration of Exception: Courts will still decide if:
unconstitutionality will impose an undue burden on
those who have relied on the invalid law, but it can 1. There is a grave violation of the Constitution;
never be invoked to validate as constitutional an 2. The situation is of exceptional character and
unconstitutional act. [Municipality of Malabang v. Benito, paramount public interest is involved;
G.R. No. L-28113, (1969)]. 3. [Symbolic Function] The constitutional issue
raised requires formulation of controlling
Page 68 of 382
principles to guide the bench, the bar and the Political Question Justiciable
public; and Controversy
4. The case is capable of repetition yet evading had been ratified in
review [David v. Macapagal-Arroyo, supra]. accordance with the
1935 Constitution is
c. Political Question Doctrine justiciable.
HOWEVER, the
The term “political question” refers to: (1) matters to people may be deemed
be exercised by the people in their primary political to have cast their
capacity; or (2) those specifically delegated to some other favorable votes in the
department or particular office of the government, with belief that in doing so
discretionary power to act. It is concerned with issues they did the part
dependent upon the wisdom, not legality, of a particular required of them by
measure [Tañada v. Cuenco, G.R. No. 10520 (1957)]. Article XV, hence, it
may be said that in its
In recent years, the Court has set aside this doctrine and political aspect, which is
assumed jurisdiction whenever it found constitutionally- what counts most, after
imposed limits on the exercise of powers conferred all, said Article has been
upon the Legislative and Executive branches substantially complied
[BERNAS]. with, and, in effect, the
1973 Constitution has
Political Question Justiciable been constitutionally
Controversy ratified.
Alejandrino v. Quezon Avelino v. Cuenco [G.R.
[G.R. No. 22041 No. L-2821 (1949)]: Note: In 2016, the SC ruled that President Duterte's
(1924)]: The Election of Senate decision to have the remains of Marcos interred at the
legislature’s exercise of President was done Libingan Ng MgaBayani (LNMB) involves a political
disciplinary power over without the required question that is not a justiciable controversy. The
its member is not to be quorum president decided a question of policy based on his
interfered with by the wisdom that it shall promote national healing and
Court. forgiveness. There being no taint of grave abuse in the
Vera v. Avelino [G.R. Tañada v. Cuenco, supra: exercise of such discretion, his decision on that
No. L-543 (1946)]: The selection of the political question is outside the ambit of judicial
Inherent right of the members of the Senate review. [Ocampo v. Enriquez, G.R. No. 225973, (2016)]
legislature to determine Electoral Tribunal is
who shall be admitted subject to constitutional
to its membership limitations.
Severino v. Governor- Cunanan v. Tan, Jr. [G.R.
General [G.R. No. L- No. L-19721 (1962)]:
6250 The Commission on
(1910)]: Mandamus and Appointments is a
injunction could not lie constitutional creation
to enforce or restrain a and does not derive its
duty which is power from Congress.
discretionary (calling a
special local election).
Manalang v. Quitoriano Lansang v. Garcia (1971):
(1954): President’s Suspension of the
appointing power is not privilege of the writ of
to be interfered with by habeas corpus is not a
the Court. political question.
Javellana v. Executive
Secretary (1973): WON
the 1973 Constitution
Page 69 of 382
8. The members of the SC and all lower courts have

B. Safeguards of Judicial security of tenure, which cannot be undermined
Independence by a law reorganizing the judiciary. [Sec. 2, Art.
VIII, Constitution]
1. The SC is a constitutional body. It cannot be 9. They shall not be designated to any agency
abolished nor may its membership or the manner performing quasi-judicial or administrative
of its meetings be changed by mere legislation. functions. [Sec. 12, Art. VII]
[Sec. 4, Art. VIII, Constitution]
2. The members of the judiciary are not subject to Administrative functions are those that involve
confirmation by the CA. regulation of conduct of individuals or
3. The members of the SC may not be removed promulgation of rules to carry out legislative
from office except by impeachment. [Sec. 2, Art. policy. Judges should render assistance to a
XI] provincial committee of justice (which is under
4. The SC may not be deprived of its minimum DOJ supervision) only when it is reasonably
original and appellate jurisdiction as prescribed in incidental to their duties. [In Re Manzano, A.M. No.
Art. X, Sec. 5 of the Constitution. [Sec. 2, Art. 8-7-1861-RTC, (1988)]
VIII]
5. The appellate jurisdiction of the SC may not be 10. The salaries of judges may not be reduced during
increased by law without its advice and their continuance in office. [Sec. 10, Art. VIII]
concurrence. [Sec. 30, Art. VI; Fabian v. Desierto, 11. The judiciary shall enjoy fiscal autonomy. [Sec. 3,
G.R. No. 129742 (1988)] Art. VI
6. The SC has administrative supervision over all
lower courts and their personnel. [Sec. 6, Art. Fiscal autonomy means freedom from outside
VIII] control.
The rule prohibiting the institution of disbarment The Court explained in Bengzon v. Drilon: As
proceedings against an impeachable officer who envisioned in the Constitution, the fiscal
is required by the Constitution to be a member of autonomy enjoyed by the Judiciary, the Civil
the bar as a qualification in office applies only Service Commission and the Commission on
during his or her tenure and does not create Audit, the Commission on Elections, and the
immunity from liability for possibly criminal acts Office of the Ombudsman contemplates a
or for alleged violations of the Code of Judicial guarantee of full flexibility to allocate and utilize their
Conduct or other supposed violations. Once the resources with the wisdom and dispatch that their needs
said impeachable officer is no longer in office require. It recognizes the power and authority to
because of his removal, resignation, retirement or levy, assess and collect fees, fix rates of
permanent disability, the Court may proceed compensation not exceeding the highest rates
against him or her and impose the corresponding authorized by law for compensation and pay
sanctions for misconduct committed during his plans of the government and allocate and
tenure, pursuant to the Court’s power of disburse such sums as may be provided by law or
administrative supervision over members of the prescribed by them in the course of the discharge
bar. [In Re Biraogo (2009)] of their functions. [In re: Clarifying and Strengthening
the Organizational Structure and Set-up of the Philippine
7. The SC has exclusive power to discipline judges Judicial Academy, A.M. No. 01-1-04-SC (2006)]
of lower courts. [Sec. 11, Art. VIII] The
Ombudsman is duty bound to refer to the SC all
cases against judges and court personnel, so SC The provision in the Charter of the GSIS, i.e.,
can determine first whether an administrative aspect is Section 39 of RA No. 8291, which exempts it
involved. from “all taxes, assessments, fees, charges or
duties of all kinds,” cannot operate to exempt it
The Ombudsman cannot bind the Court that a from the payment of legal fees. Unlike the 1935
case before it does or does not have and 1973 Constitutions, which empowered
administrative implications. [Caoibes v. Congress to repeal, alter or supplement the rules
Ombudsman, G.R. No. 132177 (2001)] of the
Page 70 of 382
Supreme Court concerning pleading, practice

and procedure, the 1987 Constitution removed
C. Judicial Restraint
this power from Congress. Hence, the Supreme
Court now has the sole authority to promulgate The judiciary will not interfere with its co-equal
rules concerning pleading, practice and branches when:
procedure in all courts. [GSIS v. Caballero (2010)]
1. There is no showing of grave abuse of
12. The SC alone may initiate rules of court. [Sec. 5 discretion.
(5), Art. VIII]
PPA v. Court of Appeals: If there is no showing of
The separation of powers among the three co- grave abuse of discretion on the part of a branch
equal branches of our government has erected an or instrumentality of the government, the court
impregnable wall that keeps the power to will decline exercising its power of judicial review.
promulgate rules of pleading, practice and
procedure within the sole province of the Chavez v. COMELEC: Judicial review shall
Supreme Court. The other branches trespass involve only those resulting in grave abuse of
upon this prerogative if they enact laws or issue discretion by virtue of an agency’s quasi-judicial
orders that effectively repeal, alter or modify any powers, and not those arising from its
of the procedural rules promulgated by the administrative functions.
Supreme Court. SC has rejected previous
attempts on the part of the Congress, in the 2. The issue is a political question.
exercise of its legislative power, to amend the
Rules of Court. The Court's authority to Even when all requisites for justiciability have
promulgate rules on pleading, practice, and been met, judicial review will not be exercised
procedure is exclusive and one of the safeguards when the issue involves a political question.
of our institutional independence. [Estipona Jr. v.
Lobrigo, G.R. No. 226679 (2017)] But see Francisco v. House of Representatives (2001): At
the same time, the Court has the duty to
13. Only the SC may order the temporary detail of determine whether or not there has been grave
judges. [Sec. 5(3), Art. VIII] abuse of discretion by any instrumentality of
14. The SC can appoint all officials and employees of government under its expanded judicial review powers.
the judiciary. [Sec. 5(6), Art. VIII] (This allowed the SC to interfere in a traditionally
purely political process, i.e. impeachment, when
questions on compliance with Constitutional
processes were involved.)
Guidelines for determining whether a question

is political or not: [Baker v. Carr (369 US 186), as
cited in Estrada v. Desierto, GR Nos. 146710-15
(2001)]:
1. There is a textually demonstrable constitutional
commitment of the issue to a political
department;
2. Lack of judicially discoverable and manageable
standards for resolving it;
3. The impossibility of deciding without an initial
policy determination of a kind clearly for
nonjudicial discretion;
4. Impossibility of a court’s undertaking
independent resolution without expressing lack
of the respect due coordinate branches of
government;
5. An unusual need for unquestioning adherence to
a political decision already made;
Page 71 of 382
6. Potentiality of embarrassment from multifarious

pronouncements by various departments on one
D. Appointments to the
question. Judiciary
Justices of
the SC and RTC Judge MTC/MCTC
the (Sec. 15, Judge (Sec. 26,
Collegiate B.P. 129) B.P. 129)
Courts
Citizenship
Natural-born citizen
Age
At least 40 At least 35 At least 30 years
years of age years of age of age
Experience
15 years or
more as a
judge of a Has been engaged for at least 5
lower court years in the practice of law OR
OR has been has held public office in the PH
engaged in the requiring admission to the
practice of law practice of law as an
in the PH for indispensable requisite
the same
period
Tenure [Sec. 11, Art. VIII]
Hold office during good behavior until they reach
the age of 70 OR become incapacitated to
discharge their duties
Character [Sec. 7(3), Art. VIII]
Person of proven competence, integrity, probity
and independence
Note: “Practice of law” is not confined to litigation. It

means any activity in and out of court, which requires
the application of law, legal procedure, knowledge,
training and experience. [Cayetano v. Monsod (1991)]
CONSTITUTIONAL REQUIREMENTS
Supreme Court
1. Natural born citizens
2. At least 40 years of age
3. Engaged in the practice of law or a judge of 15
years or more
4. Must be of proven competence, integrity, probity
and independence.
Lower Collegiate Courts

1. Natural born citizen
2. Member of the Philippine Bar
3. Must be of proven competence, integrity, probity
and independence
Page 72 of 382
4. Such additional requirements provided by law. Secretary ex-officio [Sec. 8(3), Art. VIII, Const.]:
Clerk of Court of the SC, who shall keep a record of
Lower Courts its proceedings; not a member of the JBC.
1. Filipino citizens (Rules of the Judicial and Bar
Council, Nov. 2000, Rule 2. Note the conflict In the absence of the Chief Justice because of his
between the Rules and B.P. 129; the Rules cite impeachment, the most Senior Justice of the Supreme
the Constitutional requirement, but disregarded Court, who is not an applicant for Chief Justice,
the first clause of Art. VIII, Sec. 7(2), i.e. “The should participate in the deliberations for the
Congress shall prescribe the qualifications of selection of nominees for the said vacant post and
judges of lower courts […]”) preside over the proceedings, pursuant to Section 12
2. Member of the Philippine Bar of Republic Act No. 296, or the Judiciary Act of 1948
3. Must be of proven competence, integrity, probity [Famela Dulay v. Judicial and Bar Council, GR No.
and independence. 202143 (2012)].
4. Such additional requirements provided by law.
APPOINTMENT, TENURE, SALARY OF JBC
Note: In the case of judges of the lower courts, the MEMBERS
Congress may prescribe other qualifications. [Sec.
7(2), Art. VIII, Constitution] Ex-officio members: the position in the Council is
good only while the person is the occupant of the
DISQUALIFICATION FROM OTHER office.
POSITIONS OR OFFICES
Only ONE representative from Congress: Former
Sec. 12, Art. VIII. The Members of the Supreme practices of giving ½ vote or (more recently) 1 full
Court and of other courts established by law shall vote each for the Chairmen of the House and Senate
not be designated to any agency performing Committees on Justice is invalid. Any member of
quasijudicial or administrative functions. Congress, whether from the upper or lower house, is
constitutionally empowered to represent the entire
The SC and its members should not and cannot be Congress.
required to exercise any power or to perform any trust
or to assume any duty not pertaining to or connected The framers intended the JBC to be composed of 7
with the administering of judicial functions [Meralco v. members only. Intent is for each co-equal branch of gov’t to
Pasay Transportation Co. G.R. No. L-37838 (1932)]. have one representative. There is no dichotomy between
Senate and HOR when Congress interacts with other
A judge in the CFI shall not be detailed with the branches. But the SC is not in a position to say who
Department of Justice to perform administrative should sit. The lone representative from Congress is
functions as this contravenes the doctrine of separation entitled to one full vote [Chavez v. JBC, G.R. No.
of powers [Garcia v. Macaraig, A.M. No. 198-J (1972)]. 202242, (2012)].
JUDICIAL AND BAR COUNCIL Regular Members [Sec. 8(2), Art. VIII, Constitution]:
The regular members shall be appointed by the
COMPOSITION President with the consent of the Commission on
Appointments. The term of the regular members is 4
Ex-officio members [Sec. 8(1), Art. VIII, Const.] years.
a. Chief Justice as ex-officio Chairman
b. Secretary of Justice But the term of those initially appointed shall be
c. One representative of Congress staggered in the following way so as to create
continuity in the council:
Regular members [Sec. 8(1), Art. VIII, Const.] 1. IBP representative: 4 years
a. Representative of the Integrated Bar 2. Law professor: 3 years
b. Professor of law 3. Retired justice: 2 years
b. Retired member of the SC 4. Private sector: 1 year
c. Representative of private sector
Primary Function: Recommend appointees to the
judiciary; may exercise such other functions and
Page 73 of 382
duties as the SC may assign to it. [Sec. 8(5), Art. VIII,

Constitution]
E. Supreme Court
Note: Judges may not be appointed in any acting or COMPOSITION
temporary capacity as this would undermine the • Chief Justice and 14 Associate Justices
independence of the judiciary. • May sit en banc or in divisions of three, five, or
seven Members
Supervisory authority of SC over JBC • Vacancy shall be filled within 90 days from the
Sec. 8, Art. VIII of the Constitution provides “A Judicial occurrence thereof
and Bar Council is hereby created under the
supervision of the Supreme Court.” The supervisory
authority of the Court over the JBC covers the
En Banc and Division Cases
overseeing of compliance with its rules [Jardeleza v.
Judicial and Bar Council, G.R. No. 213181 (2014)]. En banc: Cases decided with the concurrence of a
majority of the Members who actually took part in
Supervisory power, when contrasted with control, is the
the power of mere oversight over an inferior body; it deliberations and voted.
does not include any restraining authority over such
body. "Supervision is not a meaningless thing. It is an INSTANCES WHEN THE SC SITS EN
active power. It is certainly not without limitation, but BANC
it at least implies authority to inquire into facts and a. Those involving the constitutionality,
conditions in order to render the power real and application, or operation of:
effective" [Aguinaldo v. Aquino, G.R. No. 224302 1. Treaty
(2016)]. 2. Orders
2. International or executive agreement
PROCEDURE OF APPOINTMENT 3. Law
4. Presidential decrees
The JBC shall submit a list of three (3) nominees 5. Instructions
for every vacancy to the Presidence [Sec. 9, Art. 6. Proclamations
VIII] 7. Ordinances
8. Other regulations

b. Exercise of the power to discipline judges of
Any vacancy in the Supreme Court shall be filed lower courts, or order their dismissal [Sec. 11,
within ninety (90) days from the occurrence Art. VIII]
thereof [Sec. 4(1), Art. VIII) c. Discipline of judges can be done by a division,
BUT En Banc decides cases for dismissal,
For lower courts, the President shall issued the
disbarment, suspension for more than 1 year, or
appointment within ninety (90) days from the fine of more than P10,000 [People v. Gacott, G.R.
submission by the JBC of such list [Sec. 9, Art. No. 116049 (1995)]
VIII] d. Cases or matters heard by a Division where the
required number of votes to decide or resolve
The prohibition against midnight appointments does (the majority of those who took part in the
not apply to the judiciary [See De Castro v. JBC, G.R. deliberations on the issues in the case and voted
No. 191002 (2010)]. thereon, and in no case less than 3 members) is
not met [Sec. 4(3), Art. VIII]
e. Modifying or reversing a doctrine or principle of
law laid down by the court in a decision rendered
en banc or in division [Sec. 4(3), Art. VIII]
f. Actions instituted by citizen to test the validity of
a proclamation of Martial law or suspension of
the privilege of the writ [Sec. 18, Art. VII,
Constitution]
g. When sitting as Presidential Electoral Tribunal
[Sec. 4, par.7, Art. VII]
Page 74 of 382
h. All other cases which under the Rules of Court

are required to be heard by the SC en banc. [Sec. The 1987 Constitution took away the power of
4(2), Art. VIII] Congress to repeal, alter, or supplement rules
concerning pleading, practice and procedure. The
REQUIREMENTS AND PROCEDURES IN power to promulgate rules of pleading, practice and
DIVISIONS procedure is no longer shared by the Court with
a. Cases decided with the concurrence of a majority Congress, more so with the Executive [Echegaray v.
of the Members who actually took part in the Secretary of Justice G.R. No. 132601 (1991)].
deliberations and voted
b. In no case without the concurrence of at least three Because of Art. VIII, Sec. 5, Congress may no longer
(3) of such Members grant legislative exemptions from payment of court
c. When required number is not obtained, the case fees [Baguio Market Vendors Multi-Purpose Cooperative v.
shall be decided en banc. Cabato-Cortes, G.R. No. 165922 (2010)].
1. Cases v. Matters. Only cases are referred to
En Banc for decision when required votes Limitations:
are not obtained. a. Shall provide a simplified and inexpensive
2. Cases are of first instance; matters are those procedure for speedy disposition of cases
after the first instance, e.g. MRs and post- b. Uniform for all courts in the same grade
decision motions. c. Shall not diminish, increase or modify substantive
3. Failure to resolve a motion because of a tie rights
does not leave case undecided. MR is merely
lost. [See Fortrich v. Corona, G.R. No. 131457
(1999)]
Administrative Supervision
Over Lower Courts
The SC En Banc is not an appellate court vis-à-vis its
Divisions. The only constraint is that any doctrine or Administrative Powers of the Supreme Court
principle of law laid down by the Court, either a. Assign temporarily judges of lower courts to
rendered en banc or in division, may be overturned or other stations as public interest may require;
reversed only by the Court sitting en banc [PUP v. b. Shall not exceed 6 months without the consent of
Firestone Ceramics, G.R. No. 143513 (2001)]. the judge concerned;
c. Order a change of venue or place of trial to avoid
There is but one Supreme Court of the Philippine a miscarriage of justice;
Islands. It is the jurisdiction of this Supreme Court, d. Appoint all officials and employees of the
which cannot be diminished. The Supreme Court Judiciary in accordance with the Civil Service
remains a unit notwithstanding it works in divisions. Law;
Although it may have two divisions, it is but a single e. Supervision over all courts and the personnel
court. Actions considered in any one of these thereof;
divisions and decisions rendered therein are, in effect, f. Discipline judges of lower courts, or order their
by the same Tribunal. The two divisions of this court dismissal.
are not to be considered as two separate and distinct
courts but as divisions of one and the same court [US Note: The qualifications of judges of lower courts as
v. Limsiongco, G. R. No. 16217 (1920)]. stated by the Constitution are minimum
requirements. The JBC may determine or add more
Procedural Rule-Making qualifications when such policies are necessary and
incidental to the function conferred in the
Constitution [Villanueva v. JBC, G.R. No. 211833
Sec. 5, Art. VIII. The Supreme Court shall have (2015)].
the following powers: […]
5. Promulgate rules concerning the protection and

enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission
to the practice of law, the integrated bar, and legal
assistance to the under-privileged.
Page 75 of 382
Period for Deciding Cases [Sec. 15(1), Art. VIII] Original Jurisdiction [Sec. 5(1), Art. VIII]
a. Cases affecting ambassadors, other public
Lower ministers and consuls
Supreme Other Lower
Collegiate b. Petition for certiorari
Court Courts
Courts c. Petition for prohibition
24 months 12 months, 3 months, d. Petition for mandamus
unless reduced unless reduced e. Petition for quo warranto
by the SC by the SC f. Petition for habeas corpus
Note: Original jurisdiction also extends to writs of

Notes: amparo, habeas data, and the environmental writ of
a. Period counted from date of submission. kalikasan.
b. Case deemed submitted upon filing of the last
pleading, brief or memorandum required by the The Supreme Court’s original jurisdiction to issue
Rules or the court [Sec. 15(2)]. writs of certiorari (as well as prohibition, mandamus,
quo warranto, habeas corpus and injunction) is not
Upon expiration of the period, the Chief Justice or exclusive. Its jurisdiction is concurrent with the CA, and
presiding judge shall issue a certification stating why with the RTC in proper cases [Cruz v. Judge Gingoyon,
the decision or resolution has not been rendered G.R. No. 170404 (2011)].
within the period [Sec. 15(3)].
Appellate Jurisdiction [Sec. 5(2), Art. VIII]: on
This provision is merely directory and failure to appeal or certiorari (as the Rules of Court provide), SC
decide on time would not deprive the corresponding may review, revise, reverse, modify, or affirm final
courts of jurisdiction or render their decisions invalid judgments and orders of lower courts in:
[De Roma v. CA, G.R. No. L-46903 (1987)]. a. Cases involving the constitutionality or validity of
any treaty, international or executive agreement,
The failure to decide cases within 90-day period law, presidential decree, proclamation, order,
required by law constitutes a ground for instruction, ordinance, or regulation, except in
administrative liability against the defaulting judge. circumstances where the Court believes that resolving the
But it does not make the judgment a nullity. The issue of constitutionality of a law or regulation at the first
judgment is valid [People v. Mendoza, G.R. No. 143702 instance is of paramount importance and immediately
(2001)]. affects the social, economic and moral well-being of the
people [Moldex Realty v. HLURB, G.R. No. 149719
Even when there is delay and no decision or (2007)];
resolution is made within the prescribed period, there b. Cases involving the legality of any tax, impost,
is no automatic affirmance of the appealed decision assessment, or toll, or any penalty imposed in
[Sesbreño v CA, G.R. No. 161390 (2008)]. The relation thereto;
Sandiganbayan, while of the same level as the Court c. Cases in which the jurisdiction of any lower court
of Appeals, functions as a trial court. Therefore, the is in issue;
period for deciding cases which applies to the d. Criminal cases where the penalty imposed is
Sandiganbayan is the three (3) month period, not the reclusion perpetua or higher.;
twelve (12) month period [In Re Problems of Delays in e. Cases where only a question of law is involved;
Cases before the Sandiganbayan, A. M. No. 00-8-05- SC
(2001)]. Note: A party who has not appealed from a decision
may not obtain any affirmative relief from the
appellate court other than what he had obtained from
Original and Appellate the lower court, if any, whose decision is brought up
Jurisdiction on appeal [Daabay v Coca-Cola Bottlers, G.R. No.
199890 (2013)].
Jurisdiction is the authority to hear and determine a
cause [US v. Limsiongco, G. R. No. 16217 (1920)]. Doctrine of judicial stability or non-interference:
No court can interfere by injunction with the
judgments or orders of another court of concurrent
Page 76 of 382
jurisdiction having the power to grant the relief deliberations are traditionally considered privileged
sought by injunction. The rationale for the rule is communication.
founded on the concept of jurisdiction: a court that
acquires jurisdiction over the case and renders SUMMARY OF RULES
judgment therein has jurisdiction over its judgment, The following are privileged documents or
to the exclusion of all other coordinate courts, for its communications, and are not subject to disclosure:
execution and over all its incidents, and to control, in a. Court actions such as the result of the raffle of
furtherance of justice, the conduct of ministerial cases and the actions taken by the Court on each
officers acting in connection with this judgment case included in the agenda of the Court’s session
[United Alloy Philippines v. UCPB, G.R. No. 179257 on acts done material to pending cases, except
(2015)]. where a party litigant requests information on the
result of the raffle of the case, pursuant to Rule
Finality of Judgments: A decision that has acquired 7, Section 3 of the Internal Rules of the Supreme
finality becomes immutable and unalterable and may Court (IRSC);
no longer be modified in any respect even if the b. Court deliberations or the deliberations of the
modification is meant to correct erroneous Members in court sessions on cases and matters
conclusions of fact or law and whether it was made pending before the Court;
by the court that rendered it or by the highest court c. Court records which are “pre-decisional” and
of the land [Genato v. Viola, G.R. No. 169706 (2010)]. “deliberative” in nature, in particular, documents
and other communications which are part of or
JUDICIAL PRIVILEGE related to the deliberative process, i.e., notes,
See SC Resolution dated February 14, 2012, “In Re: drafts, research papers, internal discussions,
Production of Court Records and Documents and the internal memoranda, records of internal
Attendance of Court officials and employees as deliberations, and similar papers.
witnesses under the subpoenas of February 10, 2012
and the various letters for the Impeachment Additional Rules:
Prosecution Panel dated January 19 and 25, 2012.” a. Confidential Information secured by justices,
judges, court officials and employees in the
Background: The Senate Impeachment Court (during course of their official functions, mentioned in
the Impeachment Trial of Chief Justice Corona), (2) and (3) above, is privileged even after their
issued a subpoena ad testificandum et duces tecum for certain term of office.
documents relating to the FASAP cases, the League b. Records of cases that are still pending for decision are
of Cities cases, and Gutierrez v. House Committee on privileged materials that cannot be disclosed,
Justice, as well as the attendance of certain court except only for pleadings, orders and resolutions
officials. The Supreme Court refused, invoking judicial that have been made available by the court to the
privilege. general public.
c. The principle of comity or inter-departmental
Judicial Privilege: A form of deliberative process courtesy demands that the highest officials of
privilege; Court records which are pre-decisional and each department be exempt from the compulsory
deliberative in nature are thus protected and cannot processes of the other departments.
be the subject of a subpoena. d. These privileges belong to the Supreme Court as
an institution, not to any justice or judge in his or
A document is pre-decisional if it precedes, in her individual capacity. Since the Court is higher
temporal sequence, the decision to which it relates. than the individual justices or judges, no sitting
or retired justice or judge, not even the Chief
A material is deliberative on the other hand, if it Justice, may claim
reflects the give-and-take of the consultative process.
The key question is whether disclosure of the Requirements for Decisions and Resolutions
information would discourage candid discussion
within the agency. Sec. 13, Art. VIII. The conclusions of the Supreme
Court in any case submitted to it for decision en banc
Judicial Privilege is an exception to the general rule of or in division shall be reached in consultation before
transparency as regards access to court records. Court the case is assigned to a Member for the writing of
the opinion of the Court. A certification to this effect
Page 77 of 382
signed by the Chief Justice shall be issued and a copy

thereof attached to the record of the case and served
upon the parties. Any Members who took no part, or
dissented, or abstained from a decision or resolution,
must state the reason therefor. The same
requirements shall be observed by all lower collegiate
courts.
Sec. 14, Art. VIII No decision shall be rendered

by any court without expressing therein clearly and
distinctly the facts and the law on which it is based.
No petition for review or motion for

reconsideration of a decision of the court shall be
refused due course or denied without stating the
legal basis therefore.
A "Resolution" is not a "Decision" within the

meaning of Sec. 14 of Art. VIII. This mandate applies
only in cases "submitted for decision," i.e., given due
course and after the filing of Briefs or Memoranda
and/or other pleadings, as the case may be. It does
not apply to an Order or Resolution refusing due
course to a Petition for Certiorari [Nunal v. COA, G.R.
No. 78648 (1989)].
Page 78 of 382
VI. CONSTITUTIONAL PROMOTIONAL APPOINTMENT OF

COMMISSIONS COMMISSIONER TO CHAIRMAN
Sec. 1(2), Article IX-D of the Constitution does not
Constitutional Commissions: prohibit a promotional appointment from
1. The Commission on Elections, commissioner to chairman as long as:
2. Commission on Audit, and 1. The commissioner has not served the full term of
3. Civil Service Commission 7 years; and
2. The appointment to any vacancy shall be only for
The grant of a constitutional commission’s the unexpired portion of the term of the
rulemaking power is untouchable by Congress, absent predecessor. [Sec. 1(2), Article IX-D]
a constitutional amendment or revision. 3. The promotional appointment must conform to
the rotational plan or the staggering of terms in
The laws that the Commission interprets and enforces the commission membership [Funa v. Commission
fall within the prerogative of Congress. As an on Audit, G.R. No. 192791 (2012)].
administrative agency, its quasi-legislative power is
subject to the same limitations applicable to other Jurisprudence on Sec. 1(2), Art. IX-D
administrative bodies [Trade and Investment Development 1. The appointment of members of any of the three
Corporation of the Philippines v. Civil Service Commission, constitutional commissions, after the expiration
G.R. No. 182249 (2013)]. of the uneven terms of office of the first set of
commissioners, shall always be for a fixed term
of seven (7) years; an appointment for a lesser
A. Constitutional Safeguards period is void and unconstitutional. The
appointing authority cannot validly shorten the
to Ensure Independence full term of seven (7) years in case of the
of Commissions expiration of the term as this will result in the
distortion of the rotational system prescribed by
the Constitution.
1. They are constitutionally created, hence may not 2. Appointments to vacancies resulting from certain
be abolished by statute. causes (death, resignation, disability or
2. Each commission is vested with powers and impeachment) shall only be for the unexpired
functions which cannot be reduced by statute. portion of the term of the predecessor; such
3. Independent constitutional bodies. appointments cannot be less than the unexpired
4. The Chairmen and members may not be portion [as it will disrupt the staggering].
removed except by impeachment. 3. Members of the Commission who were
5. Fixed term of office of 7 years. appointed for a full term of seven years and who
6. The Chairmen and members may not be served the entire period, are barred from
appointed in an acting capacity. reappointment to any position in the
7. The salaries of the Chairmen and members may Commission. The first appointees in the
not be decreased during their tenure. Commission under the Constitution are also
8. The Commissions enjoy fiscal autonomy. covered by the prohibition against
9. Each Commission may promulgate its own reappointment.
procedural rules, provided they do not diminish, 4. A commissioner who resigns after serving in the
increase or modify substantive rights (though Commission for less than seven years is eligible
subject to disapproval by the Supreme Court). for an appointment as Chairman for the
10. The Commission may appoint their own officials unexpired portion of the term of the departing
and employees in accordance with Civil Service chairman. Such appointment is not covered by
Law. the ban on reappointment, provided that the
aggregate period of the length of service will not
exceed seven (7) years and provided further that
the vacancy in the position of Chairman resulted
from death, resignation, disability or removal by
impeachment. This is not a reappointment, but
effectively a new appointment.
Page 79 of 382
5. Any member of the Commission cannot be

appointed or designated in a temporary or acting
B. Powers and Functions of
capacity. Each Commission
Term of Office of each Commission Member
The terms of the first Chairmen and Commissioners Civil Service Commission
of the Constitutional Commissions under the 1987
Constitution must start on a common date, Sec. 3, Art. IX-B. The Civil Service Commission,
irrespective of the variations in the dates of as the central personnel agency of the
appointments and qualifications of the appointees, in Government, shall establish a career service and
order that the expiration of the first terms of seven, adopt measures to promote morale, efficiency,
five and three years should lead to the regular integrity, responsiveness, progressiveness, and
recurrence of the two-year interval between the courtesy in the civil service. It shall strengthen the
expiration of the terms. This common appropriate merit and rewards system, integrate all human
starting point must be on February 02, 1987, the date resources development programs for all levels and
of the adoption of the 1987 Constitution [Gaminde v. ranks, and institutionalize a management climate
Commission on Audit, G. R. No. 140335 (2000)]. conducive to public accountability. It shall submit
to the President and the Congress an annual report
Term – the time during which the officer may claim on its personnel programs.
to hold office as of right, and fixes the interval after
which the several incumbents shall succeed one Functions:
another a. In the exercise of its powers to implement R.A.
6850 (granting civil service eligibility to
Tenure – term during which the incumbent actually employees under provisional or temporary status
holds the office The term of office is not affected by who have rendered seven years of efficient
the hold-over. The tenure may be shorter than the service), the CSC enjoys a wide latitude of
term for reasons within or beyond the power of the discretion, and may not be compelled by
incumbent. mandamus [Torregoza v. Civil Service Commission,
G.R. No. 101526 (1992)].
b. Under the Administrative Code of 1987, the Civil
Service Commission has the power to hear and
decide administrative cases instituted before it
directly or on appeal, including contested
appointments.
c. The Commission has original jurisdiction to hear
and decide a complaint for cheating in the Civil
Service examinations committed by government
employees [Cruz v. CSC, G.R. No. 144464
(2001)].
d. It is the intent of the Civil Service Law, in
requiring the establishment of a grievance
procedure, that decisions of lower level officials
(in cases involving personnel actions) be
appealed to the agency head, then to the Civil
Service Commission [Olanda v. Bugayong, G.R.
No. 140917 (2003)].
As the central personnel agency of the government,

the CSC has broad authority to pass upon all civil
service matters. The mandate of the CSC should
therefore be read as the comprehensive authority to
perform all functions necessary to ensure the efficient
administration of the entire civil service, including the
Central Executive Service (CES). Further, the specific
Page 80 of 382
powers of the CESB must be narrowly interpreted as appointed by the President, e.g. those in
exceptions to the comprehensive authority granted to theforeign service
the CSC by the Constitution and relevant statutes 5. Positions in the AFP although governed by
[Career Executive Service Board v. Civil Service Commission, a different merit system
G.R. No. 197762 (2017)]. 6. Personnel of GOCCs with original charters
7. Permanent laborers, whether skilled,
Scope of the Civil Service: semiskilled or unskilled
Embraces all branches, subdivisions, instrumentalities b. Non-career Service: Characterized by entrance
and agencies of the Government, including GOCCs on bases other than those of the usual tests
with original charters [Sec. 2(1), Art. IX-B, utilized for the career service; tenure limited to a
Constitution]. period specified by law, or which is co-terminus
with that of the appointing authority or subject
The Civil Service does not include government- to his pleasure, or which is limited to the duration
owned or controlled corporations which are a. Elective officials, and their personal and
organized as subsidiaries of government-owned or confidential staff;
controlled corporations under the general b. Department heads and officials of Cabinet
corporation law [National Service Corp. v. NLRC, GR rank who hold office at the pleasure of the
No. L-69870 (1988)]. President, and their personal and
confidential staff;
Note: The University of the Philippines, having an c. Chairmen and members of commissions and
original charter, is clearly part of the CSC [University of bureaus with fixed terms;
the Philippines v. Regino, G.R. No. 88167 (1993)]. d. Contractual personnel;
e. Emergency and seasonal personnel.
Composition:
A Chairman and 2 Commissioners Note: Except as otherwise provided by the
Constitution or by law, the Civil Service Commission
Qualifications: [Sec. 1(1), Art. IX-B] shall have the final authority to pass upon the
a. Natural-born citizens of the Philippines; removal, separation and suspension of all officers and
b. At the time of their appointment, at least 35 years employees in the civil service and upon all matters
of age; relating to the conduct, discipline and efficiency of
c. With proven capacity for public administration; such officers and employees [CSC v. Sojor, supra].
and
d. Must not have been candidates for any elective Employees in the civil service may not resort to
position in the election immediately preceding strikes, walkouts and other temporary work
their appointment. stoppages, like workers in the private sector, to
pressure the Government to accede to their demands
Classes of Service: [CSC v. Sojor, GR No. 168766 [SSS Employees Association v. CA, G.R. No. 85279
(2008)] (1989)].
a. Career Service: Characterized by entrance (a)
based on merit and fitness to be determined, as Those who enter government service are subjected to
far as practicable, by competitive examinations, a different degree of limitation on their freedom to
OR (b) based on highly technical qualifications; speak their mind; however, it is not tantamount to the
with opportunity for advancement to higher relinquishment of their constitutional right of
career positions and security of tenure. expression otherwise enjoyed by citizens just by
1. Open career positions: Where prior reason of their employment. Hence, a concerted
qualification in an appropriate examination is activity or mass action done outside of government
required. office hours shall not be deemed a prohibited
2. Closed career positions: e.g. scientific or concerted activity or mass action within the
highly technical in nature; contemplation of this omnibus rules provided the
3. Career Executive Service: e.g. same shall not occasion or result in the disruption of
undersecretaries, bureau directors work or service [Davao City Water District v. Aranjuez,
4. Career Officers: Other than those belonging G. R. No. 194192 (2015)].
to the Career Executive Service who are
Page 81 of 382
Appointments in the Civil Service

The role of the CSC in the appointing process is Removal or Suspension only for Cause
limited to the determination of qualifications of the No officer or employee of the civil service shall be
candidates for appointments and plays no role in the removed or suspended except for cause provided by
choice of the person to be appointed [BERNAS at law. [Sec. 2 (2), ART. IX, B, Constitution]
1052]
General Rule: Made only according to merit and fitness

Commission on Elections
to be determined, as far as practicable, by competitive
Powers and Functions
examination
a. Enforce all laws relating to the conduct of
Exceptions:
election, plebiscite, initiative, referendum and
a. Policy determining: Where the officer lays
recall
down principal or fundamental guidelines or
rules; or formulates a method of action for
Initiative: The power of the people to propose
government or any of its subdivisions; e.g.
amendments to the Constitution or to propose
department head.
and enact legislation through an election called
b. Primarily confidential: Denoting not only
for that purpose. There are 3 systems of initiative:
confidence in the aptitude of the appointee for
Initiative on the Constitution, initiative on
the duties of the office but primarily close
statutes, and initiative on local legislation [R.A.
intimacy which ensures freedom of intercourse
6735, Sec. 2(a)].
without embarrassment or freedom from
misgivings or betrayals on confidential matters of
Referendum: The power of the electorate to
state [De los Santos v. Mallare, G.R. No. L-3881
approve or reject legislation through an election
(1950)]; OR one declared to be so by the
called for that purpose. There are 2 classes:
President of the Philippines upon the
referendum on statutes or referendum on local
recommendation of the CSC, subject to judicial
laws [R.A. 6735, Sec. 2(c)].
review [Salazar v. Mathay, G.R. No. L-44061
(1976)].
Recall: The termination of official relationship
c. Highly technical: Requires possession of
of a local elective official for loss of confidence
technical skill or training in supreme degree [De
prior to the expiration of his term through the
los Santos v. Mallare, supra].
will of the electorate.
Disqualifications:
Plebiscite: The submission of constitutional
1. No candidate who has lost in any election shall
amendments or important legislative measures to
within 1 year after such election, be appointed to
the people for ratification.
any office in the Government or any GOCC or
in any of its subsidiaries. [Art. IX-B, Sec. 6]
b. Recommend to the Congress effective measures
2. No elective official shall be eligible for
to minimize election spending, and to prevent
appointment or designation in any capacity to any
and penalize all forms of election frauds,
public office or position during his tenure. [Art.
offenses, malpractices, and nuisance candidacies
IXB, Sec. 7[1]]
c. Submit to the President and the Congress, a
3. Unless otherwise allowed by law OR by the
comprehensive report on the conduct of each
primary functions of his position, no appointive
election, plebiscite, initiative, referendum, or
official shall hold any other office or employment
recall
in the Government or any subdivision, agency or
d. Decide administrative questions pertaining to
instrumentality thereof including GOCCs or
election except the right to vote (the jurisdiction
their subsidiaries. [Art. IX-B, Sec. 7(2)]
of which is with the judiciary)
4. No officer or employee in the civil service shall
engage directly or indirectly, in any electioneering
Power to declare failure of election: The
or partisan political activity. [Art. IX-B, sec. 2(4)]
COMELEC may exercise such power motu proprio
or upon a verified petition, and the hearing of the
case shall be summary in nature [Sison v.
COMELEC, G.R. No. 134096 (1999)].
Page 82 of 382
not candidates, only if what is regulated is

e. File petitions in court for inclusion or exclusion declarative speech that, taken as a whole, has for
of voters its principal object the endorsement of a
f. Investigate and prosecute cases of violations of candidate only. The regulation (a) should be
election laws provided by law, (b)reasonable, (c) narrowly
tailored to meet the objective of enhancing the
The COMELEC has exclusive jurisdiction to opportunity of all candidates to be heard and
investigate and prosecute cases for violations of considering the primacy of the guarantee of free
election laws [De Jesus v. People, G.R. No. L-61998 expression, and (d) demonstrably the least
(1983)]. restrictive means to achieve that object. The
regulation must only be with respect to the time,
NOTE: RA 9369 (Sec. 43) of the Automated place and manner of the rendition of the
Election System Law of January, 2007 grants to message. In no situation may the speech be
the Department of Justice concurrent prohibited or censored on the basis of its content.
jurisdiction to investigate and prosecute violation For this purpose, it will not matter whether the
of election law. speech is made with or on private property.
Thus, the trial court was in error when it Even though the tarpaulin is seen by the public,
dismissed an information filed by the Election it remains the private property of petitioners.
Supervisor because the latter failed to comply Freedom of expression can be intimately related
with the order of the Court to secure the with the right to property. There may be no
concurrence of the Prosecutor [People v. Inting, expression when there is no place where
G.R. No. 88919 (1990)]. However, the expression may be made. COMELEC’s
COMELEC may validly delegate this power to the infringement upon petitioners’ property rights as
Provincial Fiscal [People v. Judge Basilia, G.R. No. in the present case also reaches out to
83938-40 (1989)]. infringement of their fundamental right to
speech. (The Diocese of Bacolod vs. COMELEC, GR
g. Recommend pardon, amnesty, parole or suspension No. 205728, January 21, 2015)
of sentence of election law violators
h. Deputize law enforcement agencies and The law limits the right of free speech and of access to mass
instrumentalities of the Government for the media of the candidates themselves. The limitation
exclusive purpose of ensuring free, orderly, honest, however, bears a clear and reasonable connection
peaceful, and credible elections with the objective set out in the Constitution. For
i. Recommend to the President the removal of any it is precisely in the unlimited purchase of print
officer or employee it has deputized for violation or space and radio and television time that the
disregard of, or disobedience to its directive resources of the financially affluent candidates
j. Registration of political parties, organizations and
are likely to make a crucial difference.
coalitions and accreditation of citizens’ arms
k. Regulation of public utilities and media of
information The purpose is to ensure "equal opportunity, time, and
space, and the right to reply," as well as uniform and
While respondent COMELEC cited the reasonable rates of charges for the use of such
Constitution, laws and jurisprudence to support media facilities, in connection with "public
their position that they had the power to regulate information campaigns and forums among
the tarpaulin, however, all these provisions candidates" [National Press Club v. Comelec, G.R.
pertain to candidates and political parties. No. 102653 (1992)].
Petitioners are not candidates. Neither do they
belong to any political party. COMELEC does Note: This power may be exercised only over the
not have the authority to regulate the enjoyment media, not over practitioners of media. Thus, a
of the preferred right to freedom of expression COMELEC resolution prohibiting radio and TV
exercised by a non-candidate in this case. commentators and newspaper columnists from
Regulation of election paraphernalia will still be commenting on the issues involved in the
constitutionally valid if it reaches into speech of forthcoming plebiscite for the ratification of the
persons who are not candidates or who do not organic law establishing the CAR was held invalid
speak as members of a political party if they are
Page 83 of 382
[Sanidad v. COMELEC, G.R. No. L-44640

(1976)]. A motion for reconsideration of a decision or
resolution of the Comelec En Banc or of a
l. Decide election cases division may be granted upon vote of a majority
of the members of the en banc or of a division,
The Commission on Elections may sit en banc or as the case may be, who actually took part in the
in two divisions, and shall promulgate its rules o deliberation of the motion. If the voting results
procedure in order to expedite disposition of in a tie, the motion, the motion for
election cases, including pre-proclamation reconsideration is deemed denied. Free from
controversies. All such election cases shall be ambiguity, the plain meaning of the clarificatory
heard and decided in division, provided that resolution is that the motion for reconsideration,
motions for reconsideration of decisions shall be decided by being an incidental matter, is deemed denied if no
the Commission en banc [Sec. 3, Art. IXC, majority vote is reached. Otherwise, the four-
Constitution]. vote requirement under Section 7, Article IX-A
of the Constitution is circumvented and likewise
Cases which must be heard by division the adjudicatory powers of the Comelec Division
under Section 3 of Article IX-C is in effect
a. All election cases, including pre-proclamation diminished. (Legaspi v. COMELEC, G. R. No.
contests originally cognizable by the Commission 21657, April 19,2016)
in the exercise of its powers under Sec. 2(2), Art
IX-C. Composition:
A Chairman and 6 Commissioners.
Pre-proclamation contests or controversies are
election cases which are instituted prior to the Qualifications:
proclamation of the winning candidate. They are a. Must be natural-born citizens;
deemed to be still in the administrative stage. b. At least 35 years of age;
c. Holders of a college degree;
It includes the questions of: d. Have not been candidates in the immediately
1. the legality of the composition of the Board preceding election;
of Canvassers, and e. Majority, including the Chairman, must be
2. questions of fraudulent election returns. members of the Philippine Bar who have been
engaged in the practice of law for at least 10 years.
An election contest, on the other hand only [Sec. 1, Art. IX-C, Constitution]
occurs after the proclamation of a winner. Only
after a winner has been proclaimed can there be
an actual "contest", with a contestant who seeks
Commission on Audit
not only to oust the intruder but also to have
Powers and Functions:
himself installed into office.
Examine, audit, and settle accounts pertaining to
government funds or property: its revenue, receipts,
b. Jurisdiction over a petition to cancel a certificate
expenditures, and uses
of candidacy.
c. Even cases appealed from the RTC or MTC have
Post-audit basis:
to be heard and decided in division before they
may be heard en banc. • Constitutional bodies, commissions and offices;
• Autonomous state colleges and universities;
If the COMELEC exercises its quasi-judicial • GOCCs with no original charters and their
functions then the case must be heard through a subsidiaries;
division. Upon motion for reconsideration of a • Non-governmental entities receiving subsidy or
decision, the case is heard en banc [Manzala v. equity, directly or indirectly, from or through the
COMELEC, G.R. No. 176211 (2007)]. Government, which are required by law or the
granting institution to submit such audit as a
If the COMELEC exercises its administrative condition of subsidy or equity.
functions then it must act en banc [Bautista v.
COMELEC, G.R. No. 15496-97 (2003)].
Page 84 of 382
Complementing the constitutional power of the COA Corporations v. Executive Secretary, G. R. Nos. 147036-37
to audit accounts of “non–governmental entities & 147811, April 10, 2012)
receiving subsidy or equity xxx from or through the
government” is Section 14(1), Book V of the Composition:
Administrative Code, which authorizes the COA to A Chairman and 2 Commissioners
audit accounts of non–governmental entities
“required to pay xxx or have government share” but Qualifications:
only with respect to “funds xxx coming from or a. Natural born Filipino citizens
through the government.” b. At least 35 years of age
c. CPAs with not less than 10 years of auditing
Despite its non–governmental character, the Manila experience OR members of the Philippine bar
Economic and Cultural Office handles government with at least 10 years practice of law
funds in the form of the “verification fees” it collects
on behalf of the DOLE and the “consular fees” it Note: At no time shall all members belong to the
collects under Section 2(6) of EO No. 15, s. 2001. same
Hence, the accounts of the MECO pertaining to its profession.
collection of such “verification fees” and “consular
fees” should be audited by the COA [Funa v. Manila
Economic and Cultural Office, G.R. No. 193462 (2014)].
COA does not have the exclusive power to examine

and audit government agencies. The framers of the
Constitution were fully aware of the need to allow
independent private audit of certain government
agencies in addition to the COA audit [DBP v. COA,
G.R. No. 88435 (2002)].
The COA has the exclusive authority to

• Define the scope of its audit and examination;
• Establish techniques and methods required;
• Promulgate accounting and auditing rules and
regulations.
The Constitution grants the COA the exclusive

authority to define the scope of its audit and
examination, and establish the techniques and
methods therefor. This includes giving the COA
Assistant Commissioner and General Counsel the
authority to deputize a special audit team [The Special
Audit Team, Commission on Audit v. Court of Appeals,
G.R. No. 174788 (2013)].
Note: Sec. 3, Art. IX-D, Constitution. No law shall

be passed exempting any entity of the Government or
its subsidiaries in any guise whatever, or any
investment of public funds, from the jurisdiction of
the Commission on Audit.
Congress cannot exempt foreign grants from the

jurisdiction of the Commission on Audit. Its
jurisdiction extends to all government-owned or
controlled corporation, including those funded by
donations through the Government. (Petitioner
Page 85 of 382
C. Prohibited Offices and D. Jurisdiction

Interests
Civil Service Commission
No member of the Constitutional Commissions shall,
during their tenure: The CSC has been granted by the Constitution and
the Administrative Code jurisdiction over all civil
1. Hold any other office or employment. This is service positions in the government service, whether
similar to the prohibition against executive career or non-career. The specific jurisdiction, as
officers. It applies to both public and private spelled out in the CSC Revised Uniform Rules on
offices and employment; Administrative Cases in the Civil Service, did not depart
2. Engage in the practice of any profession; from the general jurisdiction granted to it by law [Civil
3. Engage in the active management or control of Service Commission v. Sojor, G.R. No. 168766 (2008); see
any business which in any way may be affected by CSC Resolution No. 991936 detailing the disciplinary
the functions of his office; or and non-disciplinary jurisdiction].
4. Be financially interested, directly or indirectly, in
any contract with, or in any franchise or privilege The Board of Regents (BOR) of a state university
granted by, the Government, its subdivisions, has the sole power of administration over the
agencies or instrumentalities, including GOCCs university. But although the BOR of NORSU is given
or their subsidiaries [Sec. 2, Art. IX-A, the specific power under its charter to discipline its
Constitution]. employees and officials, there is no showing that such
power is exclusive. The CSC has concurrent
The CSC Chairman cannot be a member of a jurisdiction over a president of a state university [CSC
government entity that is under the control of the v. Sojor, supra].
President without impairing the independence vested
in the CSC by the 1987 Constitution [Funa v. Civil Appellate Jurisdiction
Service Commission, G.R. No. 191672 (2014)]. The appellate power of the CSC will only apply when
the subject of the administrative cases filed against
erring employees is in connection with the duties and
functions of their office, and not in cases where the
acts of complainant arose from cheating in the civil
service examinations [Cruz v. CSC, G.R. No. 144464,
(2001)].
In administrative disciplinary cases decided by the

COA, the proper remedy in case of an adverse
decision is an appeal to the Civil Service Commission and
not a petition for certiorari before SC under Rule 64
[Galindo v. Commission on Audit, G.R. No. 210788
(2017)].
The Philippine National Red Cross, although not a

GOCC, is sui generis in character. The sui generis
character of PNRC requires the court to approach
controversies involving the PNRC on a case-to-case
basis. Since the issue involves in the enforcement of
labor laws and penal statutes, PNRC can be treated as
a GOCC. Thus, the CSC has jurisdiction. The CSC
had authority to modify the penalty and order the
dismissal of Torres from the service. Moreover, the
CSC has appellate jurisdiction on administrative
disciplinary cases involving the imposition of a
penalty of suspension of more than 30 days or fine in
Page 86 of 382
an amount exceeding 30 days’ salary [Torres v. De Leon, by, or pertaining to, the Government, or any of its
G.R. No. 199440 (2016)]. subdivisions, agencies, or instrumentalities,
including government-owned or controlled
Commission on Elections corporations with original charters, and on a post-
audit basis: (a) constitutional bodies, commissions
The Constitution vested upon the COMELEC and offices that have been granted fiscal autonomy
judicial powers to decide all contests relating to under this Constitution; (b) autonomous state
elective local officials as therein provided [Garcia v. De colleges and universities; (c) other government-
Jesus, G.R. No. 97108-09 (1992)]. owned or controlled corporations and their
subsidiaries; and (d) such non-governmental
Exclusive Jurisdiction entities receiving subsidy or equity, directly or
All contests relating to the elections, returns and indirectly, from or through the Government,
qualifications of all elective regional, provincial, and which are required by law or the granting
city officials. institution to submit to such audit as a condition
of subsidy or equity.
Jurisdiction over intra-party disputes
The COMELEC has jurisdiction over cases LGUs, though granted local fiscal autonomy, are still
pertaining to party leadership and the nomination of within the audit jurisdiction of the COA [Veloso v.
party-list representatives. The COMELEC’s powers COA, G.R. No. 193677 (2011)].
and functions under the Constitution, "include the
ascertainment of the identity of the political party and The Boy Scouts of the Philippines (BSP) is a public
its legitimate officers responsible for its acts." The corporation and its funds are subject to the COA’s
power to register political parties necessarily involves audit jurisdiction [Boy Scouts of the Philippines v. COA,
the determination of the persons who must act on its G.R. No. 177131 (2011)].
behalf. Thus, the COMELEC may resolve an intra-
party leadership dispute, in a proper case brought The Constitution formally embodies the long-
before it, as an incident of its power to register established rule that private entities who handle
political parties [Lokin v. COMELEC, GR No. government funds or subsidies in trust may be
193808 (2012)]. examined or audited in their handling of said funds by
government auditors [Blue Bar Coconut Philippines, Inc.
Appellate Jurisdiction v. Tantuico, G.R. No. L-47051 (1988)].
All contests involving elected municipal officials
decided by trial courts of general jurisdiction or PRIMARY JURISDICTION OVER MONEY
involving elective barangay officials decided by a CLAIMS
court of limited jurisdiction [Garcia v. De Jesus, supra].
Limited to liquidated claims: The COA has
Jurisdiction to issue writs of certiorari primary jurisdiction to pass upon a private entity’s
The COMELEC may issue a writ of certiorari in aid money claims against a provincial gov’t. However, the
of its appellate jurisdiction. Interpreting the phrase "in scope of the COA’s authority to take cognizance of
aid of its appellate jurisdiction,” if a case may be claims is circumscribed by cases holding statutes of
appealed to a particular court or judicial tribunal or similar import to mean only liquidated claims, or
body, then said court or judicial tribunal or body has those determined or readily determinable from
jurisdiction to issue the extraordinary writ of vouchers, invoices, and such other papers within
certiorari, in aid of its appellate jurisdiction [Bulilis v. reach of accounting officers. [Euro-Med Laboratories,
Nuez, G.R. No. 195953 (2011)]. Phil. Inc. v. Province of Batangas, G.R. No. 148106
(2006)]
Commission on Audit No jurisdiction over their validity or
constitutionality: The jurisdiction of the COA over
Sec. 2 (1), Art. IX-D. The Commission on Audit money claims against the government does not
shall have the power, authority, and duty to include the power to rule on the constitutionality or
examine, audit, and settle all accounts pertaining to validity
the revenue and receipts of, and expenditures or
uses of funds and property, owned or held in trust
Page 87 of 382
Note: In the absence of grave abuse of discretion, the

decisions and resolutions of COA are accorded not
E. Review of Final Orders,
only with respect but also with finality, not only on
the basis of the doctrine of separation of powers, but also
Resolutions, and
of its presumed expertise in the laws it is entrusted to enforce. Decisions
[Movertrade Corporation v. Commission on Audit, G.R. No.
204835 (2015)]
Rendered in Exercise of
Quasi-Judicial Functions
Sec. 7, Art. IX-A. Each Commission shall decide
by a majority vote of all its Members, any case or
matter brought before it within sixty (60) days
from the date of its submission for decision or
resolution. A case or matter is deemed submitted
for decision or resolution upon the filing of the last
pleading, brief, or memorandum required by the
rules of the Commission or by the Commission
itself. Unless otherwise provided by this
Constitution or by law, any decision, order, or
ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party
within thirty days from receipt of a copy thereof.
Decisions
Each Commission shall decide by a majority vote of
all its members (NOT only those who participated in the
deliberations) any case or matter brought before it
within 60 days from the date of its submission for
decision or resolution [Sec.7, Art. IX-A,
Constitution].
Any decision, order or ruling of each Commission

may be brought to the SC on certiorari by the
aggrieved party within thirty (30) days from receipt of
the copy thereof.
In resolving cases brought before it on appeal,

respondent COA is not required to limit its review
only to the grounds relied upon by a government
agency’s auditor with respect to disallowing certain
disbursements of public funds. Such would render
COA’s vital constitutional power unduly limited and
thereby useless and ineffective [Yap v. COA, G.R. No
158562 (2010)].
Certiorari jurisdiction of the Supreme Court:

Limited to decisions rendered in actions or
proceedings taken cognizance of by the Commissions
in the exercise of their quasi-judicial powers.
The Court exercises extraordinary jurisdiction, thus,

the proceeding is limited only to issues involving
grave abuse of discretion resulting in lack or excess of
Page 88 of 382
jurisdiction, and does not ordinarily empower the

Court to review the factual findings of the
Commission [Aratuc v. COMELEC, G.R. No. L-
49705-09 (1999)].
SYNTHESIS ON THE RULES OF MODES OF

REVIEW
1. Decisions, order or ruling of the Commissions in
the exercise of their quasi-judicial functions may
be reviewed by the Supreme Court.
2. The mode of review is a petition for certiorari
under Rule 64 (not Rule 65).
3. Exception: The Rules of Civil Procedure, however,
provides for a different legal route in the case of
the Civil Service Commission. In the case of
CSC, Rule 43 will be applied, and the case will be
brought to the Court of Appeals.
Rendered in the Exercise of

Administrative Functions
Sec. 4. Art. IX-A. Each Commission shall appoint
its own officials in accordance with law.
Sec. 6. Art. IX-A.Each Commission En Banc may

promulgate its own rules concerning pleadings and
practices before it.
But these rules shall not diminish, increase or modify

substantive rights.
Sec. 8. Art. IX-A. Each Commission shall

perform such other functions as may be provided
by law.
Note: In the exercise of its adjudicatory or quasi-

judicial powers, the Constitution mandates the
COMELEC to hear and decide cases first by division
and upon motion for reconsideration, by the
COMELEC en banc [Bautista v. COMELEC, 414
SCRA
299 (2003)].
Page 89 of 382
VII. CITIZENSHIP d. Those who are naturalized in accordance

with law [Art. IV, Sec. 1].
A. Who are Filipino Citizens The following persons were citizens of the
Philippines on May 14, 1935 – the date of the
adoption of the 1935 Constitution:
Who are citizens? [Sec. 1, Art. IV, Const.] 1. Persons born in the Philippine Islands who
1. Citizens of the Philippines at the time of the resided therein on April 11, 1899 and were
adoption of this Constitution; Spanish subjects on that date, unless they had lost
2. Those whose fathers OR mothers are citizens of their Philippine citizenship on or before May 14,
the Philippines; 1935;
3. Those who elected to be citizens. This is available 2. Natives of the Spanish Peninsula who resided in
only to: the Philippines on April 11, 1899, and who did
a. those born before Jan 17, 1973; not declare their intention of preserving their
b. to Filipino mothers; AND Spanish nationality between that date and
c. elect Philippine citizenship upon reaching October 11, 1900, unless they had lost their
the age of majority Philippine citizenship on or before May 14, 1935;
4. Those naturalized in accordance with law. 3. Naturalized citizens of Spain who resided in the
Philippines on April 11, 1899, and did not declare
Sec. 1 (3), Art. IV is also applicable to those who are their intention to preserve their Spanish
born to Filipino mothers and elected Philippine nationality within the prescribed period (up to
citizenship before February 2, 1987.This is to correct October 11, 1900);
the anomalous situation where one born of a Filipino 4. Children born of (1), (2) and (3) subsequent to
father and an alien mother was automatically granted April 11, 1899, unless they lost their Philippine
the status of a naturalborn citizen, while one born of citizenship on or before May 14, 1935; and
a Filipino mother and an alien father would still have 5. Persons who became naturalized citizens of the
to elect Philippine citizenship [Co v. House Electoral Philippines in accordance with naturalization law
Tribunal (1991)]. since its enactment on March 26, 1920.
Who were the citizens of the Philippines at the time of the “xxx. Any conclusion on the Filipino citizenship of
adoption of the 1987 Constitution? Lorenzo Poe could only be drawn from the
1. Citizens under the 1973 Constitution presumption that having died in 1954 at 84 years old,
a. Those who are citizens of the Philippines at Lorenzo would have been born sometime in the year
the time of the adoption of this Constitution; 1870, when the Philippines was under Spanish rule,
b. Those whose fathers or mothers are citizens and that San Carlos, Pangasinan, his place of
of the Philippines; residence upon his death in 1954, in the absence of
c. Those who elect Philippine citizenship any other evidence, could have well been his place of
pursuant to the provisions of the residence before death, such that Lorenzo Poe would
Constitution of 1935; and have benefited from the “en masseFilipinization” that
d. Those who are naturalized in accordance the Philippine Bill had effected in 1902. (Fornier vs.
with law [Art. III, Sec.1(1)]. COMELEC, GR No. 1618244, March 3, 2004,
2. Citizens under the 1935 Constitution
a. Those who are citizens at the time of the Are foundlings natural-born citizens?
adoption of this Constitution; Yes. As a matter of law, foundlings are, as a class,
b. Those born in the Philippine Islands of natural-born citizens. While the 1935 Constitution’s
foreign parents who, before the adoption of enumeration is silent as to foundlings, there is no
this Constitution, had been elected to public restrictive language which would definitely exclude
office in the Philippine Islands; This is foundlings either. No such intent or language permits
known as the Caram Rule, and is only discrimination against foundlings. On the contrary, all
applicable to elective positions, not three Constitutions (1935, 1973, 1987) guarantee the
appointive ones [Chiongbian v. de Leon, G.R. basic right to equal protection of the laws. All exhort
No. L-2007, January 3, 1949]; the State to render social justice [Poe-Llamanzares v.
c. Those whose mothers are citizens of the COMELEC, G.R. No. 221697 (2016)].
Philippines and, upon reaching the age of
majority, elect Philippine citizenship;
Page 90 of 382
B. Modes of Acquiring Election of Filipino Citizenship

Citizenship The constitutional and statutory requirements of
electing Filipino citizenship apply only to legitimate
Generally, two modes of acquiring citizenship: children and not to one who was concededly an
illegitimate child, as her Chinese father and Filipino
1. By Birth mother were never married. Being an illegitimate child
a. Jus Soli – “right of soil;” person’s nationality of a Filipino mother, respondent is a Filipino since
is based on place of birth; formerly effective birth, without having to elect Filipino citizenship
in the Philippines [seeRoa v. Collector of when she reaches the age of majority. (Republic vs. Lim,
Customs, G.R. No. L-7011 (1912)] 420 SCRA 123, GR No. 153883, January 13, 2004)
b. Jus Sanguinis – “right of blood;” person’s
nationality follows that of his natural parents. Reglementary Period
The Philippines currently adheres to this Under Art. IV, Section 1(3) of the 1935 Constitution,
principle. the citizenship of a legitimate child born of a Filipino
2. By Naturalization mother and an alien father followed the citizenship of
the father, unless, upon reaching the age of majority,
Naturalization signifies the act of formally adopting a the child elected Philippine citizenship. C.A. No. 625
foreigner into the political body of a nation by did not prescribe a time period within which the
clothing him or her with the privileges of a citizen. election of Philippine citizenship should be made.
Under existing laws, there are three modes by which The 1935 Charter only provides that the election
an alien may become a Filipino citizen by should be made “upon reaching the age of majority.”
naturalization: (1) administrative naturalization The age of majority then commenced upon reaching
pursuant to RA 9139; (2) judicial naturalization 21 years. In the opinions of the Secretary of Justice on
pursuant to CA 437; and (3) legislative naturalization cases involving the validity of election of Philippine
in the form of a law enacted by Congress granting citizenship, this dilemma is resolved by basing the
Philippine citizenship to an alien (So, vs. Republic, GR time period on the decisions of this Court prior to the
No.170603, January 29, 2007) effectivity of the 1935 Constitution. In these
decisions, the proper period for electing Philippine
Derivative Naturalization citizenship, in turn, based on the pronouncements of
Under this provision, foreign women who are married the Department of State of the United States
to Philippine citizens may be deemed ipso facto Government to the effect that the election should be
Philippine citizens and it is neither necessary for them made within “reasonable time” after attaining the age
to prove that they possess other qualifications for of majority. This phrase “reasonable time” has been
naturalization at the time of their marriage nor do they interpreted to mean the election should be made
have to submit themselves to judicial naturalization within three years from reaching the age of majority.
[Republic v. Batuigas, G.R. No. 183110 (2013)]. (Re: Application for Admission to the Philippine Bar, Vicente
D. Ching, Bar Matter No. 914, October 1, 1999)
Pursuant to the principle of derivative naturalization,
Section 15 of CA 437, extends the grant of Philippine Eligibility under the Administrative
citizenship to the minor children of those naturalized Naturalization Law, Rationale
thereunder should be similarly applied to the minor RA 9139 is an act providing for the acquisition of
children of those naturalized under LOI No. 270. The Philippine citizenship for 1) aliens born in the
following are requisites to be entitled to Philippine Philippines and 2) residing therein since birth by
citizenship: (1) they are legitimate children of administrative naturalization subject to certain
petitioner (2) they were born in the Philippines and requirements dictated by national security and
(3) they were still minors when petitioner was interest. RA 9139 was enacted as a remedial measure
naturalized as Filipino citizen. (Tan Co vs. Civil Register intended to make the process of acquiring Philippine
of Manila, 423 SCRA 665) citizenship less tedious, less technical and more
encouraging. It also addresses the concerns of degree
holders who, by reason of lack of citizenship
requirement, cannot practice their profession, thus
promoting "brain drain for the Philippines. (So vs.
Republic, supra)
Page 91 of 382
SCRA 655) But in Tabasa, supra, the Supreme Court

Qualifications prescribed under Act 473 NOT ruled that petition for repatriation shall be filed with
applicable to RA 9139 the Special Committee on Naturalization (SCN)
The qualifications and disqualifications of an which was designated to process petitions for
applicant for naturalization by judicial act are set forth repatriation pursuant to AO 285 dated August 22,
in Sections 2 and 4 of CA 473. On the other hand, 2006.
Sections 3 and 4 of RA 9139 provide for the
qualifications and disqualifications of an applicant for Repatriation Under RA 9225
naturalization by administrative act. First, CA 473 and ANSWER: It allows former natural-born Filipino
RA 9139 are separate and distinct laws- the former citizens who have lost their Philippine citizenship by
covers all aliens regardless of class while the latter reason of their naturalization as citizens of a foreign
covers native-born aliens who lived here in the country to reacquire Filipino citizenship. It also allows
Philippines all their lives, who never saw any other Filipino citizens to retain their Filipino citizenship
country and all along thought that they were Filipinos; even if they acquire another citizenship in a foreign
who have demonstrated love and loyalty to the country. Retention or reacquisition is accomplished
Philippines and affinity to customs and traditions. by simply taking the oath of allegiance as prescribed
Second, if the qualifications prescribed in RA 9139 by RA 9225. The required oath of allegiance does not
would be made applicable even to judicial contain the usual renunciation of allegiance to any and
naturalization, the coverage of the law would be all other states, thereby impliedly allowing continued
broadened since it would then apply even to aliens allegiance to the adopted state. The usual absolute
who are not native-born. Third, applying the renunciation is, however, required from those seeking
provisions of RA 9139 to judicial naturalization is public elective office or appointed to public office in
contrary to the intention of the legislature to liberalize the Philippines. Likewise, under the principle of
the naturalization procedure in the country. (Ibid.) derivative citizenship, the unmarried child, whether
legitimate, illegitimate or adopted, below 18 years of
Repatriation under RA 8171 age, of those who re-acquire Philippine citizenship
RA No. 8171, which lapse into law on October 23, upon the effectivity of RA 9225, shall be deemed
1995, is an act providing for the repatriation (a) of citizens of the Philippines.
Filipino women who have lost their Philippine
citizenship by marriage to aliens and (b) of natural- RA 9225 NOT violative of Section 5 of Article IV
born Filipinos who have lost their Philippine of the Constitution prohibiting dual allegiance
citizenship on account of political or economic Section 5 of Article IV of the Constitution is a mere
necessity, including their minor children. (Angat vs. declaration of policy and it is not a self-executing
Republic, GR No. 132244, September 14, 1999) Included provisions. The legislature still has to enact the law on
in the second group are minor children at the time of dual allegiance. In Section 2 and 3 of RA 9225, the
repatriation and does not include one who is no framers were not concerned with dual citizenship, per
longer minor at the time of his repatriation or one se, but with the status of naturalized citizens who
who lost his Philippine citizenship by operation of maintain their allegiance to their countries of origin
law. The loss of Philippine citizenship must be on even after their naturalization. Congress was given a
account of political or economic necessity and not by mandate to draft a law that would set specific
operation of law such as derivative naturalization, or parameters as to what really constitutes dual
for the purpose of avoiding deportation and allegiance. Until this is done, it would be premature
prosecution in the US. (Tabasa vs. CA, 500 SCRA 9) for the judicial department to rule on the issues
pertaining to dual allegiance. (Calilung vs. Datumanong,
Repatriation as a mode of reacquiring Philippine GR 160869, May 11, 2007
citizenship does not require the filing of a petition in
court. All that an applicant had to do is to take an oath Citizenship Reacquired by Repatriate Under
of allegiance to the Republic of the Philippines and Repatriation Laws
registering said oath in the Local Civil Registry of the Repatriation results in the recovery of the original
place where the person concerned resides or last nationality. This means that a naturalized Filipino
resided. (Angat, supra.) In addition thereto, registration who lost his citizenship will be restored to his prior
of the Certificate of Repatriation in the Bureau of status as a naturalized Filipino citizen. On the other
Immigration is a prerequisite in effecting the hand, if he was originally a natural-born citizen before
repatriation of a citizen. (Altarejos vs. COMELEC, 441 he lost his Philippine citizenship, he will be restored
Page 92 of 382
to his former status as a natural-born Filipino. (Bengson

III vs. HRET, et. al. GR No. 142840, May 7, 2001)
C. Naturalization and
Note: The issue of Citizenship may be threshed out as
the occasion demands. Res judicata only applies once a
Denaturalization
finding of citizenship is affirmed by the Court in a
proceeding in which: (a) the person whose citizenship Naturalization
is questioned is a party; (b) the person's citizenship is
raised as a material issue; and (c) the Solicitor General Concept
or an authorized representative is able to take an Process by which a foreigner is adopted by the
active part. country and clothed with the privileges of a native-
born citizen. The applicant must prove that he has all
When a person has already been declared and of the qualifications and none of the disqualifications
recognized as a Philippine Citizen, by the BI and the for citizenship.
DOJ, he must be protected from summary
deportation proceedings. A citizen is entitled to live Qualifications [Sec. 2, C.A. 473]
in peace, without molestation from any official or a. Not less than twenty-one years of age on the day
authority, and if he is disturbed by a deportation of the hearing of the petition;
proceeding, he has the unquestionable right to resort b. Resided in the Philippines for a continuous
to the courts for his protection, either by a writ of period of 10 years or more;
habeas corpus or of prohibition on the ground that c. Of good moral character; believes in the
the BI lacks jurisdiction [Republic v. Harp, G.R. No. principles underlying the Philippine Constitution;
188829 (2016)]. conducted himself in a proper and irreproachable
manner during the entire period of his residence
towards the government and community
d. Must own real estate in the Philippines worth
P5,000 or more OR must have lucrative trade,
profession, or lawful occupation;
e. Able to speak or write English or Spanish or
anyone of the principal languages; and
f. Enrolled his minor children of school age in any
of the recognized schools where Philippine
history, government and civics are taught or
prescribed as part of the school curriculum,
during the entire period of the residence in the
Philippines required of him.
Special Qualifications [Sec. 3, C.A. 473] – ANY will

result to reduction of the 10-year period to 5 years
a. Having honorably held office under the
Government of the Philippines or under that of
any of the provinces, cities, municipalities, or
political subdivisions thereof;
b. Established a new industry or introduced a useful
invention in the Philippines;
c. Married to a Filipino woman;
d. Engaged as a teacher in the Philippines in a public
or recognized private school not established for
the exclusive instruction of children of persons
of a particular nationality or race, in any of the
branches of education or industry for a period of
2 years or more; or
e. Born in the Philippines.
Page 93 of 382
Disqualifications [Sec. 4, C.A. 473] b. If, within the five years next following the
a. Persons opposed to organized government or issuance, he shall return to his native country or
affiliated with groups who uphold and teach to some foreign country and establish his
doctrines opposing all organized governments; permanent residence there;
b. Persons defending or teaching the necessity or c. Remaining for more than one year in his native
propriety of violence, personal assault, or country or the country of his former nationality,
assassination for the success of their ideas; or two years in any other foreign country, shall be
c. Polygamists or believers in polygamy; considered as prima facie evidence of his
d. Persons convicted of crimes involving moral intention of taking up his permanent residence in
turpitude; the same;
e. Persons suffering from mental alienation or d. Petition was made on an invalid declaration of
incurable contagious diseases; intention;
f. Persons who during the period of their stay, have e. Minor children of the person naturalized failed to
not mingled socially with the Filipinos, or who graduate from the schools mentioned in Sec. 2,
have not evinced a sincere desire to learn and through the fault of their parents, either by
embrace the customs, traditions, and ideals of the neglecting to support them or by transferring
Filipinos; them to another school or schools; or
g. Citizens or subjects of nations with whom the f. If he has allowed himself to be used as a dummy
Philippines is at war; or in violation of the Constitutional or legal
h. Citizens or subjects of a foreign country other provision requiring Philippine citizenship as a
than the United States, whose laws do not grant requisite for the exercise, use or enjoyment of a
Filipinos the right to become naturalized citizens right, franchise or privilege.
or subject thereof.
Naturalization is never final and may be revoked if
Burden of Proof one commits acts of moral turpitude [Republic v. Guy
The applicant must comply with the jurisdictional (1982)].
requirements, establish his or her possession of the
qualifications and none of the disqualifications Judgment directing the issuance of a certificate of
enumerated under the law, and present at least two (2) naturalization is a mere grant of a political privilege
character witnesses to support his allegations [Go v. and that neither estoppel nor res judicata may be
Republic of the Philippines, G.R. No. 202809 (2014)]. invoked to bar the State from initiating an action for
the cancellation or nullification of the certificate of
Petition for Judicial declaration of Philippine naturalization thus issued [Yao MunTek v. Republic
Citizenship: The petitioner believes he is a Filipino (1971)].
citizen and asks a court to declare or confirm his
status as a Philippine citizen.
Petition for Judicial Naturalization under CA 473:
the petitioner acknowledges he is an alien, and seeks
judicial approval to acquire the privilege of becoming
a Philippine citizen based on requirements required
under CA 473 [Republic v. Batuigas, supra].
Denaturalization
Concept
Process by which grant of citizenship is revoked.
Grounds [Sec. 18, C.A. 473]: Upon the proper

motion of the Sol. Gen. or the provincial fiscal,
naturalization may be cancelled when:
a. Naturalization certificate was fraudulently or
illegally obtained [See Po Soon Tek v. Republic, 60
SCRA 98 (1974)];
Page 94 of 382
naturalization. Hence, the phrase “dual citizenship”

D. Dual Citizenship and in R.A. No. 7160, sec. 40(d) and in R.A. No. 7854,
Dual Allegiance sec. 20 must be understood as referring to “dual
allegiance.”
Dual Citizenship Consequently, persons with mere dual citizenship do

not fall under this disqualification. For candidates
Allows a person who acquires foreign citizenship to with dual citizenship, it should suffice if, upon the
simultaneously enjoy the rights he previously held as filing of their certificates of candidacy, they elect
a Filipino citizen. This is completely voluntary, and Philippine citizenship to terminate their status as
results in the application of different laws of two or persons with dual citizenship considering that their
more states to a dual citizen. condition is the unavoidable consequence of
conflicting laws of different states.
Dual Allegiance
a. Aliens who are naturalized as Filipinos but
remain loyal to their country of origin;
b. Public officers who, while serving the
government, seek citizenship in another country.
Dual citizenship v. Dual Allegiance.

Dual citizenship arises when, as a result of the
concurrent application of the different laws of two or
more states, a person is simultaneously considered a
national by the said states. For instance, such a
situation may arise when a person whose parents are
citizens of a state which adheres to the principle of jus
sanguinis is born in a state which follows the doctrine
of jus soli. Such person, ipso facto and without any
voluntary act on his part, is concurrently considered a
citizen of both states.
Dual allegiance on the other hand, refers to a situation

in which a person simultaneously owes, by some
positive acts, loyalty to two or more states. While dual
citizenship is voluntary, dual allegiance is the result of
an individual’s volition. (Mercado vs. Manzano, 307
SCRA 630, May 29, 1999)
“Dual citizens” are disqualified from running for any

elective local position [Sec. 40(d), Local Government
Code,]; this should be read as referring to “dual
allegiance.”
Once a candidate files his candidacy, he is deemed to

have renounced his foreign citizenship in case of dual
citizenship [Mercado v. Manzano, G.R. No.
135083(1999)].
Clearly, in including Sec. 5 in Article IV on

citizenship, the concern of the Constitutional
Commission was not with dual citizens per se but with
naturalized citizens who maintain their allegiance to
their countries of origin even after their
Page 95 of 382
3. have good moral character

4. have no disqualification
E.Loss and Re-acquisition
b. Repatriation
Grounds Repatriation results in the recovery of the original
nationality. Therefore, if he is a natural-born
a. Naturalization in a foreign country [C.A. 63, citizen before he lost his citizenship, he will be
sec.1(1)]; restored to his former status as a natural-born
b. Express renunciation or expatriation [Sec.1(2), Filipino [Bengson III v. HRET, G.R. No. 142840
CA 63]; (2001)].
c. Taking an oath of allegiance to another country
upon reaching the age of majority; Mere filing of certificate of candidacy is not a
d. Marriage by a Filipino woman to an alien, if by sufficient act of repatriation. Repatriation
the laws of her husband’s country, she becomes requires an express and equivocal act [Frivaldo v.
a citizen thereof. COMELEC, G.R. No. 120295(1989)].
e. Accepting a commission and serving in the
armed forces of another country, unless there is In the absence of any official action or approval
an offensive/defensive pact with the country, or by proper authorities, a mere application for
it maintains armed forces in RP with RP’s repatriation does not, and cannot, amount to an
consent; automatic reacquisition of the applicant’s
f. Denaturalization; Philippine citizenship [Labo v. COMELEC, G.R.
g. Being found by final judgment to be a deserter of No, 86564 (1989)].
the AFP
c. Legislative Act: Both a mode of acquiring and
General Rule: Expatriation is a constitutional right. No reacquiring citizenship
one can be compelled to remain a Filipino if he does
not want to [Go Julian v. Government, G.R. No. 20809 R.A. No. 9225 (CITIZENSHIP RETENTION
(1923)]. AND REACQUISITION ACT OF 2003)
Exception: A Filipino may not divest himself of Sec. 3. Retention of Philippine Citizenship. —
Philippine citizenship in any manner while the Any provision of law to the contrary
Republic of the Philippines is at war with any country notwithstanding, natural-born citizens of the
[C.A. 63, sec. 1(3)]. Philippines who have lost their Philippine
citizenship by reason of their naturalization as
Loss of Philippine citizenship cannot be presumed. citizens of a foreign country are hereby deemed to
Considering the fact that admittedly, Osmeña was have re-acquired Philippine citizenship upon
both a Filipino and an American, the mere fact that taking the following oath of allegiance to the
he has a certificate stating that he is an American does Republic: xxx
not mean that he is not still a Filipino, since there has
been NO EXPRESS renunciation of his Philippine Natural-born citizens of the Philippines who, after
citizenship [Aznar v. COMELEC, G.R. No. the effectivity of this Act, become citizens of a
83820(1995)]. foreign country shall retain their Philippine
citizenship upon taking the aforesaid oath.
Reacquisition
Sec. 4 Derivative Citizenship. — The unmarried
a. Naturalization [C.A. 63 and C.A. 473]: Now an child, whether legitimate, illegitimate or adopted,
abbreviated process, no need to wait for 3 years below eighteen (18) years of age, of those who re-
(1 year for declaration of intent, and 2 years for acquire Philippine citizenship upon effectivity of
the judgment to become executory) this Act shall be deemed citizens of the
Philippines.
Requirements:
1. be 21 years of age Sec. 5. Civil and Political Rights and
2. be a resident for 6 months Liabilities. — Those who retain or re-acquire
Page 96 of 382
Philippine citizenship under this Act shall enjoy

full civil and political rights and be subject to all
F. Natural-born Citizens
attendant liabilities and responsibilities under and Public Office
existing laws of the Philippines and the following
conditions: . 1. The term "natural-born citizens," is defined
1. Those intending to exercise their right of to include "those who are citizens of the
suffrage must meet the requirements under Philippines from birth without having to
Sec. 1, Art. V of the Constitution, RA 9189, perform any act to acquire or perfect their
otherwise known as "The Overseas Absentee Philippine citizenship" [Tecson v.
Voting Act of 2003" and other existing laws; COMELEC, G.R. No. 161434 (2004)].
2. Those seeking elective public office in the
Philippines shall meet the qualifications for a. Citizens of the Philippines from birth without
holding such public office as required by the having to perform any act to acquire or perfect
Constitution and existing laws and, at the time their Philippine citizenship; and
of the filing of the certificate of candidacy, b. Those who elect Philippine citizenship in
make a personal and sworn renunciation of accordance with [Sec. 1(3), Art. IV]
any and all foreign citizenship before any c. natural-born citizen before he lost his Philippine
public officer authorized to administer an citizenship will be restored to his former status as
oath; a natural-born Filipino. (Bengson III vs. HRET, et.
3. Those appointed to any public office shall al. GR No. 142840, May 7, 2001)
subscribe and swear to an oath of allegiance to
the Republic of the Philippines and its duly A person who renounces all foreign citizenship under
constituted authorities prior to their Sec. 5(2) of RA 9225 recants this renunciation by
assumption of office: provided, that they using his foreign passport afterwards. [Maquiling v.
renounce their oath of allegiance to the COMELEC, G.R. No. 195649 (2013)].
country where they took that oath;
4. Those intending to practice their profession in 2. Who Must Be Natural-Born?
the Philippines shall apply with the proper
authority for a license or permit to engage in a. President [Sec. 2, Art. VII]
such practice; and b. Vice-President [Sec. 3, Art. VII]
5. That right to vote or be elected or appointed c. Members of Congress [Sec. 3 and 6, Art. VI]
to any public office in the Philippines cannot d. Justices of SC and lower collegiate courts [Sec.
be exercised by, or extended to, those who: 7(1), Art. VIII]
a. are candidates for or are occupying any e. Ombudsman and his deputies [Sec. 8, Art. XI]
public office in the country of which they f. Members of Constitutional Commissions:
are naturalized citizens; and/or 1. CSC [Sec. 1(1), Art. IX-B]
b. are in active service as commissioned or 2. COMELEC [Sec.1, Art. IX-C]
non-commissioned officers in the armed 3. COA [Sec. 1(1), Art. IX-D]
forces of the country which they are 4. Members of the central monetary authority
naturalized citizens. [Sec. 20, Art. XII]
5. Members of the Commission on Human
Rights [Sec. 17(2), Art. XIII]
The Constitutional provision (i.e. “whose fathers are

citizens”) does not distinguish between “legitimate”
or “illegitimate” paternity. Civil Code provisions on
illegitimacy govern private and personal relations, not
one’s political status [Tecson v. COMELEC, supra].
Page 97 of 382
VIII. NATIONAL B. Nationalist and

ECONOMY AND Citizenship Requirement
PATRIMONY Provisions
Filipino Filipino
Goals Filipino
Citizens, or Citizens, or
1. More equitable distribution of opportunities, Citizens, or
100% 70-30
income and wealth 60-40 Filipino
Filipino Filipino
2. Sustained increase in amount of goods and Corporations
Corporations Corporations
services produced by the nation for the benefit of
Co-production,
the people
Joint venture,
3. Expanding production as the key to raising the
and Production
quality of life for all, especially the
Use and sharing
underprivileged.
enjoyment of agreements
marine wealth, over natural Engagement
A. Regalian Doctrine exclusive to resources [Art. in advertising
Filipino XII, Sec. 2(1)] Industry [Art.
Sec. 2, Art. XII. All lands of the public domain, citizens [Art. Agreements XVI, Sec. 11]
waters, minerals, coal, petroleum, and other XII, Sec. 2, shall not exceed
mineral oils, all forces of potential energy, fisheries, par. 2] a period of 25
forests or timber, wildlife, flora and fauna, and years renewable
other natural resources are owned by the State. for another 25
With the exception of agricultural lands, all other years
natural resources shall not be alienated. Rules on
agricultural
The classification of public lands is an exclusive lands (Art.
Educational
prerogative of the Executive Department through the XII, Sec. 3)
Institutions
Office of the President [Republic v. Register of Deeds of (1) Citizens
[Art. XIV, Sec.
Quezon, G.R. No. 73974 (1995)]. may lease only
4(2)]
< 500 ha. (2)
Congress may
DOCTRINE OF NATIVE TITLE Citizens may
increase
Ownership over native land is already vested on acquire by
Filipino equity
natives even if they do not have formal titles [Cariño purchase,
participation.
v. Insular Government, 212 U.S. 449 (1909)]. homestead or
grant only <
12 ha.
Areas of
Investment as
Practice of Congress may
professions, prescribe
save in cases (Congress may
provided by prescribe a
law [Art. XII, higher
Sec. 14(2)] percentage)
[Art. XII, Sec.
10]
Small-scale Operation of
utilization of public utilities
natural [Art. XII, Sec.
resources, as 11] o Cannot be
may be for longer
provided by period than 50
Page 98 of 382
law [Art. XII, years o can dispose of the stock or direct another to dispose
Sec. 2(3)] Executive and of it for him, or both, i.e., he can vote and dispose of
managing that "specific stock" or direct another to vote or
officers must be dispose it for him, then such Filipino is the "beneficial
Filipino owner" of that "specific stock." Being considered
Filipino, that "specific stock" is then to be counted as
Note: The Constitution holds that private part of the 60% Filipino ownership requirement
corporations or associations may not hold alienable under the Constitution. The right to the dividends, jus
lands of the public domain except by lease, for a fruendi - a right emanating from ownership of that
period not exceeding 25 years, renewable for not "specific stock" necessarily accrues to its Filipino
more than 25 years, and not to exceed 1000 ha. in "beneficial owner" [Roy III v Herbosa, G.R. No. 207246
area, [Art. XII, Sec. 3] but the Const. does not specify (2016)].
the capital requirements for such corporations.
FILIPINO FIRST
A public utility is a business or service engaged in
regularly supplying the public with some commodity Art. XII, Sec. 10. In the grant of rights, privileges,
or service of public consequence. A joint venture falls and concessions covering the national economy
within the purview of an “association” pursuant to and patrimony, the State shall give preference to
Sec. 11, Art. XII and must comply with the 60%-40% qualified Filipinos. The State shall regulate and
Filipino foreign capitalization requirement [JG Summit exercise authority over foreign investments within
Holdings v. CA, G.R. No. 124293 (2000)]. its national jurisdiction and in accordance with its
national goals and priorities.
What “capital” is covered – The 60% requirement
applies to both the voting control and the beneficial The term “patrimony” pertains to heritage, and given
ownership of the public utility. Therefore, it shall the history of the Manila Hotel, it has become a part
apply uniformly, separately, and across the board to of our national economy and patrimony. Thus, the
all classes of shares, regardless of nomenclature or Filipino First policy provision of the Constitution is
category, comprising the capital of the corporation applicable. Such provision is per se enforceable, and
(e.g. 60% of common stock, 60% of preferred voting requires no further guidelines or implementing rules
stock, and 60% of preferred non-voting stock) or laws for its operation [Manila Prince Hotel v. GSIS,
[Gamboa v. Teves, G.R. No. 176579 (2012)]. G.R. No. 122156 (1997)].
Interpretation in line with Constitution’s intent to The Constitution does not impose a policy of Filipino
ensure a “self-reliant and independent national monopoly of the economic environment. It does not
economy effectively-controlled by Filipinos” [See rule out the entry of foreign investments, goods, and
Gamboa v. Teves, supra]. services. While it does not encourage their unlimited
entry into the country, it does not prohibit them
In the original decision, only the voting stocks were either. In fact, it allows an exchange on the basis of
subject to the 60% requirement [Id.]. equality and reciprocity, frowning only on foreign
competition that is unfair. The key, as in all economies
There is some controversy in the interpretation of the in the world, is to strike a balance between protecting
resolution on the motion for reconsideration. local businesses and allowing the entry of foreign
1. There is the question of whether the grandfather investments and services [Tañada v. Angara, G.R. No.
rule should be applied. 118295 (1997)].
2. The dispositive merely denied the MRs, but did
not reiterate the newer interpretation. Art. XII, Sec. 12. The State shall promote the
preferential use of Filipino labor, domestic
In any case, the released SEC guidelines comply with materials and locally produced goods, and adopt
the strictest interpretation of Gamboa v. Teves. measures that help make them competitive.
Note: If the Filipino has the voting power of the
"specific stock", i.e., he can vote the stock or direct
another to vote for him, or the Filipino has the
investment power over the "specific stock", i.e., he
Page 99 of 382
C. Exploration and exploration

obligations,
work
and
Development, and assumes all exploration
risks
Utilization of Natural Natural Resources Covered
Virtually the entire
Resources Minerals, petroleum
range of the country’s
and other mineral oils
natural resources
Par. 4, Sec. 2Art. XII. The President may enter Scope of Agreements
into agreements with foreign-owned corporations Contractor provides
involving either technical or financial assistance for financial or technical
large-scale exploration, development, and resources, undertakes
utilization of minerals, petroleum, and other the exploitation or
mineral oils according to the general terms and production of a given
conditions provided by law, based on real Involving either resource,or directly
contributions to the economic growth and general financial or technical manages the productive
welfare of the country. In such agreements, the assistance enterprise, operations
State shall promote the development and use of of the exploration and
local scientific and technical resources. exploitation of the
resources or the
The State, being the owner of the natural resources, is disposition of
accorded the primary power and responsibility in the marketing or resources
exploration, development and utilization thereof. As
such it may undertake these activities through four SERVICE CONTRACTS NOT PROHIBITED
modes: Even if supposing FTAAs are service contracts, the
1. The State may directly undertake such activities; latter are not prohibited under the Constitution.
2. The State may enter into co-production, joint
venture or production-sharing agreements with Justification: A verbalegis interpretation does not
Filipino citizens or qualified corporations; support an intended prohibition. The members of the
3. Congress may, by law, allow small-scale CONCOM used the terms “service contracts” and
utilization of natural resources by Filipino “financial and technical assistance” interchangeably
citizens; or [La Bugal-B’laan Tribal Assn. v. Ramos, G.R. No.
4. For the large-scale exploration, development and 127882 (Dec. 2004)].
utilization of minerals, petroleum and other
mineral oils, the President may enter into The following are valid:
agreements with foreign-owned corporations 1. Financial and Technical Assistance
involving technical or financial assistance [La Agreements (FTAA): not a prohibited
BugalB’Laan v. Ramos, G.R. No. 127882 (Jan. agreement in the contemplation of the
2004)]. Constitution
2. Philippine Mining Law (RA 7942)
FTAA (1987 Service Contract 3. Its Implementing Rules and Regulations,
Constitution) (1973 Constitution) insofar as they relate to financial and technical
Parties agreements [La Bugal-B’laan Tribal Assn. v. Ramos,
A Filipino citizen, supra (Dec. 2004)]
Only the President (in corporation or
behalf of the State), and association with a The Constitution should be construed to grant the
only with corporations “foreign person or President and Congress sufficient discretion and
entity” reasonable leeway to enable them to attract foreign
Size of Activities investments and expertise, as well as to secure for our
Contractor provides all people and our posterity the blessings of prosperity
Only large-scale and peace.
necessary services and
exploration,
technology and the
development and It is not unconstitutional to allow a wide degree of
requisite financing,
utilization discretion to the Chief Executive, given the nature
performs the
Page 100 of 382

and complexity of such agreements, the humongous

amounts of capital and financing required for large- Requisites for a valid service contract under the
scale mining operations, the complicated technology Constitution
needed, and the intricacies of international trade, 1. A general law that will set standards or uniform
coupled with the State’s need to maintain flexibility in terms, conditions, and requirements
its dealings, in order to preserve and enhance our 2. The president shall be the signatory for the
country’s competitiveness in world markets [La Bugal- government
B’laan Tribal Assn. v. Ramos, supra (Dec. 2004)]. 3. Within thirty (30) days of the executed
agreement, the President shall report it to
In the exploration, development and utilizationof Congress [La Bugal-B’laan Tribal Assn. v. Ramos,
natural resources the State may undertake these supra (Dec. 2004)].
activities through four modes:
1. The State may directly undertake such activities; Paragraph 4, Section 2, Article II of the 1987
2. The State may enter into co-production, joint Philippine Constitution requires that the President
venture or production-sharing agreements with himself enter into any service contract for the
Filipino citizens or entities at least 60% of whose exploration of petroleum. Service Contract 46
capital is owned by such citizens; appeared to have been entered into and signed only
3. Congress may, by law, allow small scale by the Department of Energy through its then
utilization of natural resources by Filipino Secretary, Vicente S. Perez, Jr., contrary to the said
citizens (RA 7006 – People’s Small-Scale Mining constitutional requirement. Moreover, public
Act of 1991 and other pertinent laws); and respondents have neither shown nor alleged that
4. For the large scale exploration, development and Congress was subsequently notified of the execution
utilization of minerals, petroleum and other of such contract.(Resident Marine Mammals of the
mineral oils, the President may enter into Protected Seascape Tanon Strait v. Reyes, G.R. No. 180771,
agreements with foreign-owned corporations April 21, 2015)
involving technical or financial assistance, (RA 79
42 ) subject to the following limitations: a) As to
Parties. Only the President, in behalf of the State,
may enter into these agreements, and only with
corporations. b) As to Size of the Activities. Only
large scale exploration, development and
utilization is allowed, i.e., very capital-intensive
activities. c) The natural resources subject of the
activities is restricted to minerals, petroleum and
other mineral oils, the intent being to limit
service contracts to those areas where Filipino
capital may not be sufficient. d) Consistency with
the Provisions of Statute. The FTAA must be in
accordance with the terms and conditions
provided by law. e) The FTAA must be based on
real contributions to economic growth and
general welfare of the country. f) The FTAA
must contain rudimentary stipulations for the
promotions of the development and use of local
scientific and technical resources. G)
Notification Requirement. The President shall
notify Congress of every FTAA entered into
within 30 days from its execution. H) Scope of
the FTAA. Only for agreements involving either
financial or technical assistance and does not
include “service contracts” and “management or
other forms of assistance.” (La Bugal-B’laan Tribal
Association, Inc., GR No. 127882, January 27, 2004)
Page 101 of 382

D. Franchises, Authority, E. Acquisition, Ownership,

and Certificates for and Transfer of Public
Public Utilities and Private Lands
Franchise, certificate or any other form of Lands of the Public Domain are classified into:
authorization for the operation of public utilities – 1. Agricultural Lands
ONLY to citizens of the Philippines, or corporations 2. Forest or Timber Lands
at least 60% of whose capital is Filipino-owned [Art. 3. Mineral Lands
VII, Sec. 11]. 4. National Park [Art. XII, Sec. 3]
NATURE OF A FRANCHISE Note: The classification of public lands is a function of

1. It is a privilege not a right the executive branch, specifically the Director of the
2. Shall NOT be exclusive; Land Management Bureau (formerly Director of
3. Shall NOT be for a period of more than 50 years; Lands). The decision of the Director, when approved
4. Shall be subject to amendment, alteration or by the Secretary of the DENR, as to questions of fact,
repeal by Congress [Id.]. is conclusive upon the courts [Republic v. Imperial, G.R.
No. 130906, (1999)].
Congress does not have the exclusive power to issue
franchises. Administrative bodies (i.e. LTFRB, Alienable lands of the public domain shall be limited
Energy Regulatory Board) may be empowered by law to agricultural lands [Sec. 3, Art. XII].
to do so. [Albano v. Reyes, G.R. No. 83551 (1989)].
To prove that the land subject of an application for
What constitutes a public utility is not the ownership registration is alienable, an applicant must
but the use to the public. The Constitution requires a conclusively establish the existence of a positive act of
franchise for the operation of public utilities. the government such as a presidential proclamation
However, it does not require a franchise before one or an executive order or a legislative act or statute
can own the facilities needed to operate a public utility [Republic v. Candymaker, Inc., G.R. No. 163766 (2006)].
so long as it does not operate them to serve the public
[Tatad v. Garcia, G.R. No. 114222], e.g. X Company Foreshore land is that part of the land which is
may own an airline without the need of a franchise. between the high and low water, and left dry by the
But in operating an air transport business, franchise is flux and reflux of the tides. It is part of the alienable
required. land of the public domain and may be disposed of
only by lease and not otherwise [Republic v. Imperial,
supra].
Private corporations or associations may not hold

such alienable lands of public domain except by lease,
for a period not exceeding 25 years, and not to exceed
1000 hectares in area.
Citizens of the Philippines may lease not more than

500 ha., or acquire not more than 12 hectares thereof
by purchase, homestead, or grant [Sec. 3, Art. XII].
PRIVATE LANDS
General Rule: No private lands shall be transferred or
conveyed except to individuals, corporations, or
associations qualified to acquire or hold lands of the
public domain [Sec. 7, Art. XII].
Page 102 of 382

Exceptions: Under this set up, the ownership of the land is legally
1. Hereditary succession [Art. XII, Sec. 7] separated from the unit itself. The land is owned by a
2. A natural-born citizen of the Philippines who has Condominium Corporation and the unit owner is
lost his Philippine citizenship may be a transferee simply a member in this Condominium Corporation.
of private lands, subject to limitations provided As long as 60% of the members of this Condominium
by law. [Art. XII, Sec. 8] Corporation are Filipinos, the remaining members
can be foreigners [Hulst v. PR Builders, G.R. No.
The primary purpose of the constitutional prohibition 156364(2008)].
disqualifying aliens from acquiring lands of the public
domain and private lands is the conservation of the In Ting Ho, Jr. vs. TengGui 558 SCRA 421, a Chinese
national economy and patrimony. A German citizen citizen acquired a parcel of land, together with the
married to a Filipino woman and eventually separated improvements thereon. Upon his death, his heirs
and filed a petition for separation of properties and claimed the properties as part of the estate of their
prayed for the reimbursement of the amount the deceased father, and sought the partition of said
foreign husband advanced for the purchase of the properties among themselves. The Court, however,
parcel of land, is disqualified from owning lands in the excluded the land and improvements thereon from
Philippines. Where the purchase is made in violation the estate precisely because he never became the
of an existing statute, no trust can result in favor of owner thereof in the light of the constitutional
the guilty party. To allow reimbursement would in prohibition.
effect permit him to enjoy the fruits of the property
which he is not allowed to own. The sale of land as to In Matthews vs. Taylor, GR No. 164584, June 22, 2009,
him is null and void. In any event, he had and has no the Court upheld the validity of an Agreement of
capacity or personality to question the subsequent sale Lease of a parcel of land entered into by a Filipino
of the same property by his wife on the theory that he wife without the consent of her British husband.
is merely exercising the prerogative of the husband in Being an alien, the husband is absolutely prohibited
respect to conjugal property. To sustain such a theory from acquiring private and public lands in the
would permit indirect contravention of the Philippines even if he claims that he provided funds
constitutional prohibition. (Muller vs. Muller, GR for such acquisition. He had and has no capacity or
149615, August 29,2006) personality to question the subsequent lease of the
Boracay property by his wife on the theory that in so
Consequence of sale to non-citizens: Any sale or doing, he was merely exercising the prerogative of a
transfer in violation of the prohibition is null and void husband in respect of conjugal property. If the
[Ong Ching Po v. CA, G.R. No. 113472-73 (1994)]. property were to be declared conjugal, this would
When a disqualified foreigner later sells it to a accord the alien husband a substantial interest and
qualified owner (e.g. Filipino citizen), the defect is right over the land, as he would then have a decisive
cured. The qualified buyer owns the land [SeeHalili v. vote as to its transfer or disposition. This is a right
CA, G.R. No. 113538 (1998)]. that the Constitution does not permit him to have.
Can a former owner file an action to recover the property? Yes. In Borromeo vs. Descalar, GR No. 159310, February 24,
The Court in Philippine Banking Corp. v. Lui She [G.R. 2009, the Court reiterated the consistent ruling that if
No. L-17587 (1967)] abandoned the application of the land is validly transferred to an alien who
principle of in pari delicto. Thus, the action will lie. subsequently becomes a Filipino citizen or transfers it
to a Filipino, the flaw in the original transaction is
However, land sold to an alien which was later considered cured and the title of the transferee is
transferred to a Filipino citizen OR when the alien rendered valid.
later becomes a Filipino citizen can no longer be
recovered by the vendor, because there is no longer
any public policy involved [Republic v. IAC, G.R. No.
74170 (1989].
Foreigners are allowed to own condominium units

and shares in condominium corporations up to not
more than 40% of the total and outstanding capital
stock of a Filipino-owned or controlled corporation.
Page 103 of 382

F. Practice of Professions G.Organization and

Sec. 14, Art. XII.The practice of all profession in
Regulation of
the Philippines shall be limited to Filipino citizens, Corporations, Private and
save in the case prescribed by law.
Public (Stewardship
Like the legal profession, the practice of medicine is
not a right but a privilege burdened with conditions
Concept)
as it directly involves the very lives of the people. A
fortiori, this power includes the power of Congress to Sec. 6, Art. XII. The use of property bears a social
prescribe the qualifications for the practice of function, and all economic agents shall contribute
professions or trades which affect the public welfare, to the common good. Individuals and private
the public health, the public morals, and the public groups, including corporations, cooperatives, and
safety; and to regulate or control such professions or similar collective organizations, shall have the right
trades, even to the point of revoking such right to own, establish, and operate economic
altogether [Imbong v. Ochoa, supra]. enterprises, subject to the duty of the State to
promote distributive justice and to intervene when
The Philippines allows Japanese nationals to practice the common good so demands.
the medical profession, provided he has taken and
passed the medical board examination and upon Sec. 6, Art. XIII. The State shall apply the
submission of a proof of reciprocity between Japan principles of agrarian reform or stewardship,
and the Philippines in admitting foreigners into the whenever applicable in accordance with law, in the
practice of medicine. It is enough that the laws in the disposition or utilization of other natural
foreign country permit a Filipino to get license and resources, including lands of the public domain
practice therein. Philippine laws do not require that under lease or concession suitable to agriculture,
the conditions for the practice of medicine in the subject to prior rights, homestead rights of small
other country are practical and attainable by Filipinos. settlers, and the rights of indigenous communities
The license to practice medicine is a privilege or to their ancestral lands.
franchise granted by the government. However, the
power to regulate the exercise of a profession or
pursuit of an occupation cannot be exercised by the
State or its agents in an arbitrary, despotic or
oppressive manner. (Board of Medicine vs. Ota, 558
SCRA 234)
Page 104 of 382

competition. Restrictions upon trade may be upheld

H. Monopolies, Restraint of when not contrary to public welfare and not greater
Trade and Unfair than is necessary to afford a fair and reasonable
protection to the party in whose favor it is imposed
Competition [Avon v. Luna, G.R. No. 153674 (2006)].
Sec. 19, Art. XII. The State shall regulate or CENTRAL MONETARY AUTHORITY [Sec.
prohibit monopolies when the public interest so 20, Art. XII]
requires. No combinations in restraint of trade or
unfair competition shall be allowed. Functions:
1. Provide policy directions in the areas of money,
Although the Constitution enshrines free enterprise banking, and credit;
as a policy, it nevertheless reserves to the 2. Supervise the operations of banks;
Government the power to intervene whenever 3. Exercise such regulatory powers as may be
necessary for the promotion of the general welfare provided by law over the operations of finance
[Association of Philippine Coconut Dessicators v. Philippine companies and other institutions performing
Coconut Authority, G.R. No. 110526 (1998)]. similar functions
The Constitution does not totally prohibit the Qualifications of the Governors:
operation of monopolies. It mandates the State to 1. Natural-born Filipino;
regulate them when public interest so requires. 2. Known probity, integrity and patriotism;
(EASCO vs. LTFRB, 413 SCRA 75) 3. Majority shall come from the private sector
Monopolies are not per se prohibited by the Subject to such other qualifications and
Constitution but may be permitted to exist to aid the disabilities as may be provided by law
government in carrying on an enterprise or to aid in
the performance of various services and functions in Until the Congress otherwise provides, the Central
the interest of the public. Nonetheless, a Bank of the Philippines operating under existing laws,
determination must first be made as to whether public shall function as the central monetary authority.
interest requires a monopoly. As monopolies are Currently, the central monetary authority is the
subject to abuses that can inflict severe prejudice to Bangko Sentral ng Pilipinas.
the public, they are subject to a higher level of State
regulation than an ordinary business undertaking
[Agan, Jr. v. PIATCO, G.R. No. 155001 (2003)].
Despite the fact that our present Constitution

enshrines free enterprise as a policy, nonetheless, the
Government reserves the power to intervene to
promote the general welfare. Free enterprise does not
call for removal of protective regulations. It must be
clearly explained and proven by competent evidence
just exactly how such protective regulation would
result in the restraint of trade. (Pharmaceutical and
Health Care Association of the Philippines vs. Duque, GR
173034, October 9, 2007)
An “exclusivity clause” in contracts is allowed. An
“exclusivity clause” is defined as agreements which
prohibit the obligor from engaging in "business" in
competition with the obligee.
Contracts requiring exclusivity are not per se void.

Each contract must be viewed vis-à-vis all the
circumstances surrounding such agreement in
deciding whether a restrictive practice should be
prohibited as imposing an unreasonable restraint on
Page 105 of 382

IX. SOCIAL JUSTICE persons, and of bringing about "the greatest good to
the greatest number" [Calalang v. Williams, G.R. 47800
AND HUMAN (1940)].
RIGHTS Social Justice, as the term suggests, should be used

only to correct an injustice. Magkalas cannot take
solace in this provision, considering that the NHA’s
A. Concept of Social Justice order of relocating petitioner to her assigned lot and
demolishing her property on account of her refusal to
vacate was consistent with the Urban Development
Sec. 10, Art. II. The State shall promote social and Housing Act’s fundamental objective of
justice in all phases of national development.
promoting social justice in the manner that will inure
to the common good [Magkalas v. National Housing
Sec. 1, Art. XIII. The Congress shall give highest Authority, G.R. No. 138823 (2008)].
priority to the enactment of measures that protect
and enhance the right of all the people to human
dignity, reduce social, economic, and political
inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for
the common good.
To this end, the State shall regulate the acquisition,

ownership, use, and disposition of property and its
increments.
Sec. 2, Art. XIII. The promotion of social justice

shall include the commitment to create economic
opportunities based on freedom of initiative and
self-reliance.
Social justice is "neither communism, nor

despotism, nor atomism, nor anarchy," but the
humanization of laws and the equalization of social
and economic forces by the State so that justice in its
rational and objectively secular conception may at
least be approximated. Social justice means the
promotion of the welfare of all the people, the
adoption by the Government of measures calculated
to insure economic stability of all the competent
elements of society, through the maintenance of a
proper economic and social equilibrium in the
interrelations of the members of the community,
constitutionally, through the adoption of measures
legally justifiable, or extra-constitutionally, through
the exercise of powers underlying the existence of all
governments on the time-honored principle of salus
populi est suprema lex. Social justice, therefore, must be
founded on the recognition of the necessity of
interdependence among divers and diverse units of a
society and of the protection that should be equally
and evenly extended to all groups as a combined force
in our social and economic life, consistent with the
fundamental and paramount objective of the state of
promoting the health, comfort, and quiet of all
Page 106 of 382

documents or other evidence is necessary or

B. Commission on Human convenient to determine the truth in any
Rights investigation conducted by it or under its
authority;
9. Request the assistance of any department,
Sec. 17, Art. XIII. There is hereby created an bureau, office, or agency in the performance of
independent office called the Commission on its functions;
Human Rights. 10. Appoint its officers and employees in accordance
with law; and
The Commission shall be composed of a 11. Perform such other duties and functions as may
Chairman and four Members who must be natural-
be provided by law. [Sec. 18, Art. XIII]
born citizens of the Philippines and a majority of
whom shall be members of the Bar. The term of
As should at once be observed, only the first of
office and other qualifications and disabilities of
the enumerated powers and functions bears any
the Members of the Commission shall be provided resemblance to adjudication or adjudgment. The
by law. Constitution clearly and categorically grants to
the Commission the power to investigate all
Until this Commission is constituted, the existing forms of human rights violations involving civil
Presidential Committee on Human Rights shall
and political rights. But it cannot try and decide
continue to exercise its present functions and
cases (or hear and determine causes) as courts of
powers.
justice, or even quasi-judicial bodies do. To
investigate is not to adjudicate or adjudge.
The approved annual appropriations of the Whether in the popular or the technical sense,
Commission shall be automatically and regularly these terms have well understood and quite
released. distinct meanings [Cariño v. CHR, G.R. No. 96681
(1991)].
Powers and functions
1. Investigate, on its own or on complaint by any
party, all forms of human rights violations
involving civil and political rights;
2. Adopt its operational guidelines and rules of
procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court;
3. Provide appropriate legal measures for the
protection of human rights of all persons within
the Philippines, as well as Filipinos residing
abroad, and provide for preventive measures and
legal aid services to the under-privileged whose
human rights have been violated or need
protection;
4. Exercise visitorial powers over jails, prisons, or
detention facilities;
5. Establish a continuing program of research,
education, and information to enhance respect
for the primacy of human rights;
6. Recommend to Congress effective measures to
promote human rights and to provide for
compensation to victims of violations of human
rights, or their families;
7. Monitor the Philippine Government's
compliance with international treaty obligations
on human rights;
8. Grant immunity from prosecution to any person
whose testimony or whose possession of
Page 107 of 382

X. EDUCATION, discipline, encourage critical and creative

thinking, broaden scientific and technological
SCIENCE, knowledge,
efficiency.
and promote vocational
TECHNOLOGY, 3. At the option expressed in writing by the

parents or guardians, religion shall be allowed
ARTS, CULTURE to be taught to their children or wards in
public elementary and high schools within the
AND SPORTS regular class hours by instructors designated
or approved by the religious authorities of the
Right to Education Provisions [Art. XIV] religion to which the children or wards belong,
without additional cost to the Government.
Sec. 1. The State shall protect and promote the
right of all citizens to quality education at all levels, Note: Sec. 3(2) of Art. XIV refers to the constitutional
and shall take appropriate steps to make such duty of educational institutions in teaching the values
education accessible to all. of patriotism and nationalism and respect for human
rights. Clearly, with respect to these provisions, there
is no direct or indirect prohibition to Marcos’
Sec. 2. The State shall: interment at the LNMB [Ocampo v. Enriquez, G.R. No.
1. Establish, maintain, and support a complete, 225973 (2016)].
adequate, and integrated system of education
relevant to the needs of the people and
society; A. Academic Freedom
2. Establish and maintain, a system of free public
education in the elementary and high school Sec. 5. (2)Academic freedom shall be enjoyed in
levels. Without limiting the natural rights of all institutions of higher learning.
parents to rear their children, elementary
education is compulsory for all children of Four essential freedoms of a university:
school age; 1. Who may teach
3. Establish and maintain a system of 2. What may be taught
scholarship grants, student loan programs, 3. How it shall teach
subsidies, and other incentives which shall be 4. Who may be admitted to study [Garcia v. Faculty
available to deserving students in both public Admission Committee, 68 SCRA 277 (1975) citing J.
and private schools, especially to the under- Frankfurter, concurring in Sweezy v. New
privileged; Hampshire, 354 US 232 (1937)]
4. Encourage non-formal, informal, and
indigenous learning systems, as well as self- Institutional academic freedom includes the right
learning, independent, and out-of-school of the school or college to decide for itself, its aims
study programs particularly those that and objectives, and how best to attain them free from
respond to community needs; and outside coercion or interference save possibly when
5. Provide adult citizens, the disabled, and out- the overriding public interest calls for some restraint.
of-school youth with training in civics,
vocational efficiency, and other skills. The right to discipline the student likewise finds
basis in the freedom "what to teach." Indeed, while it
Sec. 3. 1. All educational institutions shall include is categorically stated under the Education Act of
the study of the Constitution as part of the 1982 that students have a right "to freely choose their
curricula. field of study, subject to existing curricula and to
2. They shall inculcate patriotism and continue their course therein up to graduation," such
nationalism, foster love of humanity, respect right is subject to the established academic and
for human rights, appreciation of the role of disciplinary standards laid down by the academic
national heroes in the historical development institution [DLSU Inc., v. CA, G.R. No. 127980
of the country, teach the rights and duties of (2007)].
citizenship, strengthen ethical and spiritual
values, develop moral character and personal
Page 108 of 382

The PMA, as the primary training and educational

institution of the AFP, has the right to invoke
academic freedom in the enforcement of its internal
rules and regulations, which are the Honor Code and
the Honor System in particular [Cudia v. PMA
Superintendent, G.R. No. 211362 (2015)].
Note: Premarital sexual relations between two

consenting adults who have no impediment to marry
each other, and, consequently, conceiving a child out
of wedlock, gauged from a purely public and secular
view of morality, does not amount to a disgraceful or
immoral conduct (unbecoming of an employee of a
Catholic school) under Section 94(e) of the 1992
Manual of Regulations of Private Schools (MRPS)
[Leus v. St. Scholastica’s College Westgrove, G.R. No.
187226 (2015)].
Highest budgetary priority to education
The State shall assign the highest budgetary priority to

education and ensure that teaching will attract and
retain its rightful share of the best available talents
through adequate remuneration and other means of
job satisfaction and fulfillment [Sec. 5 (5), Art. XIV].
Allocation of larger share to debt service vis-àvis

education is not unconstitutional. –The DECS
already has the highest budgetary allocation among all
department budgets. Congress can exercise its
judgment and power to appropriate enough funds to
reasonably service debt. Sec. 5(5) of Art. XIV is
directive [Guingona v. Carague, G.R. No. 94571 (1991)].
Section 15, Article XIV of the Constitution, which

deals with the subject of arts and culture, provides
that "[t]he State shall conserve, promote and the
nation's historical and cultural heritage and resources
xx ." Since this provision is not self-executory,
Congress passed laws dealing with the preservation
and conservation of our cultural heritage [Knights of
Rizal v. DMCI Homes, Inc., G.R. No. 213948 (2017)
Page 109 of 382

CONSTITUTIONAL LAW II
Political Law
Page 110 of 382

U.P. LAW BOC CONSTITUTIONAL LAW II POLITICAL LAW
XI. BILL OF RIGHTS Police power has been properly characterized as the
most essential, insistent, and the least limitable of
powers, extending as it does to all the great public
A. Fundamental Powers of needs [Ermita-Malate Hotel and Motel Operators Ass’n v.
City of Manila, supra].
the State
Implements on Police Power
a. Taxation may be used as an implement of police
Police Power power [Lutz v. Araneta, G.R. No. L-7859 (1955)].
b. Eminent domain may be used as an implement to
Definition attain the police objective [Association of Small
It is the inherent and plenary power of the state which Landowners v. Secretary of Agrarian Reform, G.R. No.
enables it to prohibit all that is hurtful to the comfort, 78742 (1989)].
safety and welfare of society [Ermita-Malate Hotel and
Motel Operators Association, Inc. v. Mayor of Manila, G.R. Specific Coverage
No. L-24693 (1967)]. a. Public Health
b. Public Safety
The police power of the state is a power coextensive c. Public Morals
with self-protection, and is not inaptly termed the d. General Welfare [Abe v. Foster Wheeler Corporation,
“law of overruling necessity” [Rubi v. Provincial Board of G.R. Nos. L-14785 & L-14923 (1960)]
Mindoro, G.R. No. L-14078 (1919)].
WHO MAY EXERCISE
Police power, while incapable of an exact definition,
has been purposely veiled in general terms to Generally: Legislature
underscore its comprehensiveness to meet all
exigencies and provide enough room for an efficient Delegated
and flexible response as the conditions warrant” a. President
[White Light Corporation v. City of Manila, G.R. No. b. Administrative Bodies
122846 (2009)]. c. Law-making Bodies of LGU’s
SCOPE AND LIMITATIONS Limitations on Delegation of Police Power

a. Express grant by law [e.g. Secs. 16, 391, 447, 458
General Coverage and 468, R.A. 7160, for LGUs]
b. Limited within its territorial jurisdiction [for local
The state, in order to promote the general welfare, government units]
may interfere with personal liberty, with property, and c. Must not be contrary to law.
with business and occupations. Persons may be
subjected to all kinds of restraints and burdens, in TEST OF VALID EXERCISE
order to secure the general comfort, health and a. Means Purpose Test
prosperity of the state and to this fundamental aim of 1. Lawful means: the means employed are
our Government, the rights of the individual are reasonably necessary for the
subordinated [Ortigas and Co., Limited Partnership v. accomplishment of the purpose and not
Feati Bank and Trust Co., G.R. No. L-24670 (1979)]. unduly oppressive upon individuals [Planters
Products v. Fertiphil Corporation, G.R. No.
As police power derives its existence from the very 166006 (2008)].
existence of the State itself, it does not need to be 2. Lawful subject: the interests of the public,
expressed or defined in its scope. XXX So it is that generally, as distinguished from those of a
Constitutions do not define the scope or extent of the particular class, require such interference
police power of the State; what they do is to set forth [Ichong v. Hernandez, supra].
the limitations thereof. The most important of these b. Reasonability Test
are the due process clause and the equal protection The limit to police power is reasonability. The
clause [Ichong v. Hernandez, G.R. No. L-7995 (1957)]. Court looks at the test of reasonability to decide
whether it encroaches on the right of an
individual. So long as legitimate means can
Page 111 of 382

reasonably lead to create that end, it is reasonable The Court will not inquire into the motives of the
[Morfe v. Mutuc, G.R. No. L-20387 (1968)]. Legislature, nor pass upon matters of legislative
judgment. It may not annul the legislation if not
PWD Mandatory Discount is a valid exercise of palpably in excess of legislative power [Ichong v.
Police Power Hernandez, supra].
The PWD mandatory discount on the purchase of
medicine is supported by a valid objective or purpose
as aforementioned. It has a valid subject considering
Eminent Domain
that the concept of public use is no longer confined
Definition
to the traditional notion of use by the public, but held
The right of eminent domain is the ultimate right of
synonymous with public interest, public benefit,
the sovereign power to appropriate, not only the
public welfare, and public convenience. As in the case
public but the private property of all citizens within
of senior citizens, the discount privilege to which the
the territorial sovereignty, to public purpose [Republic
PWDs are entitled is actually a benefit enjoyed by the
v. Heirs of Borbon, G.R. No. 165354 (2015)].
general public to which these citizens belong. The
means employed in invoking the active participation
Scope and limitations
of the private sector, in order to achieve the purpose
The exercise of such right is not unlimited, for two
or objective of the law, is reasonably and directly
mandatory requirements should underlie the
related. Also, the means employed to provide a fair,
Government’s exercise of the power of eminent
just and quality health care to PWDs are reasonably
domain, namely: (1) that it is for a particular public
related to its accomplishment, and are not oppressive,
purpose; and (2) that just compensation be paid to the
considering that as a form of reimbursement, the
property owner [Mactan-Cebu International Airport
discount extended to PWDs in the purchase of
Authority v. Lozada, Sr., G.R. No. 176625 (2010)].
medicine can be claimed by the establishments as
allowable tax deductions pursuant to Section 32 of
It is well settled that eminent domain is an inherent
R.A. No. 9442 as implemented in Section 4 of DOF
power of the State that need not be granted even by
Revenue Regulations No. 1-2009. Otherwise stated,
the fundamental law. Sec. 9, Art. III merely imposes a
the discount reduces taxable income upon which the
limit on the government’s exercise of this power
tax liability of the establishments is computed.
[Republic v. Tagle, G.R. No. 129079 (1998)].
To avail of the discount, the PWD must not only
WHO MAY EXERCISE
present his I.D. but also the doctor's prescription
stating, among others, the generic name of the
Generally: Legislature
medicine, the physician's address, contact number
and professional license number, professional tax
Delegated (via charter)
receipt number and narcotic license number, if
a. LGUs
applicable. A purchase booklet issued by the local
b. Other Government entities
social/health office is also required in the purchase of
over-the-counter medicines. Likewise, any single
The repository of eminent domain powers is
dispensing of medicine must be in accordance with
legislature, i.e. exercised through the enactment of
the prescription issued by the physician and should
laws. But power may be delegated to LGUs and other
not exceed a one (1) month supply. Therefore, as
government entities (via charter); still, the delegation
correctly argued by the respondents, Section 32 of
must be by law [Manapat v. CA, G.R. No. 110478
R.A. No. 7277 as amended by R.A. No. 9442
(2007)].
complies with the standards of substantive due
process [Drugstores Association of the Philippines, Inc. v.
REQUISITES
National Council on Disability Affairs, G.R. No. 194561
(2016)].
a. Necessity
The necessity must be of public character. It is a
Subject to judicial inquiry
political question when power is exercised by
Legislature’s determination as to what is a proper
Congress, whilst generally justiciable when
exercise of its police powers is not final or conclusive
exercised by a delegate (except when delegation
[US v. Toribio, G.R. No. L-5060 (1910)].
is grant of authority for special purpose).
Page 112 of 382

b. Private property be paid. Anything taken by virtue of police power is

All private property capable of ownership may be not compensable (e.g. abatement of a nuisance), as
expropriated, except money and things in action. usually property condemned under police power is
It may include services. noxious [DESAMA v. Gozun, G.R. No. 157882
(2006)].
c. Taking
There is taking of property when the following Agrarian reform
are present [Republic v. Castellvi, G.R. No. L-20620 When the State exercises the power of eminent
(1974)]: domain in the implementation of its agrarian reform
1. the expropriator must enter a private program, the constitutional provision which governs
property is Section 4, Article XIII of the Constitution. Notably,
2. the entrance into private property must be this provision also imposes upon the State the
for more than a momentary period obligation of paying the landowner compensation for
3. the entry into the property should be under the land taken, even if it is for the government’s
warrant or color of legal authority agrarian reform purposes [Land Bank of the Philippines
4. the property must be devoted to a public use v. Honeycomb Farms Corporation, G.R. No. 169903
5. the utilization of the property ousts the (2012)].
owner and deprives him of all beneficial
enjoyment of the property Taxation
d. Public Use Definition
Public use includes not only use directly available It is the enforced proportional contributions exacted
to the public but also those which redound to by the State from persons and properties pursuant to
their indirect benefit [Heirs of Ardona v. Reyes, G.R. its sovereignty in order to support the government
Nos. L-60549, 60553-55 (1983)]. and to defray all the public needs [Mandanas v.
Purisima, G.R. No. 199802 (2018)].
e. Just Compensation
Just compensation is defined as the full and fair It is as broad as the purpose for which it is given.
equivalent of the property taken from its owner
by the expropriator. The measure is not the Purpose
taker’s gain but the owner’s loss. Without just a. To raise revenue
compensation, expropriation is not b. Tool for regulation
consummated. c. Protection/power to keep alive
When determined: The general rule is that the value Tax for special purpose
of just compensation is determined at the time of Treated as a special fund and paid out for such
the filing of the complaint for expropriation [Sec purpose only; when purpose is fulfilled, the balance,
4, Rule 64, ROC]. Exception: At the time of taking, if any shall be transferred to the general funds of the
when taking precedes filing of the complaint. Government [Sec. 29 (3), Art. VI].
• Inflation will not be considered in
determining the value of just compensation Judicial review for unconscionable and unjust tax
[Nepomuceno v. CA, G.R. No. 166246 (2008)]. amounting to confiscation of property
• The value is the full and fair equivalent of the The legislature has discretion to determine the nature,
property taken; the fair market value of the object, extent, coverage, and situs of taxation. But
property. where a tax measure becomes so unconscionable and
unjust as to amount to confiscation of property,
Difference between eminent domain and courts will not hesitate to strike it down; the power to
regulatory taking tax cannot override constitutional prescriptions [Tan
Eminent domain is an inherent power of the state v. del Rosario, G.R. No. 109289 (1994)].
based on the Constitution. Just compensation must
be paid.
Regulatory taking is the exercise of the state of its

police power. In this case, just compensation need not
Page 113 of 382

REQUISITES [Sec. 28(1), Art. VI]

There is no vested right in a tax exemption. Being
a. Uniform and Equitable a mere statutory privilege, a tax exemption may
Taxes should be (a) uniform (persons or things be modified or withdrawn at will by the granting
belonging to the same class shall be taxed at the authority [Republic v. Caguioa, G.R. No. 168584
same rate) and (b) equitable (taxes should be (2007)].
apportioned among the people according to their
ability to pay) Exemptions may either be constitutional or
statutory:
b. Progressive system of taxation 1. Constitutional exemptions [Sec. 28(3), Art.
The rate increases as the tax base increases, with VI]
social justice as basis (Taxation here is an 2. If statutory, it has to have been passed by
instrument for a more equitable distribution of majority of all the members of Congress
wealth). [Sec. 28 (4), Art. VI]
c. Delegated tax legislation

Congress may delegate law-making authority
when the Constitution itself specifically
authorizes it.
SCOPE AND LIMITATION
General Limitations
a. Power to tax exists for the general welfare; should
be exercised only for a public purpose
b. Might be justified as for public purpose even if
the immediate beneficiaries are private
individuals
c. Tax should not be confiscatory: If a tax measure
is so unconscionable as to amount to
confiscation of property, the Court will invalidate
it. But invalidating a tax measure must be
exercised with utmost caution, otherwise, the
State’s power to legislate for the public welfare
might be seriously curtailed
d. Taxes should be uniform and equitable
Specific Limitations
a. Uniformity of taxation
General Rule: Simply geographical uniformity,
meaning it operates with the same force and
effect in every place where the subject of it is
found Exception: Rule does not prohibit
classification for purposes of taxation, provided
the requisites for valid classification are met
[Ormoc Sugar v. Treasurer of Ormoc, G.R. No. L-
23793 (1968)].
b. Tax Exemptions
No law granting any tax exemption shall be
passed without the concurrence of a majority of
all the Members of Congress [Sec. 28 (4), Art.
VI].
Page 114 of 382

preferred position as they are essential to the

B. Private Acts and Bill of preservation and vitality of civil institutions [Philippine
Rights Blooming Mills Employment Organization v. Philippine
Blooming Mills, Co., G.R. No. L-31195 (1973)].
The Bill of Rights, In Basis and Purpose

General
a. Basis
It is a declaration and enumeration of a person's
fundamental civil and political rights. It also imposes 1. Importance accorded to the dignity and worth of
safeguards against violations by the government, by the individual.
individuals, or by groups of individuals. 2. Protection against arbitrary actions of
government and other members of society.
The Bill of Rights governs the relationship between
the individual and the state. Its concern is not the
relation between individuals, between a private b. Purpose
individual and other individuals. What the Bill of
Rights does is to declare some forbidden zones in the GENERAL PURPOSE
private sphere inaccessible to any power holder [People The purpose of the Bill of Rights is to withdraw
v. Marti, G.R. No. 81561 (1991)]. "certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of
The Bill of Rights is self-executing [Gamboa v. Teves, majorities and officials, and to establish them as legal
supra]. principles to be applied by the courts. One's rights to
life, liberty and property, to free speech, or free press,
Article III contains the chief protection for human freedom of worship and assembly, and other
rights, but the body of the Constitution guarantees fundamental rights may not be submitted to a vote;
other rights as well. they depend on the outcome of no elections" [West
Virginia State Board of Education v. Barnette, 319 U.S.
Civil Rights 624, 638 (1943)].
Rights that belong to an individual by virtue of his
citizenship in a state or community (e.g. rights to SPECIFIC PURPOSES
property, marriage, freedom to contract, equal 1. To preserve democratic ideals
protection, etc.). 2. To safeguard fundamental rights
3. To promote the happiness of an individual
Political Rights
Rights that pertain to an individual’s citizenship vis-à- The Bill of Rights is designed to preserve the ideals of
vis the management of the government (e.g. right of liberty, equality and security "against the assaults of
suffrage, right to petition government for redress, opportunism, the expediency of the passing hour, the
right to hold public office, etc.). erosion of small encroachments, and the scorn and
derision of those who have no patience with general
Social and Economic Rights principles” [Philippine Blooming Mills Employees
Rights which are intended to insure the well-being Organization v. Philippine Blooming Mills Co., Inc., supra].
and economic security of the individual.
Application to Private
Rights of The Accused
Civil rights intended for the protection of a person Individuals
accused of any crime.
The Bill of Rights cannot be invoked against acts of
Primacy of human rights (doctrine of hierarchy of private individuals. The equal protection erects no
rights or doctrine of preferred freedoms) shield against private conduct, however
While the Bill of Rights also protects property rights, discriminatory or wrongful [Yrasuegui v. PAL, G.R.
the primacy of human rights over property rights is No. 168081 (2008)].
recognized. In the hierarchy of civil liberties, the
rights of free expression and of assembly occupy a
Page 115 of 382

Constitutional protection applies to government

action and is meant as a restraint against sovereign
C. Due Process
authority. The Bill of Rights is not meant to be
invoked against private individuals, and governs Sec. 1, Art. III. – No person shall be deprived of
relations between individuals and the state [People v. life, liberty, or property without due process of law,
Marti, supra]. nor shall any person be denied the equal protection
of the laws.
Sec. 1, Art. XIII. – The Congress shall give

highest priority to the enactment of measures that
protect and enhance the right of all the people to
human dignity, reduce social, economic, and
political inequalities, and remove cultural inequities
by equitably diffusing wealth and political power
for the common good.
Due process of law means simply, first that there shall

be a law prescribed in harmony with the general
powers of the legislative department of the
Government; second, that this law shall be reasonable
in its operation; third, that it shall be enforced
according to the regular methods of procedure
prescribed; and fourth, that it shall be applicable alike
to all the citizens of the state or to all of a class [Rubi
v. Provincial Board of Mindoro, supra].
Definition
Due process furnishes a standard to which the
governmental action should conform in order that
deprivation of life, liberty or property, in each
appropriate case, be valid. xxx It is responsiveness to
the supremacy of reason, obedience to the dictates of
justice. Negatively put, arbitrariness is ruled out and
unfairness avoided. xxx Correctly it has been
identified as freedom from arbitrariness. It is the
embodiment of the sporting idea of fair play [Ichong v.
Hernandez, supra].
LIFE, LIBERTY, AND PROPERTY
Life
It includes the right of an individual to his body in its
completeness, free from dismemberment, and
extends to the use of God-given faculties which make
life enjoyable [MALCOLM].
Understood to include the right to security of person

or the guarantee of the secure quality of life, which
pertains to a life lived with assurance that the
government he established and consented to will
protect the security of his person and property.
Page 116 of 382

Specifically, it means [1] freedom from fear; [2] c. Pornographic materials, contaminated meat
guarantee of bodily and psychological integrity, and and narcotic drugs are inherently pernicious
[3] guarantee of protection of one‘s rights by the and may be summarily destroyed.
government [Secretary of National Defense v. Manalo, d. The passport of a person sought for a criminal
G.R. No. 180906 (2008)]. offense may be cancelled without hearing, to
compel his return to the country he has fled.
Liberty e. Filthy restaurants may be summarily padlocked
Liberty includes the right to exist and the right to be in the interest of the public health and bawdy
free from arbitrary personal restraint or servitude. It houses to protect the public morals [Ynot v. IAC,
includes the right of the citizen to be free to use his supra].
faculties in all lawful ways [Rubi v. Provincial Board,
supra]. In such instances, previous judicial hearing may be
omitted without violation of due process in view of:
Property a. the nature of the property involved, and
Property is anything that can come under the right of b. the urgency of the need to protect the general
ownership and be the subject of contract. It welfare from a clear and present danger.
represents more than the things a person owns; it
includes the right to secure, use and dispose of them
[Torraco v. Thompson, 263 US 197 (1923].
Relativity of Due Process
The concept of due process is flexible for not all
Scope and Limitations situations calling for procedural safeguards call for the
same kind of procedure [Secretary of Justice v. Lantion,
Universal in application to all persons without regard G.R. No. 139465 (2000)].
to any difference in race, color or nationality. Artificial
persons are covered by the protection but only insofar To say that the concept of due process is flexible does
as their property is concerned [Smith Bell and Co. v. not mean that judges are at large to apply it to any and
Natividad, G.R. No. 15574 (1919)]. all relationships. Its flexibility is in its scope once it
has been determined that some process is due; it is a
The guarantee extends to aliens and includes the recognition that not all situations calling for
means of livelihood [Villegas v. Hiu Chiong, G.R. No. procedural safeguards call for the same kind of
L-29646 (1978)]. procedure [Morrissey v. Brewer, 408 U.S. 471 (1972)].
The due process clause has to do with the legislation

enacted in pursuance of the police power. xxx The
Distinction between
guaranty of due process, as has often been held, Procedural and Substantive
demands only that the law shall not be unreasonable,
arbitrary or capricious, and that the means selected
Due Process
shall have a real and substantial relation to the subject
sought to be attained [Ichong v. Hernandez, supra]. The due process guaranty has traditionally been
interpreted as imposing two related but distinct
Noted exceptions to due process restrictions on government, “procedural due process”
a. A conclusive presumption bars the admission
and “substantive due process.”
of contrary evidence as long as such presumption
is based on human experience or there is a SUBSTANTIVE DUE PROCESS
rational connection between the fact proved and Substantive due process completes the protection
the fact ultimately presumed there from. envisioned by the due process clause. It inquires on
b. There are instances when the need for
whether the government has sufficient justification
expeditious action will justify omission of these for depriving a person of life, liberty, or property
requisites—e.g. in the summary abatement of a [White Light Corporation v. City of Manila, supra].
nuisance per se, like a mad dog on the loose, In other words, substantive due process looks to
which may be killed at sight because of the whether there is a sufficient justification for the
immediate danger it poses to the safety and lives government’s action. Substantive due process is an
of the people. aspect of due process which serves as a restriction on
the lawmaking and rule-making power of the
Page 117 of 382

government. The law itself, not merely the procedures

by which the law would be enforced, should be fair, Note: Notice is an essential element of due
reasonable, and just. It guarantees against the arbitrary process, otherwise the Court will not acquire
power even when exercised according to proper jurisdiction and its judgment will not bind the
forms and procedure. defendant. To be meaningful, it must be both as
to time and place. Service of summons is not only
Requisites of Substantive Due Process required to give the court jurisdiction over the
Due process of law means simply that person of the defendant but also to afford the
a. There shall be a law prescribed in harmony with latter the opportunity to be heard on the claim
the general powers of the legislative department made against him. Thus, compliance with the
of the Government; rules regarding the service of summons is as
b. This law shall be reasonable in its operation; much an issue of due process as of jurisdiction
c. It shall be enforced according to the regular [Sarmiento v. Raon, G.R. No. 131482 (2002)].
methods of procedure prescribed; and
d. It shall be applicable alike to all the citizens of the 3. The defendant must be given an
state or to all of a class [Rubi v. Provincial Board of opportunity to be heard. Due process is
Mindoro, supra]. satisfied as long as the party is accorded the
opportunity to be heard. If it is not availed
PROCEDURAL DUE PROCESS of, it is deemed waived or forfeited without
Procedural due process refers to the procedures that violating the constitutional guarantee
the government must follow before it deprives a [Bautista v. CA, G.R. No. 157219 (2004)].
person of life, liberty or property. Procedural due
process concerns itself with government action Note: The SC reiterated that the right to appeal is not
adhering to the established process when it makes an a natural right nor part of due process; it is merely a
intrusion into the private sphere [White Light statutory privilege, and may be exercised only in the
Corporation v. City of Manila, supra]. manner and in accordance with the provisions of law
[Alba v. Nitorreda, G.R. No. 120223 (1996)].
Procedural due process is that aspect of due process
which serves as a restriction on actions of judicial and 4. Judgment must be rendered upon lawful
quasi-judicial agencies of the government. It refers to hearing and must clearly explain its factual
the method or manner by which a law is enforced. and legal bases [Sec. 14, Art. VIII; Banco
Concerned with government action on established Español-Filipino v. Palanca, supra].
process when it makes intrusion into the private
sphere. Note: The allowance or denial of motions for
extension rests principally on the sound discretion of
Procedural Due Process the court to which it is addressed, but such discretion
must be exercised wisely and prudently, with a view
to substantial justice. Poverty is recognized as a
a. Requisites in Civil Proceedings sufficient ground for extending existing period for
1. An impartial court or tribunal clothed with filing. The right to appeal is part of due process of law
judicial power to hear and determine the matter [Reyes v. CA, G.R. No. L-41680 (1977)].
before it.
2. Jurisdiction must be lawfully acquired over the b. In Criminal Proceedings
person of the defendant and over the property
subject matter of the proceeding [Banco Español v.
See Rights of the Accused below.
Palanca, G.R. No. L-11390 (1918)].
Page 118 of 382

c. In Other Proceedings
Academic Disciplinary
Administrative Proceedings Labor Cases
Proceedings
Rules [Ang Tibay v. CIR, G.R. No. Requisites [Non v. Dames, G.R. No. The Labor Code requires twin
46496 (1940)]: 89317 (1990)]: requirements of notice and hearing
for a valid dismissal.
1. Right to a hearing to present 1. The students must be informed
own case and submit evidence in writing of the nature and However, the Court in Serrano v.
in support thereof. cause of any accusation against NLRC clarified that this
2. Tribunal must consider the them; “procedural due process”
evidence presented. 2. They shall have the right to requirement is not constitutional
3. Decision rendered must have answer the charges against but merely statutory, hence, a
support. them, with the assistance of violation of such requirement does
4. Evidence which supports the counsel, if desired; not render the dismissal void.
finding or conclusion is 3. They shall be informed of the
substantial (such relevant evidence against them; There are three reasons why
evidence as a reasonable mind 4. They shall have the right to violation by the employer of the
accept as adequate to support a adduce evidence in their own notice requirement cannot be
conclusion). behalf; considered a denial of due process
5. The decision must be rendered 5. The evidence must be duly resulting in the nullity of the
on the evidence presented at considered by the investigating employee's dismissal or layoff:
the hearing, or at least committee or official
contained in the record and designated by the school 1. The Due Process Clause of the
disclosed to the parties authorities to hear and decide Constitution is a limitation on
affected. the case governmental powers. It does
6. The tribunal or any of its not apply to the exercise of
judges, must act on its or his private power, such as the
own independent termination of employment
consideration of the law and under the Labor Code.
facts of the controversy, and
not simply accept the views of 2. Notice and hearing are required
a subordinate in arriving at a under the Due Process Clause
decision. before the power of organized
7. The tribunal should, in all society are brought to bear
controversial questions, render upon the individual. This is
its decision in such a manner obviously not the case of
that the parties to the termination of employment
proceeding can know the under Art. 283.
various issues involved, and the
reasons for the decision 3. The employer cannot really be
rendered. expected to be entirely an
impartial judge of his own
In administrative proceedings, the cause.
essence of due process is to explain
one’s side. An actual hearing is not
always an indispensable aspect of
due process as long as the party was
given the opportunity to defend his
interests in due course. [Lumiqued v.
Estrada, G.R. No. 154243 (1997)]
Page 119 of 382

by law, he must be officially and specifically informed

Nature of due process in disciplinary cases of its contents. For the publication requirement,
involving students “laws” refer to all statutes, including those of local
[Due] process in disciplinary cases involving students application and private laws. This does not cover
does not entail proceedings and hearings similar to internal regulations issued by administrative agencies,
those prescribed for actions and proceedings in courts which are governed by the Local Government Code.
of justice. [The] proceedings may be summary. Publication must be full, or there is none at all [Tañada
[C]ross-examination is not an essential part of the v. Tuvera, G.R. No. L-63915 (1986)].
investigation or hearing. The required proof in a
student disciplinary action, which is an administrative
case, is neither proof beyond reasonable doubt nor
Judicial Standards of Review
preponderance of evidence but only substantial
Rational Basis Test
evidence or "such relevant evidence as a reasonable
This test is applicable for economic, property,
mind might accept as adequate to support a
commercial legislation [White Light Corporation v. City
conclusion.” What is crucial is that official action
of Manila, supra].
must meet minimum standards of fairness to the
individual, which generally encompass the right of
Intermediate Scrutiny Test
adequate notice and a meaningful opportunity to be
The heightened or immediate scrutiny was adopted by
heard.
the U.S. Supreme Court for evaluating classifications
based on gender and legitimacy. While the test may
A cadet facing dismissal from the military academy for
have first been articulated in equal protection analysis,
misconduct has constitutionally protected private
it has in the United States since been applied in all
interests (life, liberty, or property); hence, disciplinary
substantive due process cases as well [White Light
proceedings conducted within the bounds of
Corporation v. City of Manila, supra].
procedural due process is a must. For that reason, the
PMA is not immune from the strictures of due
Strict Scrutiny Test
process. Where a person's good name, reputation,
This test is triggered when a fundamental
honor, or integrity is at stake because of what the
constitutional right is limited by a law (i.e. freedom of
government is doing to him, the minimal
the mind and curtailment of political process).
requirements of the due process clause must be
satisfied. Likewise, the cadet faces far more severe
This requires the government to show an overriding
sanctions of being expelled from a course of college
or compelling government interest so great that it
instruction which he or she has pursued with a view
justifies the limitation of fundamental constitutional
to becoming a career officer and of probably being
rights. The courts make the decision of whether or
forever denied that career. Cudia v. Superintendent
not the purpose of the law makes the classification
of the Philippine Military [G.R. No. 211362
necessary.
(2016)]
There is compelling state interest when:
Substantive Due Process a. The state has a compelling reason/interest to
reach into such legislation infringing into the
REQUISITES private domain; and
Laws which interfere with life, liberty or property b. There is no other alternative
satisfy substantive due process when there is [US v.
Toribio, G.R. No. L-5060 (1910)]: Strict scrutiny was applied in determining whether the
a. Lawful subject i.e. the interests of the public in ordinance in White Light met the requirements of
general (as distinguished from those of a substantive due process.
particular class) require the intervention of the
State, and Level of Rights Requisites for
b. Lawful means i.e. means employed are Scrutiny Involved Validity
reasonably necessary for the accomplishment of a. Legitimate
the purpose and not unduly oppressive on government
individuals. Economic,
interest
Rational property,
b. Purpose and
Publication of laws Basis commercia
means
Publication of laws is part of substantive due process. l legislation
correspondenc
It is a rule of law that before a person may be bound e
Page 120 of 382

a. Substantial Rationale: Statutes have a general in terrorem effect, which

government is to discourage citizens from committing the
Intermediate
Gender, interest prohibited acts.
/ Heightened
illegitimacy b. Availability of
Scrutiny
less restrictive Exception:
means 1. The statute is challenged as applied; or
2. The statute involves free speech
Void for Vagueness Doctrine Rationale: Statute may be facially challenged in order
to counter the “chilling effect” of the same. [Disini v.
Concept of Void for Vagueness Sec. of Justice, G.R. No. 203335 (2014), on the
An act is vague when it lacks comprehensible constitutionality of the Cybercrime Law]
standards that men of common intelligence must
necessarily guess at its common meaning and differ as
to its application. A statute or act may be said to be b. As-Applied v. Facial Challenges
vague when it lacks comprehensible standards that
men of common intelligence must necessarily guess at Distinguished from an as-applied challenge which
its meaning and differ in its application. considers only extant facts affecting real litigants, a
facial invalidation is an examination of the entire law,
A statute establishing a criminal offense must define pinpointing its flaws and defects, not only on the basis
the offense with sufficient definiteness that persons of its actual operation to the parties, but also on the
of ordinary intelligence can understand what conduct assumption or prediction that its very existence may
is prohibited by the statute cause others not before the court to refrain from
constitutionally protected speech or activities [Disini
Purpose of Void for Vagueness v. Sec. of Justice, supra].
A vague statute is repugnant to the Constitution in
two respects [Southern Hemisphere v. Anti-Terrorism An accused is denied the right to be informed of the
Council, G.R. No. 178552 (2010)]: charge against him and to due process where the
a. It violates due process for failure to accord statute itself is couched in such indefinite language
persons, especially the parties targeted by it, fair that it is not possible for men of ordinary intelligence
notice of what conduct to avoid; and to determine therefrom what acts/omissions are
b. It leaves law enforcers an unbridled discretion in punished [People v. Nazario, G.R. No. L-44143 (1988)].
carrying out its provisions and becomes an
arbitrary flexing of the government muscle. [This doctrine] can only be invoked against that
species of legislation that is utterly vague on its face,
i.e., that which cannot be clarified either by a saving
a. Overbreadth Doctrine clause or by construction. The test in determining
whether a criminal statute is void for uncertainty is
Definition whether the language conveys a sufficiently definite
The overbreadth doctrine decrees that "a warning as to the proscribed conduct. It must be
governmental purpose may not be achieved by means stressed, however, that the vagueness doctrine merely
which sweep unnecessarily broadly and thereby requires a reasonable degree of certainty for the
invade the area of protected freedoms" [Southern statute to be upheld – not absolute precision or
Hemisphere v. Anti-Terrorism Council, supra]. mathematical exactitude [Estrada v. Sandiganbayan,
G.R. No. 148560 (2001)].
Comparison with void for vagueness
The void for vagueness doctrine is subject to the same
principles governing overbreadth doctrine. For one, it
is also an analytical tool for a “facial” challenge of
statutes in free speech cases. Like overbreadth, it is
said that a litigant may challenge a statute on its face
only if it is vague in all its possible applications.
Applicability to penal statutes

General rule: Void for vagueness and overbreadth are
inapplicable to penal statutes.
Page 121 of 382

D. Equal Protection
Presumption of Validity
Concept All classifications made by law are generally presumed
to be valid unless shown otherwise by petitioner
Equal protection requires that all persons or things [Lacson v. Executive Secretary, G.R. No. 128096 (1999)].
similarly situated should be treated alike, both as to
rights conferred and responsibilities imposed.
Aliens
Similar subjects, in other words, should not be treated
differently, so as to give undue favor to some and General Rule: The general rule is that a legislative act
unjustly discriminate against others. may not validly classify the citizens of the State on the
basis of their origin, race or parentage.
It does not demand absolute equality among
residents; it merely requires that all persons shall be Exceptions
treated alike, under like circumstances and conditions a. In times of great and imminent danger, such as a
both as to privileges conferred and liabilities enforced. threatened invasion or war, such a classification
The guarantee means that no person or class of is permitted by the Constitution when the facts
persons shall be denied the same protection of laws so warrant (e.g. discriminatory legislation against
which is enjoyed by other persons or other classes in Japanese citizens during WWII).
like circumstances [Ichong v. Hernandez, supra]. b. The political rights of aliens do not enjoy the
same protection as that of citizens.
c. Statutes may validly limit to citizens exclusively
Scope the enjoyment of rights or privileges connected
with the public domain, the public works, or the
Natural and juridical persons (the equal protection natural resources of the State. The rights and
clause extends to artificial persons but only insofar as interests of the state in these things are not simply
their property is concerned.) political but also proprietary in nature; and so the
a. A corporation as an artificial person is protected citizens may lawfully be.
under the Bill of Rights against denial of due
process, and it enjoys the equal protection of the
law [Smith, Bell and Co., v. Natividad, supra]. Standards for Judicial
b. A corporation is also protected against Review
unreasonable searches and seizures [See Stonehill v.
Diokno, G.R. No. L-19550 (1967)]. Serrano v. Gallant Maritime [G.R. No. 167614 (2009)]
c. It can only be proceeded against by due process
introduced a modification in equal protection
of law, and is protected against unlawful jurisprudence by using the three-level review used in
discrimination [Bache and Co. v. Ruiz, G.R. No. L- due process cases.
32409 (1971)].
In effect, the level of review when it comes to equal
Requisites for Valid protection challenges may follow the following
format:
Classification
WHETHER THE STATE WAS JUSTIFIED IN
The requisites for a valid classification in law are: MAKING A CLASSIFICATION AT ALL (3
a. It must rest on substantial distinctions which LEVEL REVIEW)
make for real differences;
b. It must be germane to the purpose of the law; a. Rational Basis Test
c. It must not be limited to existing conditions
only [Ormoc Sugar Co. v. Treasurer of Ormoc City G.R. The classification should bear a reasonable
No. L-23794 (1968)]; relation to the government’s purpose or
d. It must apply equally to all members of the legitimate state interest
same class [People v. Cayat, G.R. No. L-45987
(1939)]. Note: This test is important when there is no
plausible difference between the disadvantaged
class and those not disadvantaged, and when the
Page 122 of 382

government attaches a morally irrelevant and

negative significance to a difference between the
E. Searches and Seizures
advantaged and the disadvantaged.
Sec. 2, Art III . The right of the people to be
b. Intermediate Scrutiny Test secure in their persons, houses, papers, and effects
against unreasonable searches and seizures of
Court accepts the articulated purpose of the whatever nature and for any purpose shall be
legislation, but it closely scrutinizes the inviolable, and no search warrant or warrant of
relationship between the classification and the arrest shall issue except upon probable cause to be
purpose based on a spectrum of standards, by determined personally by the judge after
gauging the extent to which constitutionally examination under oath or affirmation of the
guaranteed rights depend upon the affected complainant and the witnesses he may produce,
individual interest. and particularly describing the place to be searched
and the persons or things to be seized.
Government must show that the challenged
classification serves an important state interest
and that the classification is at least substantially
Concept
related to serving that interest. Applicable to
In general
certain sensitive but not suspect classes; certain
The constitutional right against unreasonable searches
important but not fundamental interest.
and seizures is a personal right invocable only by
those whose rights have been infringed or threatened
c. Strict Scrutiny Test
to be infringed [Valmonte v. General De Villa, G.R. No.
83988 (1989)].
A legislative classification which impermissibly
interferes with the exercise of a fundamental right • What constitutes a reasonable or unreasonable
or operates to the peculiar disadvantage of a search and seizure in any particular case is purely a
suspect class is presumed unconstitutional. The judicial question, determinable from a
burden is upon the government to prove that the consideration of the circumstances involved
classification is necessary to achieve a compelling [Ibid].
state interest and that it is the least restrictive
means to protect such interest. It is applied when To whom is it directed
the classification has a “suspect basis”. • Against the State; the right cannot be invoked
against a private individual.
Suspect classes – A classification that violates a • In the absence of governmental interference, the
fundamental right, or prejudices a person liberties guaranteed by the Constitution cannot
accorded special protection by the Constitution be invoked against the State [People v. Marti, supra].
[Serrano v. Gallant, supra]. May therefore include a
classification based on income. Who may invoke
The constitutional right against unreasonable searches
This test is usually applied to cases involving and seizures is a personal right invocable only by
classifications based on race, national origin, those whose rights have been infringed,
religion, alienage, denial of the right to vote, • It protects all persons including aliens [Qua Chee
migration, access to courts, and other rights Gan v. Deportation Board, G.R. No. L-10280
recognized as fundamental. (1963)].
• A corporation is entitled to immunity, under the
4th Amendment, against unreasonable searches
and seizures. A corporation is, after all, an
association of individuals under an assumed
name and with a distinct legal entity. In
organizing itself as a collective body it waives no
constitutional immunities appropriate to such
body [Bache and Co. v. Ruiz, supra].
Page 123 of 382

• Such written deposition is necessary in order

Search Warrant that the Judge may be able to properly
determine the existence or non-existence of
DEFINITION the probable cause, to hold liable for perjury
Search Warrant – an order in writing, issued in the the person giving it if it will be found later
name of the People of the Philippines, signed by a that his declarations are false. There must be
judge and directed to a peace officer, commanding a conduct
him to search for personal property described therein • The examining judge must not simply rehash
and bring it before the court [Rule 126, Sec. 1, ROC]. the contents of the affidavit but must make
his own inquiry on the intent and
justification of the application [Roan v.
REQUISITES OF A VALID WARRANT Gonzales, G.R. No. 71410 (1984)].
• Oath – any form of attestation that he is
a. Existence of Probable Cause bound in conscience to perform an act
• Needs to be personally determined by the faithfully or truthfully; an outward pledge
Judge given by the person taking it that his
• Probable Cause - such facts and attestation or promise is made under an
circumstances which would lead a immediate sense of his responsibility to God.
reasonably discreet and prudent man to o Requisites:
believe that: ▪ Must refer to facts
1. an offense has been committed ▪ Such facts are of personal
2. the objects sought in connection with knowledge of the petitioner or
the offense are in the place sought to be applicant or witnesses. Not hearsay.
searched [Burgos v. Chief of Staff, G.R. No. o Test of sufficiency of an oath
L-64261 (1984)]. ▪ “Whether or not it was drawn in a
Cf. Probable Cause for Warrant of manner that perjury could be
Arrest: … the person to be arrested is charged against the affiant and he
probably guilty thereof [Allado v. Diokno, be held liable for damages.”
G.R. No. 113630 (1994)] ▪ Must be on the basis of their
personal knowledge of the facts
Personal Determination by the Judge they are testifying to. [Nala v.
• On determining probable cause: Barroso, Jr., supra; Burgos v. Chief of
The judge must make an exhaustive and probing Staff [G.R. No. L-64261 (1984);
examination of witnesses and applicant and not Roan v. Gonzales, supra; People v.
merely routine or pro forma examination [Nala v. Malmstead [G.R. No. 91107 (1991)]
Barroso, Jr., G.R. No. 153087 (2003)]. ▪ The testimony must be based on
the own personal knowledge of the
• The determination of probable cause calls for an
complainant and of the witnesses,
exercise of judgment after a judicial appraisal of
not mere hearsay or information
the facts and should not be allowed to be
from a “reliable source” [Alvarez v.
delegated in the absence of any rule to the
CFI, G.R. No. L-45358].
contrary.
The purpose of having personal
b. Personally by the judge after examination
knowledge by the complainant and
under oath or affirmation of the complainant
witnesses and the sufficiency of the
and the witnesses he may produce.
warrant is to convince the
• How it is done: In the form of searching magistrate seeking the issuance of
questions and answers, in writing and under the warrant that there is probable
oath [Rule 126, Sec. 6, ROC]   cause.
• Mere affidavits of the complainant and his
witnesses are thus not sufficient. Personal knowledge is not the same
• The examining Judge has to take depositions as personal belief [Nala v. Barroso,
in writing of the complainant and the Jr., supra].
witnesses he may produce and attach them
to the record.
Page 124 of 382

personae [including additional descriptions]

c. Particularity of Description that will enable the officer to identify the
• Requirement is primarily meant to enable the accused without difficulty [Nala v. Barroso, Jr.,
law enforcers serving the warrant to: supra].
o readily identify the properties to be
seized and thus prevent them from Search warrant is valid despite the mistake in
seizing the wrong items; the name of the persons to be searched. The
o leave said peace officers with no authorities conducted surveillance and test-
discretion regarding the articles to be buy operations before obtaining the search
seized and thus prevent unreasonable warrant and subsequently implementing it.
searches and seizures [People v. Tee, G.R. They had personal knowledge of the identity
Nos. 140546-47 (2003)]. of the persons and the place to be searched,
• The warrant must describe particularly the although they did not specifically know the
place to be searched and the persons or names of the accused [People v. Tiu Won Chua,
things to be seized. G.R. No. 149878 (2003)].
o Place to be searched: The search
warrant issued to search petitioner’s A John Doe search warrant is valid. There is
compound for unlicensed firearms was nothing to prevent issue and service of
held invalid for failing to describe the warrant against a party whose name is
place with particularity, considering that unknown [People v. Veloso, G.R. No. L-23051
the compound was made up of 200 (1925)].
buildings, 15 plants, 84 staff houses, one
airstrip etc. spread out over 155 hectares • General Rule: the warrant must indicate the
[PICOP v. Asuncion, G.R. No. 122092 particular place to be searched and person or
(1999)]. thing to be seized.
o Description of Place/Things: The
description of the property to be seized Exception: If the nature of the goods to be
need not be technically accurate or seized cannot be particularly determined
precise. Its nature will vary according to 1. the nature of the thing is general in
whether the identity of the property is a description
matter of concern. The description is 2. the thing is not required of a very
required to be specific only insofar as technical description [Alvarez v. CFI,
the circumstances will allow [Kho v. Judge supra]
Makalintal, G.R. Nos. 94902-06 (1999)].
WHAT MAY BE SEARCHED
A search warrant may be said to A search warrant may be issued for the search and
particularly describe the things to be seizure of personal property:
seized when the: ▪ Subject of the offense
1. Description therein is as specific as ▪ Stolen or embezzled and other proceeds, or fruits
the circumstances will ordinarily of the offense; or
allow [People v. Rubio, G.R. No. L- ▪ Used or intended to be used as the means of
35500 (1932)]; or committing an offense [Sec 3, Rule 126, ROC].
2. Description expresses a conclusion
of fact, not of law, by which the The officers of the law are to seize only those
warrant officer may be guided in things particularly described in the search
making the search and seizure; or warrant. A search warrant is not a sweeping authority
3. Things described are limited to empowering a raiding party to undertake a fishing
those which bear direct relation to expedition to seize and confiscate any and all kinds of
the offense for which the warrant is evidence or articles relating to a crime. The search is
being issued [Bache and Co. v. Ruiz, limited in scope so as not to be general or explanatory.
supra]. Nothing is left to the discretion of the officer
executing the warrant [UNILAB v.Isip, G.R. No.
o Description of Persons Searched 163858 (2005)].
An error in the name of the person in the
search warrant does not invalidate the
warrant, as long as it contains a description
Page 125 of 382

PROPERTIES SUBJECT TO SEARCH AND When forcible entry justified

SEIZURE Force may be used in entering a dwelling if justified
General Rule: Only the articles particularly described in by Rule 126, ROC, e.g. occupants of the house
the warrant may be seized. refused to open the door despite the fact that the
searching party knocked several times, and the agents
Property subject of an offense saw suspicious movements of the people inside the
1. Stolen or embezzled property and other proceeds house [People v. Salanguit, G.R. Nos. 133254-55
or fruits of an offense (2001)].
2. Used or intended to be used as a means of
committing an offense [Sec. 2 Rule 126, ROC] Unlawful search
Police officers arrived at appellant’s residence and
Where the warrant authorized only the seizure of “side-swiped” appellant’s car (which was parked
shabu, and not marijuana, the seizure of the latter was outside) to gain entry into the house. Appellant’s
held unlawful [People v. Salanguit, G.R. Nos. 133254-55 son, who is the only one present in the house,
(2001)]. opened the door and was immediately handcuffed
to a chair after being informed that they are
It is not necessary that the property to be searched or policemen with a warrant to search the premises
seized should be owned by the person against whom [People v. Benny Go, G.R. No. 144639 (2003)].
the warrant is issued; it is sufficient that the property
is within his control or possession [Burgos v. Chief of Staff, Effect of a void arrest warrant
supra)]. A void arrest warrant would render the arrest invalid
and illegal.
GENERAL WARRANT
• General Warrant– one that: The illegality of an arrest does not bar the state from
o Does not describe with particularity the the prosecution of the accused. Despite illegality of
things subject of the search and seizure; or both search and arrest thus inadmissibility of evidence
o Where probable cause has not been properly acquired, guilt may still be established through
established. eyewitness testimony [People v. Manlulu, G.R. No.
• Effects: It is a void warrant [Nolasco v. Paño, G.R. 102140].
No. L-69803 (1985)].
• Any evidence obtained in violation [of this or the Valid Warrantless Searches
preceding section] shall be inadmissible for any
purpose in any proceding [Art. III, Sec. 3]. General Rule: Probable cause is required
• The unconstitutionality of the search and the • In these cases, probable cause (warrantless
seizure or the use of a void search warrant, searches) must be “based on reasonable ground
renders the items seized inadmissible in evidence. of suspicion or belief that a crime has been
Exclusion is the only practical way of enforcing committed or is about to be committed” [People v.
the constitutional privilege [Stonehill v. Diokno, Aruta, G.R. No. 120915 (1998)].
supra]. • In Aruta, the standards for probable cause are
• Exception to General Warrants: General different from those required for the issuance of
descriptions will not invalidate the entire warrant warrants. Aruta implies that the reasonableness
if other items have been particularly described [Uy of a warrantless search is determined by the
v. BIR, G.R. No. 129651 (2000)]. 1. information received and used as a basis for
the search, and
Conduct of the search [SEC. 7, Rule 126, ROC] 2. additional factors and circumstances.
a. In the presence of a lawful occupant thereof or
any member of his family, or The two, taken together, constitute the probable
b. If occupant or members of the family are absent, cause which justifies warrantless searches and
in the presence of 2 witnesses of sufficient age seizures.
and discretion, residing in the same localit
Exceptions to the warrant requirement; valid warrantless
Failure to comply with Sec. 7 Rule 126 invalidates the searches
search [People v. Gesmundo, G.R. No. 89373 (1993)]. a. Warrantless search incidental to a lawful arrest
(recognized under Section 12, Rule 126 of the
Rules of Court and by prevailing jurisprudence)
b. Seizure of evidence in plain view
Page 126 of 382

c. Search of a moving vehicle

d. Consented warrantless search Immediate control – immediate area to the
e. Customs search defendant’s person where there are nearby weapons
f. Stop and Frisk he could grab to attack the officer or what he has in
g. Exigent and Emergency Circumstances his pocket.
h. Search of vessels and aircraft
i. Inspection of buildings and other premises for It will be reasonable for officer to confiscate whatever
the enforcement of fire, sanitary and building may be used to threaten his life or limb.
regulations
In the case of Che Chun Ting [G.R. Nos. 130568-69
a. Incidental to Lawful Arrest (2001)], Che Chun Ting was caught delivering shabu
to his contact Mabel Cheung Mei Po in a buy-bust
A person lawfully arrested may be searched for operation by the Narcotics Command. The
dangerous weapons or anything which may be used as entrapment occurred in Che Chun Ting’s alleged
proof of the commission of an offense, without a location, Roxas Seafront Garden in Pasay City. He
search warrant [Sec. 12, Rule 126, ROC]. was apprehended at the door of his unit as he was
giving the shabu to Cheung Mei Po. More shabu was
Absent a valid Search Warrant, the search is confined found inside, but the defense claimed that the shabu
to the person being lawfully arrested. found inside the unit should be inadmissible in
evidence on the ground that the unit was not his nor
It is also a general rule that, as an incident of an arrest, could it be presumed to be within his immediate
the place or premises where the arrest was made can control.
also be searched without a search warrant. In this
case, the extent and reasonableness of the search must The warrantless search in this case was not justified.
be decided on its own facts and circumstances. Since lawful arrest was the only possible justification,
the warrantless search must be limited to the subject,
What must be considered is the balancing of the time, and place. In this case, the unit was not owned
individual’s right to privacy and the public’s interest by Che Chun Ting and not an area under his control,
in the prevention of crime and the apprehension of nor was the inside of it the site of the crime.
criminals [Nolasco v. Paño, supra].
b. Plain View Doctrine
Test for validity
1. Item to be searched was within the arrester’s Things seized are within plain view of a searching
custody; party.
2. Search was contemporaneous with the arrest
Requisites:
Under the Rules of Court, a person charged with an 1. Prior valid intrusion based on valid warrantless
offense may be searched for dangerous weapons or arrest in which the police are legally present in the
anything which may be used as proof of the pursuit of their official duties
commission of the offense. As an incident of an 2. Evidence was inadvertently discovered by the
arrest, the premises where the arrest was made can police who had the right to be where they are
also be searched without search warrant [Nolasco v. 3. Evidence must be immediately apparent
Paño, supra]. 4. “Plain view” justified mere seizure of evidence
without further search [People v. Aruta, supra; N.B.
An “arrest being incipiently illegal, it logically follows substantially the same as Nala v. Barroso
that the subsequent search was similarly illegal” [People requirements]
v. Aruta, supra].
An object is in “plain view” if the object itself is
Arresting officer may search plainly exposed to sight. Where the seized object is
1. The arrestee’s person to: inside a closed package, the object is not in plain view
a. discover or weapons and and, therefore, cannot be seized without a warrant.
b. Seize evidence to concealment or However, if the package proclaims its contents,
destruction; and whether by its distinctive configuration, its
2. The area within the immediate control of the transparency, or if its contents are obvious to an
arrestee, i.e. area from which he might gain observer, then the content are in plain view, and may
possession of a weapon or destructible evidence. be seized [Caballes v. CA, G.R. No. 136292 (2002)].
Page 127 of 382

building, warehouse, vessels, aircrafts, vehicles but

If the package is such that it contains prohibited not dwelling.
articles, then the article is deemed in plain view [People
v. Nuevasm, G.R. No. 170233 (2007)].  Purpose of customs search: To verify whether or
not Custom duties and taxes were paid for their
The plain view doctrine only applies where a police importation.
officer is not searching for evidence against the
accused but inadvertently comes across an f. Stop and Frisk
incriminating object [People v. Musa, G.R. No. 96177
(1993)]. There is a justifiable cause to stop and frisk persons
who flee upon seeing law enforcement [People v.
c. Search of Moving Vehicles Solayao, G.R. No. 119220 (1996)].
Securing a search warrant is not practicable since the In Manalili v. CA, police stopped and frisked Manalili
vehicle can be quickly moved out of the locality or because he was seemingly high while walking. Upon
jurisdiction in which the warrant must be sought [Papa frisking, police found crushed marijuana leaves in
v. Mago, supra]. Manalili’s wallet. Manalili contended that the
marijuana is inadmissible being obtained from a
“Stop and search” without a warrant at military or warrantless search.
police checkpoints has been declared not to be illegal
per se so long as it is required by exigencies of public g. Exigent and Emergency
order and conducted in a way least intrusive to
motorists [Valmonte v. de Villa, G.R. No. 83988
Circumstances
(1989)].
The raid and seizure of firearms and ammunition at
the height of the 1989 coup d’état, was held valid,
For a mere routine inspection, the search is normally
considering the exigent and emergency situation. The
permissible when it is limited to a mere visual search,
military operatives had reasonable ground to believe
where the occupants are not subjected to physical or
that a crime was being committed, and they had no
body search. On the other hand, when the vehicle is
opportunity to apply for a search warrant from the
stopped and subjected to an extensive search, it would
courts because the latter were closed. Under such
be constitutionally permissible only if the officers
urgency and exigency, a search warrant could be
conducting the search had reasonable or probable
validly dispensed with [People v. de Gracia, G.R. Nos.
cause to believe, before the search that either the
102009-10 (1994)].
motorist is a law offender or they will find the
instrumentality or evidence pertaining to a crime in
the vehicle to be searched [Caballes v. CA, supra; People Arrest
v. Libnao, G.R. No. 136860 (2003)].
REQUISITES OF A VALID WARRANTLESS
d. Consented search ARREST
[Rule 113, Sec. 5, Rules on Criminal Procedure]
e. Enforcement of Fishing, a. In flagrante delicto: When in his presence, the
Customs, and Immigration Law person to be arrested has committed, is actually
committing, or is attempting to commit an
The police are allowed to conduct warrantless offense The person must be arrested after the
searches in behalf of the Department of Customs. offense has been committed and in the presence
of a police officer [People v. Mengote, G.R. No.
They are authorized to open and examine any box, 87059 (1992)].
trunk, or other containers where he has reasonable
cause to believe that such items were hidden from Rebellion is a continuing offense. Therefore a
customs search [Papa v. Mago, G.R. No. L-27360 rebel may be arrested without a warrant at any
(1968)]. time of the day or the night as he is deemed to be
in the act of committing rebellion. [Umil v. Ramos,
Sec. 219 of the Customs Modernization and Tariff Act states supra]
that no warrant is required for police or authorized
persons to pass, enter, search any land, enclosure,
Page 128 of 382

Though kidnapping with serious illegal The warrantless arrest only 3 hours after the
detention is deemed a continuing crime, it can killing was held valid since personal knowledge
be considered as such only when the deprivation was established as to the fact of death and facts
of liberty is persistent and continuing from one indicating that the accused killed the victim
place to another [Parulan v. Dir. of Prisons, G.R. [People v. Gerente, G.R. Nos. 95847-48 (1993)]
No. L-28519 (1968)].
There is no personal knowledge when the
Buy-Bust: A buy-bust operation is a valid in commission of a crime and identity of the
flagrante arrest. The subsequent search of the accused were merely furnished by an informant,
person arrested and the premises within his or when the location of the firearm was given by
immediate control is valid as an incident to a the wife of the accused. It is not enough that
lawful arrest [People v. Hindoy, G.R. No. 132662 there is reasonable ground to believe that the
(2001)]. person to be arrested has committed a crime.
That a crime has actually been committed is an
When not proper buy-bust: Instead of arresting essential precondition [People v. Burgos, G.R. No.
the suspect after the sale in a buy-bust op, the L-68955 (1986)].
officer returned to the police headquarters and
filed his report. It was only in the evening that he, c. Escaped Prisoners: When the person to be
without warrant, arrested the suspect at his house arrested is a prisoner who has escaped from a
where dried marijuana leaves were found and penal establishment or place where he is serving
seized. This is unlawful arrest [People v. Rodriguez, final judgment or is temporarily confined while
G.R. No. 138987 (1992)]. his case is pending, or has escaped while being
transferred from one confinement to another
b. Hot Pursuit: When an offense has just been
committed and he has probable cause to believe Additional Exceptions (Not in the Rules):
based on personal knowledge of facts or
circumstances that the person to be arrested has d. When the right is voluntarily waived
committed it (estoppel)
Requisites: Appellant is estopped from questioning the

1. Offense had just been committed; The illegality of the arrest when he voluntarily
person must be immediately arrested after submitted himself to the jurisdiction of the court
the commission of the offense. [People v. by entering a plea of not guilty and by
Manlulu, supra]. participating in the trial [People v. Salvatierra, G.R.
2. Person making the arrest has probable cause No. 104663 (1997)].
to believe based on personal knowledge.
Failure to raise the question of admissibility
Personal Knowledge: Experience of an officer during the trial is waiver of the right to assert
which gives the idea that there is probable cause inadmissibility on appeal [Manalili v. CA, G.R.
that the person caught is responsible. It has been No. 113447 (1997)].
ruled that “personal knowledge of facts” in
arrests without a warrant must be based on Scope of Waiver: Waiver is limited to the illegal
probable cause, which means an actual belief or arrest. It does not extend to the search made as
reasonable grounds of suspicion [Cadua v. CA, an incident thereto, or the subsequent seizure of
G.R. No. 123123 (1999)]. evidence allegedly found during the search [People
v. Peralta, G.R. No. L-19069 (2004)].
Note: There must be a large measure of
immediacy between the time the offense is
committed and the time of the arrest. If there was
Drug, Alcohol, and Blood
an appreciable lapse of time between arrest and Tests
commission of crime, warrant of arrest must be
secured [NACHURA]. The Court held that Randomized Drug Testing
(RDT) for students and employees does not violate
Warrantless arrest of accused for selling the right to privacy in the Constitution. Students do
marijuana 2 days after he escaped is invalid [People not have rational expectation of privacy since they are
v. Kimura, G.R. No. 130805 (2004)]. minors and the school is in loco parentis. Employees
and students in universities, on the other hand,
Page 129 of 382

voluntarily subject themselves to the intrusion

because of their contractual relation to the company
F. Privacy of
or university. Communications and
But it is unconstitutional to subject criminals to RDT. Correspondence
Subjecting criminals to RDT would violate their right
against self-incrimination. Sec. 3, Art. III. (1) The privacy of communication
and correspondence shall be inviolable except
It is also unconstitutional to subject public officials upon lawful order of the court, or when public
whose qualifications are provided for in the safety or order requires otherwise as prescribed by
Constitution (e.g. members of Congress) to RDT. law.
Subjecting them to RDT would amount to imposing (2) Any evidence obtained in violation of this or
an additional qualification not provided for in the the preceding section shall be inadmissible for any
Constitution [SJS v. Dangerous Drugs Board, G.R. No. purpose in any proceeding.
157870 (2008)].
Routine Security Checks THREE STRANDS OF RIGHT TO PRIVACY

1. Decisional privacy — Liberty in the
The Court held that the search and seizure of an illegal constitutional sense must mean more than
drug during a routine airport inspection made freedom from unlawful governmental restraint; it
pursuant to the aviation security procedures as a must include privacy as well, if it is to be a
constitutionally reasonable administrative search. repository of freedom. The right to be let alone
is indeed the beginning of all freedom...The
Persons may lose the protection of the search and concept of liberty would be emasculated if it does
seizure clause by exposure of their persons or not likewise compel respect for his personality as
property to the public in a manner reflecting a lack of a unique individual whose claim to privacy and
subjective expectation of privacy, which expectation interference demands respect [Morfe v. Mutuc, 22
society is prepared to recognize as reasonable. Thus, SCRA 424 (1968)].
while the right of the people to be secure in their 2. Informational privacy — the right of an
persons, houses, papers, and effects against individual not to have private information about
unreasonable searches and seizures is guaranteed by himself disclosed; and the right of an individual
Section 2, Article III of the 1987 Constitution,22 a to live freely without surveillanceand intrusion
routine security check being conducted in air and sea [Whalen v. Roe, 429 US 589, (1977)].
ports has been a recognized exception. [People v 3. Situational privacy – the privacy that is felt in
O’Cochlain, G.R. No. 229071 (2018)] physical space, such as that which may be
violated by trespass or unwarranted searches and
seizure [Vivares v. St. Therese College, G.R. No.
202666 (2014)]
Zones of privacy are recognized and protected in our

laws. Within these zones, any form of intrusion is
impermissible unless excused by law and in
accordance with customary legal process. The
meticulous regard we accord to these zones arises not
only from our conviction that the right to privacy is a
"constitutional right" and "the right most valued by
civilized men," but also from our adherence to the
Universal Declaration on Human Rights which mandates
that, "no one shall be subjected to arbitrary
interference with his privacy" and "everyone has the
right to the protection of the law against such
interference or attacks."
The Constitution does not have a specific provision

protecting the right to privacy. It is a penumbral right
formed from the shadows created by several
Page 130 of 382

constitutional provisions. That is to say, the right to

privacy is located within the zones created by various
provisions of the Constitution and various statutes
Private and Public
which protect aspects of privacy [Ople v. Torres, G.R. Communications
No. 127685].
Requisites of Existence of Privacy Right (Test of
Ople v. Torres has enumerated several provisions of the Reasonable Expectation Of Privacy)
Bill of Rights where the right of privacy is enshrined a. Subjective: A person has exhibited an actual
(penumbras): expectation of privacy; and
a. Sec. 3 – Privacy of communication b. Objective: The expectation be one that
b. Sec. 1 – Life, liberty, and property society is prepared to recognize as
c. Sec. 2 – Unreasonable searches and seizures reasonable [Pollo v. Constantino-David, G.R. No.
d. Sec. 6 – Liberty of abode 181881 (2011)].
e. Sec. 8 – Right to form associations
f. Sec. 17 – Right against self-incrimination
Intrusion, When Allowed
It has also indicated that zones of privacy are
recognized and protected in our laws: a. By lawful order of the court
1. Civil Code Probable cause in Sec. 2, Art. III should be
2. RPC followed for the court to allow intrusion.
3. Anti-Wiretapping Law Particularity of description is needed for written
4. Security of Bank Deposits Act correspondence, but if the intrusion is done
5. Intellectual Property Code through wire-taps and the like, there is no need
to describe the content. However, identity of the
Online Privacy person or persons whose communication is to be
Before one can have an expectation of privacy in his intercepted, and the offense or offenses sought
or her OSN activity, it is first necessary that said user, to be prevented, and the period of the
manifest the intention to keep certain posts private, authorization given shouldbe specified.
through the employment of measures to prevent
access thereto or to limit its visibility (This case; OSN b. When public safety or public order requires
Privacy Tools). Therefore, a Facebook user who opts otherwise, as may be provided by law.
to make use of a privacy tool to grant or deny access In Ayer Productions Pty. Ltd. v. Capulong [G.R. No.
to his or her post or profile detail should not be 82380 (1988)], it was held that the right to be let
denied the informational privacy right which alone is not an absolute right. A limited intrusion
necessarily accompanies said choice. to a person’s privacy has long been regarded as
permissible where that person is a public figure
Therefore, a Facebook user who opts to make use of and the information sought to be elicited from
a privacy tool to grant or deny access to his or her him or to be published about him constitute
post or profile detail should not be denied the matters of public character. The interest sought
informational privacy right which necessarily to be protected by the right to privacy is the right
accompanies said choice. Otherwise, using these to be free from unwarranted publicity, from the
privacy tools would be a feckless exercise, such that wrongful publicizing of the private affairs and
if, for instance, a user uploads a photo or any personal activities of an individual which are outside the
information to his or her Facebook page, and sets its realm of legitimate public concern.
privacy level at “Only Me” or a custom list, such
photo would still be deemed public by the courts as if Intrusion has to be based upon a non-judicial
the user never chose to limit the photos accessibility. government official’s assessment that public
Such position, if adopted, will not only strip these safety and order demands such intrusion,
privacy tools of their function but it would also limited to the provisions of law. To hold
disregard the very intention of the user to keep said otherwise would be to opt for a government
photo or information within the confines of his or her of men, and not of laws.
private space [Vivares v. St. Theresa’s College, G.R. No.
202666 (2014)]. Public order and safety – the security of human
lives, liberty and property against the activities of
invaders, insurrectionist and rebels. [1971
Constitutional Convention, Session of November 25,
1972]
Page 131 of 382

Forms of Correspondence Covered: Two-part test to determine the reasonableness of

a. Letters person’s expectation of privacy
b. Messages 1. Whether by his conduct, the individual has
c. Telephone calls exhibited an expectation of privacy
d. Telegrams, and the like [BERNAS] 2. Whether his expectation is one that society
recognizes as reasonable
a. Right of Privacy v. Freedom of
Note: the factual circumstances of the case determine
Speech and Communication the reasonableness of the expectation. However,
other factors such as customs, physical surroundings
Because of the preferred character of the and practices of a particular activity, may serve to
constitutional rights of the freedom of speech and of create or diminish this expectation [Ople v. Torres,
expression, a weighty presumption of invalidity supra].
vitiates measures of prior restraint upon the exercise
of such freedoms [Ayer v. Capulong, supra].
c. Valid and Invalid
Right of privacy of a public figure is necessarily Encroachments on the Right to
narrower than that of an ordinary citizen [Ayer v. Privacy
Capulong, supra].
General rule: An encroachment on the right to privacy
Public Figure – a person who, by his is invalid when:
accomplishments, fame, or mode of living, or by 1. There is a reasonable expectation of privacy; and
adopting a profession or calling which gives the public 2. if there is no compelling state interest.
a legitimate interest in his doing, his affairs and his
character, has become public personage.
• Why? They had sought publicity and consented
d. Effect of Invalid Intrusions: Sec.
to it, so they could not complain. 3(2), Art III (a.k.a. the
o Their personalities and their affairs had Exclusionary rule)
already become public and could no longer
be regarded as their own private business. Other imports from Jurisprudence:
o The press had a privilege, under the • Anti-Wire Tapping Act (RA 4200), clearly and
constitution, to inform the public about unequivocally makes it illegal for any person, not
those that have become legitimate matters of authorized by all the parties to any private
public interest. But as held in Lagunzad v. Soto communication, to secretly record such
[G.R. No. L-32066 (1979)], being a public communications by means of a tape recorder.
figure does not automatically destroy in toto The law does not make any distinction [Ramirez
a person’s right to privacy. In the case at bar, v. CA, G.R. No. 93833 (1995)]. An extension
while it is true that the producer exerted telephone is not among the devices enumerated
efforts to present a true-to-life story of in Sec.1 of RA 4200. There must be either a
Moises  Padilla, he admits that he induced physical interruption through a wiretap or the
a little romance in the film. deliberate installation of a device or arrangement
in order to overhear, intercept, or record the
b. Right of Privacy v. Freedom of spoken words. The telephone extension in this
Access to Information case was not installed for that purpose. It just
happened to be there for ordinary office use
[Ganaan v. IAC, G.R. No. L-69809 (1986)].
Kilusang Mayo Uno v. Director-General, NEDA [G.R.
No. 167798 (2006)] stated that personal matters are • E.O. 424 (s. 2005), adopting a unified multi-
exempt or outside the coverage of the people’s right purpose ID system for government, does not
to information on matters of public concern. The data violate the right to privacy because it (1) narrowly
treated as “strictly confidential” under EO 420 being limits the data that can be collected, recorded,
matters of public concern, these data cannot be and released compared to existing ID systems,
released to the public or the press. and (2) provides safeguards to protect the
confidentiality of the data collected [KMU v.
Director-General, G.R. No. 167798 (2006)].
• An intrusion into the privacy of workplaces is
valid if it conforms to the standard of
Page 132 of 382

reasonableness. Under this standard, both one knows with the other. And this has nothing to do
inception and scope of intrusion must be with the duty of fidelity that each owes to the other.
reasonable.
a. Justified at inception: if there are reasonable
grounds for suspecting that it will turn up
Writ of Habeas Data
evidence that the employee is guilty of work-
What is the Writ of Habeas Data
related misconduct.
A remedy that is available to any person whose right
b. Scope of intrusion is reasonable: if measures
to life, liberty, and security has been violated or is
used in the search are reasonable related to
threatened with violation by an unlawful act or
the search’s objectives, and it is not highly
intrusive [Pollo v. Constantino-David, supra]. omission of a public official or employee, or of a
private individual or entity engaged in the gathering,
• Right may be invoked against the wife who went
collecting or storing of data or information regarding
to the clinic of her husband and there took
the person, family, home and correspondence of the
documents consisting of private communications
aggrieved party.
between her husband and his alleged paramour
[Zulueta v. CA, G.R. No. 107383 (1996)].
What is its function
To inquire into all manner of involuntary restraint as
N.B. While Zulueta seems to be an exception to the
distinguished from voluntary and to relieve a person
State Action Requirement, Zulueta’s application of the
if such restraint is illegal.
exclusionary rule has only been cited once but to a
state action.
When is it available
a. In cases of illegal detention or restraint;
Exclusionary Rule
b. In custody cases (even of a corpse)
• Any evidence obtained in violation of Secs. 2 or
• Primary requisite for its availability is actual
3, Art. III shall be inadmissible for any purpose
deprivation of right of custody
in any proceeding. This applies not only to
testimonial evidence but also to documentary and
What rule governs Habeas Data
object evidence.
The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-
• Generally, the provisions in the Bill of Rights are SC), which was approved by the SC on 22 January
protections against the government. 2008. That Rule shall not diminish, increase or modify
• However, In the case of Zulueta v. CA the Court substantive rights.
has recognized an instance where it may also be
applied as against a private individual. What is the Supreme Court’s Basis
Sec. 5 (5), Art. VIII.
In that particular case, the wife took her husband‘s
private documents and papers to be used as evidence When does the rule take effect
in the case, without the husband’s knowledge and The Rule took effect on 2 February 2008, following
consent, the Court held that the intimacies between its publication in three (3) newspapers of general
husband and wife do not justify any one of them in circulation.
breaking the drawers and cabinets of the other and in
ransacking them for any telltale evidence of marital Who may file a petition for the issuance of the
infidelity. A person, by contracting marriage, does not writ
shed his/her integrity or his right to privacy as an a. The aggrieved party.
individual and the constitutional protection is ever b. However, in cases of extralegal killings and
available to him or to her. The law insures absolute enforced disappearances, the petition may be
freedom of communication between the spouses by filed by
making it privileged. Neither husband nor wife may 1. Any member of the immediate family of the
testify for or against the other without the consent of aggrieved party, namely: the spouse, children
the affected spouse while the marriage subsists. and parents; or
Neither may be examined without the consent of the 2. Any ascendant, descendant or collateral
other as to any communication received in confidence relative of the aggrieved party within the
by one from the other during the marriage, save for fourth civil degree of consanguinity or
specified exceptions. affinity, in default of those mentioned in the
preceding paragraph
But one thing is freedom of communication; quite
another is a compulsion for each one to share what
Page 133 of 382

Where can the petition be filed

a. Regional Trial Court
G.Freedom of Expression
1. Where the petitioner or respondent resides,
or Concept and Scope
2. That which has jurisdiction over the place
where the data or information is gathered, Sec. 4, Art. III. No law shall be passed abridging
collected or stored, at the option of the petitioner. the freedom of speech, of expression, or of the
b. Supreme Court, Court of Appeals, press, or the right of the people peaceably to
Sandiganbayan – when the action concerns assemble and petition the government for redress
public data files of government offices   of grievances.
Instead of public hearing, can It be done in closed chambers?
Sec. 18(1) Art. III. No person shall be detained
Yes. It can be done when the respondent invokes the
solely by reason of his political beliefs and
defense that the release of the data or information in
aspirations.
question shall compromise national security or state
secrets, or when the data or information cannot be
divulged to the public due to its nature or privileged Concept
character. In the Philippines, the primacy and high esteem
accorded freedom of expression is a fundamental
postulate of our constitutional system. This right was
elevated to constitutional status [...] reflecting our
own lesson of history, both political and legal, that
freedom of speech is an indispensable condition for
nearly every other form of freedom.
The scope of freedom of expression is so broad that

it extends protection to nearly all forms of
communication. It protects speech, print and
assembly regarding secular as well as political causes,
and is not confined to any particular field of human
interest. The protection covers myriad matters of
public interest or concern embracing all issues, about
which information is needed or appropriate, so as to
enable members of society to cope with the exigencies
of their period [Chavez v. Gonzales, G.R. No. 168338
(2008)].
SCOPE
Expression and speech include:

1. Written or spoken words (recorded or not
recorded)
2. Symbolic speech (e.g. wearing of armbands as a
symbol of protest)
However, in NUWHRAIN-APL-IUF Dusit Hotel

Nikko Chapter v. CA [G.R. No. 163942 (2008)], it
was held that the labor union members’ violation
of the hotel’s grooming standards constitutes an
illegal strike, which is not protected by the right
to freedom of expression.
3. Films and television programs [Iglesia ni Cristo v.

CA, G.R. No. 119673 (1996)]
Expression and speech include all forms of

expression, whether written, spoken, or recorded. It
Page 134 of 382

also includes symbolic speech and speech in the form 2. There need not be total suppression. Even
of films and the like. Any and all modes of protection restriction of circulation constitutes censorship
are embraced in the guaranty. It is reinforced by Sec. [Grosjean v. American Press Co., Inc., 297 U.S. 233
18(1), Art. III. (1936)].
In J. Holmes’ dissent in US v. Schwimmer [279 U.S. 644 Examples of Unconstitutional Prior Restraint
(1929)], he states that the principle of free thought is • COMELEC prohibition against radio
not free thought for those who agree with us, but commentators and newspaper columnists from
freedom for the thought that we hate. Further, in J. commenting on the issues involved in a
Holmes’ dissent in Abrams v. US [250 U.S. 616 scheduled plebiscite [Sanidad v. COMELEC, G.R.
(1919)], he states that the “ultimate good desired is No. 90878 (1990)]
better reached by free trade in ideas — that the best • Arbitrary closure of a radio station [Eastern
test of truth is the power of the thought to get itself Broadcasting v. Dans, Jr., G.R. No. L-59329 (1985)];
accepted in the competition of the market”. or even when there is legal justification, such as
lack of mayor’s permit [Newsounds Broadcasting
While the right has a widespread scope, it is not Network v. Dy, supra]
absolute. Examples of unprotected speech are • COMELEC resolution prohibiting the posting of
obscenity, child pornography, and libel. decals and stickers in mobile units such as cars
and other vehicles [Adiong v. COMELEC, G.R.
a. Prior Restraint (Censorship) No. 103956 (1992)]
• Searching, padlocking, and sealing of the offices
Prior restraint refers to official governmental of newspaper publishers by military authorities
restrictions on the press or other forms of expression [Burgos v. Chief of Staff, G.R. No. L-64261 (1984)]
in advance of actual publication or dissemination. • An announcement by a public official
While any system of prior restraint comes to court prohibiting the media from airing or broadcasting
bearing a heavy burden against its constitutionality, the Garci tapes [Chavez v. Gonzales, supra]
not all prior restraints on speech are invalid
[Newsounds Broadcasting Network v. Dy, G.R. No. Examples of Constitutional Prior Restraint
170270 (2009)]. • Law which prohibits, except during the
prescribed election period, making speeches,
Every man shall have a right to speak, write, and print announcements, or commentaries for or against
his opinions upon any subject whatsoever, without the election of any candidate for office [Gonzales
any prior restraint, so always that he does not injure v. COMELEC, G.R. No. L-27833 (1969)]
any other person in his rights, person, property, or
reputation, and so always that he does not thereby • Prohibiting any person making use of the media
disturb the public peace or attempt to subvert the from selling or giving print space or air time free
government [Near v. Minnesota, 283 U.S. 697 (1931)]. of charge for campaign or other political
purposes. Ratio: Police power of the State to
Examples: regulate media for the purpose of ensuring equal
opportunity, time, and space for political
• Censorship: Censorship conditions the exercise campaigns, which COMELEC is authorized to
of freedom of expression upon the prior carry out. [National Press Club v. COMELEC, G.R.
approval of the government. The censor serves
No. 102653 (1992); Osmeña v. COMELEC, G.R.
therefore as the political, moral, social and artistic
No. 132231 (1998)]
arbiter for the people, usually applying only their
own subjective standards in determining what is • Film censorship: The power of the MTRCB can be
good and what is not. exercised only for purposes of reasonable
classification, not censorship [NACHURA, citing
• Permits
Gonzalez v. Katigbak, G.R. No. L-69500 (1985)
• business closure and Ayer Prod. PTY. LTD. v. Judge Capulong, G.R.
No. 82380 (1988)]
General Rules
1. Any system of prior restraints of expression Security of the community life may be protected
comes to the Court bearing a heavy presumption against incitements to acts of violence and the
against its constitutionality, giving the overthrow by force of orderly government
government a heavy burden to show justification
for the imposition of such restraint [New York
Times Co. v. US, 403 U.S. 713 (1971)].
Page 135 of 382

1. Obscenity
b. Subsequent Punishment As obscenity is an unprotected speech which the
State has the right to regulate, the State in
Freedom of speech includes freedom after speech. pursuing its mandate to protect,
Without this assurance, citizens would hesitate to as parens patriae, the public from obscene,
speak for fear that they might be provoking the immoral and indecent materials must justify the
vengeance of the officials they criticized (chilling regulation or limitation.
effect).
• One such regulation is Article 201 of the
Examples of Valid Subsequent Punishment Revised Penal Code. To be held liable, the
• Libel – Every defamatory imputation is prosecution must prove that (a) the
presumed to be malicious, even if it be true materials, publication, picture or literature
[Alonzo v. CA, G.R. No. 110088 (1995)] are obscene; and (b) the offender sold,
exhibited, published or gave away such
Exceptions to the Presumption [Art. 354, Revised materials. Necessarily, that the confiscated
Penal Code] materials are obscene must be proved.
o Private communication in the performance • There is no perfect definition of obscenity
of any legal, moral, or social duty but the latest word is that of Miller v.
o Fair and true report of any judicial, California which established basic guidelines,
legislative, or other official proceedings to wit: (a) whether to the average person,
applying contemporary standards would find
the work, taken as a whole, appeals to the
• Obscenity – Determination of what is obscene
prurient interest; (b) whether the work
is a judicial function [Pita v. CA, G.R. No. 80806
depicts or describes, in a patently offensive
(1989)]
way, sexual conduct specifically defined by
• Contempt for criticism or publications tending to the applicable state law; and (c) whether the
impede, obstruct, embarrass, or influence the work, taken as a whole, lacks serious literary,
courts in administering justice in a pending suit artistic, political, or scientific value. But, it
or proceeding (subjudice) [People v. Alarcon, G.R. would be a serious misreading of Miller to
No. 46551 (1939)] conclude that the trier of facts has the
• Imputation of irregularities in the judiciary must unbridled discretion in determining what is
strike a balance between the right to free press patently offensive No one will be subject
and the reputation of judges. A reporter is to prosecution for the sale or exposure of
prohibited from recklessly disregarding a private obscene materials unless these materials
reputation without any bona fide effort to depict or describe patently offensive hard
ascertain the truth thereof. [In Re: Jurado, A.M. core sexual conduct. Examples included
No. 93-2-037 SC (1995)] (a) patently offensive representations or
• Right of students to free speech in school descriptions of ultimate sexual acts,
premises must not infringe on the school’s right normal or perverted, actual or simulated;
to discipline its students [Miriam College Foundation and (b) patently offensive
v. CA, G.R. No. 127930 (2000)] representations or descriptions of
masturbation, excretory functions, and
Exceptions lewd exhibition of the genitals.
1. Fair comment on matters of public interest – Fair • What remains clear is that obscenity is an
comment is that which is true or, if false, issue proper for judicial determination and
expresses the real opinion of the author based should be treated on a case to case basis and
upon reasonable degree of care and on on the judge’s sound discretion.
reasonable grounds
2. Criticism of official conduct is given the widest Various Tests Previously Developed to
latitude [US v. Bustos, G.R. No. L-12592 (1918)] Determine Obscenity
Memoirs v. Miller v.
UNPROTECTED SPEECH Roth v. US
Massacusetts California
Slander or libel, lewd and obscene speech, as well as The standard
“fighting words” are not entitled to constitutional A work is A work is
for judging
protection and may be penalized [Chavez v. Gonzales, obscene if: obscene if:
obscenity,
supra]. adequate to
Page 136 of 382

Memoirs v. Miller v. b. Distribution of photographs and films

Roth v. US
Massacusetts California depicting sexual activity by juveniles is
withstand the (1) The (1) Whether intrinsically related to the sexual abuse of
charge of dominant the average children.
constitutional theme of the person, c. Advertising and selling of child pornography
infirmity, is material taken applying provide an economic motive for, and are
whether, to as a whole contemporary thus an integral part of, the production of
the average appeals to community such materials.
person, prurient standards, d. Value of permitting live performances and
applying interest in sex; would find photographic reproductions of children
contemporary that the work, engaged in lewd sexual conduct is
community (2) Material is taken as a exceedingly modest.
standards, the patently whole, appeals
dominant offensive to the prurient It is not rare that a content-based classification of
theme of the because it interest; speech has been accepted because it may be
material, taken affronts appropriately generalized that within the confines
as a whole, contemporary (2) Whether of the given classification, the evil to be restricted
appeals to community the work so overwhelmingly outweighs the expressive
prurient standards depicts or interests, if any [New York v. Ferber, 458 U.S. 747
interest. [354 relating to the describes, in (1982)].
U.S. 476 description or an offensive
(1957)] representation way, sexual 3. Libel
of sexual conduct or
matters; excretory Libel is not constitutionally protected speech.
functions, The government has an obligation to protect
(3) Material is specifically individuals from defamation [Disini v. Sec. of
utterly without defined by Justice, G.R. No. 203335 (2014)].
redeeming applicable
social value state law; and In US v. Bustos, supra, a criminal action was
[383 U.S. 413 instituted against defendants for allegedly
(1966)] (3) Whether publishing writings which were libelous against a
the work, justice of the peace. The SC held that the said
taken as a writings constitute qualifiedly privileged matter as
whole, lacks public opinion, therefore, they cannot be
serious presumed malicious.
literary,
artistic, The onus of proving malice shifts to the plaintiff,
political, or who must prove that the defendants were
scientific value actuated by ill will in what they caused to be
[413 U.S. 15 published, with a design to injure the plaintiff.
(1973)]
In In Re: Jurado, supra, the SC held that false
See also Freedom of Expression and Obscenity reports about a public official or other person are
Determination: Community Standard below not shielded from sanction by the right to free
speech. Free speech has never countenanced the
2. Child Pornography publication of falsehoods, specially the persistent
and unmitigated dissemination of patent lies.
The State is entitled to greater leeway in the
regulation of pornographic depictions of children National Community Standard
because: Not belonging to a royal house does not
a. A state’s interest in safeguarding the physical constitute libel. In a community like ours which
and psychological well-being of a minor is is both republican and egalitarian, such an
compelling. The prevention of sexual ascription, whether correct or not, cannot be
exploitation and abuse of children defamatory. It is to the standards of the national
constitutes a government objective of community, not to those of the region that a
surpassing importance. court must refer especially where a newspaper is
Page 137 of 382

national in reach and coverage [Bulletin Publishing

v. Noel, G.R. No. 76565 (1988)]. Content-based and Content-
Group Libel neutral Regulations
Where the defamation is alleged to have been
directed at a group or class, it is essential that the Content-
statement must be so sweeping or all-embracing Content-based
neutral
as to apply to every individual in that group or Regulation of the Regulations of
class, or sufficiently specific so that each subject matter of the incidents
individual in the class or group can prove that the Definition utterance or of speech –
defamatory statement specifically pointed to him, speech time, place,
so that he can bring the action separately, if need manner
be [Newsweek Inc. v. IAC, G.R. No. L-63559 Standard Strict scrutiny Not overbroad
(1986)]. of Review or vague
a. Clear and O’Brien test
As the size of these groups increases, the chances present
for members of such groups to recover damages danger
for tortious libel become elusive. This principle is b. Balancing of
said to embrace two important public policies: Tests interests
a. Where the group referred to is large, the c. Dangerous
courts presume that no reasonable reader tendency
would take the statements as so literally d. Direct
applying to each individual member; and incitement
b. The limitation on liability would
satisfactorily safeguard freedom of speech
and expression, as well as of the press,
a. Content-Based Regulations
effecting a sound compromise between the
conflicting fundamental interests involved in A governmental action that restricts freedom of
libel cases [MVRS v. Islamic Da’wah Council of speech or of the press based on content is given the
the Philippines, G.R. No. 135306 (2003)]. strictest scrutiny in light of its inherent and invasive
impact [Chavez v. Gonzales, supra].
4. Fighting Words
Subject to the clear and present danger test: There is to be
Fighting words refer to those words which, by then no previous restraint on the communication of
their very utterance, inflict injury or tend to incite views or subsequent liability [...] unless there be a clear
an immediate breach of the peace. and present danger of a substantive evil that the State
has a right to prevent [Reyes v. Bagatsing, G.R. No. L-
Such utterances are no essential part of any 65366 (1983)].
exposition of ideas and are of such slight social
value as a step to truth that any benefit that may Freedom of Expression and National Security
be derived from them is clearly outweighed by When a fictitious suicide photo and letter were
the social interest in order and morality. published in newspapers of general circulation
expressing disappointment in the Roxas
The test is what men of common intelligence administration and instructing a fictitious wife to
would understand would be words likely to cause teach their children to burn photos of the President,
an average addressee to fight [Chaplinsky v. New the SC held that such act constitutes inciting to
Hampshire, 315 U.S. 568 (1942)]. sedition.
True Threats It suggests or incites rebellious conspiracies or riots

Political speech is pure and protected speech. and tends to turn the people against the constituted
The government is required to prove a “true authorities, or to provoke violence from opposition
threat”, it cannot punish mere political hyperbole groups who may seek to silence the writer, which is
[Watts v. US, 394 U.S. 705 (1969)]. the sum and substance of the offense under
consideration [Espuelas v. People, G.R. No. L-2990
(1951)].
Page 138 of 382

Actual Malice Standard for Public Officials and

Matters of Public Interest In People v. Godoy [G.R. Nos. 115908-09 (1995)], the
Even if the defamatory statement is false, no liability SC held that obstructing, by means of spoken or
can attach if it relates to official conduct, unless the written word, the administration of justice by the
public official concerned proves that the statement courts is an abuse of the liberty of speech or press
was made with actual malice — that is, with such as will subject the abuser to punishment for
knowledge that it was false or with reckless disregard contempt of court.
of whether it was false or not [Vasquez v. CA, G.R.
No. 118971 (1999), citing New York Times Co. v. In Cabansag v. Fernandez [G.R. No. L-8974 (1957)], due
Sullivan, 376 U.S. 254 (1964)]. to the delay in the disposition of his original case,
Cabansag asked for help from the President through
SC Administrative Circular No. 08-2008 implements a a letter addressed to the Presidential Complaints and
rule of preference for the imposition of fine only Actions Commission. He was charged for contempt
rather than imprisonment in libel suits. because such complaint should have been raised
before the Secretary of Justice or the SC instead.
False reports about a public official or other person
are not shielded by the right to free speech enshrined In the above case, the SC ruled that, for his act to be
in the Constitution. Making knowingly false contemptuous, the danger must cause a serious and
statements made with reckless disregard of the truth imminent threat to the administration of justice. It
does not enjoy constitutional protection. The cannot be inferred that such act has “a dangerous
guaranty of free speech cannot be considered as tendency” to belittle the court or undermine the
according protection to the disclosure of lies, gossip administration of justice, for the writer merely
or rumor [In Re: Jurado, supra]. exercised his constitutional right to petition before
the government for redress of a legitimate grievance.
Freedom of Expression and the Right to Privacy
Being a public figure does not automatically destroy What criticisms are allowed by the court?
in toto a person’s right to privacy. Invading a person’s Criticisms made in good faith. Courts and judges are
privacy to disseminate public information does not not sacrosanct. They should and expect critical
extend to a fictional representation of a person, no evaluation of their performance. For like the
matter how public a figure he or she may be [Lagunzad executive and the legislative branches, the judiciary is
v. Soto, G.R. No. L-32066 (1979)]. rooted in the soil of democratic society, nourished by
the periodic appraisal of the citizen whom it is
Freedom of speech and expression includes freedom expected to serve.
to film and produce motion pictures and to exhibit
them. The fact that such film production is a But it is the cardinal condition of all such criticism
commercial activity is not a disqualification for that it shall be bona fide and shall not spill over the
availing of freedom of speech and expression. walls of decency and propriety. A wide chasm exists
between fair criticism, on the one hand, and abuse and
The right to privacy cannot be invoked to resist slander of courts and the judges thereof, on the other
publication and dissemination of matters of public [In Re: Almacen, G.R. No. 27654 (1970)].
interest. The intrusion is no more than necessary to
keep the film a truthful historical account. Enrile is a Freedom of Expression and Obscenity
public figure because of his participation as a principal Determination: Community Standard
actor in the culminating events of the EDSA Pictures depicting inhabitants of the country in their
revolution [Ayer Prod. PTY. LTD. v. Judge Capulong, native dress as they appear and can be seen in the
supra]. regions in which they live are not obscene or indecent.
The pictures in question merely depict persons as they
Freedom of Expression and the Administration actually live, without attempted presentation of
of Justice persons in unusual postures or dress. The aggregate
The administration of justice and the freedom of the judgment of the Philippine community, the moral
press, though separate and distinct, are equally sacred, sense of all the people in the Philippines, would not
and neither should be violated by the other. The press be shocked by photographs of this type [People v.
and the courts have correlative rights and duties and Kottinger, supra].
should cooperate to uphold the principles of the
Constitution and laws, from which the former A dance portraying the life of a widow who lost her
receives its prerogative and the latter its jurisdiction husband cannot be considered protected speech if the
[In Re: Macasaet, A.M. No. 07-09-13-SC (2008)]. audience, about a hundred customers, was howling
Page 139 of 382

and shouting, “sige muna, sige nakakalibog” (go ahead, peaceable assembly in public places like streets and
go ahead, it is erotic), during the performance [People parks cannot be denied [Reyes v. Bagatsing, supra].
v. Aparici, supra].
B.P. Blg. 880 Is Not Unconstitutional
b. Content-Neutral Regulations B.P. Blg. 880 is not an absolute ban on public
assemblies but a restriction that merely regulates the
Regulations on the incidents of speech — time, place, time, place, and manner of the assemblies. The law is
and manner — under well-defined standards not vague or overbroad. There is, likewise, no prior
[Newsounds Broadcasting Network v. Dy, supra]. restraint, since the content of the speech is not
relevant to the regulation. A fair and impartial reading
When the speech restraints take the form of a of B.P. Blg. 880 readily shows that it refers to all kinds
content-neutral regulation, only a substantial of public assemblies that would use public places
governmental interest is required for its validity. [Bayan v. Ermita, supra].
Because regulations of this type are not designed to
suppress any particular message, they are not subject Freedom Parks: B.P. Blg. 880 provides that every city
to the strictest form of judicial scrutiny but an and municipality must set aside a freedom park within
intermediate approach — somewhere between the six months from the law’s effectivity in 1985. Sec. 15
mere rationality that is required of any other law and of the law provides for an alternative forum through
the compelling interest standard applied to content- the creation of freedom parks where no prior permit
based restrictions [Chavez v. Gonzales, supra]. will be needed for peaceful assembly and petition at
any time. Without such alternative forum, to deny the
A government regulation is sufficiently justified if: permit would in effect be to deny the right to
1. It is within the constitutional power; peaceably assemble [Bayan v. Ermita, supra].
2. It furthers an important or substantial
government interest; Public Fora
3. The government interest is unrelated to the The Philippines is committed to the view expressed
suppression of free expression; in [...] Hague v. CIO [307 U.S. 496 (1939)]: Whenever
4. The incident restriction is no greater than the title of streets and parks may rest, they have
essential to the furtherance of that interest. [US immemorially been held in trust for the use of the
v. O’Brien, 391 U.S. 367 (1968)] public and [...] have been used for purposes of
assembly, communicating thoughts between citizens,
Freedom of Assembly and discussing public questions. Such use of the
The right to freedom of speech and to peacefully streets and public places has, from ancient times, been
assemble and petition the government for redress of a part of the privileges, immunities, rights, and
grievances are fundamental personal rights of the liberties of citizens [Reyes v. Bagatsing, supra].
people guaranteed by the constitutions of democratic
countries. City or town mayors are not conferred the Permit Application
power to refuse to grant the permit, but only the City or town mayors are not conferred the power to
discretion in issuing the permit to determine or refuse to grant the permit, but only the discretion in
specify the streets or public places where the parade issuing the permit to determine or specify the streets
may pass or the meeting may be held [Primicias v. or public places where the parade may pass or the
Fugoso, G.R. No. L-1800 (1948)]. meeting may be held [Primicias v. Fugoso, supra].
The right to peaceably assemble and petition for The Calibrated Preemptive Response (CPR)
redress of grievances is, together with freedom of Insofar as it would purport to differ from or be in lieu
speech, of expression, and of the press, a right that of maximum tolerance, it is null and void. CPR serves
enjoys primacy in the realm of constitutional no valid purpose if it means the same thing as
protection. For these rights constitute the very basis maximum tolerance [Sec. 3(c), B.P. Blg. 880], and is
of a functional democratic polity, without which all illegal if it means something else. Accordingly, what
the other rights would be meaningless and must be followed is maximum tolerance, which is
unprotected [Bayan v. Ermita, G.R. No. 169838 mandated by the law itself [Bayan v. Ermita, supra].
(2006)].
There is a need to address the situation adverted to by
Absent any clear and present danger of a substantive petitioners wherein rallies are immediately dispersed
evil that the State has a right to prevent, the right to in the event that the mayor does not act on the
application for a permit, the police demand the
permit, and the rallyists cannot produce one.
Page 140 of 382

a. The statute is challenged as applied; or

In such a situation, as a necessary consequence and a b. The statute involves free speech [Disini v. Sec. of
part of maximum tolerance, rallyists who are able to Justice, supra].
show the police an application duly filed on a given
date can, after two (2) days from said date, rally in OVERBREADTH DOCTRINE
accordance with their application without the need to The statute must be carefully drawn or be
show a permit, the grant of the permit being then authoritatively construed to punish only unprotected
presumed under the law. It will be the burden of the speech and not be susceptible of application to
authorities to show that there has been a denial of the protected expression [Gooding v. Wilson, supra].
application, in which case the rally may be peacefully
dispersed following the procedure of maximum A law may be invalidated as overbroad if a substantial
tolerance provided by the law [Bayan v. Ermita, supra]. number of its applications are unconstitutional,
judged in relation to the statute’s plainly legitimate
Facial Challenges and the sweep [US v. Stevens, 559 U.S. 460 (2010)].
Overbreadth Doctrine A governmental purpose may not be achieved

through means which sweep too broadly and thereby
General Rule: A party can question the validity of a invade the area of protected freedoms.
statute only if, as applied to him, it is unconstitutional
[Southern Hemisphere v. Anti-Terrorism Council, G.R. No. A plain reading of P.P. No. 1017 shows that it is not
178552 (2010)]. primarily directed at speech, rather, it covers a
spectrum of conduct. It is a call upon the AFP to
Exception: Facial challenges prevent or suppress all forms of lawless violence.
A facial challenge may be directed against a vague Facial invalidation on the ground of overbreadth is a
statute or to one which is overbroad because of the manifestly strong medicine, to be used sparingly and
possible “chilling effect” the statute will have on only as a last resort. Petitioners did not show that
protected speech. The theory is that “[w]hen statutes there is no instance wherein P.P. No. 1017 may be
regulate or proscribe speech and no readily apparent valid [David v. Arroyo, G.R. No. 171396 (2006)].
construction suggests itself as a vehicle for
rehabilitating the statutes in a single prosecution, the VOID FOR VAGUENESS DOCTRINE
transcendent value to all society of constitutionally A statute establishing a criminal offense must define
protected expression is deemed to justify allowing the offense with sufficient definiteness that persons
attacks on overly broad statutes with no requirement of ordinary intelligence can understand what conduct
that the person making the attack demonstrate that is prohibited by the statute. It can only be invoked
his own conduct could not be regulated by a statute against that specie of legislation that is utterly vague
drawn with narrow specificity” [Gooding v. Wilson, 405 on its face, i.e. that which cannot be clarified either by
U.S. 518 (1972)]. a saving clause or by construction.
The possible harm to society in permitting some A statute or act may be said to be vague when it lacks
unprotected speech to go unpunished is outweighed comprehensible standards that men of common
by the possibility that the protected speech of others intelligence must necessarily guess at its meaning and
may be deterred, and perceived grievances left to differ in its application [Estrada v. Sandiganbayan, G.R.
fester because of possible inhibitory effects of overly No. 148560 (2001)].
broad statutes.
This rationale does not apply to penal statutes without

Tests
a free speech aspect. Criminal statutes have general in
terrorem effect resulting from their very existence and, a. Clear and Present Danger Test
if facial challenges were allowed for this reason alone,
the State may well be prevented from enacting laws There is to be then no previous restraint on the
against socially harmful conduct. In the area of communication of views or subsequent liability [...]
criminal law, the law cannot take chances as in the unless there be a clear and present danger of a
area of free speech [Southern Hemisphere v. Anti- substantive evil that the State has a right to prevent
Terrorism Council, supra]. [Reyes v. Bagatsing, supra].
However, said doctrine applies to penal statutes The question in every case is whether the words used
when: are used in such circumstances and are of such a
Page 141 of 382

nature as to create a clear and present danger that they some definite or immediate acts of force, violence, or
will bring about the substantive evils that Congress unlawfulness be advocated [Cabansag v. Fernandez,
has a right to prevent. It is a question of proximity supra].
and degree [Schenck v. US, supra].
It is sufficient if the natural tendency and the probable
It is a showing of a substantive and imminent evil, not effect of the utterance were to bring about the
hypothetical fears. Only when the challenged act has substantive evil that the legislative body seeks to
overcome the clear and present danger rule will it pass prevent [People v. Perez, supra].
constitutional muster, with the government having
the burden of overcoming the presumed d. Direct Incitement Test
unconstitutionality [Chavez v. Gonzales, supra].
The constitutional guarantees of free speech and free
This rule also requires that “the danger created must press do not permit a State to forbid or proscribe
not only be clear and present but also traceable to the advocacy of the use of force or of law violation except
ideas expressed” [Gonzales v. COMELEC, supra]. where such advocacy is directed to inciting or
producing imminent lawless action and is likely to
The evil consequence of the comment or utterance incite or produce such action [Brandenburg v. Ohio, 395
must be “extremely serious and the degree of U.S. 444 (1969)].
imminence extremely high” before the utterance can
be punished. The danger to be guarded against is the It is incumbent on the court to make clear in some
“substantive evil” sought to be prevented. And this fashion that the advocacy must be of action and not
evil is primarily the “disorderly and unfair merely of abstract doctrine [Yates v. US, 354 U.S. 298
administration of justice.” [...] Under this rule, the (1957)].
advocacy of ideas cannot constitutionally be abridged
unless there is a clear and present danger that such Political discussion even among those opposed to the
advocacy will harm the administration of justice present administration is within the protective clause
[Cabansag v. Fernandez, supra]. of freedom of speech and expression. The same
cannot be construed as subversive activities per se or
Note: This test has been adopted by SC and is the test as evidence of membership in a subversive
most applied to cases re: freedom of expression. organization [Salonga v. Cruz Paño, G.R. No. L-59524
(1985)].
b. Balancing of Interests Test
e. O’Brien Test (Intermediate
When a particular conduct is regulated in the interest
of public order, and the regulation results in an Approach)
indirect, conditional and partial abridgement of
speech, the duty of the courts is to determine which A government regulation is sufficiently justified if:
of the two conflicting interests demands greater 1. It is within the constitutional power;
protection [American Communications v. Douds, 339 U.S. 2. It furthers an important or substantial
282 (1950)]. government interest;
3. The government interest is unrelated to the
The test is applied when two legitimate values not suppression of free expression;
involving national security crimes compete [Gonzales 4. The incident restriction is no greater than
v. COMELEC, supra]. essential to the furtherance of that interest [US v.
O’Brien, supra].
c. Dangerous Tendency Test
State Regulation of Different
In each case, courts must ask whether the gravity of
the “evil”, discounted by its improbability, justifies
Types of Mass Media
such invasion of free speech as is necessary to avoid
the danger [Dennis v. US, 341 U.S. 494 (1951)]. Sec. 11(1), Art. XVI. The ownership and
management of mass media shall be limited to
Under this test, the question is whether the words will citizens of the Philippines, or to corporations,
create a dangerous tendency that the state has a right cooperatives or associations, wholly-owned and
to prevent. It looks at the probability that a managed by such citizens.
substantive evil will result, and it is not necessary that
Page 142 of 382

The Congress shall regulate or prohibit a. The scarcity of the frequencies by which the
monopolies in commercial mass media when the medium operates, i.e., airwaves are physically
public interest so requires. No combinations in limited while print medium may be limitless;
restraint of trade or unfair competition therein b. Its pervasiveness as a medium; and
shall be allowed. c. Its unique accessibility to children [FCC v. Pacifica
Foundation, 438 U.S. 726 (1978)].
The advertising industry is impressed with public
interest, and shall be regulated by law for the But all forms of media, whether print or broadcast,
protection of consumers and the promotion of the are entitled to the broad protection of the freedom of
general welfare. expression clause. The test for limitations on freedom
of expression continues to be the clear and present
Only Filipino citizens or corporations or danger test [Eastern Broadcasting v. Dans, Jr., supra].
associations at least seventy per centum of the
capital of which is owned by such citizens shall be Movie Censorship
allowed to engage in the advertising industry. When the MTRCB rated the movie “Kapit sa
Patalim” as fit “for adults only”, the SC ruled that
The participation of foreign investors in the there was no grave abuse of discretion.
governing body of entities in such industry shall be
limited to their proportionate share in the capital Censorship is allowable only under the clearest proof
thereof, and all the executive and managing of a clear and present danger of a substantive evil to
officers of such entities must be citizens of the public safety, morals, health, or any other legitimate
Philippines. public interest:
a. There should be no doubt that what is feared may
The Court pronounced that the freedom of broadcast be traced to the expression complained of;
media is lesser than that of the press because of its b. Also, there must be reasonable apprehension
pervasive presence in the lives of people and because about its imminence. It does not suffice that the
of their accessibility to children. danger is only probable [Gonzalez v. Katigbak,
supra].
The interest of society and the maintenance of good
government demand a full discussion of public affairs. Limited intrusion into a person’s privacy is
Complete liberty to comment on the conduct of permissible when that person is a public figure and
public men is a scalpel in the case of free speech. The the information sought to be published is of a public
sharp incision of its probe relieves the abscesses of character.
officialdom. Men in public life may suffer under a
hostile and unjust accusation; the wound can be What is protected is the right to be free from
assuaged with the balm of clear conscience [US v. unwarranted publicity, from the wrongful publicizing
Bustos, supra]. of the private affairs of an individual which are
outside the realm of public concern [Ayer Prod. PTY.
Four Aspects of Freedom of the Press LTD. v. Judge Capulong, supra].
a. Freedom from prior restraint;
b. Freedom from punishment subsequent to TELEVISION CENSORSHIP
publication;
c. Freedom of access to information; and P.D. No. 1986 gave the MTRCB the power to screen,
d. Freedom of circulation [Chavez v. Gonzales, supra] review, and examine all television programs.
PRINT VS. BROADCAST MEDIA By the clear terms of the law, the Board has the power
to “approve, delete, or prohibit the exhibition and/or
While all forms of communication are entitled to the television broadcasts of television programs. The law
broad protection of freedom of expression clause, the also directs the Board to apply contemporary Filipino
freedom of film, television, and radio broadcasting is culture values as the standard to determine those
somewhat lesser than the freedom accorded to which are objectionable for being immoral, indecent,
newspapers and other print media [Chavez v. Gonzales, contrary to law and/or good customs, injurious to the
supra]. prestige of the Republic of the Philippines and its
people, or with a dangerous tendency to encourage
Radio and television are accorded less protection the commission of a violence or of a wrong or a
because of: crime.
Page 143 of 382

The law gives the Board the power to screen, review submission of the manuscript. It is the duty of Far
and examine all “television programs”, whether Eastern Broadcasting to require the submission of a
religious, public affairs, news documentary, etc. When manuscript as a requirement in broadcasting
the law does not make any exception, courts may not speeches. Besides, laws provide for such actions:
exempt something therefrom [Iglesia ni Cristo v. CA, a. Act No. 8130: Franchise for Far Eastern; radio to
supra]. be open to the general public but subject to
regulations;
Notwithstanding the fact that freedom of religion has b. Comm. No. Act 98: Secretary of Interior and/or
been accorded a preferred status, the television the Radio Board is empowered to censor what is
program of Iglesia ni Cristo is still not exempt from considered “neither moral, educational or
the MTRCB’s power to review. If the Court [...] did entertaining, and prejudicial to public interest”.
not exempt religious programs from the jurisdiction The Board can forfeit the license of a
and review power of the MTRCB, with more reason, broadcasting station;
there is no justification to exempt ABS-CBN’s “The c. Sec. of Interior, Dept. Order No. 13: Requires
Inside Story” which [...] is protected by the submission of daily reports to Secretary of
constitutional provision on freedom of expression Interior and/or the Radio Board re: programs
and of the press, a freedom bearing no preferred before airing. For speeches, a manuscript or short
status [MTRCB v. ABS-CBN, G.R. No. 155282 gist must be submitted [Santiago v. Far Eastern
(2005)]. Broadcasting, supra].
On the television program “Ang Dating Daan”, Strict rules have also been allowed for radio because
petitioner made crude remarks like “lehitimong anak of its pervasive quality and because of the interest in
ng demonyo, sinungaling”. The MTRCB preventively the protection of children [FCC v. Pacifica Foundation,
suspended him and his show. The SC held that the supra (1978)].
State has a compelling interest to protect the minds of
the children who are exposed to such materials
[Soriano v. Laguardia, G.R. No. 164785 (2009)].
Commercial Speech
Commercial speech is a separate category of speech
The television camera is a powerful weapon which
which is not accorded the same level of protection as
intentionally or inadvertently can destroy an accused
that given to other constitutionally guaranteed forms
and his case in the eyes of the public.
of expression but is nonetheless entitled to
protection.
Considering the prejudice it poses to the defendant’s
right to due process as well as to the fair and orderly
Central Hudson Gas & Elec. v. Public Svc. Comm’n [447
administration of justice, and considering further that
U.S. 557 (1980)] established the test to be applied to
the freedom of the press and the right of the people
regulations on commercial speech:
to information may be served and satisfied by less
a. Speech must not be false, misleading, or
distracting, degrading, and prejudicial means, live
proposing an illegal activity;
radio and television coverage of the court proceedings
b. Government interest sought to be served by
shall not be allowed. No video shots or photographs
regulation must be substantial;
shall be permitted during the trial proper. Video
c. The regulation must advance government
footages of court hearings for news purposes shall be
interest; and
limited and restricted [Sec. of Justice v. Sandiganbayan,
d. The regulation must not be overbroad.
A.M. No. 01-4-03-SC (2001)].
Regardless of the regulatory schemes that broadcast Political Speech

media is subjected to, the SC has consistently held
that the clear and present danger test applies to COMELEC does not have the authority to regulate
content-based restrictions on media, without making the enjoyment of the right to freedom of expression
a distinction as to traditional print or broadcast media exercised by citizens who are neither electoral
[Chavez v. Gonzales, supra]. candidates nor sponsored by any electoral candidate.
A tarpaulin that expresses a political opinion
RADIO CENSORSHIP constitutes political speech. Speech that promotes
dialogue on public affairs, or airs out grievances and
In Santiago v. Far Eastern Broadcasting [G.R. No. L- political discontent, should be protected and
48683 (1941)], the SC did not uphold the claim that encouraged [Diocese of Bacolod v. COMELEC, G.R. No.
Far Eastern Broadcasting had no right to require the 205728 (2015)].
Page 144 of 382

there is a clear and present danger of grave and

Distinguished from commercial speech imminent harm, which is not easy to prove.
Political speech refers to speech "both intended and

received as a contribution to public deliberation about
some issue,"200 "foster[ing] informed and
civicminded deliberation." On the other hand,
commercial speech has been defined as speech that
does "no more than propose a commercial
transaction."
Private v. Government
Speech
Parliamentary immunity guarantees the members
of Congress the freedom of expression without fear
of being held responsible in criminal or civil actions
before courts or fora outside of Congress, but this
does not protect them from being held responsible by
the legislative body. The members may nevertheless
be questioned in Congress itself.
For unparliamentary conduct, members of the

Congress have been or could be censured, committed
to prison, or even expelled by the votes of their
colleagues [Osmeña v. Pendatun, G.R. No. L-17144
(1960)].
A libelous letter of a congressman, published in a

newspaper, does not fall under “speech or debate”
protected by the Constitution. Speech or debate refers
to speeches, statements, or votes made within
Congress while it is in session, or duly authorized
actions of congressmen in the discharge of their
duties [Jimenez v. Cabangbang, G.R. No. L-15905
(1966)].
Heckler’s Veto
Heckler’s veto is an attempt to limit unpopular
speech. This occurs when an acting party’s right to
freedom of speech is curtailed or restricted by the
government in order to prevent a reacting party’s
behavior.
For example, an unpopular group wants to hold a rally

and asks for a permit. The government is not allowed
to refuse the permit based on the beliefs of the
applicants, but the government may deny the permit
on the ground of fear that many people will be
outraged and cause violent protests, not because the
government disapproves of the group’s message.
Under the free speech clause, the government may
not silence speech based on the reaction (or
anticipated reaction) of a hostile audience, unless
Page 145 of 382

H. Freedom of Religion b. Basis

Art. III, Sec. 5. No law shall be made respecting
“[T]he principle of separation of Church and State is
an establishment of religion; or prohibiting the free
based on mutual respect. Generally, the State cannot
exercise thereof. The free exercise and enjoyment
meddle in the internal affairs of the church, much less
of religious profession and worship, without
question its faith and dogmas or dictate upon it. It
discrimination or preference, shall forever be
cannot favor one religion and discriminate against
allowed. No religious test shall be required for the
another. On the other hand, the church cannot
exercise of civil or political rights.
impose its beliefs and convictions on the State and the
rest of the citizenry. It cannot demand that the nation
Definition of Religion follow its beliefs, even if it sincerely believes that they
“In Philippine jurisprudence, religion, for purposes of are good for the country” [Imbong v. Ochoa, G.R. No.
the religion clauses, has thus far been interpreted as 204819 (2014), on the constitutionality of the RH
theistic. In 1937, the Philippine case of Aglipay v. Ruiz Law].
involving the Establishment Clause, defined religion
as a profession of faith to an active power that binds Rooted in the separation of Church and State.
and elevates man to his Creator. Twenty years later, Relevant provisions of the Constitution:
the Court cited the Aglipay definition in American 1. Art. II, Sec. 6: “The separation of Church and
Bible Society v. City of Manila, a case involving the State shall be inviolable.”
Free Exercise clause. The latter also cited the 2. Art. IX-C, Sec. 2(5): “Religious denominations
American case of Davis in defining religion, viz: “(i)t and sects shall not be registered [as political
has reference to one’s views of his relations to His parties].”
Creator and to the obligations they impose of 3. Art. VI, Sec. 5(2): “For three consecutive terms
reverence to His being and character and obedience after the ratification of this Constitution, one-half
to His Will” [Estrada v. Escritor, A.M. No. P-02-1651 of the seats allocated to party-list representatives
(2003)]. shall be filled, as provided by law, by selection or
election from […] sectors as may be provided by
Note: The Davis definition has been expanded to law, except the religious sector.”
include non-theistic beliefs, but only in U.S. 4. Art. VI, Sec. 29(2): “No public money or
jurisprudence [Estrada v. Escritor, supra]. property shall be appropriated, applied, paid, or
employed, directly or indirectly, for the use,
Non-establishment Clause benefit, or support of any sect, church,
denomination, sectarian institution, or system of
a. Concept religion, or of any priest, preacher, minister, other
religious teacher, or dignitary as such, except
when such priest, preacher, minister, or dignitary
“From the religious perspective, religion requires
is assigned to the armed forces, or to any penal
voluntarism because compulsory faith lacks religious
institution, or government orphanage or
efficacy. Compelled religion is a contradiction in
leprosarium.”
terms … Such voluntarism cannot be achieved unless
the political process is insulated from religion and
unless religion is insulated from politics. c. Acts not Permitted by Non-
Establishment Clause
Non-establishment thus calls for government
neutrality in religious matters to uphold voluntarism 1. Prayer and Bible-reading in public schools
and avoid breeding interfaith dissension” [Estrada v. [Abington School District v. Schemp, 374 U.S. 203
Escritor, supra]. (1963)]
2. Financial subsidy for parochial schools [Lemon v.
The clause prohibits excessive government Kurtzman, 403 U.S. 602 (1971)]
entanglement with, endorsement or disapproval of 3. Religious displays in public spaces: Display of
religion [Victoriano v. Elizalde Rope Workers Union, G.R. granite monument of 10 commandments in front
No. L-25246 (1974)]. of a courthouse is unconstitutional for being
unmistakably non-secular [Glassroth v. Moore, 335
F.3d 1282 (2003)]
Page 146 of 382

4. Mandatory religious subjects or prohibition of to the armed forces, or to any penal institution, or
secular subjects (evolution) in schools [Epperson v. government orphanage or leprosarium.
Arkansas, 393 U.S. 97 (1968)]
5. Mandatory bible reading in school (a form of JURISPRUDENCE
preference for belief over non-belief) [School 1. Religious activities with secular
District v. Schempp, 374 U.S. 203 (1963)] purpose/character. — Postage stamps depicting
6. Word “God” in the Pledge of Allegiance: Philippines as the site of a significant religious
religious v. atheist students [Elk Grove Unified event – promotes Philippine tourism [Aglipay v.
School District v. Newdow, 542 U.S. 1 (2004)] Ruiz, G.R. No. L-45459].
2. Government sponsorship of town fiestas. – has
d. Acts Permitted by Non- secular character [Garces v. Estenzo, G.R. No. L-
Establishment Clause 53487 (1981)]
3. Book lending program for students in parochial
CONSTITUTIONALLY CREATED schools. – benefit to parents and students [Board
of Education v. Allen, 392 U.S. 236 (1968)]
1. Tax exemption 4. Display of crèche in a secular setting – depicts
origins of the holiday [Lynch v. Donnely, 465 U.S.
668 (1984)]
Art. VI, Sec. 28 (3). Charitable institutions, 5. Financial support for secular academic facilities
churches and personages or convents appurtenant
(i.e. library and science center) in parochial
thereto, mosques, non-profit cemeteries, and all
schools – has secular use [Tilton v. Richardson, 403
lands, buildings, and improvements, actually,
U.S. 672 (1971)]
directly, and exclusively used for religious,
6. Exemption from zoning requirements to
charitable, or educational purposes shall be exempt
accommodate unique architectural features of
from taxation.
religious buildings i.e. Mormon’s tall pointed
steeple [Martin v. Corporation of the Presiding Bishop,
2. Operation of sectarian schools 434 Mass. 141 (2001)]
Art. XIV, Sec. 4(2). Educational institutions,

other than those established by religious groups Standards used in Deciding
and mission boards, shall be owned solely by Religion Clause Cases
citizens of the Philippines or corporations or
associations at least sixty per centum of the capital 1. Separation – protects the principle of church-
of which is owned by such citizens… separation with a rigid reading of the principle
a. Strict Separation
3. Religious instruction in public schools • The wall of separation is meant to
protect the state from the church
Art. XIV, Sec. 3(3). At the option expressed in • There is an absolute barrier to formal
writing by the parents or guardians, religion shall interdependence of religion and state
be allowed to be taught to their children or wards • There is hostility between the two
in public elementary and high schools within the b. Strict Neutrality or tamer separation
regular class hours by instructors designated or
• Requires the state to be neutral in its
approved by the religious authorities of the religion
relation with groups of religious
to which the children or wards belong, without
believer; the relationship is not
additional cost to the Government.
necessarily adversarial
• Allow for interaction between church
4. Limited public aid to religion
and state, but is strict with regard to state
action which would threaten the
Art. VI, Sec. 29(2). No public money or property integrity of religious commitment
shall be appropriated, applied, paid, or employed,
• The basis of government action has a
directly or indirectly, for the use, benefit, or
secular criteria and religion may not be
support of any sect, church, denomination,
used as a basis for classification of
sectarian institution, or system of religion, or of
purposes
any priest, preacher, minister, other religious
teacher, or dignitary as such, except when such
priest, preacher, minister, or dignitary is assigned
Page 147 of 382

• Public policy and the constitution manner of its exercise [Cantwell v. Connecticut]. “Under
require the government to avoid the Free Exercise Clause, religious belief is absolutely
religion-specific policy protected, religious speech and proselytizing are
highly protected but subject to restraints applicable to
2. Benevolent neutrality and the Doctrine non-religious speech, and unconventional religious
of Accommodation (infra.) practice receives less protection; nevertheless
• It protects religious realities, tradition, conduct, even if it violates the law, could be accorded
and established practice with a flexible protection” [Estrada v. Escritor, supra].
reading of the principle of separation of
church and state. Dual Aspect
• The Doctrine of Accommodation a. Freedom to believe – absolute
allows the government to take religion b. Freedom to act on one’s belief – subject to
into account when creating government regulation
policies to allow people to exercise their
religion without hindrance. The effect The constitution embraces two concepts, that is,
they want to achieve is to remove a freedom to believe and freedom to act. The first is
burden on one’s exercise. The absolute but, in the nature of things, the second
government may take religion into cannot be. Conduct remains subject to regulation for
account to exempt, when possible, from the protection of society. The freedom to act must
generally applicable governmental have appropriate definitions to preserve the
regulation individuals whose religious enforcement of that protection. In every case, the
beliefs and practices would be infringed, power to regulate must be so exercised, in attaining a
or to crate without state involvement, an permissible end, as not to unduly infringe on the
atmosphere in which voluntary religious protected freedom.
exercise may flourish.
Whence, even the exercise of religion may be
• The breach in the wall between church
regulated, at some slight inconvenience, in order that
and state is allowed in order to uphold
the State may protect its citizens from injury. Without
religious liberty, which is the integral
doubt, a State may protect its citizens from fraudulent
purpose of the religion clauses. The
solicitation by requiring a stranger in the community,
purpose of accommodation is to
before permitting him publicly to solicit funds for any
remove the burden on a person’s
purpose, to establish his identity and his authority to
exercise of his religion.
act for the cause which he purports to represent. The
• Although morality contemplated in laws State is likewise free to regulate the time and manner
is secular, benevolent neutrality could of solicitation generally, in the interest of public
allow for accommodation of morality safety, peace, comfort, or convenience.
based on religion, provided it does not
offend compelling state interests In a nutshell, the Constitution guarantees the freedom
[Estrada v. Escritor, supra]. to believe absolutely, while the freedom to act based
on belief is subject to regulation by the State when
Note: Estrada is a carefully crafted doctrine, the use of necessary to protect the rights of others and in the
which is limited for the protection of religious interest of public welfare [Valmores v. Achacoso, G.R.
minorities. No. 217453 (2017)].
N.B. “Matters dealing with ‘faith, practice, doctrine, Laws and Acts Justified under Free Exercise
form of worship, ecclesiastical law, custom and rule Clause
of a church ... are unquestionably ecclesiastical a. Exemption from flag salute in school [Ebralinag
matters which are outside the province of the civil v. Division Superintendent of Schools of Cebu, G.R. No.
courts.’ The jurisdiction of the Court extends only to 95770 (1993)]
public and secular morality.” [Imbong v. Ochoa, supra] b. Freedom to propagate religious doctrines:
The power to tax the exercise of the privilege is
Free Exercise Clause the power to control or suppress its enjoyment
[American Bible Society v. City of Manila, G.R. No.
The Free Exercise Clause affords absolute protection L9637 (1957)].
to individual religious convictions. However, the c. Exemption from union shop:
government is able to regulate the times, places, and
Page 148 of 382

Congress acted merely to relieve persons of the

burden imposed by union security agreements Under the Benevolent Neutrality Doctrine, this is
[Victoriano v. Elizalde Rope Workers Union, supra]. the proper test where conduct arising from religious
d. Non-disqualification of religious leaders from belief is involved.
local government office [See Pamil v. Teleron G.R.
No. L-34854 (1978)] 1. Has the gov’t action created a burden on the free
e. Working hours from 7:30 am to 3:30 pm without exercise? Court must look into sincerity (but not
break during Ramadan [Re: Request of Muslim truth) of belief.
Employees in the Different Courts of Iligan City, A.M. 2. Is there a compelling state interest to justify the
No. 02-2-10-SC (2005)] infringement?
f. Exemption from administrative charge on 3. Are the means to achieve the legitimate state
immorality: objective the least intrusive? [Estrada v. Escritor,
g. Cohabiting with a married man with church supra]
sanction evidenced by a document of
“Declaration of Pledging Faithfulness” [Estrada v. c. Conscientious Objector
Escritor, supra].
In the RH Law
Duty to Refer in the RH Law is violative of the Sections 7, 23, and 24 of RA 10354 (Reproductive
Free Exercise Clause Health Law) impose upon the conscientious objector
The provisions mandating a “hospital or a medical the duty to refer the patient seeking reproductive
practitioner to immediately refer a person seeking health services to another medical practitioner.
health care and services under the law to another
accessible healthcare provider despite their A conscientious objector should be exempt from
conscientious objections based on religious or ethical compliance with the mandates of the RH Law. If he
beliefs” is violative of free exercise. The Court held is compelled to act contrary to his religious belief and
that this opt-out class is a false compromise because conviction, it would be violative of "the principle of
it cannot force someone, in conscience, to do non-coercion" enshrined in the constitutional right to
indirectly what they cannot do directly [Imbong v. free exercise of religion.
Ochoa, supra].
The Court found no compelling state interest which
N.B. The Court, however, held that the policy of the would limit the free exercise of conscientious
government with regard to the promotion of objectors. Only the prevention of an immediate
contraceptives was not violative of the establishment danger to the security and welfare of the community
clause. “[T]he State is not precluded to pursue its can justify the infringement of religious freedom.
legitimate secular objectives without being dictated Also, respondents failed to show that the means to
upon by the policies of any one religion” [Id.]. achieve the legitimate state objective is the least
intrusive means [Imbong v. Ochoa, supra].
Tests
a. Clear and Present Danger
Used for religious speech.
In order to justify restraint the court must determine

whether the expression presents a clear and present
danger of any substantive evil, which the state has a
right to prevent [American Bible Society v. City of Manila,
supra, citing Tañada and Fernando on the Constitution of the
Philippines, Vol. 1, 4th ed., p. 297].
b. Benevolent Neutrality –
Compelling State Interest
Test where conduct arising from religious beliefs
involved.
Page 149 of 382

I. Liberty of Abode and

Right to Travel
Freedom of Movement
Restraint on right to travel of accused on bail is
The liberty of abode and of changing the same within allowed to avoid the possibility of losing jurisdiction
the limits prescribed by law shall not be impaired if accused travels abroad [Manotoc v. CA, G.R. No. L-
except upon lawful order of the court. Neither shall 62100 (1986)].
the right to travel be impaired except in the interest of
national security, public safety or public health, as may OCA Circular No. 49-2003 which requires that all
be provided by law. [Sec. 6, Art. III, Constitution] foreign travels of judges and court personnel must be
with prior permission from the Court does not
Freedom of movement includes two rights: restrict, but merely regulates, the right to travel. To
1. Liberty of abode “restrict” is to restrain or prohibit a person from
2. Liberty of travel doing something, to “regulate” is to govern or direct
according to rule [OCA v. Macarine, A.M. No. MTJ-
Limitations 10-1770 (2012)].
a. Liberty of Abode A person’s right to travel is subject to usual

constraints imposed by the very necessity of
• May be impaired only upon lawful order of
safeguarding the system of justice. In such cases,
the court
whether the accused should be permitted to leave the
o The court itself is to be guided by the
jurisdiction for humanitarian reasons is a matter of the
limits prescribed by law court’s sound discretion [Marcos v. Sandiganbayan, G.R.
• To illustrate: A condition imposed by the Nos. 115132-34 (1995)].
court in connection with the grant of bail is
an example of a valid limitation to liberty. The right to travel does not mean the right to choose
a. Liberty of Travel any vehicle in traversing a toll way. The right to travel
• May be impaired even without a lawful order refers to the right to move from one place to another.
of the court The mode by which parties wish to travel pertains to
o BUT the appropriate executive officer the manner of using the toll way, a subject that can be
(who may impair this right) is not validly limited by regulation. The right to travel does
granted arbitrary discretion to impose not entitle a person to the best form of transport or
limitations to the most convenient route to his destination
o He can only do so on the basis of [Mirasol v. DPWH, G.R. No. 158793 (2006)].
“national security, public safety, or
public health” and “as may be provided Watch-list and hold departure orders
by law” (e.g. Human Security Act, There was no legal basis for Department Circular No.
quarantine) 41 because of the absence of a law authorizing the
• Impairment of this liberty is subject to Secretary of Justice to issue Hold Departure Orders
judicial review (HDO), Watch List Orders (WLO), or Allow
• The executive of a municipality does not Departure Order (ADO). The Court ruled that the
have the right to force citizens of the issuance of DOJ Circular No. 41, without a law to
Philippines to change their domicile from justify its action, is an unauthorized act of the DOJ of
one locality to another [Villavicencio v. empowering itself under the pretext of dire exigency
Lukban, G.R. No. L-14639 (1919)]. or urgent necessity [Genuino v. De Lima, G.R. No.
• In a case involving Manguianes, a nomadic 197930 (2018)].
people, their relocation was deemed a proper
restraint to their liberty. The Court held that Watch-list Orders Hold Departure Orders
it was for their advancement in civilization Issued against: Issued against:
and so that material prosperity may be a. Accused in a. Accused on criminal
assured [Rubi v. Provincial Board, supra]. criminal cases cases (irrespective of
(irrespective of nationality in courts
nationality in below RTC);
RTC or below); b. aliens (defendant,
OR respondent, and
witness in pending
Page 150 of 382

b. Any person
with pending
civil or labor case, or
any case pending
J. Right to Information
case in DOJ before an
administrative agency The right of the people to information on matters of
of the government); public concern shall be recognized. Access to official
and records, and to documents and papers pertaining to
c. Any person motu official acts, transactions, or decisions, as well as to
proprio by the Secretary government research data used as basis for policy
of Justice or request of development, shall be afforded the citizen, subject to
heads of departments, such limitations as may be provided by law [Sec. 7,
Constitutional Art. III, Constitution].
Commissions,
Congress, or Supreme Subject to reasonable conditions prescribed by law,
Court the State adopts and implements a policy of full public
Issued by the Secretary of Justice [Department disclosure of all its transactions involving public
Circular No. 41, June 7, 2010] interest [Sec. 28, Art. II, Constitution.]
A hold departure order is but an exercise of the The State shall provide the policy environment for the
[Sandiganbayan’s] inherent power to preserve and to full development of Filipino capability and the
maintain the effectiveness of its jurisdiction over the emergence of communication structures suitable to
case and the person of the accused [Santiago v. the needs and aspirations of the nation and the
Vasquez, G.R. Nos. 99289-90 (1993)]. balanced flow of information into, out of, and across
the country, in accordance with a policy that respects
Holding an accused in a criminal case within the reach the freedom of speech and of the press [Sec. 10, Art.
of the courts by preventing his departure from the XVI, Constitution].
Philippines must be considered as a valid restriction
on his right to travel so that he may be dealt with in POLICY OF FULL PUBLIC DISCLOSURE vs.
accordance with law [Silverio v. CA, G.R. No. 94284 RIGHT TO INFORMATION [IDEALS v.
(1991)]. PSALM, G.R. No. 192088 (2012)]
Policy of Full Public Disclosure

• Covers all transactions involving public interest,
including any matter contained in official
communications and public documents of the
government agency.
• Does not require demand
• Pertains to duty to disclose of the government,
pursuant to the policy of full public disclosure.
Right to Information on Matters of Public

Concern
• Covers matters of public concern.
Public Concern: no exact definition and

adjudicated by the courts on a case-by-case basis,
but examples abound in jurisprudence (e.g. peace
negotiations, board exams, PCGG compromise
agreements, civil service matters).
• Requires demand or request required to gain

access.
• Pertains to duty to permit access to information
on matters of public concern.
These twin provisions of the Constitution seek to

promote transparency in policy-making and in the
Page 151 of 382

operation of the government, as well as provide the Trial in the Sandiganbayan of the Plunder Cases against
people sufficient information to exercise effectively former President Joseph Ejercito Estrada, A.M. No. 00-1-4-
other constitutional rights. These twin provisions are 03-SC (2001)]
also essential to hold public official “at all times
accountable to the people”, for unless the citizens
have the proper information, they cannot hold public
Limitations
officials accountable for anything [Chavez v. PEA and
The right of the people to information must be
Amari, G.R. No. 133250 (2002)].
balanced against other genuine interest necessary for
the proper functioning of the government
“Public concern” like “public interest” embrace a
[BERNAS].
broad spectrum of subjects which the public may
want to know, either because these directly affect their
Restrictions to the right to information may be:
lives, or simply because such matters naturally arouse
a. Based on kinds of information
the interest of an ordinary citizen [Legazpi v. CSC,
b. Based on access
G.R. No. L-72119 (1987)].
c. Based on reasonable regulation for the
convenience of and for order in the office that
Right to Information Covers matters of public
has custody of the documents [Baldoza v.
concern, e.g.,
Dimaano, A.M. No. 1120-MJ (1976)]
1. Official records
d. Based on availability.
2. Documents pertaining to official acts
3. Government research date used as basis for
policy development a. Restrictions to the Right to
Information Based on Kinds of
Matters of public concern in jurisprudence
Information
• Loanable funds of GSIS [Valmonte v. Belmonte,
G.R. No. 74930 (1989)] Exempted information:
• Civil service eligibility of sanitarian employees 1. Privileged information rooted in separation of
[Legazpi v. CSC, G.R. No. L-72119 (1987)] powers
• Appointments made to public offices and the 2. Information of military and diplomatic secrets
utilization of public property [Gonzales v. Narvasa, 3. Information affecting national and economic
G. R. No. 140835 (2000)] security
• National board examinations such as the CPA 4. Information on investigations of crimes by law
Board Exams [Antolin v. Domondon, G.R. enforcers before prosecution [Chavez v. PEA and
No.165036 (2010)] Amari, supra]
• Names of nominees of partylists [Bantay Republic 5. Trade secrets and banking transactions [Chavez v.
v. COMELEC, G.R. No. 177271 (2007)] PCGG, G.R. No. 130716 (1998)]
• Negotiations leading to the consummation of the 6. Offers exchanged during diplomatic negotiations
transaction [Chavez v. PEA and Amari, G.R. No. [Akbayan v. Aquino, G.R. No. 170516 (2008)]
133250 (2002)] 7. Other confidential matters (i.e. RA 6713, closed
door Cabinet meetings, executive sessions, or
COURT HEARINGS internal deliberations in the Supreme Court)
[Chavez v. PCGG, supra]
Right of accused over right to public information
With the possibility of losing not only the precious b. Restrictions to the Right to
liberty but also the very life of an accused, it behooves Information Based on Access
all to make absolutely certain that an accused receives
a verdict solely on the basis of a just and dispassionate 1. Opportunity to inspect and copy records at his
judgment, a verdict that would come only after the expense [Chavez v. PEA and Amari, supra]
presentation of credible evidence testified to by 2. Not the right to compel custodians of official
unbiased witnesses unswayed by any kind of pressure, records to prepare lists, abstracts, summaries and
whether open or subtle, in proceedings that are the like [Valmonte v. Belmonte, supra]
devoid of histrionics that might detract from its basic
aim to ferret veritable facts free from improper
influence, and decreed by a judge with an
unprejudiced mind unbridled by running emotions or
passions. [Re: Request for Live Radio-TV Coverage of the
Page 152 of 382

Effectivity of statutes shall be fifteen days after

c. Restrictions to the Right to publication unless a different effectivity date is fixed
by the legislature [Tañada v. Tuvera, supra (1986)].
Information Based on
Reasonable Regulation for the Access to Court Records
Convenience of and for Order in
the Office That has Custody of Court personnel shall not disclose to any
the Documents. unauthorized person any confidential information
acquired by them while employed in the judiciary,
whether such information came from authorized or
Discretion does not carry with it the authority to
unauthorized sources.
prohibit access, inspection, examination, or copying
[Lantaco v. Llamas, A.M. No. 1037-CJ (1981)].
Confidential information means information not yet
made a matter of public record relating to pending
The authority to regulate the manner of examining
cases, as well as information not yet made public
public records does not carry with it the power to
concerning the work of any justice or judge relating to
prohibit; thus, while the manner of examining public
pending cases, including notes, drafts, research
records may be subject to reasonable regulation by the
papers, internal discussions, internal memoranda,
government agency in custody thereof, the duty to
records of internal deliberations and similar papers.
disclose the information of public concern, and to
afford access to public records cannot be
The notes, drafts, research papers, internal
discretionary on the part of said agencies [Legaspi v.
discussions, internal memoranda, records of internal
CSC, G.R. No. L-72119 (1987)].
deliberations and similar papers that a justice or judge
uses in preparing a decision, resolution or order shall
d. Restrictions to the Right to remain confidential even after the decision, resolution
Information Based on or order is made public [Sec. 1, Canon II,
Availability Confidentiality Code of Conduct for Court
Personnel, A.M. No. 03-06-13-SC].
The right is available only to citizens.
Decisions are matters of public concern and interest.
In case of denial of access, the government agency has
Pleadings and other documents filed by parties to a
the burden of showing that the information requested
case need not be matters of public concern or interest.
is not of public concern, or if it is of public concern,
They are filed for the purpose of establishing the basis
that the same has been exempted by law from the
upon which the court may issue an order or a
operation of the guarantee [Legaspi v. CSC, supra].
judgment affecting their rights and interest.
Publications of Laws and Access to court records may be permitted at the

Regulations discretion and subject to the supervisory and
protective powers of the court, after considering the
actual use or purpose for which the request for access
Full publication is a condition for law’s effectivity.
is based and the obvious prejudice to any of the
parties [Hilado, et al v. Judge, G.R. No. 163155 (2006)].
The rule covers all statutes (includes those of local
application and private laws), presidential decrees and
executive orders by President acting under power Right to Information
either directly conferred by the Constitution or validly
delegated by the legislature, and administrative rules
Relative to Government
and regulations for implementing existing laws, Contract Negotiations
charter of a city, circulars by Monetary Board.
The constitutional right to information includes
Internal regulations and letter of instructions official information on on-going negotiations before
concerning guidelines for subordinates and not the a final contract. The information, however, must
public are not included. constitute definite propositions by the government,
and should not cover recognized exceptions [Chavez
v. PEA and Amari, supra].
Page 153 of 382

common law privilege; that there is a “governmental

While evaluation of bids or proposals is on-going, privilege against public disclosure with respect to state
there are no “official acts, transactions, or decisions.” secrets regarding military, diplomatic and other
However, once the committee makes an official security matters.
recommendation, there arises a definite proposition.
From this moment, the public’s right to information
attaches, and any citizen can assail the non-
proprietary information leading to such definite
propositions [Chavez v. PEA and Amari, supra].
Right to Information
Relative to Diplomatic
Negotiations
Diplomatic secrets (Diplomatic Negotiations
Privilege) – Secrecy of negotiations with foreign
countries is not violative of the right to information.
Diplomacy has a confidential nature. While the full
text [of the JPEPA] may not be kept perpetually
confidential, it is in line with the public interest that
the offers exchanged during negotiations continue to
be privileged information. Furthermore, the
information sought includes docs produced and
communicated by a party external to the Philippine
government. However, such privilege is merely
presumptive, and will not apply to all cases [Akbayan
v. Aquino, supra].
PRESIDENTIAL COMMUNICATIONS
PRIVILEGE V. DELIBERATIVE PROCESS
PRIVILEGE [Neri v. Senate Committee, G.R. No.
180643 (2008)]
Presidential Communications Privilege - applies

to decision-making of the President; rooted in the
constitutional principle of separation of power and
the President's unique constitutional role; applies to
documents in their entirety, and covers final and post-
decisional materials as well as pre-deliberative ones;
meant to encompass only those functions that form
the core of presidential authority.
Requisites:
a. The communications relate to a "quintessential
and non-delegable power" of the President
b. The communications are "received" by a close
advisor of the President.
c. 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.
Deliberative Process Privilege – applied to

decision-making of executive officials; rooted in
Page 154 of 382

serious substantive evil [...] not merely in danger of

K. Right of Association happening, but actually in existence, and likely to
continue unless curbed or remedied [Gonzales v.
Sec. 8, Art. III. The right of the people, including COMELEC, supra].
those employed in the public and private sectors,
to form unions, association, or societies for The government must comply with the heavy burden
purposes not contrary to law shall not be abridged. of showing that the organization in fact presents a
clear and present danger of substantive evil which the
Sec. 3, Art. XIII. The State shall afford full State has the right to protect [BERNAS].
protection to labor, local and overseas, organized
and unorganized, and promote full employment Scope
and equality of employment opportunities for all. The right is recognized as belonging to people
whether employed or unemployed, and whether in
It shall guarantee the rights of all workers to self- the government or in the private sector. It includes
organization, collective bargaining and the right to unionize.
negotiations, and peaceful concerted activities,
including the right to strike in accordance with law. The State does not infringe on the fundamental right
They shall be entitled to security of tenure, humane to form lawful associations when it leaves to citizens
conditions of work, and a living wage. They shall the power and liberty to affiliate or not affiliate with
also participate in policy and decision-making labor unions [Victoriano v. Elizalde Rope Workers Union,
processes affecting their rights and benefits as may supra].
be provided by law.
Every group has a right to join the democratic
The State shall promote the principle of shared process, association itself being an act of expression
responsibility between workers and employers and of the member’s belief, even if the group offends the
the preferential use of voluntary modes in settling sensibilities of the majority. Any restriction to such
disputes, including conciliation, and shall enforce requires a compelling state interest to be proven by
their mutual compliance therewith to foster the State [Ang Ladlad LGBT Party v. COMELEC, G.R.
industrial peace. No. 190582 (2010)].
The State shall regulate the relations between Political parties may freely be formed although there
workers and employers, recognizing the right of is a restriction on their activities [...] but the ban is
labor to its just share in the fruits of production narrow, not total. It operates only on concerted or
and the right of enterprises to reasonable returns group action of political parties.
on investments, and to expansion and growth.
[T]he ban against the participation of political parties
Sec. 2(5), Art. IX-B. The right to self- in the barangay election is an appropriate legislative
organization shall not be denied to government response to the unwholesome effects of partisan bias
employees. in the impartial discharge of the duties imposed on
the barangay and its officials as the basic unit of our
Our Constitution likewise recognizes the freedom to political and social structure [Occeña v. COMELEC,
form associations for purposes not contrary to law. G.R. No. L-60258 (1984)].
[...] It can trace its origin to the Malolos Constitution
[Gonzales v. COMELEC, G.R. No. L-27833 (1969)]. A political group should not be hindered solely
because it seeks to publicly debate controversial
How should the limitation “for purposes not political issues in order to find solutions capable of
contrary to law” be interpreted? It is submitted that satisfying everyone concerned. Only if a political party
it is another way of expressing the clear and present incites violence or puts forward policies that are
danger rule for unless an association or society could incompatible with democracy does it fall outside the
be shown to create an imminent danger to public protection of the freedom of association guarantee
safety, there is no justification for abridging the right [Ang Ladlad LGBT Party v. COMELEC, supra].
to form associations.
TYPES
In considering whether it is violative of any of the
above rights, we cannot ignore the legislative 1. Intimate association – Formation and
declaration that its enactment was in response to a preservation of certain kinds of highly personal
relationships
Page 155 of 382

The personal affiliations that exemplify these become members of homeowners' association living
considerations [...] are those that attend the within the community of the subdivision [Bel-Air
creation and sustenance of a family — marriage, Village Association v. Dionisio, G.R. No. L-38354
childbirth, the raising and education of children, (1989)].
and cohabitation with one’s relatives.
Upon acceptance by the Board [...] all real estate
Family relationships [...] involve deep owners, or long-term lessees of lots within the
attachments and commitments to the necessarily boundaries of the Association as defined in the
few other individuals with whom one shares not Articles of Incorporation become regular members.
only a special community of thoughts, As lot owner, PADCOM is a regular member of the
experiences, and beliefs, but also distinctively Association. No application for membership is
personal aspects of one’s life [Roberts v. United necessary. The automatic membership clause is not a
States Jaycees, 468 U.S. 609 (1984)]. violation of the right to freedom of association.
PADCOM was never forced to join the association.
2. Expressive association – Association with [...] PADCOM voluntarily agreed to be bound by and
others in pursuit of a wide variety of political, respect the condition, and thus to join the Association
social, economic, educational, religious, and [Padcom Condominium Corporation v. Ortigas Center
cultural ends Association, Inc., G.R. No. 146807 (2002)].
The right to associate for expressive purposes is Labor

not, however, absolute. Infringements on that It is the policy of the State to promote unionism to
right may be justified by regulations adopted to enable the workers to negotiate with management on
serve compelling state interests, unrelated to the the same level and with more persuasiveness than if
suppression of ideas, that cannot be achieved they were to individually and independently bargain
through means significantly less restrictive of for the improvement of their respective conditions.
associational freedoms [Roberts v. United States To this end, the Constitution guarantees to them the
Jaycees, supra]. rights “to self-organization, collective bargaining and
negotiations and peaceful concerted actions including
Freedom not to associate the right to strike in accordance with law” [Liberty
Freedom of association presupposes freedom not to Flour Mills Employees v. Liberty Flour Mills, G.R. No.
associate [Roberts v. United States Jaycees, supra]. 58768-70 (1989)].
Government actions that unconstitutionally burden The requirement for employees or workers to become
that right may take many forms, one of which is members of a union as a condition for employment
intrusion into a group’s internal affairs by forcing it to redounds to the benefit and advantage of said
accept a member it does not desire. Such forced employees because by holding out to loyal members a
membership is unconstitutional if the person’s promise of employment in the closed-shop the union
presence affects in a significant way the group’s ability wields group solidarity [Juat v. CIR, G.R. No. L-20764
to advocate public or private viewpoints [Boy Scouts of (1965)].
America v. Dale, 530 U.S. 640 (2000)].
The right to association and the right to unionize do
Land Ownership not include the right to conduct strikes, walkouts, and
There may be situations in which, by entering into a other temporary work stoppages [SSS Employees
contract, one may also be agreeing to join an Association v. CA, G.R. No. 85279 (1989); Manila Public
association [BERNAS]. School Teachers Assoc. v. Laguio Jr., G.R. No. 95445
(1991)].
If one buys a lot with a title that states that the lot
owner automatically becomes a member of a Labor Unionism
homeowners’ association, then they are considered to 1. Legal personality as a precondition for effective
have voluntarily joined the association. associational action
The essence of community life is association and The right to form associations does not guarantee
cooperation for without these such broader welfare the acquisition of legal personality by labor
goals cannot be attained. It is for these reasons that organizations, associations, or unions and the
modem subdivisions are imposing encumbrance possession of the “rights and privileges granted
upon titles of prospective lot buyers a limitation upon by law to legitimate labor organizations”
ownership of the said buyers that they automatically
Page 156 of 382

[Philippine Assoc. of Free Labor Unions v. Sec. of Labor,

G.R. No. L-22228 (1969)].
L. Eminent Domain
2. Eligibility to join, assist, or form union expressly Concept
denied by law
Sec. 9, Art. III. Private property shall not be taken
Pursuant to Art. 245 of the Labor Code, for public use without just compensation
managerial employees are not eligible to join,
assist, or form any labor organization [United
The power of eminent domain is the inherent right of
Pepsi-Cola Supervisory Union v. Laguesma, G.R. No.
the State to forcibly acquire needed property upon
122226 (1998)].
just compensation, in order to devote it to the
intended public use [CRUZ].
3. Obligation to join a Union
Also called the power of expropriation
When employees are obliged to join a particular
union as a requisite for continued employment,
Eminent domain is an inherent power of the State
the condition is a valid restriction of the right not
that need not be granted even by the fundamental law.
to join any labor organization since it is in favor
Sec. 9, Art. III merely imposes a limit on the
of unionism [BPI v. BPI Employees Union-Davao
government’s exercise of this power [Republic v. Tagle,
Chapter, G.R. No. 164301 (2010)].
G.R. No. 129079 (1998)].
Integrated Bar of the Philippines
The exercise of the right of eminent domain, whether
Compulsory membership of all lawyers in the
directly by the State or by its authorized agents, is
Integrated Bar of the Philippines does not violate the
necessarily in derogation of private rights. The
right of association [In Re: Edillon, A.M. No. 1928
authority to condemn is to be strictly construed in
(1978)].
favor of the owner and against the condemnor. When
the power is granted, the extent to which it may be
exercised is limited to the express terms or clear
implication of the statute in which the grant is
contained [National Power Corp. v. Tarcelo, G.R. No.
198139 (2014)].
a. Who May Exercise:

The repository of eminent domain powers is
legislature, i.e. exercised through the enactment of
laws. But power may be delegated to LGUs and other
government entities (via charter); still, the delegation
must be by law [Manapat v. CA, G.R. No. 110478
(2007)].
Under existing laws, the following may exercise the

power of expropriation:
1. Congress
2. President
3. Local legislative bodies
4. Certain public corporations, like the National
Housing Authority and water districts
[Metropolitan Cebu Water District v. J. King and Sons
Company, Inc. G.R. No. 175983 (2009)].
5. Quasi-public corporations like the Philippine
National Railways (PNR), PLDT, Meralco
Page 157 of 382

The taking of property is different from the

b. Requisites for Valid Exercise transfer of the property title from the private
owner to the Government.
1. Private property Under Rule 67 of the Rules of Court, there are two
2. Genuine necessity - inherent/presumed in phases of expropriation: (a) the condemnation of the
legislation, but when the power is delegated (e.g. property after it is determined that its acquisition will
local government units), necessity must be be for a public purpose or public use; and (b) the
proven. determination of just compensation to be paid for the
3. For public use - Court has adopted a broad taking of private property to be made by the court
definition of “public use” with the assistance of not more than three
4. Payment of just compensation commissioners [Republic v. Mupas, supra].
5. Due process [Manapat v. CA, supra]
e. Difference Between Eminent
c. Essential Requisites for the Domain (Compensable Taking)
Exercise by an LGU and Regulatory Taking
1. Enactment of an ordinance, not a resolution 1. Eminent domain is an inherent power of the state
2. Must be for a public use, purpose or welfare, based on the Constitution. Just compensation
or for the benefit of the poor and the landless must be paid.
3. Payment of just compensation 2. Regulatory taking is the exercise of the state of its
4. Must be preceded by a valid and definite offer police power. In this case, just compensation
made to the owner, who rejects the same [Yusay need not be paid.
v. CA, G.R. No. 156684 (2011)].
Examples from Jurisprudence:
d. How Exercised • The imposition of an aerial easement of right-of-
way was held to be compensable taking. The
Our laws require that the State's power of eminent exercise of the power of eminent domain does
domain shall be exercised through expropriation not always result in the taking or appropriation of
proceedings in court. Whenever private property is title to the expropriated property; it may also
taken for public use, it becomes the ministerial duty result in the imposition of a burden upon the
of the concerned office or agency to initiate owner of the condemned property, without loss
expropriation proceedings. By necessary of title or possession [National Power Corporation v.
implication, the filing of a complaint for Gutierrez G.R. No. L-60077 (1991)].
expropriation is a waiver of State immunity • A municipal ordinance prohibiting a building
[Department of Transportation and Communication v. Sps. which would impair the view of the plaza from
Abecina, G.R. No. 206484, (2016)]. the highway was considered regulatory taking
[People v. Fajardo, G.R. No. L-12172 (1958)].
Prior filing of an expropriation case is a condition • A regulatory taking occurs where a regulation
sine qua non before the government is allowed to places limitations on land that fall short of
enter the property being reclaimed and without eliminating all economically beneficial use, a
which, the government’s possession over the subject taking nonetheless may have occurred,
property becomes illegal [Secretary of the Department of depending on a complex of factors including the
Public Works and Highways v. Tecson G.R. No. 179334 regulation's economic effect on the landowner,
(2015)]. the extent to which the regulation interferes with
reasonable investment-backed expectations, and
HOWEVER: Full payment of just compensation the character of the government action
is not a prerequisite for the Government’s effective [Armstrong v. United States, 364 U.S. 40 (1960)].
taking of the property; When the taking of the
property precedes the payment of just compensation,
the Government shall indemnify the property owner
by way of interest [Republic v. Mupas, G.R. No. 181892
(2015)].
Page 158 of 382

• Urban land reform and housing, or socialized

Expansive Concept of Public housing program involving only a one-half
hectare area [Manapat v. CA, supra]
Use • Socialized housing, whereby housing units are
distributed or sold to qualified beneficiaries on
a. Traditional definition “much easier terms” [City of Manila v. Te, G.R.
No. 169263 (2011)]
Any use directly available to the general public as a
matter of right and not merely of forbearance or Under the new concept, "public use" means public
accommodation. advantage, convenience or benefit, which tends to
contribute to the general welfare and the prosperity of
Where the expropriated property is converted into a the whole community, like a resort complex for
plaza, park, airfield or highway, it thereby becomes res tourists or housing project [Heirs of Juancho Ardano v.
communes and, as such, is subject to direct enjoyment Reyes, 125 SCRA 220 (1983); Sumulong v. Guerrero, 154
by any and all members of the public SCRA 461 (1987)].
indiscriminately.
The expropriation of the property authorized by the
There is also public use even if the expropriated questioned resolution is for a public purpose. The
property is not actually acquired by the government establishment of a pilot development center would
but is merely devoted to public services administered inure to the direct benefit and advantage of the
by privately-owned public utilities like telephone or people of the Province of Camarines Sur. Once
light companies. operational, the center would make available to the
community invaluable information and technology on
Public use may be free or for a fee, as long as any agriculture, fishery and the cottage industry.
member of the general public can demand the right to Ultimately, the livelihood of the farmers, fishermen
use the converted property for his direct and personal and craftsmen would be enhanced. The housing
convenience [CRUZ at 149]. project also satisfies the public purpose requirement
of the Constitution [Province of Camarines Sur v. Court of
b. Broadened definition Appeals, 222 SCRA 173 (1993)].
A parcel of land located in Taguig was determined by

Public use may also cover uses which, while not
the National Historical Institute to be the birthsite of
directly available to the public, redound to their
Felix Y. Manalo, the founder of Iglesia ni Cristo. The
indirect advantage or benefit.
Republic then sought to expropriate the said property.
The exercise of the power of eminent domain was
Example: Subdivision of expropriated lands into small
questioned on the ground that it would only benefit
lots for sale at cost to deserving citizens. Once
members of Iglesia ni Cristo. The Court upheld the
transferred, the lots cease to be public property and
legality of the expropriation, viz.: The practical reality
come under the exclusive ownership of the
that greater benefit may be derived by members of the
transferees.
Iglesia ni Cristo than by most others could well be true
but such a peculiar advantage still remains to be
The requirement of public use is deemed satisfied
merely incidental and secondary in nature. [Manosca v.
because of the vicarious advantages enjoyed by the
CA, G.R. No. 106440 (1996)].
people as a whole, by the promotion of social justice
objectives (e.g. equitable diffusion of property
ownership; agrarian reform; enhancement of the Just Compensation
dignity; welfare and security of the underprivileged).
a. Definition
Examples:
• Agrarian reform “The property’s fair market value at the time of the
• Expropriation for slum clearance and urban filing of the complaint, or that sum of money which a
development, even if developed area is later sold person desirous to buy but not compelled to buy, and
to private homeowners, commercial firms, an owner willing but not compelled to sell, would
entertainment and service companies and other agree on as price to be given and received therefor”
private concerns [Reyes v. NHA, 395 SCRA 494, [National Power Corporation v. Baguio, G.R. No. L-15763
(2003)] (2008)].
Page 159 of 382

as of the date of the filing of the complaint [City of

A full and fair equivalent of the property taken from Iloilo v. Judge Contreras-Besana, G.R. No. 168967 (2010)].
the private owner by the expropriator.
Exception: When property is taken before filing the
The measure is not the taker’s gain but the owner’s complaint, assessment should be made as of the time
loss. of taking or entry.
Just compensation is intended to indemnify the owner In cases where the fair market value of the property is
fully for the loss he has sustained as a result of the difficult to ascertain, the court may use other just and
expropriation [Reyes commentary, p. 152] equitable market methods of valuation in order to
estimate the fair market value of the property [Republic
It shall be “real, substantial, full, ample” [Republic v. v. Mupas, G.R. No. 181892 (2015)].
Libunao, G.R. No. 166553 (2009)].
Inflation will not be considered in determining what
Without just compensation, expropriation is not the value is [Nepomuceno v. CA, G.R. No. 166246
consummated [AGPALO]. (2008)].
The payment of just compensation for the In order to determine just compensation, the trial
expropriated property amounts to an effective court should first ascertain the market value of the
forbearance on the part of the State [Republic v. Soriano, property by considering the cost of acquisition, the
G.R. No. 211666 (2015); Republic v. CA, G.R. No. current value of like properties, its actual or potential
146587 (2002)]. uses, and in the particular case of lands, their size,
shape, location, and the tax declarations thereon.
b. Determination of just [Republic v. Sps. Salvador, G.R. No. 205428 (2017)]
compensation If as a result of the expropriation, the remaining lot
suffers from an impairment or decrease in value,
Determination of just compensation is a judicial consequential damages may be awarded by the trial
function that cannot “be usurped by any other branch court, provided that the consequential benefits which
or official of the government” [National Power may arise from the expropriation do not exceed said
Corporation v. Zabala G.R. No. 173520 (2013)]: damages suffered by the owner of the property
• No legislative enactments or executive issuances [Republic v. Sps. Salvador, supra].
can prevent the courts from determining whether
the right of the property owners to just Prevailing rate of interest: 6 percent per annum [BSP-
compensation has been violated. MB Circular No. 799, Series of 2013, effective July 1,
• Section 3A of RA No. 6395, which limits its 2013]
liability to easement fee of not more than 10% of
the market value of the property traversed by its In agrarian reform, when the agrarian reform process
transmission lines, cannot restrict the is still incomplete, such as in the case where the just
constitutional power of the courts to determine compensation due the landowner has yet to be settled,
just compensation. just compensation should be determined and the
• Statutes and executive issuances fixing or process be concluded under RA 6657 [Land Bank of
providing for the method of computing just the Philippines v. Heirs of Jesus Alsua, G.R. No. 211351
compensation are not binding on courts and, at (2015)].
best, are treated as mere guidelines in
ascertaining the amount thereof. c. Effect of Delay
General Rule: Computed at the time of the filing of General Rule: For non-payment, the remedy is the
the complaint for expropriation [Sec. 4, Rule 67, demand of payment of the fair market value of the
ROC], whether the filing takes place before or at the property and not the recovery of possession of the
same time as the taking or entry. expropriated lots [Republic of the Philippines v. Court of
Appeals, G.R. No. 146587 (2002); Reyes v. National
When the taking of the property sought to be Housing Authority, G.R. No. 147511, (2003)].
expropriated coincides with the commencement of
the expropriation proceedings, or takes place Exception: When the government fails to pay just
subsequent to the filing of the complaint for eminent compensation within five years from the finality of
domain, the just compensation should be determined
Page 160 of 382

the judgment in the expropriation proceedings, the coverage under the Comprehensive Agrarian Reform
owners concerned shall have the right to recover Program coverage through a stock distribution
possession of their property [Republic of the Philippines scheme [Hacienda Luisita Incorporated v. Presidential
v. Vicente Lim, G.R. No. 161656 (2005)]. Agrarian Reform Council, G.R. No. 171101 (2012)].
Abandonment of Intended
Use and Right of
Repurchase
If the expropriator (government) does not use the
property for a public purpose, the property reverts to
the owner in fee simple [Heirs of Moreno v. Mactan-Cebu
International Airport, G.R. No. 156273 (2005)].
In Mactan-Cebu International Airport Authority v. Tudtud

[G.R. No. 174012 (2008)], the Court held that the
expropriator has the obligation to reconvey property
expropriated but never used, on the condition that the
landowners would return the just compensation they
received, plus interest.
Miscellaneous Application
“Taking” under Social Justice Clause
Agrarian Reform [Art. XIII, Sec. 4]: This provision is
an exercise of the police power of the State through
eminent domain [Association of Small Landowners v.
Secretary of Agrarian Reform, G.R. No. 78742 (1989)] as
it is a means to regulate private property.
When the State exercises the power of eminent

domain in the implementation of its agrarian reform
program, the constitutional provision which governs
is Section 4, Article XIII of the Constitution. Notably,
this provision also imposes upon the State the
obligation of paying the landowner compensation for
the land taken, even if it is for the government’s
agrarian reform purposes [Land Bank of the Philippines
v. Honeycomb Farms Corporation, G.R. No. 169903
(2012)].
Retention limits prescribed by the Comprehensive

Agrarian Reform Law is a form of taking under the
power of eminent domain. The taking contemplated
is not a mere limitation on the use of the land, but the
surrender of the title to and physical possession of the
excess and all beneficial rights accruing to the owner
in favor of the beneficiary [Sta. Rosa Realty &
Development Corp. v. Court of Appeals, G.R. No. 112526,
(2001)].
Taking also occurs when agricultural lands are

voluntarily offered by a landowner and approved by
the Presidential Agrarian Reform Council for
Page 161 of 382

guaranteed under the Constitution [Ganzon v.

M. Contract Clause Inserto, G.R. No. L-56450 (1983)].
Sec. 10, Art. III. No law impairing the obligation When Non-Impairment Clause Yields:
of contracts shall be passed. 1. Valid exercise of police power i.e. zoning
regulation [Presley v. Bel-Air Village Association,
The non-impairment clause under Section 10, Article G.R. No. 86774 (1991)], premature campaign ban
III of the Constitution is limited in application to laws [Chavez v. COMELEC, G.R. No. 162777 (2004)],
that derogate from prior acts or contracts by liquidation of a chartered bank [Philippine Veterans
enlarging, abridging or in any manner changing the Bank Employees Union v. Philippine Veterans Bank,
intention of the parties [PADPAO v. COMELEC, G.R. No. 67125 (1990)]
G.R. No. 223505 (2017)]. 2. Statute that exempts a party from any one class
of taxes
There is impairment if a subsequent law changes the 3. Against freedom of religion [Victoriano v. Elizalde
terms of a contract between the parties, imposes new Rope Workers, supra]
conditions, dispenses with those agreed upon or 4. Judicial or quasi-judicial order
withdraws remedies for the enforcement of the rights
of the parties [PADPAO v. COMELEC, supra]. The mere fact that Smart and PT&T negotiated and
executed a bilateral interconnection agreement does
It is engrained in jurisprudence that the constitutional not take their stipulations on access charges out of the
prohibition on the impairment of the obligation of NTC's regulatory reach. This has to be so in order to
contract does not prohibit every change in existing further one of the declared policies of RA 7925 of
laws, and to fall within the prohibition, the change expanding the telecommunications network by
must not only impair the obligation of the existing improving and extending basic services in unserved
contract, but the impairment must be substantial. and underserved areas at affordable rates. A contrary
ruling would severely limit the NTC's ability to
Substantial impairment as conceived in relation to discharge its twin mandates of protecting consumers
impairment of contracts has been explained as a law and promoting consumer welfare, and would go
which changes the terms of a legal contract between against the trend towards greater delegation of judicial
parties, either in the time or mode of performance, or authority to administrative agencies in matters
imposes new conditions, or dispenses with those requiring technical knowledge. Smart cannot rely on
expressed, or authorizes for its satisfaction something the non-impairment clause because it is a limit
different from that provided in its terms, is law which on the exercise of legislative power and not of
impairs the obligation of a contract and is therefore judicial or quasi-judicial power. [Philippine Telegraph
null and void [Lepanto Consolidated Mining Co. v. WMC Telephone Corporation v. Smart Communications, G.R. No.
Resources Int'l. Pty. Ltd., G.R. No. 162331 (2006)]. 189026 (2016)]. (Note: This was rendered by the Third
Division, not the en banc.)
CONTEMPORARY APPLICATION OF THE
CONTRACT CLAUSE The non-impairment clause is a limit on legislative
power, and not of judicial or quasi-judicial power. The
When Non-Impairment Clause Prevails: approval of the Rehabilitation Plan by the Securities
1. Against the removal of tax exemptions, where the and Exchange Commission is an exercise of
consideration for the contract is the tax adjudicatory power by an administrative agency and
exemption itself thus the non-impairment clause does not apply.
2. Regulation on loans Neither does it impair the power to contract [BPI v.
SEC, G.R. No. 164641 (2007)].
New regulations on loans making redemption of
property sold on foreclosure stricter are not Section 47 [of RA 8791] did not divest juridical
allowed to apply retroactively [Co v. Philippine persons of the right to redeem their foreclosed
National Bank, G.R. No. 51767 (1982)]. properties but only modified the time for the exercise
of such right by reducing one-year period originally
To substitute the mortgage with a surety bond provided in Act No. 3135 [Goldenway Merchandising
would convert such lien from a right in rem, to a Corp. v. Equitable PCI Bank, G.R. No. 195540 (2013)].
right in personam. This conversion cannot be
ordered for it would abridge the right of the PD 957 [The Subdivision and Condominium Buyers
mortgagee under the mortgage contract [and] Protective Decree] is to be given retroactive effect so
would violate the non-impairment of contracts as to cover even those contracts executed prior to its
Page 162 of 382

enactment in 1976. PD 957 did not expressly provide

for retroactivity in its entirety, but such can be plainly
inferred from the unmistakable intent of the law
N. Legal Assistance and
[Eugenio v. Drilon G.R. No. 109404 (1996)]. Free Access to Courts
Note: Timber licenses, permits, and license agreements
are the principal instruments by which the State Sec. 11, Art. III. Free access to the courts and
regulates the utilization and disposition of forest quasi-judicial bodies and adequate legal assistance
resources to the end that public welfare is promoted. shall not be denied to any person by reason of
poverty.
They are not deemed contracts within the purview of
the due process of law clause [Oposa v. Factoran, G.R.
No. 101083 (1993)]. Sec. 21, Rule 3, RoC. Any adverse party may
contest the grant of such authority at any time
Being a mere privilege, a license does not vest before judgment is rendered by the trial court. If
absolute rights in the holder. Thus, without offending the court should determine after hearing that the
the due process and non-impairment clauses of the party declared as an indigent is in fact a person with
Constitution, it can be revoked by the State in the sufficient income or property, the proper docket
public interest [Republic v. Rosemoor Mining & and other lawful fees shall be assessed and
Development Corporation, G.R. No. 149927 (2004)]. collected by the clerk of court. If the payment is
not made within the time fixed by the court,
Certificates granting “a permit to operate” businesses execution shall issue or the payment thereof,
are in the nature of license [Republic v. Caguioa, G.R. without prejudice to such other sanctions as the
No. 168584 (2007)]. court may impose.
Petitioner assails the validity of Comelec Resolution Sec. 19, Rule 141, RoC. Indigent litigants
No. 10015, which requires private security agencies exempt from payment of legal fees. — Indigent
(PSAs) to obtain from the COMELEC written litigants (a) whose gross income and that of their
authority to bear, carry, and transport firearms outside immediate family do not exceed four thousand
of their residence or place of work and in public (P4,000.00) pesos a month if residing in Metro
places, during election period. The Court held the Manila, and three thousand (P3,000.00) pesos a
assailed Resolution does not violate the non- month if residing outside Metro Manila, and (b)
impairment clause. The requirement to obtain who do not own real property with an assessed
authorization from the Comelec does not affect PSAs' value of more than fifty thousand (P50,000.00)
contracts with their clients in any manner [PADPAO pesos shall be exempt from the payment of legal
v. COMELEC, supra]. fees.
The Court held that non-impairment clause does not The legal fees shall be a lien on any judgment
apply to the 1992 Memorandum of Agreement rendered in the case favorably to the indigent
(MOA) between The Government of the Republic of litigant, unless the court otherwise provides.
the Philippines and the Marcos family. “The decision
of former President Fidel V. Ramos in disallowing To be entitled to the exemption herein provided,
Marcos' burial at the LNMB is not etched in stone; it the litigant shall execute an affidavit that he and his
may be modified by succeeding administrations. If immediate family do not earn a gross income
one Congress cannot limit or reduce the plenary abovementioned, nor they own any real property
legislative power of succeeding Congresses, so, too, with the assessed value aforementioned, supported
the exercise of executive power by the past president by an affidavit of a disinterested person attesting
cannot emasculate that of the incumbent president. to the truth of the litigant's affidavit.
The discretionary act of the former is not binding
upon and cannot tie the hands of the latter, who may Any falsity in the affidavit of a litigant or
alter the same” [Ocampo v. Enriquez, supra]. disinterested person shall be sufficient cause to
strike out the pleading of that party, without
prejudice to whatever criminal liability may have
been incurred.
Sec. 4, R.A. 9999. Requirements for Availment.

- For purposes of availing of the benefits and
Page 163 of 382

services as envisioned in this Act, a lawyer or or both requirements, then the application should not
professional partnership shall secure a certification be denied outright; instead, the court should apply the
from the Public Attorney's Office (PAO), the “indigency test” under Sec. 21 of Rule 3 and use its
Department of Justice (DOJ) or accredited should discretion in determining the merits of the
association of the Supreme Court indicating that prayer for exemption [Sps. Algura v. LGU of Naga City,
the said legal services to be provided are within the G.R. No. 150135 (2006)].
services defined by the Supreme Court, and that
the agencies cannot provide the legal services to be Note: The significance of having an explicit “free
provided by the private counsel. access” provisions in the Constitution may be
gathered from the rocky road which “free access”
For purpose of determining the number of hours seems to have traveled in American jurisprudence.
actually provided by the lawyer and/or The American constitution does not have an explicit
professional firm in the provision of legal services, free access provision and, hence, its free access
the association and/or organization duly doctrine has been developed as implicit from both the
accredited by the Supreme Court shall issue the equal protection clause and the due process clause
necessary certification that said legal services were [BERNAS]
actually undertaken.
Exemption of cooperatives from payment of court
Sec. 5, RA 9999. Incentives to Lawyers. - For and sheriff fees no longer stands. Cooperatives can no
purposes of this Act, a lawyer or professional longer invoke R.A. 6938, as amended by R.A. 9520,
partnerships rendering actual free legal services, as as basis for exemption from the payment of legal fees
defined by the Supreme Court, shall be entitled to [Re: In the matter of clarification of exemption from payment
an allowable deduction from the gross income, the of all court and sheriffs fees of cooperatives, A.M. No. 12-2-
amount that could have been collected for the 03-0 (2012)].
actual free legal services rendered or up to ten
percent (10%) of the gross income derived from Legal Assistance clause not available to
the actual performance of the legal profession, Corporations
whichever is lower: Provided, That the actual free The Courts cannot grant to foundations x x x the
legal services herein contemplated shall be same exemption from payment of legal fees granted
exclusive of the minimum sixty (60)-hour to indigent litigants even if the foundations are
mandatory legal aid services rendered to indigent working for indigent and underprivileged people.
litigants as required under the Rule on Mandatory
Legal Aid Services for Practicing Lawyers, under The clear intent and precise language of the
BAR Matter No. 2012, issued by the Supreme aforequoted provisions of the Rules of Court indicate
Court. that only a natural party litigant may be regarded as an
indigent litigant. The Good Shepherd Foundation,
Inc., being a corporation invested by the State with a
Indigent party — A party may be authorized to
juridical personality separate and distinct from that of
litigate his action, claim or defense as an indigent if
its members. is a juridical person. Among others, it
the court, upon an ex parte application and hearing, is
has the power to acquire and possess property of all
satisfied that the party is one who has no money or
kinds as well as incur obligations and bring civil or
property sufficient and available for food, shelter and
criminal actions, in conformity with the laws and
basic necessities for himself and his family.
regulations of their organization. As a juridical person,
therefore, it cannot be accorded the exemption from
Such authority shall include an exemption from
legal and filing fees granted to indigent litigants [Re:
payment of docket and other lawful fees, and of
Query of Mr. Roger C Prioreschi re Exemption from Legal
transcripts of stenographic notes which the court may
and Filing Fees of the Good Shepherd Foundation Inc., A. M.
order to be furnished him. The amount of the docket
No. 09-6-9-SC (2009)].
and other lawful fees which the indigent was
exempted from paying shall be a lien on any judgment
rendered in the case favorable to the indigent, unless
the court otherwise provides.
If the applicant for exemption meets the salary and

property requirements under Section 19 of Rule 141,
then the grant of the application is mandatory. On the
other hand, when the application does not satisfy one
Page 164 of 382

O. Rights of Persons under RA 7438: RIGHTS OF PERSONS UNDER

Custodial Investigation CUSTODIAL INVESTIGATION
Sec. 12, Art. III. Sec. 1. Statement of Policy. - It is the policy of

1. Any person under investigation for the the State to value the dignity of every human being
commission of an offense shall have the right and guarantee full respect for human rights.
to be informed of his right to remain silent and
to have competent and independent counsel Sec. 2. Rights of Persons Arrested, Detained or
preferably of his own choice. If the person Under Custodial Investigation; Duties of
cannot afford the services of counsel, he must Public Officers. – (b) Any public officer or
be provided with one. These rights cannot be employee, or anyone acting under his order or his
waived except in writing and in the presence place, who arrests, detains or investigates any
of counsel. person for the commission of an offense: shall
2. No torture, force, violence, threat, inform the latter, in a language known to and
intimidation, or any other means which vitiate understood by him, of his rights to remain silent
the free will shall be used against him. Secret and to have competent and independent counsel,
detention places, solitary, incommunicado, or preferably of his own choice, who shall at all times
other similar forms of detention are be allowed to confer privately with the person
prohibited. arrested, detained or under custodial investigation.
3. Any confession or admission obtained in If such person cannot afford the services of his
violation of this or Section 17 hereof shall be own counsel, he must be provided with a
inadmissible in evidence against him. competent and independent counsel by the
4. The law shall provide for penal and civil investigating officer.
sanctions for violations of this section as well
as compensation to the rehabilitation of
victims of torture or similar practices, and
Availability
their families.
a. When the person is already under custodial
investigation.
In Miranda v. Arizona: The Federal Supreme Court b. During “critical pre-trial stages” in the criminal
made it clear that what is prohibited is the process
"incommunicado interrogation of individuals in a police
dominated atmosphere, resulting in self- Custodial Investigation
incriminating statements without full warnings of
• Involves any questioning initiated by law
constitutional rights.”
enforcement.
Miranda Warning under the 1987 Constitution • When the investigation is no longer a general
(based upon Article III, Section 12) inquiry unto an unsolved crime but has begun to
The person under custodial investigation must be focus on a particular suspect, as when the suspect
informed that: has been taken into police custody and the police
1. He has a right to remain silent and that any carries out a process of interrogation that lends
statement he makes may be used as evidence itself to eliciting incriminating statements [People
against him; v. Mara, G.R. No. 108494 (1994)].
2. That he has a right to have competent and • Includes issuing an invitation to a person under
independent counsel of his choice investigation in connection with an offense he is
3. That he has a right to be informed of the first two suspected to have committed [Sec. 2, RA 7438].
rights.
Custodial Investigation Report
It has already been held that "the infractions of the a. Reduced to writing by the investigating officer.
so-called Miranda rights render inadmissible b. It shall be read and adequately explained to
only the extrajudicial confession or admission person arrested or detained by counsel or
made during custodial investigation.” Here, assisting counsel in a language or dialect known
appellant's conviction was based not on his alleged to him.
uncounseled confession or admission but on the
testimony of the prosecution witness [People v. Bio,
G.R. No.195850 (2015)].
Page 165 of 382

Non-compliance with second requirement will render

the report null and void and of no effect whatsoever a. Right to Remain Silent
[Sec. 2c, RA 7438].
The warning is needed simply to make the person
Critical Pre-Trial Stage under custodial investigation aware of the existence
Any critical confrontation by the prosecution at of the right.
pretrial proceedings where the results might well
determine his fate and where the absence of counsel This warning is the threshold requirement for an
might derogate from his right to a fair trial [U.S. v. intelligent decision as to its exercise.
Wade, 388 U.S. 218 (1967)].
More importantly, such a warning is an absolute pre-
SHOW-UP AND POLICE LINE-UP requisite in overcoming the inherent pressures of the
interrogation atmosphere.
General rule: No right to counsel
urther, the warning will show the individual that his
Out-of-court identification like a “show-up” (accused interrogators are prepared to recognize his privilege
is brought face to face with the witness for should he choose to exercise it.
identification), or “police line-up” (suspect is Right against Self-Incrimination under Art. III, Sec.
identified by witness from a group of persons 12
gathered for that purpose). The warning of the right to remain silent must be
accompanied by the explanation that anything said
Exception: Right to counsel if accusatory. The moment can and will be used against the individual in court.
there is a move or even an urge of said investigators
to elicit admissions or confessions or even plain This warning is needed in order to make him aware
information which may appear innocent or innocuous not only of the privilege to remain silent, but also of
at the time, from said suspect [Gamboa v. Cruz, G.R. the consequences of forgoing it.
No. L-56291 (1988)].
Police Line-Ups b. Right to Counsel

• When petitioner was identified by the
complainant at the police line-up, he had not Sec. 2. Rights of Persons Arrested, Detained or
been held yet to answer for a criminal offense. Under Custodial Investigation; Duties of
The police line-up is not a part of the custodial Public Officers. – (a) Any person arrested
inquest, hence, he was not yet entitled to counsel. detained or under custodial investigation shall at all
times be assisted by counsel.
• Thus, it was held that when the process had not
yet shifted from the investigatory to the
accusatory as when police investigation does not Essence: When a counsel is engaged by anyone
elicit a confession the accused may not yet avail acting on behalf of the person under investigation, or
of the services of his lawyer [Escobedo v. Illinois, appointed by the court upon petition by said person
378 U.S. 478 (1964)]. or by someone on his behalf [People v. Espiritu, G.R.
No. 128287 (1999)].
• However, given the clear constitutional intent in
the 1987 Constitution, the moment there is a
Competent and independent counsel preferably
move or even an urge of said investigators to
of the suspect’s own choice.
elicit admissions or confessions or even plain
information which may appear innocent or • Not independent counsel: special counsel,
innocuous at the time, from said suspect, he prosecutor, counsel of the police or a municipal
should then and there be assisted by counsel, attorney whose interest is adverse to that of the
unless he waives the right, but the waiver shall be accused [People v. Fabro, G.R. No. 95089 (1997)],
made in writing and in the presence of counsel mayor [People v. Taliman, G.R. No. 109143],
[Gamboa v. Cruz, supra]. barangay captain [People v. Tomaquin, G.R. No.
133188 (2004)].
o A lawyer who was applying for work in the
Requisites NBI cannot be considered independent
because he cannot be expected to work
Essence: Effective communication by the against the interest of a police agency he was
investigator of rights of accused [People v. Agustin, G.R. hoping to join, as a few months later, he in
No. 110290 (1995)].
Page 166 of 382

fact was admitted into its work force [People

v. Januario, G.R. No. 98552 (1997)]. Violations of the Miranda rights render inadmissible
• Not competent counsel: lawyer signing only as only the extrajudicial confession or admission made
witness [People v. Ordoño, G.R. No. 132154], during the custodial investigation. The admissibility of
mayor of town where accused is detained [People other evidence is not affected even if obtained or
v. Velarde, G.R. No. 139333 (2002)]. taken in the course of the custodial investigation
[People v. Malimit, G.R. No. 109775 (1996)].
Failure to ask for a lawyer does not constitute a
waiver. Extrajudicial Confession by a person arrested,
detained or under custodial investigation
No effective waiver of the right to counsel during 1. Shall be in writing and
interrogation can be recognized unless specifically 2. signed in the presence of his counsel or in the
made after the warnings have been given. latter’s absence:
a. upon a valid waiver and
Request for assistance of counsel before any b. in the presence of any of the following:
interrogation cannot be ignored/denied by • any of the parents
authorities. Not only right to consult with an attorney • older brother and sisters
but right to be given a lawyer to represent him if he’s • spouse
indigent. • municipal mayor
• municipal judge
c. Rights to Visitation and • district school supervisor
Conference • priest or minister of the gospel as
chosen by him
Sec. 2. Rights of Persons Arrested, Detained or
Under Custodial Investigation; Duties of Otherwise, such extrajudicial confession shall be
Public Officers. – (f) Any person arrested or inadmissible as evidence in any proceeding. [Sec. 2d,
detained or under custodial investigation shall be R.A. 7438]
allowed visits by or conferences with any member
of his immediate family, or any medical doctor or In the absence of a valid waiver, any confession
priest or religious minister chosen by him or by any obtained from the appellant during the police
member of his immediate family or by his counsel, custodial investigation relative to the crime, including
or by any national non-governmental organization any other evidence secured by virtue of the said
duly accredited by the Commission on Human confession is inadmissible in evidence even if the
Rights of by any international non-governmental same was not objected to during the trial by the
organization duly accredited by the Office of the counsel of the appellant [People v. Samontañez, supra].
President. The person's "immediate family" shall
include his or her spouse, fiancé or fiancée, parent It is already settled that statements spontaneously
or child, brother or sister, grandparent or made by a suspect to news reporters on a televised
grandchild, uncle or aunt, nephew or niece, and interview are deemed voluntary and are admissible in
guardian or ward. evidence. In this case, there was no ample proof to
show that appellant Berry's narration of events to
Exclusionary Rule ABS-CBN reporter Dindo Amparo was the product
According to this rule, once the primary source (the tree) of intimidation or coercion, thus making the same
is shown to have been unlawfully obtained, any admissible in evidence.
secondary or derivative evidence (the fruit) derived from it
is also inadmissible. Stated otherwise, illegally seized Berry's confession is admissible in evidence because it
evidence is obtained as a direct result of the illegal act, was-voluntarily made to a news reporter and not to
whereas the fruit of the poisonous tree is the indirect result the police authority or to an investigating officer.
of the same illegal act. The fruit of the poisonous tree is at Amparo testified that he requested Berry for an
least once removed from the illegally seized evidence, interview in connection with his confession, and that
but it is equally inadmissible. The rule is based on the the latter freely acceded. Hence, Berry's confession to
principle that evidence illegally obtained by the State Amparo, a news reporter, was made freely and
should not be used to gain other evidence because the voluntarily and is admissible in evidence.
originally illegally obtained evidence taints all
evidence subsequently obtained [People v. Samontañez, The general rule is that an extra-judicial confession is
G.R. No. 134530 (2000)]. binding only on the confessant and is inadmissible in
Page 167 of 382

evidence against his co-accused since it is considered b. Knowingly and deliberately manifested that he
hearsay against them.[22] However, as an exception was not interested in having a lawyer assist him
to this rule, the Court has held that an extra-judicial during the taking of that confession
confession is admissible against a co-accused when it
is used as circumstantial evidence to show the
probability of participation of said co-accused in the
crime [People v. Constancio, G.R. No. 206226 (2016)].
Waiver
What can be waived?
The right to remain silent and the right to counsel.
What cannot be waived?

The right to be given the Miranda warnings.
Rule on Waiver [Sec. 12, Art. III]

a. Must be in writing
b. Made in the presence of counsel

Under Custodial Investigation; Duties of
Public Officers. – (c) The custodial investigation
report shall be reduced to writing by the
investigating officer, provided that before such
report is signed, or thumbmarked if the person
arrested or detained does not know how to read
and write, it shall be read and adequately explained
to him by his counsel or by the assisting counsel
provided by the investigating officer in the
language or dialect known to such arrested or
detained person, otherwise, such investigation
report shall be null and void and of no effect
whatsoever.
xxx
Any waiver by a person arrested or detained under
the provisions of Article 125 of the Revised Penal
Code, or under custodial investigation, shall be in
writing and signed by such person in the presence
of his counsel; otherwise the waiver shall be null
and void and of no effect.
BURDEN OF PROVING VOLUNTARINESS

OF WAIVER [People v. Jara, G.R. No. L-61356-57
(1986)]
Presumption: against the waiver.
Burden of proof: lies with the prosecution.

Prosecution must prove with strongly convincing
evidence to the satisfaction of the Court that indeed
the accused:
a. Willingly and voluntarily submitted his
confession and
Page 168 of 382

P. Rights of the Accused h. To confront and cross-examine the witnesses

against him at the trial. Either party may utilize
as part of its evidence the testimony of a
Sec. 14, Art. III. (1) No person shall be held to witness who is deceased, out of or cannot with
answer for a criminal offense without due process due diligence be found in the Philippines,
of law. unavailable, or otherwise unable to testify,
given in another case or proceeding, judicial or
(2) In all criminal prosecutions, the accused shall administrative, involving the same parties and
be presumed innocent until the contrary is proved, subject matter, the adverse party having the
and shall enjoy the right to be heard by himself and opportunity to cross-examine him.
counsel, to be informed of the nature and cause of i. To have compulsory process issued to secure
the accusation against him, to have a speedy, the attendance of witnesses and production of
impartial, and public trial, to meet the witnesses other evidence in his behalf.
face to face, and to have compulsory process to j. To have speedy, impartial and public trial.
secure the attendance of witnesses and the k. To appeal in all cases allowed and in the
production of evidence in his behalf. However, manner prescribed by law.
after arraignment, trial may proceed
notwithstanding the absence of the accused:
Provided, that he has been duly notified and his Criminal Due Process
failure to appear is unjustifiable.
Requisites:
Sec. 1, Rule 115, RoC. Rights of accused at a. Accused is heard by a court of competent
trial. – In all criminal prosecutions, the accused jurisdiction;
shall be entitled to the following rights: b. Accused is proceeded against under the orderly
a. To be presumed innocent until the contrary is process of law;
proved beyond reasonable doubt. c. Accused is given notice and opportunity to be
b. To be informed of the nature and cause of the heard;
accusation against him. d. Judgment rendered is within the authority of a
c. To be present and defend in person and by constitutional law [Mejia v. Pamaran, G.R. No. L-
counsel at every stage of the proceedings, 56741-42 (1988)].
from arraignment to promulgation of the
judgment. The accused may, however, waive Bail
his presence at the trial pursuant to the
stipulations set forth in his bail, unless his Sec. 13, Art. III. All persons, except those charged
presence is specifically ordered by the court with offenses punishable by reclusion perpetua
for purposes of identification. when the evidence of guilt is strong, shall, before
conviction, be bailable by sufficient sureties, or be
d. The absence of the accused without justifiable released on recognizance as may be provided by
cause at the trial of which he had notice shall law. The right to bail shall not be impaired even
be considered a waiver of his right to be when the privilege of the writ of habeas corpus is
present thereat. suspended. Excessive bail shall not be required.
e. When an accused under custody escapes, he
shall be deemed to have waived his right to be Sec. 1, Rule 114, RoC. Bail defined. – Bail is the
present on all subsequent trial dates until security given or the release of a person in custody
custody over him is regained. Upon motion, of the law, furnished by him or a bondsman,
the accused may be allowed to defend himself conditioned upon his appearance before any court
in person when it sufficiently appears to the as may be required.
court that he can properly protect his rights
without the assistance of counsel. Purpose: To guarantee the appearance of the accused
f. To testify as a witness in his own behalf but at the trial, or whenever so required by the court. The
subject to cross-examination on matters amount should be high enough to assure the presence
covered by direct examination. His silence of the accused when required but no higher than is
shall not in any manner prejudice him. reasonably calculated to fulfill this purpose.To fix bail
g. To be exempt from being compelled to be a at an amount equivalent to the civil liability of which
witness against himself. petitioner is charged is to permit the impression that
the amount paid as bail is an exaction of the civil
Page 169 of 382

liability that accused is charged of; this we cannot submit his recommendation [Taborite v. Sollesta, A.M.
allow because bail is not intended as a punishment, MTJ-02-1388 (2003)].
nor as a satisfaction of civil liability which should
necessarily await the judgment of the appellate court The prosecution must first be accorded an
[Yap v. CA, G.R. No. 141529 (2001)]. opportunity to present evidence. It is on the basis of
such evidence that judicial discretion is exercised in
Basis of right: Presumption of innocence determining whether the evidence of guilt of the
accused is strong. In other words, discretion must be
Who May Avail exercised regularly, legally and within the confines of
General rule: All persons under custody of the law procedural due process, that is, after evaluation of the
evidence submitted by the prosecution [Taborite v.
Exceptions: Sollesta, supra].
a. Those charged with capital offense when
evidence of guilt is strong Bail for the provisional liberty of the accused,
regardless of the crime charged, should be allowed
Since the evidence (rebellion) in this case is independently of the merits of the charge, provided
hearsay, the evidence of guilt is not strong, bail is his continued incarceration is clearly shown to be
allowed [Enrile v. Perez, G.R. No. 147780 (2001)]. injurious to his health or to endanger his life. Indeed,
denying him bail despite imperiling his health and life
b. Military men would not serve the true objective of preventive
Military men who participated in failed coup incarceration during the trial [Enrile v. Sandiganbayan,
d’état because of their threat to national security G.R. No. 213847 (2015)].
[Comendador v. De Villa, G.R. No. 93177 (1991)].
BAIL AS A MATTER OF RIGHT
When Available All persons, except those charged with offenses
General rule: From the very moment of arrest (which punishable by reclusion perpetua when evidence of
may be before or after the filing of formal charges in guilt is strong, shall, before conviction, be bailable by
court) up to the time of conviction by final judgment sufficient sureties, or be released on recognizance as
(which means after appeal). may be provided by law. The right to bail shall not be
impaired even when the privilege of the writ of habeas
Arraignment of the accused is not essential to the corpus is suspended. Excessive bail shall not be
approval of the bail bond. When bail is authorized, it required.
should be granted before arraignment. Otherwise the
accused may be precluded from filing a motion to BAIL AS A MATTER OF DISCRETION
quash. Also, the court will be assured of the presence
of the accused at the arraignment precisely by grating 1. In case the evidence of guilt is strong.
bail and ordering his presence at any stage of the
proceeding [Lavides v. CA, G.R. No. 129670 (2000)]. In such a case, according to People v. San Diego [G.R.
No. L-29676 (1966)], the court's discretion to grant
Sec. 18, Rule 114. Notice of application to the bail must be exercised in the light of a summary of the
prosecutor. – In the application for bail under evidence presented by the prosecution.
Section 8 of this Rule, the court must give
reasonable notice of the hearing to the prosecutor Thus, the order granting or refusing bail must contain
or require him to submit his recommendation. a summary of the evidence for the prosecution
followed by the conclusion on whether or not the
Exceptions: evidence of guilt is strong (Note: it is not the existence
a. When charged with an offense punishable by of guilt itself which is concluded but the strength of
reclusion perpetua. the probability that guilt exists).
b. The right to bail is not available to the military, as
an exception to the bill of rights [Aswat v. 2. In extradition proceedings.
Brigadier-General Galido, G.R. No. 88555 (1991)].
Extradition courts do not render judgments of
In this jurisdiction, before a judge may grant an conviction or acquittal so it does not matter WON
application for bail, whether bail is a matter of right the crimes the accused is being extradited for is
or discretion, the prosecutor must be given punishable by reclusion perpetua [US Government v.
reasonable notice of hearing or he must be asked to Judge Puruganan and Mark Jimenez, G.R. No. 148571
(2002)].
Page 170 of 382

d. If the guilt of the accused is not strong, discharge

While our extradition law does not provide for the the accused upon the approval of the bailbond
grant of bail to an extraditee, however, there is no (Section 19) Otherwise petition should be denied.
provision prohibiting him or her from filing a motion
for bail, a right to due process under the Constitution.
[Government of Hong Kong SAR v. Olalia (2007)]
Presumption of Innocence
The requirement of proof beyond reasonable doubt is
Standards for fixing bail
a necessary corollary of the constitutional right to be
Sec. 9, Rule 114. Amount of bail; guidelines. – presumed innocent [People v. Dramayo, G.R. No. L-
The judge who issued the warrant or granted the 21325 (1971)].
application shall fix a reasonable amount of bail
considering primarily, but not limited to, the The accused cannot present evidence before the
following factors: prosecution does so, even if the accused pleads guilty.
a. Financial ability of the accused to give bail; It violates the presumption of innocence [Alejandro v.
b. Nature and circumstance of the offense; Pepito, gr L-52090 (1980)].
c. Penalty for the offense charged;
d. Character and reputation of the accused; The presumption of regularity (in official duties)
e. Age and health of the accused; cannot by itself prevail over the presumption of
f. Weight of the evidence against the accused; innocence of the accused. But where it is not the sole
g. Probability of the accused appearing at the basis for conviction, the presumption of regularity of
trial; performance of official functions may prevail over the
h. Forfeiture of other bail; constitutional presumption of innocence [People v.
i. The fact that the accused was a fugitive from Acuram, G.R. No. 117954 (2000); People v. Abenes, G.R.
justice when arrested; and No. 210878 (2016)].
j. Pendency of other cases where the accused is
on bail. Equipoise Rule
Where the evidence adduced by the parties is evenly
Excessive bail shall not be required. balanced, the constitutional presumption of
innocence should tilt the balance in favor of the
Discretion is with the court called upon to rule on the accused [Corpuz v. People G.R. No. 180016 (1991)].
question of bail. We must stress, however, that where
conditions imposed upon a defendant seeking bail In order that circumstantial evidence may warrant
would amount to a refusal thereof and render conviction, the following requisites must concur:
nugatory the constitutional right to bail, we will not a. There is more than one circumstance
hesitate to exercise our supervisory powers to provide b. The facts from which the inferences are derived
the required remedy [Dela Camara v. Enage, G.R. No. are proven
L-32951-52 (1971)]. c. The combination of all the circumstances is such
as to produce conviction beyond reasonable
Duties of a trial judge in case an application for doubt. [People v. Bato, G.R. No. 113804 (1998)].
bail is filed [Cortes v. Cabal (1997)]:
a. In all cases, whether bail is a matter of right or of
discretion, notify the prosecutor of the hearing of Right to be Heard
the application for bail or require him to submit
his recommendation (Section 18, Rule 114 as Sec. 14 (2), Art. III. In all criminal prosecutions,
amended); the accused shall be presumed innocent until the
b. Where bail is a matter of discretion, conduct a contrary is proved, and shall enjoy the right to be
hearing of the application for bail regardless of heard by himself and counsel, to be informed of
whether or not the prosecution refuses to present the nature and cause of the accusation against him,
evidence to show that the guilt of the accused is to have a speedy, impartial, and public trial, to meet
strong for the purpose of enabling the court to the witnesses face to face, and to have compulsory
exercise its sound discretion; (Section 7 and 8) process to secure the attendance of witnesses and
c. Decide whether the guilt of the accused is strong the production of evidence in his behalf. However,
based on the summary of evidence of the after arraignment, trial may proceed
prosecution; notwithstanding the absence of the accused
provided that he has been duly notified and his
failure to appear is unjustifiable.
Page 171 of 382

Sec. 12, Art. III. Any person under investigation Right to be Informed
for the commission of an offense shall have the
right to be informed of his right to remain silent Procedural due process requires that the accused must
and to have competent and independent counsel be informed why he is being prosecuted and what
preferably of his own choice. If the person cannot charge he must meet [Vera v. People, supra].
afford the services of counsel, he must be provided
with one. These rights cannot be waived except in Note: Description, not designation of offense, is
writing and in the presence of counsel. controlling
It means the accused is amply accorded legal
assistance extended by a counsel who commits Right to a Speedy, and
himself to the cause of the defense and acts Impartial Trial
accordingly. It is an efficient and truly decisive legal
assistance, and not simply a perfunctory
Sec. 16, Art. III. All persons shall have the right
representation [People v. Bermas, G.R. No. 120420
to a speedy disposition of their cases before all
(1999)].
judicial, quasi-judicial, or administrative bodies.
The right of the accused to present evidence is
guaranteed by no less than the Constitution itself. Sec. 14, Art. III. Civilian authority is, at all times,
Article III, Section 14(2) thereof, provides that in all supreme over the military. xxx
criminal prosecutions, the accused shall enjoy the
right to be heard by himself and counsel. This Sec. 17, R.A. 8493. Act not a bar to provision on
constitutional right includes the right to present speedy trial in the Constitution. – No provision
evidence in ones defense, as well as the right to be of law on speedy trial and no rule implementing
present and defend oneself in person at every stage of the same shall be interpreted as a bar to any charge
the proceedings. Stripping the accused of all his pre- of denial of the right to speedy trial guaranteed by
assigned trial dates constitutes a patent denial of the Section 14(2), Article III, of the 1987 Constitution.
constitutionally guaranteed right to due process
[Villareal v. People G.R. No. 151258 (2012)]. Impartial Trial
A civilian cannot be tried by a military court so long
Assistance of Counsel as the civil courts are open and operating, even during
Martial Law [Olaguer v. Military Commission, G.R. No.
L-54558 (1987)].
Under Custodial Investigation; Duties of Dismissal based on the denial of the right to speedy
Public Officers. – (a) Any person arrested trial amounts to an acquittal [Acebedo v. Sarmiento, G.R.
detained or under custodial investigation shall at all No. L-28025 (1970)].
times be assisted by counsel.
Note: R.A. 8493 provides a 30-day arraignment within
Elements of the Right to Counsel: the filing of the information or from the date the
a. Court’s duty to inform the accused of right to accused appeared before the court; trial shall
counsel before being arraigned; commence 30 days from the arraignment, as fixed by
b. It must ask him if he desires the services of the court. The entire trial period shall not exceed 180
counsel; days, except as otherwise authorized by the SC Chief
c. If he does, and is unable to get one, the Court Justice.
must give him one; if the accused wishes to
procure private counsel, the Court must give him Availability
time to obtain one. a. When proceeding is attended by vexatious,
d. Where no lawyer is available, the Court may capricious and oppressive delays
appoint any person resident of the province and b. When unjustified postponements of the trial are
of good repute for probity and ability. asked for and secured
c. When without cause or justifiable motive, a long
period of time is allowed to elapse without the
party having his case tried. [Dela Rosa v. CA, G.R.
Page 172 of 382

No. 116945 (1996); Tai Lim v. Court of Appeals, as requiring not necessarily an actual cross-
G.R. No. 131483 (1999)] examination but merely an opportunity to exercise the
right to cross-examine if desired. What is proscribed
Unreasonable delay weighed by ff. factors: by statutory norm and jurisprudential precept is the
a. Length of delay absence of the opportunity to cross-examine. The
b. Reason for delay right is a personal one and may be waived expressly
c. Assertion/failure to assert right by the accused or impliedly [People v. Escote Jr., G.R. No. 140756
N.B. Failure to assert means waiver of privilege. (2003)].
d. Prejudice caused by the delay [Roquero v. The The task of recalling a witness for cross examination
Chancellor of U.P. Manila, G.R. No. 181851 (2010)] is, in law, imposed on the party who wishes to exercise
said right. This is so because the right, being personal
R.A. 8493 is a means of enforcing the right of the and waivable, the intention to utilize it must be
accused to a speedy trial. The spirit of the law is that expressed. Silence or failure to assert it on time
the accused must go on record in the attitude of amounts to a renunciation thereof. Thus, it should be
demanding a trial or resisting delay [Uy v. Hon. the counsel for the opposing party who should move
Adriano, G.R. No. 159098 (2006)]. to cross-examine plaintiffs witnesses [Fulgado v. CA,
G.R. No. L-61570 (1990)].
When right not available: The right to speedy trial
cannot be invoked where to sustain the same would Rule on Examination of a Child Witness [AM
result in a clear denial of due process to the No. 004-07-SC]
prosecution [Uy v. Hon. Adriano, supra]. The judge may exclude any person, including the
accused, whose presence or conduct causes fear to the
Rationale of right to speedy trial child.
a. To prevent oppressive pre-trail incarceration,
b. To minimize anxiety and concern of the accused, Compulsory Process
c. To limit the possibility that the defense will be a. Right to Secure Attendance of Witness
impaired. b. Right to Production of Other Evidence
Right to Confrontation Subpoena is a process directed to a person requiring

him to attend and to testify at the hearing or trial of
an action or at any investigation conducted under the
This is the basis of the right to cross-examination.
laws of the Philippines, or for the taking of his
deposition [Caamic v. Galapon, A.M. No. MTJ-93-887].
Two-fold purpose:
a. To afford the accused an opportunity to test the
Before a subpoena ducestecum may issue, the court
testimony of witnesses by cross-examination
must first be satisfied that the following requisites
b. To allow the judge to observe the deportment of
are present:
witnesses [Go, et al. v. The People of the Philippines
a. The books, documents or other things requested
and Highdone Company, Ltd., G.R. No. 185527
must appear prima facie relevant to the issue
(2012)]
subject of the controversy (test of relevancy), and
b. Such books must be reasonably described by the
Inadmissibility for lack of right to confrontation:
parties to be readily identified (test of
a. Testimony of a witness who has not submitted
definiteness) [Roco v. Contreras, G.R. No. 158275
himself to cross examination
(2005)]
b. Affidavits of witnesses who are not presented
during the trial, hence not subjected to cross
examination are hearsay [Cariago v. CA, G.R. No. Trial In Absentia
143561 (2001)]
WHEN CAN TRIAL IN ABSENTIA BE
The Court agrees that the right to cross-examine is a DONE
constitutional right anchored on due process. It is a
statutory right found in Section 1(f), Rule 115 of the 3 requisites:
Revised Rules of Criminal Procedure which provides a. Accused failed to appear for trial despite
that the accused has the right to confront and cross- postponement and notice
examine the witnesses against him at the b. Failure to appear is unjustified
trial. However, the right has always been understood c. After arraignment
Page 173 of 382

the death penalty, the prosecution must specifically

If not then the right of the accused to be informed of allege in the information and prove during the trial the
the nature and cause of accusation against him will be qualifying circumstances of minority of the victim and
impaired for lack of arraignment [Borja v. Mendoza her relationship to the offender [People v. Lagua, G.R.
G.R. No. L-45667 (1977)] No. 188315 (2010)].
Consequences: Waiver of right to cross-examine On application for taking oral depositions

and present evidence [Gimenez v. Nazareno G.R. No. outside the Philippines
L-37933 (1988)] The Court only allows the taking of oral depositions
under extraordinary circumstances in order to prevent
WHEN PRESENCE OF THE ACCUSED IS A a failure of justice. This is best left at the sound
DUTY discretion of the court wherein the application was
a. Arraignment and Plea filed [Jaylo v. Sandiganbayan, G.R. No. 111305 (2001)].
b. During Trial, for identification
c. Promulgation of Sentence
Exception: Light offense where accused need not

personally appear.
TRIAL IN ABSENTIA
As a general rule, subject to certain exceptions, any

constitutional or statutory right may be waived if such
waiver is not against public policy.
Considering Art IV, Sec 19, 1973 Constitution (trial of

a capital offense may proceed even in the absence of
the accused)and the absence of any law specifically
requiring his presence at all stages of his trial, there
appears, no logical reason why petitioner, although he
is charged with a capital offense, should be precluded
from waiving his right to be present in the
proceedings for the perpetuation of testimony, since
this right was conferred upon him for his protection
and benefit [Aquino v. Military Commission, G.R. No. L-
37364 (1975)].
Administrative Circular No. 16-93, issued on

September 9, 1993, provides that: 2. The practice of
requiring the convict to appear before the trial court
for “promulgation” of the judgment of the appellate
court should, therefore, be immediately discontinued.
It is clear from the foregoing that the practice of

requiring convicts to appear before the trial courts for
promulgation of the affirmance or modification by
this Court or the CA of judgments of conviction in
criminal cases is no longer allowed [Almuete v. People,
G.R. No. 179611 (2013)].
In cases where death penalty would be imposed

Circumstances that qualify a crime and increase its
penalty to death cannot be subject of stipulation. The
accused cannot be condemned to suffer the extreme
penalty of death on the basis of stipulations or
admissions. This strict rule is warranted by the gravity
and irreversibility of capital punishment. To justify
Page 174 of 382

Q. Writ of Habeas Corpus civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
Sec. 15, Art. III. The privilege of the writ of The suspension of the privilege of the writ shall
habeas corpus shall not be suspended except in apply only to persons judicially charged for
cases of invasion or rebellion when the public rebellion or offenses inherent in or directly
safety requires it. connected with invasion.
Suspension of the Privilege of the Writ Definition of the Writ of Habeas Corpus
A writ issued by a court directed to a person detaining
Sec. 18, Art. VII. The President shall be the another, commanding him to produce the body of the
Commander-in-Chief of all armed forces of the prisoner at a designated time and place, with the day
Philippines and whenever it becomes necessary, he and cause of his caption and detention, to do, to
may call out such armed forces to prevent or submit to, and to receive whatever the court or judge
suppress lawless violence, invasion or rebellion. awarding the writ shall consider in his behalf”
In case of invasion or rebellion, when the public [Sombong v. CA, G.R. No. 111876 (1990)].
safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the Availability
writ of habeas corpus or place the Philippines or 1. A prime specification of an application for a writ
any part thereof under martial law. of habeas corpus is involuntary restraint of
liberty.
Within forty-eight hours from the proclamation of 2. Voluntary restraint of liberty i.e. right of parents
martial law or the suspension of the privilege of to regain custody of minor child even if the child
the writ of habeas corpus, the President shall is in the custody of a third person of her own free
submit a report in person or in writing to the will. [Sombong v. CA, supra]
Congress. 3. Illegal arrest with supervening event when
restraint of liberty is already by virtue of the
The Congress, voting jointly, by a vote of at least a complaint or information [Velasco v. CA, G.R.
majority of all its Members in regular or special No. 118644 (1995)].
session, may revoke such proclamation or a. The issuance of a judicial process preventing
suspension, which revocation shall not be set aside the discharge of the detained person.
by the President. b. Another is the filing of a complaint or
information for the offense for which the
Upon the initiative of the President, the Congress accused is detained. [Sec. 4, Rule 102]
may, in the same manner, extend such 4. Where a sentence imposes punishment in excess
proclamation or suspension for a period to be of the power of the court to impose, such
determined by the Congress, if the invasion or sentence is void as to the excess [Gumabon v.
rebellion shall persist and public safety requires it. Director of Prisons, G.R. No. L-30026 (1971)].
5. “Habeas corpus is the proper remedy for a
The Congress, if not in session, shall, within person deprived of liberty due to mistaken
twenty-four hours following such proclamation or identity. In such cases, the person is not under
suspension, convene in accordance with its rules any lawful process and is continuously being
without need of a call. illegally detained” [In the Matter of Petition for
Habeas Corpus of Datukan Malang Salibo, G.R. No.
The Supreme Court may review, in an appropriate 197597 (2015)].
proceeding; filed by any citizen, the sufficiency of
the factual basis of the proclamation of martial law Restraint of Liberty
or the suspension of the privilege of the writ or the The nature of the restraint of liberty need not be
extension thereof, and must promulgate its related to any offense so as to entitle a person to the
decision thereon within thirty days from its filing. efficient remedy of habeas corpus. It may be availed
of as a post-conviction remedy or when there is an
A state of martial law does not suspend the alleged violation of the liberty of abode. In other
operation of the Constitution, nor supplant the words, habeas corpus effectively substantiates the
functioning of the civil courts or legislative implied autonomy of citizens constitutionally
assemblies, nor authorize the conferment of protected in the right to liberty in Article III, Section
jurisdiction on military courts and agencies over 1 of the Constitution. Habeas corpus being a remedy
Page 175 of 382

for a constitutional right, courts must apply a

conscientious and deliberate level of scrutiny so that
R. Writs of Amparo, Habeas
the substantive right to liberty will not be further
curtailed in the labyrinth of other processes. [In the
Data, Kalikasan
Matter of the Petition for Habeas Corpus of Datukan Malang
Salibo, supra] Writ of Amparo
Not only physical restraint but any restraint on A.M. No. 07-9-12-SC (25 September 2007): The
freedom of action is sufficient i.e. (1) curtailed Rule on the Writ of Amparo
freedom of movement by the condition that he must Sec. 1. Petition. – The petition for a writ of amparo
get approval of respondents for any travel outside is a remedy available to any person whose right to
Metro Manila, (2) abridged liberty of abode because life, liberty and security is violated or threatened
prior approval of respondent is required in case with violation by an unlawful act or omission of a
petitioner wants to change place of residence, (3) public official or employee, or of a private
abridged freedom of speech due to prohibition from individual or entity.
taking any interviews inimical to national security, and
(4) petitioner is required to report regularly to Concept
respondents or their reps [Moncupa v. Enrile, G.R. No. The Writ of Amparo serves both preventive and
L-63345 (1986)]. curative roles in addressing the problem of extralegal
killings and enforced disappearances. It is preventive
This Court has held that a restrictive custody and in that it breaks the expectation of impunity in the
monitoring of movements or whereabouts of police commission of these offenses; it is curative in that it
officers under investigation by their superiors is not a facilitates the subsequent punishment of perpetrators
form of illegal detention or restraint of liberty as it will inevitably yield leads to subsequent
[Ampatuan v. Macaraig, G.R. No. 182497 (2010)]. investigation and action [Secretary of National Defense v.
Manalo G.R. No. 180906 (2008)].
Restrictive custody is, at best, nominal restraint which
is beyond the ambit of habeas corpus. It is neither actual Scope
nor effective restraint that would call for the grant of The Amparo Rule was intended to address the
the remedy prayed for. It is a permissible intractable problem of “extralegal killings” and
precautionary measure to assure the PNP authorities “enforced disapperances,” and its coverage, in its
that the police officers concerned are always present form is confined to these instances or to
accounted for. [Ampatuan v. Macaraig, supra]. threats thereof. “Extralegal killings” are “killings
committed without due process of law, i.e., without
Note: The fact that the party to whom the writ is legal safeguards or judicial proceedings.” On the other
addressed has illegally parted with the custody of a hand, “enforced disapperances” are “attended by the
person before the application for the writ is no reason following characteristics: an arrest, detention or
why the writ should not issue [Villavicencio v. Lukban, abduction of a person by a government official or
G.R. No. L-14639 (1919)]. organized groupsor private individuals acting with the
direct or indirect acquiescence of the government; the
Test for valid suspension of the privilege of the writ: refusal of the State to disclose the fate or whereabouts
arbitrariness, not correctness of the person concerned or a refusal to acknowledge
the deprivation of liberty which places such persons
outside the protection of law.
If what is involved is the issue of child custody and

the exercise of parental rights over a child, who, for
all intents and purposes, has been legally considered a
ward of the State, the Amparo rule cannot be properly
applied [Caram v. Segui, G.R. No. 193652 (2014)].
Extralegal Killings – Killings committed without

due process of law
Enforced Disappearances – An arrest, detention or

abduction of a person by a government official or
Page 176 of 382

organized groups or private individuals acting with well as the manner and conduct of the
the direct or indirect acquiescence of the government; investigation, together with any report
the refusal of the State to disclose the fate or 5. The actions and recourses taken by the petitioner
whereabouts of the person concerned or a refusal to to determine the fate or whereabouts of the
acknowledge the deprivation of liberty which places aggrieved party and the identity of the person
such person outside the protection of law. [Secretary of responsible for the threat, act or omission
National Defense v. Manalo, supra]. 6. The relief prayed for.
Elements constituting "enforced The petition may include a general prayer for other
disappearances" just and equitable reliefs [Sec. 5].
a. that there be an arrest, detention, abduction or
any form of deprivation of liberty; When to file: The petition may be filed on any day
b. that it be carried out by, or with the authorization, and at any time
support or acquiescence of, the State ora political
organization; Where:
c. that it be followed by the State or political Filed Enforced Returnable
organization’s refusal to acknowledge or give RTC of the Anywhere Before the
information on the fate or whereabouts of the place where the in the issuing court or
person subject of the amparo petition; and, threat, act, or Philippines judge
d. that the intention for such refusal is to remove omission was
subject person from the protection of the law for committed or
a prolonged period of time. any of its
elements
a. Basis occurred
Sandiganbayan 1. Before the
Sec. 5, Art. VIII. The Supreme Court shall have or any of its issuing court any
the following powers: xxx (5) Promulgate rules justices justice thereof;
concerning the protection and enforcement of Court of or
constitutional rights, xxx. Such rules shall provide Appeals or any 2. any RTC of
a simplified and inexpensive procedure for the of its justices the place where
speedy disposition of cases, shall be uniform for all the threat, act or
courts of the same grade, and shall not diminish, omission was
increase, or modify substantive rights. committed or
any of its
elements
b. Petition for Writ occurred
Supreme Court 1. Before the
Form or any of its issuing court any
The petition shall be signed and verified [Sec. 5]. justices justice thereof;
or
Contents 2. before the
The petition shall allege the following: Sandiganbayan
1. The personal circumstances of the petitioner or any CA or any
2. The name and personal circumstances of the of their justices
respondent responsible for the threat, act or 3. any RTC of
omission, or, if the name is unknown or the place where
uncertain, the respondent may be described by an the threat, act or
assumed appellation omission was
3. The right to life, liberty and security of the committed or
aggrieved party violated or threatened with any of its
violation by an unlawful act or omission of the elements
respondent, and how such threat or violation is occurred
committed with the attendant circumstances
detailed in supporting affidavits Docket fees: None [Sec. 4]
4. The investigation conducted, if any, specifying
the names, personal circumstances, and addresses
of the investigating authority or individuals, as
Page 177 of 382

Return The writ of habeas data is an independent and

Within 72 hours after service of the writ, the summary remedy designed to protect the image,
respondent shall file a verified written return together privacy, honor, information, and freedom of
with supporting affidavits which shall, among other information of an individual, and to provide a forum
things, contain his defenses. A general denial is not to enforce one’s right to the truth and to
allowed [Sec. 9]. informational privacy.
Hearing There must be a nexus between right to privacy and

Summary or court may call for a preliminary right to life, liberty and security.
conference; given same priority as petition for habeas
corpus [Sec. 13]. Right To Informational Privacy v. Legitimate
State Interest
Proof required: Substantial evidence The determination of whether the privilege of the writ
For the protective writ of amparo to issue in enforced of habeas data, being an extraordinary remedy, may be
disappearance cases, allegation and proof that the granted in this case entails a delicate balancing of the
persons subject thereof are missing are not enough. It alleged intrusion upon the private life of Gamboa and
must also be shown by the required quantum of proof the relevant state interest involved [Gamboa v. Chan,
that their disappearance was carried out by, or with supra].
the authorization, support or acquiescence of, [the
government] or a political organization, followed by a
refusal to acknowledge [the same or] give information
Writ of Kalikasan
on the fate or whereabouts of [said missing] persons
A.M. No. 09-6-8-SC (13 April 2010)
[Navia v. Pardico, G.R. No. 184467 (2012)].
Definition: Remedy against violation or threat of
Defense:
violation of constitutional right to a balanced and
1. Private individual – ordinary diligence
healthful ecology by an unlawful act or omission of a
2. Public official – extraordinary diligence, no
public official or employee, or private individual or
presumption of regularity of duties [Sec. 17]
entity, involving environmental damage of such
magnitude as to prejudice the life, health or property
Note: Command responsibility is a way of impleading
of inhabitants in two or more cities or provinces
a superior of the accused (subject of the writ) to be
made responsible for the crimes committed by his
Requisites for the Issuance of the Writ: For a writ
subordinates — by failing to prevent or punish the
of kalikasan to issue, the following requisites must
said accused.
concur:
a. There is an actual or threatened violation of the
The Manalo brothers were abducted, detained, and
constitutional right to a balanced and healthful
tortured repeatedly by the military. After their escape,
ecology;
they filed a petition for the privilege of the Writ of
b. The actual or threatened violation arises from an
Amparo. The Supreme Court granted the petition and
unlawful act or omission of a public official or
held that there was a continuing violation of the
employee, or private individual or entity; and
Manalos’ right to security.
c. The actual or threatened violation involves or will
lead to an environmental damage of such
As regards the relief granted, the Court held that the
magnitude as to prejudice the life, health or
production order under the Amparo rule is different
property of inhabitants in two or more cities or
from a search warrant and may be likened to the
provinces [Segovia v. Climate Change Commission,
production of documents or things under Rule 27.1,
G.R. No. 211010 (2017)].
ROC [Secretary of National Defense v. Manalo, supra].
Note: It is well-settled that a party claiming the
Writ of Habeas Data privilege for the issuance of a writ of kalikasan has to
show that a law, rule or regulation was violated or
A.M. No. 08-1-16-SC (25 January 2008) would be violated [Segovia v. Climate Change Commission,
supra].
See also Writ of Habaes Data under Privacy of
Communications and Correspondence above. Who may file: Natural or juridical persons, NGO or
public interest groups in behalf of persons whose
right is violated.
Page 178 of 382

Who has jurisdiction: Supreme Court or Court of

S. Self-Incrimination Clause
Appeals.
Scope and Coverage
Docket fees: None
Sec. 17, Art. III. No person shall be compelled to
When is writ issued: Within three (3) days from the be a witness against himself.
date of filing of the petition, if the petition is sufficient
in form and substance Purpose
The self-incrimination clause is meant to avoid:
Return of Respondent 1. Placing the witness against the strongest
Within a non-extendible period of ten (10) days after temptation to commit perjury; and
service of the writ, the respondent shall file a verified 2. Extorting a confession by force.
return which shall contain all defenses; all defenses
not raised are deemed waived. Scope
The kernel of the right is not against all compulsion,
Hearing but against testimonial compulsion. The right against
Preliminary conference; same priority as other writs self-incrimination is simply against the legal process
(no more than 60 days). of extracting from the lips of the accused an
admission of guilt. It does not apply where the
Reliefs: Permanent cease and desist order against the evidence sought to be excluded is not an
respondent, directive to respondent to protect, incrimination but as part of object evidence [Agustin
preserve, rehabilitate or restore the environment; to v. CA, G.R. No. 162571 (2005)].
monitor strict compliance with the decision and
orders of ther court, to make periodic reports on the Exclusions
execution of the final judgment, and other reliefs [Sec. Over the years, the Court has expressly excluded
15, Rule 7]. several kinds of object evidence taken from the
person of the accused from the realm of self-
“A rehabilitation or restoration program to be incrimination. These include photographs, hair, and
implemented at the cost of the violator is also a major other bodily substances. The Court has also declared
relief that may be obtained under a judgment as constitutional several procedures performed on the
rendered in a citizens' suit under the Rules” [Arigo v. accused such as pregnancy tests for women accused
Swift, G.R. No. 206510 (2014)]. of adultery, expulsion of morphine from one’s mouth
and the tracing of ones foot to determine its identity
with bloody footprints. The Court has even
authorized the examination of a woman’s genitalia, in
an action for annulment filed by her husband, to
verify his claim that she was impotent, her orifice
being too small for his penis. Some of these
procedures were, to be sure, rather invasive and
involuntary, but all of them were constitutionally
sound. DNA testing and its results are now similarly
acceptable [Agustin v. CA, supra].
Other exclusions:
1. Handwriting in connection with a prosecution
for falsification is not allowed [Beltran v. Samson,
G.R. No. 32025 (1929); Bermudez v. Castillo, Per.
Rec. No. 714-A (1937)]
2. Accused may be made to take off her garments
and shoes and be photographed [People v. Otadura,
G.R. No. L-2154 (1950)]; compelled to show her
body for physical investigation to see if she is
pregnant by an adulterous relation [Villaflor v.
Summers G.R. No. 16444 (1920)]
Page 179 of 382

Note: Re-enactment of the crime by the accused is not nature of or are analogous to criminal
allowed. proceedings. The privilege has consistently been
held to extend to all proceedings sanctioned by
When to invoke law; and to all cases in which punishment is
The right can be claimed only when the specific sought to be visited upon a witness, whether a
question, incriminatory in character, is actually put to party or not [Standard Chartered Bank v. Senate
the witness. It cannot be claimed at any other time. It Committee on Banks G.R. No. 167173 (2007)].
does not give a witness the right to disregard a 2. Administrative proceedings with penal aspect i.e.
subpoena, to decline to appear before the court at the medical board investigation [Pascual v. Board of
time appointed, or to refuse to testify altogether. The Medical Examiners, G.R. No. L-25018 (1969)],
witness receiving a subpoena must obey it, appear as forfeiture proceeding [Cabal v. Kapunan Jr., G.R.
required, take the stand, be sworn and answer No. L-19052 (1962)]
questions. It is only when a particular question is 3. Fact-Finding investigation by an ad hoc body
addressed to him, the answer to which may [Galman v. Pamaran G.R. Nos. 71208-09 (1985)]
incriminate him for some offense, that he may refuse
to answer on the strength of the constitutional EFFECTS OF DENIAL OF PRIVILEGE
guaranty [People v. Ayson G.R. No. 85215 (1989)]. 1. Exclusionary Rule (under Sec. 17, Art. III in
relation to Sec. 12): When the privilege against self-
Note: The right against self-incrimination is not self- incrimination is violated outside of court (e.g.
executing or automatically operational. It must be police), then the testimony, as already noted, is
claimed. If not claimed by or in behalf of the witness, not admissible.
the protection does not come into play. It follows that 2. Ousted of Jurisdiction: When the privilege is
the right may be waived, expressly, or impliedly, as by violated by the Court itself, that is, by the judge,
a failure to claim it at the appropriate time [People v. the court is ousted of its jurisdiction, and all its
Ayson, supra]. proceedings, and even judgment are null and void
[Chavez v. CA G.R. No. L-29169 (1968)].
Application in the United States
The privilege which exists as to private papers, cannot IMMUNITY STATUTES
be maintained in relation to “records required by law
to be kept in order that there may be suitable Nature and Purpose
information of transactions which are the appropriate [It is the response of the State] to the constitutional
subjects of governmental regulation and the exception (i.e., the right against self-incrimination) to
enforcement of restrictions validly established its vast powers, especially in the field of ordinary
[Shapiro v. US, 335 U.S. 1 (1948)]. criminal prosecution and in law enforcement and
administration. Immunity statutes seek a rational
In recent cases, the US Supreme Court has struck accommodation between the imperatives of an
down certain registration requirements that presented individual’s constitutional right against self-
real and appreciable risk of self-incrimination. These incrimination (considered the fountain from which all
involved statutes directed at inherently suspect groups statutes granting immunity emanate) and the
in areas permeated by criminal statutes, a legitimate governmental interest in securing
circumstance which laid the subjects open to real risk testimony. By voluntarily offering to give information
of self-incrimination [BERNAS]. on the commission of a crime and to testify against
the culprits, a person opens himself to investigation
The great majority of persons who file income tax and prosecution if he himself had participated in the
returns do not incriminate themselves by disclosing criminal act. To secure his testimony without
their occupation [U.S. v. Sullivan, 274 U.S. 259 (1927)]. exposing him to the risk of prosecution, the law
recognizes that the witness can be given immunity
APPLICATION from prosecution. In this manner, the state interest is
satisfied while respecting the individual’s
General Rule: The privilege is available in any constitutional right against self-incrimination [Quarto
proceedings, even outside the court, for they may v. Ombudsman G.R. No. 169042 (2011)].
eventually lead to a criminal prosecution.
Note: The following is a list of immunity statutes
Expanded Application: included in the footnote 59 of Quarto v. Hon.
1. The right of the accused against self- Ombudsman:
incrimination is extended to respondents in a. PD No. 749 (Granting Immunity from
administrative investigations that partake of the Prosecution to Givers of Bribes and Other Gifts
Page 180 of 382

and to their Accomplices in Bribery and Other

Graft Cases against Public Officers, July 18,
1975);
T. Involuntary Servitude and
b. PD No. 1731 (Providing for Rewards and
Incentives to Government Witnesses and
Political Prisoners
Informants and other Purposes, October 8,
1980); Sec. 18, Art. III.
c. PD No. 1732 (Providing Immunity from 1. No person shall be detained solely by reason
Criminal Prosecution to Government Witnesses of his political beliefs and aspirations.
2. No involuntary servitude in any form shall
and for other Purposes, October 8, 1980);
exist except as a punishment for a crime
d. PD No. 1886 (creating the Agrava Fact-Finding
whereof the party shall have been duly
Board, October 22, 1983);
convicted.
e. 1987 Constitution, Article XIII, Section 18(8)
(empowering the Commission on Human Rights
to grant immunity); INVOLUNTARY SERVITUDE
f. RA No. 6646 (An Act Introducing Additional
Reforms in the Electoral System and for other Slavery and involuntary servitude, together with their
Purposes, January 5, 1988); corollary peonage, all denote “a condition of
g. Executive Order No. 14, August 18, 1986; enforced, compulsory service of one to another”
h. RA No. 6770 (Ombudsman Act of 1989, [Hodges v. U.S., 203 U.S. 1 (1906) in Rubi v. Provincial
November 17, 1989); Board of Mindoro, supra].
i. RA No. 6981 (Witness Protection, Security and
Benefit Act, April 24, 1991); A private person who contracts obligations of
j. RA No. 7916 (The Special Economic Zone Act rendering services in a civil capacity to the Army as an
of 1995, July 25, 1994); employee in its offices cannot, by law, either civil or
k. RA No. 9165 (Comprehensive Dangerous Drugs military, be compelled to fulfill them by
Act of 2002, June 7, 2002); imprisonment and deportation from his place of
l. RA No. 9416 (An Act Declaring as Unlawful Any residence. The Court held it was wholly improper to
Form of Cheating in Civil Service Examinations, sustain such means of compulsion which are not
etc., March 25, 2007); and justified either by law or by the contract [In Re Brooks,
m. RA No. 9485 (Anti-Red Tape Act of 2007, June G.R. No. 507 (1901)].
2, 2007).
Domestic services are always to be remunerated, and
Transactional Immunity no agreement may subsist in law in which it is
stipulated that any domestic service shall be absolutely
gratuitous, unless it be admitted that slavery may be
Sec. 18, Art. XIII. The Commission on Human
established in this country through a covenant entered
Rights shall have the following powers and
functions: xxx into between interested parties [De los Reyes v. Alojado,
(8) Grant immunity from prosecution to any G.R. No. L-5671 (1910)].
person whose testimony or whose possession of
documents or other evidence is necessary or A former court stenographer may be compelled under
pain of contempt to transcribe stenographic notes he
convenient to determine the truth in any
had failed to attend to while in service; such
investigation conducted by it or under its authority;
compulsion is not the condition of enforced
compulsory service referred to by the Constitution
Use and Fruit of Immunity [Aclaracion v. Gatmaitan, G.R. No. L-39115 (1975)].
“Use immunity” prohibits use of a witness’ compelled
testimony and its fruits in any manner in connection POLITICAL PRISONERS
with the criminal prosecution of the witness.
The accused being political prisoners subject to the
“Transactional immunity” grants immunity to witness civil jurisdiction of ordinary courts of justice, if they
from prosecution for an offense to which his are to be prosecuted at all, the army has no
compelled testimony relates [Galman v. Pamaran, jurisdiction, nor power, nor authority, from all legal
supra]. standpoints, to continue holding them in restraint.
They are entitled, as a matter of fundamental right, to
be immediately released, any allegation as to whether
Page 181 of 382

a war has ended or not [Raquiza v. Bradford, G.R. No.

L-44 (1945)].
U. Excessive Fines and
Finding that Sec. 19 of CA No. 682 authorizes that
Cruel Punishment
the political prisoners in question "may be released on Excessive fines shall not be imposed, nor cruel,
bail, even prior to the presentation of the degrading or inhuman punishment inflicted. Neither
corresponding information," and this may be done shall death penalty be imposed, unless, for compelling
"existing provisions of law to the contrary reasons involving heinous crimes, the Congress
notwithstanding.", the Court held that it must be hereafter provides for it. Any death penalty already
assumed that the discretion granted must be imposed shall be reduced to reclusion perpetua.
construed in the sense that the same may be exercised
in cases wherein it was not heretofore granted by law. The employment of physical, psychological, or
The Court also held it reasonable to assume that the degrading punishment against any prisoner or
discretion granted is to the effect that the People's detainee or the use of substandard or inadequate
Court may exercise jurisdiction to order the release on penal facilities under subhuman conditions shall be
bail of political prisoners "even prior to the dealt with by law. [Sec. 19, Art. III, Constitution]
presentation of the corresponding information"
[Duran v. Abad Santos, G.R. No. L-99 (1945)]. Cruel Punishment
1. Involves torture or lingering death [Legarda v.
Valdez, G.R. No. 513 (1902)]
2. Not only severe, harsh or excessive but flagrantly
and plainly oppressive
3. Wholly disproportionate to the nature of the
offense as to shock the moral sense of the
community [People v. Estoista, G.R. No. L-5793
(1953)]
The constitutional limit must be reckoned on the

basis of the nature and mode of punishment
measured in terms of physical pain.
What is prohibited is cruel and unusual punishment.

Unusual punishment is not prohibited especially if it
makes the penalty less severe.
In a case involving accused most of whom were

already death row convicts, the Court lowered the
penalty to reclusion perpetua after taking into account
the deplorable sub-human conditions of the National
Penitentiary where the crime was committed [People v.
dela Cruz, G.R. No. L-5790 (1953)].
The prohibition of cruel and unusual punishments is

generally aimed at the form or character of the
punishment rather than its severity in respect of
duration or amount, and applies to punishments
which public sentiment has regarded as cruel or
obsolete, for instance, those inflicted at the whipping
post, or in the pillory, burning at the stake, breaking
on the wheel, disemboweling, and the like. Fine and
imprisonment would not thus be within the
prohibition [People v. dela Cruz, supra].
The imposition of the penalty of death is hereby

prohibited. Accordingly, R.A. No. 8177, otherwise
known as the Act Designating Death by Lethal
Page 182 of 382

Injection is hereby repealed. R.A. No. 7659, otherwise

known as the Death Penalty Law, and all other laws,
V. Non-Imprisonment for
executive orders and decrees, insofar as they impose
the death penalty are hereby repealed or amended
Debts
accordingly. [Sec. 1, R.A. 9346]
Sec. 20, Art. III. No person shall be imprisoned
The import of the grant of power to Congress to for debt or non-payment of poll tax.
restore the death penalty requires:
1. that Congress define or describe what is meant Debt – any civil obligation arising from a contract. It
by heinous crimes includes even debts obtained through fraud since no
2. that Congress specify and penalize by death, only distinction is made in the Constitution [Ganaway v.
crimes that qualify as heinous in accordance with Quillen, G.R. No. L-18619 (1922)].
the definition or description set in the death
penalty bill and/or designate crimes punishable Poll Tax – a specific sum levied upon any person
by reclusion perpetua to death in which latter belonging to a certain class without regard to property
case, death can only be imposed upon the or occupation (e.g. community tax).
attendance of circumstances duly proven in court
that characterize the crime to be heinous in In a case where the accused was convicted and
accordance with the definition or description set imprisoned for estafa (where the accused failed to
in the death penalty bill render promised service to the injured in exchange for
3. that Congress, in enacting this death penalty bill the latter’s retrieval of the former’s cedula), the Court
be singularly motivated by “compelling reasons held that the imprisonment was correct since it was
involving heinous crimes.” for estafa and not involuntary servitude or
imprisonment for debt [Ramirez v. de Orozco, G.R. No.
For a death penalty bill to be valid, Sec. 19(1) does not L-11157 (1916)].
require that there be a positive manifestation in the
form of higher incidence of crime first perceived and In a case where a municipal judge admitted a “criminal
statistically proven. Neither does the said provision complaint” that was plainly civil in aspects from the
require that the death penalty be resorted to as a last very face of the complaint and the "evidence"
recourse when all other criminal reforms have failed presented, and issued on the same day the warrant of
to abate criminality in society [People v. Echegaray, G.R. arrest, the Court held that non-payment of an
No. 117472 (1997)]. indebtedness is not a criminal act, much less estafa;
and that no one may be criminally charged and
Section 19 (2) as worded, already embodies punished for non-payment of a loan of a sum of
constitutional authorization for the Commission on money. Thus, the municipal judge grossly failed to
Human Rights to take action in accordance with Art perform his duties properly — which, in this instance,
XIII, Sec 18. There is a command addressed to was to dismiss the complaint outright [Serafin v.
Congress to pass whatever civil or penal legislation Lindayag, A.M. No. 297-MJ (1975)].
might be required for the subject [BERNAS].
In a case where the obligation incurred by the debtor,
as shown by the receipt, was to pay an ordinary
contractual obligation (the guardianship proceeding
being civil in nature), the Court did not allow
enforcement of the civil obligation [In re: Tamboco,
G.R. No. 10900 (1917)].
No person may be imprisoned for debt in virtue of a

civil proceeding [Makapagal v. Santamaria, G.R. No. L-
34616 (1930)].
A person may be imprisoned as a penalty for a crime

arising from a contractual debt and imposed in a
proper criminal proceeding. Thus, the conversion of
a criminal fine into a prison term does not violate the
right to non-imprisonment for debts because in such
a case, imprisonment is imposed for a monetary
Page 183 of 382

obligation arising from a crime [Ajeno v Judge Insero,

A.M. No. 1098-CFI (1976)].
W. Double Jeopardy
Sec. 21, Art. III. No person shall be twice put in
jeoparady of punishment for the same offense. If
an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute
a bar to another prosecution of the same act.
Also known as “res judicata in prison grey.”
The elements of double jeopardy are (1) the complaint

or information was sufficient in form and substance
to sustain a conviction; (2) the court had jurisdiction;
(3) the accused had been arraigned and had pleaded;
and (4) the accused was convicted or acquitted, or the
case was dismissed without his express consent [People
v. Atienza, G.R. No. 171671 (2012)].
APPLICATION
1. In administrative cases: Not applicable
[Cayao-Lasam v. Ramolet (2008)]
2. Contempt: Applicable. Acquittal effectively
bars a second prosecution. [Atty. Santiago v. Hon.
Anunciacion, Jr. (1990)]
TERMINATION OF JEOPARDY
1. By acquittal
2. By final conviction
3. By dismissal without express consent of accused
4. By “dismissal” on the merits
Requisites
a. Court of competent jurisdiction;
b. Complaint/Information sufficient in form and
substance to sustain a conviction;
c. Arraignment and plea by the accused;
d. Conviction, acquittal, or dismissal of the case
without the express consent, of the accused. [Rule
117, Sec. 7; People v. Obsania (1968)]
What is Barred by the

Double Jeopardy Rule?
a. Prosecution for same offense
1. Same offense charged;
2. Attempt of the same offense;
3. Frustration of the same offense;
4. Offense necessarily included in the 1st
offense (All the elements of the 2nd
constitute some of the elements of the 1st
offense)
5. Offense that necessarily includes the 1st
offense (All the elements of the 1st
Page 184 of 382

constitute some of the elements of the 2nd to the acquittal is erroneous, an appeal or motion
offense) for reconsideration by the prosecution will not be
b. Prosecution for the same act allowed. [People v. Judge Velasco (2000)]
1. If punished by law and at the same time
punished by an ordinance; 2. Mistrial [Galman v. Sandiganbayan, G.R. No.
2. There is conviction or acquittal under either 72670 (1986)]
3. Grave abuse of discretion amounting to lack or
Exceptions: excess of jurisdiction [People v. Uy, G.R. No.
The conviction of the accused shall not be a bar to 158157 (2005)]
another prosecution for an offense which necessarily
includes the offense charged in the former complaint Remedy for the above cases: special civil action of certiorari
or information under the following instances, under Rule 65 of the Rules of Court
pursuant to Sec. 7, Rule 117, Rules of Court:
a. Supervening Event: The graver offense The private complainant or the offended party may
developed due to "supervening facts" arising question such acquittal or dismissal only insofar as the
from the same act or omission constituting the civil liability of the accused is concerned [Villareal v.
former charge. (e.g., A person convicted of Aliga, G.R. No. 166995 (2014)].
physical injuries may still be prosecuted for
homicide if the victim dies later.) The prosecution can appeal where the accused is
b. Newly Discovered Event: The facts deemed to have waived or is estopped from invoking
constituting the graver charge became known or his right against double jeopardy [CRUZ at 778].
were discovered only after the filing of the former
complaint or information. b. By accused
c. Defective Plea Bargain: The plea of guilty to
the lesser offense was made without the consent When an accused appeals his conviction, he waives
of the fiscal and the offended party, except as his right to the plea of double jeopardy.
provided in Sec. 1 (f) of Rule 116.
If the accused had been prosecuted for a higher
Note: In case of failure of the offended party to appear offense but was convicted for a lower offense, he has
despite due notice, the court may allow the accused to technically been acquitted of the higher offense. His
enter a plea of guilty to a lesser offense which is appeal would give the Court the right to impose a
necessarily included in the offense charged with the penalty higher than that of the original conviction
conformity of the trial prosecutor alone. imposed on him [Trono v. U.S. 199 U.S. 521 (1905)].
Motions for Reconsideration Dismissal with Consent of

and Appeals Accused
a. By prosecution Provisional dismissal — A case shall not be
provisionally dismissed except with the express
General rule: A judgment of acquittal is final and no consent of the accused and with notice to the
longer reviewable. It cannot be reconsidered because offended party. [Sec. 8, par. 1, Rule 117, ROC.]
it places the accused in jeopardy for the same offense.
[Cruz commentary, p. 777] General Rule: Dismissal with consent of accused
waives double jeopardy.
Exceptions: The state (not the private offended party)
can challenge the acquittal of the accused or the When the case is dismissed other than on the merits,
imposition of a lower penalty by a trial court in the upon motion of the accused personally, or through
following instances: (DuMi-GAD) counsel, such dismissal is regarded as “with express
1. Deprivation of due process: Where the consent of the accused”, who is therefore deemed to
prosecution is deprived of a fair opportunity to have waived the right to plea double jeopardy.
prosecute and prove its case [Villareal v. People
(2012)] Exceptions:
a. When the dismissal is based on insufficiency of
Provided, that the judge considered the evidence, the evidence of the prosecution [People v. City
even if the appreciation of the evidence leading Court of Silay, G.R. No. L-43790 (1976)]
Page 185 of 382

b. When the dismissal is based on the denial of his

right to a speedy trial [People v. Judge Abaño G.R.
X. Ex Post Facto Laws and
No. L-23599 (1955)]
c. When accused is discharged to be a state witness
Bill of Attainder
A mere verbal dismissal is not final until written and Sec. 22, Art. III. No ex post facto law or bill of
signed by the judge [Rivera, Jr. v. People G.R. No. 93219 attainder shall be enacted.
(1990)].
The constitutional prohibition against ex post facto
laws and bills of attainder cannot be invoked to
protect allegedly vested civil rights, because it is only
applicable to criminal proceedings, and not to
civil proceedings which affect private rights
retrospectively [Province of Camarines Sur v. Director of
Lands, G.R. No. L-43361 (1937)].
Ex Post Facto Law

a. Concept
• Equivalent of the impairment clause in criminal
matters.
• Operates retroactively to affect antecedent acts
• An ex post facto law is one that would make a
previous act criminal although it was not so at the
time it was committed [CRUZ at 589].
b. What are Considered Ex Post

Facto laws
1. Makes criminal an action done before the passage
of the law which was innocent when done, and
punishes such action.
2. Aggravates a crime or makes it greater than when
it was committed.
3. Changes the punishment and inflicts a greater
punishment than the law annexed to the crime
when it was committed.
4. Alters the legal rules of evidence and receives less
or different testimony than the law required at the
time of the commission of the offense in order to
convict the defendant [Mekin v. Wolfe, G.R. No.
1251 (1903)].
5. Assumes to regulate civil rights and remedies
only but in effect imposes a penalty or
deprivation of a right which when done was
lawful.
6. Deprives a person accused of a crime of some
lawful protection of a former conviction or
acquittal, or a proclamation of amnesty [In re Kay
Villegas Kami, G.R. No. L-32485 (1970)].
Page 186 of 382

members of a group in such a way as to inflict

c. Characteristics (CReP): punishment on them without a judicial trial that it
becomes a bill of attainder [People v. Ferrer, supra].
In order to be considered ex post facto, the law must:
1. Refer to criminal matters; It is a general safeguard against legislative exercise of
2. Be retroactive in its application; the judicial function, or trial by legislature [U.S. v.
3. To the prejudice of the accused. [Cruz commentary, Brown 381 U.S. 437 (1965)].
p. 591]
c. Elements
In Republic v. Fernandez [G.R. No. L-9141 (1956)], the
retroactive imposition of taxes on properties and 1. There must be a law.
income acquired during the Japanese occupation was 2. The law imposes a penal burden on a named
not an ex post facto law. “The prohibition applies individual or easily ascertainable members of
only to criminal or penal matters and not to laws a group.
which concern civil matters or proceedings generally, 3. There is a direct imposition of penal burden
or which affect or regulate civil or private rights.” without judicial trial.
In Bayot v. Sandiganbayan [G.R. No. L-61776 to No. L- Not considered bills of attainder:
61861 (1984)], an amendment to R.A. 3019, which
provides for suspension pendente lite of any public 1. R.A. 9335, which provides for the removal of the
officer or employee accused of offenses involving Bureau of Customs’ employees who would not
fraudulent use of public funds or property, including be able to meet their revenue targets, as
those charged earlier, is not an ex post facto law. The prescribed by law. RA 9335 does not seek to
suspension was not punitive, but only preventive in inflict punishment without judicial trial, but it
nature. merely lays down the grounds for the termination
of a BIR or BOC official or employee and
In People v. Estrada [G.R. Nos. 164368-69 (2009)], R.A. provides for the consequences thereof [Bureau of
9160, which was made to apply to the accused for acts Customs Employees Association v. Teves, G.R. No.
allegedly committed prior to its enactment, was 181704 (2011)].
considered ex post facto. Prior to its enactment,
numbered accounts or anonymous accounts were R.A. No. 9335 merely lays down the grounds for
permitted banking transactions, whether they be the termination of a BIR or BOC official or
allowed by law or by a mere banking regulation. employee and provides for the consequences
thereof. The democratic processes are still
Bill of Attainder followed and the constitutional rights of the
concerned employee are amply protected.
a. In Relation to Ex Post Facto law In other words, if a legislation only states the
grounds for a violation, then it is not considered
“Frequently a bill of attainder was doubly as a bill of attainder
objectionable because of its ex post facto features. This
is the historic explanation for uniting the two 2. Sec. 20 of the Cybercrime Law, which imposed a
mischiefs in one clause… Therefore, if a statute is a penalty of imprisonment upon those who would
bill of attainder, it is also an ex post facto law. But if it is fail to comply with certain provisions of Chapter
not an ex post facto law, the reasons that establish that IV of the said law. The Court held that since the
it is not are persuasive that it cannot be a bill of non-compliance would be punished as a violation
attainder” [People v. Ferrer, G.R. No. L-32613-14 of PD 1829, Sec. 20 of the Cybercrime Law
(1972)]. necessarily incorporates elements of the offense
which are defined therein. The act of non-
b. Definition compliance, for it to be punishable, must still be
done “knowingly or willfully.” There must still be
A bill of attainder is a legislative act that inflicts a judicial declaration of guilt, during which,
punishment without trial, its essence being the defense and justifications for non-compliance
substitution of legislative fiat for a judicial may be raised [Disini v. Sec. of Justice, supra].
determination of guilt. It is only when a statute applies
to either named individuals or to easily ascertainable
Page 187 of 382

3. R.A. 1700 which declared the Communist Party

of the Philippines a clear and present danger to
Philippine security, and thus prohibited
membership in such organization, was contended
to be a bill of attainder. Although the law
mentions the CPP in particular, its purpose is not
to define a crime but only to lay a basis or to
justify the legislative determination that
membership in such organization is a crime
because of the clear and present danger to
national security [People v. Ferrer, supra
]
Page 188 of 382

U.P. LAW BOC LAW ON PUBLIC OFFICERS POLITICAL LAW
LAW ON PUBLIC
OFFICERS
Political Law
Page 189 of 382

act, there must be a delegation of such authority,

XII. LAW ON PUBLIC either express or implied. In the absence of a valid
OFFICERS grant, they are devoid of power [Villegas v. Subido, G.R.
No. L-26534 (1969)].
A. General Principles Sec. 1, Art. XI. Public office is a public trust.

Public officers and employees must, at all times, be
accountable to the people, serve them with utmost
Concept and Application responsibility, integrity, loyalty, and efficiency, act
with patriotism and justice, and lead modest lives.
a. Definition
The provision embodies the nature of a public office
The right, authority and duty, created and conferred as a public trust, and not as a property right.
by law, by which, for a given period either fixed by
law or enduring at the pleasure of the creating power, c. Essential Elements of a Public
an individual is invested with some portion of the
sovereign functions of government, to be exercised
Office
by that individual for the benefit of the public
1. Created by the Constitution, law, or by authority
[Fernandez v. Sto. Tomas, G.R. No. 116418 (1995),
of law.
quoting MECHEM].
A public office must be created by the (a)
Nature Right, authority, and duty
Constitution, (b) national legislation, or (c)
Origin Created and conferred by law
municipal or subordinate legislation, via authority
For a given period, either: conferred by the Legislature
1. Fixed by law, or
Duration
2. Enduring at the pleasure 2. A delegation of some portion of the sovereign
of the appointing power power.
Nature of the 3. Powers and functions are defined by the
An individual is invested with
Exercise (of the Constitution, law, or legislative authority.
some portion of the sovereign
right, authority, 4. Duties pertaining thereto are performed
functions of government
and duty) independently, without control of a superior
Object of the power.
For the benefit of the public
Exercise 5. Continuing and permanent in nature (or
“unhindered performance”) [DE LEON]
b. Basic Constitutional Principles
Permanence and continuity are not
Sec. 1, Art. II. The Philippines is a democratic and indispensable.
republican State. Sovereignty resides in the people
and all government authority emantes from them. Hence, even if the tenure of the Chair of the
National Centennial Commission (NCC) is
This is the central or core provision for the law on merely temporary, it is a public office. The NCC
public officers. was an ad-hoc body that was created by an
Executive Order to perform an executive and
The second sentence, in particular, is the foundation sovereign function—to coordinate the
of the law on public accountability. celebrations of the Philippine Centennial [Laurel
v. Desierto, G.R. No. 145368 (2002)].
A public officer exercises delegated powers: A public
official exercises power, not rights. The government While salary is a usual criterion for determining
itself is merely an agency through which the will of the nature of a position, it is not a necessary
the state is expressed and enforced. Its officers condition. The material factor was the delegation
therefore are likewise agents entrusted with the of sovereign functions [Id.].
responsibility of discharging its functions. As such,
there is no presumption that they are empowered to
Page 190 of 382

While the Court has previously held that a town

fiesta was of a proprietary nature, a b. Public Office v. Contract
town fiesta cannot compare to the National
Centennial Celebrations, which are nation-wide. Public Office Contract
There is no hard and fast rule for determining the How created
nature of an undertaking or function [Id.].
Incident of sovereignty.
Originates from will of
Sovereignty is
Moreover, certain public offices exist only for a the contracting parties
omnipresent
limited period, e.g. Election Board of Canvassers.
Object
To carry out the
The delegation of a portion of the sovereign powers
sovereign as well as Obligations imposed
of government necessarily means that the powers are
governmental only upon the persons
to be exercised for the benefit of the public.
functions affecting who entered into the
• This delegation is the most important element of even persons not contract.
a public office and distinguishes it from private bound by the contract.
employment or a contract [Laurel v. Desierto,
Subject matter
supra)].
Limited duration and
A public office
specific in its object. Its
The sovereign powers delegated are either legislative, embraces the sidea of
terms deine and limit
executive or judicial in nature [Id.]. tenure, duration,
the rights and
continuity, and the
obligations of the
Powers conferred and duties imposed upon the office duties connected
parties, and neither may
must be defined, directly or impliedly (e.g. by therewith are generally
depart therefrom
necessary implication). continuing and
without the consent of
• Hence, there may be certain GOCCs which, permanent.
the other.
though created by law, are not delegated with a Scope
portion of the sovereign powers of the
Duties are generally
government (i.e. those that are purely proprietary Duties are very specific
continuing and
in nature), and thus may not be considered as a to the contract.
permanent.
public office.
Where duties are defined
The law. Contract.
General Rule: Duties must be performed independently
and without the control of a superior power other
than the law. c. Public Office is Not Property
Exception: Duties of an inferior or subordinate office A public office is not the property of the public
that was created or authorized by the Legislature and officer within the meaning of the due process clause
which inferior or subordinate office is placed under or the non-impairment of the obligation of contract
the general control of a superior office or body. clause of the Constitution.
It is a public trust/agency: A public office is not

Characteristics of a Public property within the constitutional guaranties of due
Office process. As public officers are mere agents and not
rulers of the people, no man has a proprietary or
a. Public Office v. Public contractual right to an office [Cornejo v. Gabriel, G.R.
No. 16887 (1920)].
Employment
It is personal: Public office being personal, the death
Public employment is broader than public office. All of a public officer terminates his right to occupy the
public office is public employment, but not all public contested office and extinguishes his counterclaim for
employment is a public office. Public employment as damages. His widow and/or heirs cannot be
a position lacks either one or more of the foregoing substituted in the counterclaim suit [Abeja v. Tañada,
elements of a public office. It is created by contract G.R. No. 112283 (1994)].
rather than by force of law [DE LEON].
Page 191 of 382

a. No Vested Right in a Public the powers of Congress [See UST v. Board of Tax
Appeals, G.R. No. 5701 (1953)].
Office
Methods of Organizing Public Offices
General Rule: Public office is not property under the Method Composition Efficiency
due process clause. There is no vested right to a public Swifter decision
office. There is one head
Single- and action but
assisted by
head decisions might
Exception: Public office is analogous to property in a subordinates
be hastily made
limited context and due process may be invoked when
There is a collegial Mature studies
the dispute concerns one‘s constitutional right to
body for and deliberations
security of tenure [Lumiqued v. Exevea, G.R. No.
Board formulating but may be slow
117565 (1997)].
System policies and in responding to
implementing issues and
N.B. Security of tenure means that the public officer
programs problems.
cannot be removed without cause [see Sec. 2(2), Art.
IX-B, 1987 Constitution] and due process [as required
by jurisprudence]. b. Modification and Abolition of
Public Office
Creation, Modification and
General Rule: The power to create an office includes
Abolition of Public Office the power to modify or abolish it. (Hence, the power
to modify or abolish an office is also primarily
a. Creation of Public Office legislative.)
Modes of Creation of Public Office Exception: Where the Constitution prohibits such
1. By the Constitution; modification/abolition.
2. By statute/law; or
3. By a tribunal or body to which the power to Abolishing an office also abolishes unexpired term:
create the office has been delegated. The legislature’s abolition of an office (e.g. a court)
also abolishes the unexpired term. The legislative
How a Public Office is Created power to create a court carries with it the power to
General Rule: The creation of a public office is abolish it [Ocampo v. Sec. of Justice, G.R. No. 7910
primarily a legislative function. (1955)].
Exception: Where the office is created by the Public Officers

Constitution itself.
The Sandiganbayan is not a constitutional court (or a. Who are Public Officers
public office) but a constitutionally-mandated court.
It was created by statute and not the Constitution, Generally, one who holds a public office [DE LEON].
hence Congress may limit its powers and jurisdiction
[See Garcia v. Sandiganbayan, G.R. 114135 (1994)]. “Public official” is ordinarily synonymous with
“public officer” [Id.].
N.B. The power to create a public office may be
delegated by Congress, subject to the requirements of “Public officer” has also been defined by statutes.
a valid delegation of legislative powers. Note that the statutory definitions below are not all-
encompassing, and apply primarily with respect to the
The delegation is limited by the Constitution and the respective statutes themselves (e.g. the definition of
relevant statute. Hence, the president cannot deprive “public officers” in the Revised Penal Code is most
courts of jurisdiction by requiring administrative relevant with regard to the provisions of the Revised
appeals prior to court action when the statute does Penal Code).
not provide for that limitation. This is because the
power to apportion jurisdiction is exclusively within
Page 192 of 382

UNDER R.A. 3019 (ANTI-GRAFT AND having authority to do the act or exercise that
CORRUPT PRACTICES ACT) function.
(15) “Employee” when used with reference to a
Sec. 2. person in the public service, includes any person in
a. “Government” includes the national the service of the government or any of its
government, the local governments, the agencies, divisions, subdivisions or
government-owned and government- instrumentalities.
controlled corporations, and all other
instrumentalities or agencies of the Republic b. Who are Not Public Officers
of the Philippines and their branches.
b. “Public officer” includes elective and
Generally, persons holding offices or employment
appointive officials and employees,
which are not public offices, i.e. those missing one of
permanent or temporary,whether in the
the essential elements, supra.
classified or unclassified or exempt service
receiving compensation, even nominal, from
Examples:
the government as defined in the preceding
subparagraph. • A concession forest guard, even when appointed
by a government agency, if such appointment
was in compliance with a requirement imposed
UNDER THE REVISED PENAL CODE
by an administrative regulation on the lumber
company who was also mandated to pay the
Art. 203. Who are public officers. – For the guard’s salaries [Martha Lumber Mill v. Lagradante,
purpose of applying the provisions of this and the G.R. No. 7599 (1956)].
preceding titles of this book, any person who, by
direct provision of the law, popular election or Rationale: There was no public office in this case. The
appointment by competent authority, shall take Court further noted that the appointment by the
part in the performance of public functions in the government was only done to ensure the faithful
Government of the Philippine Islands, or shall performance of the guard’s duties. [Id.]
perform in said Government or in any of its
• A company cashier of a private corporation
branches public duties as an employee, agent or
owned by the government [See Tanchoco v. GSIS,
subordinate official, of any rank or class, shall be
G.R. No. L-16826 (1962)]
deemed to be a public officer.
Rationale: Even if the Manila Railroad Company was
The definition includes temporary employees for as owned by the Government, its funds were private
long as they perform public functions. Hence, a funds because the Court found that it was not imbued
laborer temporarily in charge of issuing summons and with governmental powers [Id.].
subpoenas for traffic violations in a judge's sala may
be convicted for bribery under the Revised Penal
Code [Maniego v. People, G.R. No. L-2971, Apr. 20, Classification of Public
1951]. Officers and Public Officers
UNDER THE ADMINISTRATIVE CODE OF Constitutional
1987 Creation
Statutory
National
Sec. 2, Introductory Provisions. Public Body Served
Local
(14) “Officer” as distinguished from “clerk” or
Department of Legislative
“employee”, refers to a person whose duties, not
government to Executive
being of a clerical or manual nature, involves the
which their Judicial
exercise of discretion in the performance of the
functions pertain
functions of the government. When used with
Civil
reference to a person having authority to do a Nature of Functions
Military
particular act or perform a particular function in
the exercise of governmental power, “officer” Exercise of Discretionary
includes any government employee, agent or body Judgement or Ministerial
Discretion
Page 193 of 382

Legality of Title to De Jure

Office De Facto
B. Modes of Acquiring Title
Compensation
Lucrative to Public Office
Honorary
a. Election
b. Appointment
c. Others
1 Succession by operation of law
2 Direct provision of law
Generally, the two modes of acquiring title to public

office are (1) election and (2) appointment [DE
LEON].
Election: The choice or selection of candidates to

public office by popular vote through the use of the
ballot [Rulloda v. COMELEC, G.R. No. 154198
(2003)].
Appointment: The act of designation by the officer,

board, or body to whom that power has been
delegated of the individual who is to exercise the
powers and functions of a given office [DE LEON].
However, a person may also acquire title to public

office through two other means, namely
1. Succession by operation of law (when the
office to which one succeeds is legally vacated) or
2. By direct provision of law (such as when the
office is validly held in an ex-officio capacity by a
public officer).
Page 194 of 382

However, it does not have the power to recall an

C. Kinds of Appointment appointment on the ground that another person is
better qualified [See Luego v. CSC, supra].
1. Nature and Characteristics
The promotion of the “next-in-rank” is not
of Appointments mandatory: While there is a preference for the next-
in-rank in the Civil Service Law [see Sec. 21(1)-(6), Bk.
a. Appointment is a Discretionary V, Admin. Code (Civil Service Law)], it does not
Power impose a “rigid or mechanistic formula” that requires
the appointing power to select the more senior
“Appointment is an essentially discretionary power officer. Unless the law speaks in the most mandatory
and must be performed by the officer in which it is and peremptory tone, there should be full recognition
vested according to his best lights, the only condition of the wide scope of the discretionary authority to
being that the appointee should possess the appoint [Reyes v. Abeleda, G.R. No. 25491 (1968)].
qualifications required by law. If he does, then the
appointment cannot be faulted on the ground that There is no requirement that “vacancies must be filled
there are others better qualified who should have been by promotion, transfer, reinstatement, reemployment
preferred” [Luego v. CSC, G.R. No. 69137 (1986)]. or certification, in that order. That would be to
construe the provision not merely as a legislative
Administrators of public officers, primarily the prescription of qualifications but as a legislative
department heads should be entrusted with plenary, appointment, repugnant to the Constitution. What
or at least sufficient, discretion. Their position most [the law] does purport to say is that as far as
favorably determines who can best fulfill the practicable the person next in rank should be
functions of a vacated office. There should always be promoted, otherwise the vacancy may be filled by
full recognition of the wide scope of a discretionary transfer, reinstatement, reemployment or
authority, unless the law speaks in the most certification, as the appointing power sees fit,
mandatory and peremptory tone, considering all the provided the appointee is certified to be qualified and
circumstances [Reyes v. Abeleda, G.R. No. 25491 eligible” [Pineda v. Claudio, G.R. No. 29661 (1967)].
(1968)].
“Upon recommendation” is merely advisory: In cases
Scope of discretion: The discretion of the appointing of provincial and city prosecutors and their assistants,
authority is not only in the choice of the person who they shall be appointed by the President “upon the
is to be appointed but also in the nature and character recommendation of the Secretary” [Sec. 10, P.D. No.
of the appointment intended (i.e., whether the 1275]. The phrase “upon recommendation of the
appointment is permanent or temporary). Secretary of Justice” should be interpreted to be a
mere advice. It is persuasive in character, but is not
Generally, a Political Question: Appointment is binding or obligatory upon the person to whom it is
generally a political question involving considerations made [Bermudez v. Torres, G.R. No. 131429 (1999)].
of wisdom which only the appointing authority can
decide. N.B. The Secretary of Justice is under the control of
the President. The rule is different with respect to
Exception: Appointments requiring confirmation by recommendations made by officers over whom the
the Commission on Appointments. In such cases, the appointing power exercises no power of control, e.g.
Commission on Appointments may review the as the recommendation by the Governor of a
wisdom of the appointment and has the power to Province to the Secretary of the Department of
refuse to concur with it even if the President's choice Budget and Management in the appointment of a
possessed all the qualifications prescribed by law Provincial Budget Officer. In the said example, the
[Luego v. CSC, supra]. recommendation by the Governor is a condition sine
qua non for the validity of the appointment [See San
Power of CSC to recall appointments does not Juan v. CSC, G.R. No. 92299 (1991)].
include control of discretion: The CSC authority to
recall an appointment which has been initially Courts will act with restraint: Generally, as regards the
approved when it is shown that the same was issued power of appointment, courts will act with restraint.
in disregard of pertinent laws, rules and regulations.
Page 195 of 382

Hence, mandamus will not lie to require the Government Code is separately sanctioned in the
appointment of a particular applicant or nominee. power of Congress to “provide for the
qualifications, election, appointment and
Exceptions: removal, term, salaries, powers and functions and
1. When there is grave abuse of discretion, duties of local officials, and all other matters
prohibition or mandamus will lie. [See Aytona relating to the organization and operation of the
v. Castillo, G.R. No. 19313 (1962), on the local units” [Sec. 3, Art. X, Constitution].
midnight appointments of President Garcia].
2. Where the palpable excess of authority or Must be unhindered by Congress: The President’s
abuse of discretion in refusing to issue power to appoint under the Constitution should
promotional appointment would lead to necessarily have a reasonable measure of freedom,
manifest injustice, mandamus will lie to latitude, or discretion in choosing appointees
compel the appointing authority to issue said [Cuyegkeng v. Cruz, G.R. No. 16263 (1960)].
appointments [Pineda v. Claudio, G.R. No.
29661 (1967)]. Congress cannot either appoint the Commissioner of
the Service, or impose upon the President the duty to
b. Appointment is Generally an appoint any particular person to said office. The
appointing power is the exclusive prerogative of the
Executive Function President, upon which no limitations may be imposed
by Congress, except those resulting [1] from the need
General Rule: Appointment to office is intrinsically an of securing the concurrence of the Commission on
executive act involving the exercise of discretion Appointments and [2] from the exercise of the limited
[Concepcion v. Paredes, G.R. 17539 (1921)]. legislative power to prescribe the qualifications to a
given appointive office [Manalang v. Quitoriano, G.R.
Exceptions: No. 6898 (1954)].
1. Congress may appoint its own officials and staff
[See Springer v. Government, 277 U.S. 189 (1928)]. Legislative appointments: Legislative appointments
2. When the Constitution vests the powers in are repugnant to the Constitution [Pineda v. Claudio,
another branch of the State (i.e. Judiciary, Sec. G.R. No. 29661 (1967)].
5(6), Art. VIII) or an independent office (e.g.
• Effectively legislative appointments also
Constitutional Commissions, Sec. 4, Art. IX-A;
prohibited: “When Congress clothes the
Ombudsman, Sec. 6, Art. XI; Commission on
President with the power to appoint an officer, it
Human Rights, Sec. 18(10), Art. XIII).
(Congress) cannot at the same time limit the
choice of the President to only one candidate.
N.B. Mechem believes that when appointment is
[…] when the qualifications prescribed by
exercised by Congress, the courts, and similar non-
Congress can only be met by one individual, such
executive bodies, the exercise is still an executive
enactment effectively eliminates the discretion of
function.
the appointing power to choose and constitutes
an irregular restriction on the power of
The power to appoint may be granted by law to
appointment.” [Flores v. Drilon, G.R. No. 104732
officials exercising executive functions. This is
(1993)] In this case, the law assailed provided that
expressly sanctioned by the provision which holds
“for the first year of its operations from the
that “Congress may, by law, vest the appointment of
effectivity of this Act, the mayor of the City of
other officers lower in rank […] in the heads of
Olongapo shall be appointed [by the President]
departments, agencies, commissions, or boards.”
as the chairman and chief executive officer of the
[Sec. 16, Art. VII, Constitution]
Subic Authority.”
• Congress cannot vest such power in officials not
mentioned in the above provision, such as heads N.B. This is not to be confused with the power of
of bureaus [DE LEON]. Congress to appoint its own staff and officials, supra.
• The power of local chief executives to appoint
local government employees under the Local
Page 196 of 382

Appointment v. Designation
Designation Appointment
Imposition of additional duties upon Appointing authority selects an individual who
Definition
existing office. will occupy a certain public office.
Extent of Power Limited Comprehensive
No. The designation may be revoked at
Security of will.
Yes
Tenure [Binamira v. Garucho, G.R. No. 92008
(1990)]
No. While assuming the designated Yes. A public officer who later accepts even a
Abandonment of functions or if the designation is temporary appointment terminates his
Prior Office revoked, the public officer may perform relationship with his former office [Romualdez
the functions of the “prior” office. III v. CSC , G.R. Nos. 94878-81 (1991)].
2. Classification of Appointments
a. Permanent and Temporary
Permanent Temporary
Includes (if 1. Regular appointments (i.e. while Congress is
appointment is by the in session); and Acting appointments
President) 2. Ad interim appointments.
Permanent appointees must be (1) eligible and
Generally, required.
(2) qualified.
However, “in the absence of
Eligibility “A permanent appointment can issue only to a
appropriate eligibles, [a person
requirements person who possesses all the requirements for
otherwise ineligible] may be
the position to which he is being appointed,
appointed to it merely in a temporary
including the appropriate eligibility.” [CSC v.
capacity” [CSC v. Darangina, supra].
Darangina, G.R. No. 167472 (2007)]
Subject to No, even when confirmation by the
confirmation by the Yes, if confirmation by the CA is required by CA is required for the office. (e.g.
Commission on the office Acting Secretaries of Executive
Appointments Departments)
“Temporary employees of the
“No officer or employee of the civil service
Constitutional Government shall be given such
shall be removed or suspended except for
Protection protection as may be provided by
cause provided by law.” [Sec. 2(3), Art. IX-B]
law.” [Sec. 2(6), Art. IX-B]
No [Sevilla v. CA, G.R. No. 88498
Security of Tenure Yes
(1992)]
1. Until a permanent appointment is
issued to the same or different
person; or
2. Until the appointee removed by the
appointing power
Duration Until lawful termination
Exception: Fixed-Period Temporary
Appointments, which may be
revoked prior to the end of the term
only for valid cause
Page 197 of 382

Temporary appointment: “one made in an acting captain, and other officers whose appointments
capacity, the essence of which lies in its temporary are vested in him in this Constitution. He shall also
character and its terminability at pleasure by the appoint all other officers of the Government
appointing power” [CSC v. Darangina, supra]. whose appointments are not otherwise provided
for by law, and those whom he may be authorized
Rationale for temporary appointments: “Such a by law to appoint. The Congress may, by law, vest
temporary appointment is not made for the benefit of the appointment of other officers lower in rank in
the appointee. Rather, an acting or temporary the President alone, in the courts, or in the heads
appointment seeks to prevent a hiatus in the discharge of departments, agencies, commissions, or boards.
of official functions by authorizing a person to
discharge the same pending the selection of a Four Groups of Officers the President is
permanent appointee” [CSC v. Darangina, supra]. Authorized to Appoint [Sarmiento v. Mison, G.R. No.
79974 (1987)]
Is eligibility required for temporary appointments? 1. Specifically enumerated under Sec. 16, Art. VII
• Generally, a temporary appointee must be of the Constitution, i.e.:
eligible. a. Heads of the executive departments;
• Exception: “in the absence of appropriate b. Ambassadors;
eligibles, [a person otherwise ineligible] may be c. Other public ministers and consuls;
appointed to it merely in a temporary capacity” d. Officers of the armed forces from the rank
[CSC v. Darangina, supra]. of colonel or naval captain;
• Hence, the absolutist dictum in Ignacio v. Banate e. Other officers whose appointments are
[G.R. No. 74720 (1987)], which states that an “an vested in him by the Constitution;
unqualified person cannot be appointed a 2. All other officers of the Government whose
member even in an acting capacity,” must be read appointments are not otherwise provided for by
in light of the facts of that case. There, the vacant law;
position was member of the Sangguniang 3. Officers whom the President may be authorized
Panglunsod representing the barangays, which by law to appoint;
the law required to be the president of the city 4. Officers lower in rank whose appointments the
association of barangay councils; the petitioner Congress may by law vest in the President alone.
was such president, and the respondent was not
even a barangay captain. N.B. In CLU v. Executive Secretary, the Court noted that
the inclusion of the word “alone” was inadvertent.
An acting appointee has no entitlement to the office.
Hence, he has no personality to bring a quo warranto APPOINTMENTS REQUIRING AND NOT
action against the permanent appointee to the REQUIRING CONSENT OF THE
position [Sevilla v. CA, G.R. No. 88498 (1992)]. COMMISSION ON APPOINTMENTS
(“CONFIRMATION”)
When temporary appointments not allowed: In no
case shall any Member [or Chair] of the (a) Civil Requiring CA Not Requiring CA
Service Commission, (b) Commission on Elections, Confirmation Confirmation
or (c) Commission on Audit be appointed or 1. Heads of the 1. All other
designated in a temporary or acting capacity. [Sec. executive presidential
1(2), Art. IX-B; Sec. 1(2), Art. IX-C; Sec. 1(2), Art. IX- departments; appointments.
D, Constitution] 2. Ambassadors; 2. Appointments
3. Other public explicitly exempted
b. Presidential Appointments ministers and from the
consuls; confirmation
4. Officers of the requirement under
Par. 1, Sec. 16, Art. VII, Constitution. The
armed forces from the Constitution:
President shall nominate and, with the consent of
the rank of colonel 1. Vice-President
the Commission on Appointments, appoint the
or naval captain; as a member of
heads of the executive departments, ambassadors,
5. Other officers the cabinet
other public ministers and consuls, or officers of
whose [Sec. 3, Art.
the armed forces from the rank of colonel or naval
appointments are VII];
Page 198 of 382

vested in him by the 2. Members of Termination of ad interim appointments:

Constitution (unless the Supreme 1. Disapproval by the CA;
the Constitution Court and 2. By-Pass by the CA: When the CA does not act on
provides that “such judges of lower the ad interim appointment prior to the next
appointments courts [Sec. 9, adjournment of Congress; or
require no Art. VIII]; 3. Revocation of the appointment by the President,
confirmation”). 3. The unless prohibited by the Constitution [as in the
Ombudsman case of the chairman and members of the
[Par. 1, Sec. 16, Art. VII, and his Constitutional Commission].
Constitution] deputies [Sec.
9, Art. XI]. Disapproval v. Bypass: An ad interim appointee
disapproved by the COA cannot be reappointed. But
Generally, officers whose appointments are vested in a by-passed appointee, or one whose appointment
him by the Constitution require confirmation by the was not acted upon the merits by the CA, may be
Commission on Appointments (CA) (e.g. chairmen appointed again by the President, because failure by
and members of the Constitutional Commissions, the CA to confirm an ad interim appointment is not
regular members of the Judicial and Bar Council). disapproval
As a general exception, appointments subject to Renewal of by-passed appointment: “A by-passed

nomination by the Judicial and Bar Council (i.e. appointment is one that has not been finally acted
members of the judiciary, and the Ombudsman and upon on the merits by the Commission on
his deputies) “require no confirmation” [Sec. 9, Art. Appointments at the close of the session of Congress.
VIII; Sec. 9, Art. XI, Constitution]. There is no final decision by the Commission on
Appointments to give or withhold its consent to the
The list of appointments requiring confirmation is appointment as required by the Constitution. Absent
exclusive. Congress cannot, by law, require such decision, the President is free to renew the ad
confirmation by the CA for a public office created by interim appointment of a by-passed appointee.”
statute. This would be unconstitutional as it expands
the powers of the CA [Calderon v. Carale, G.R. No. Commission: A document serving as the written
91636 (1992)]. evidence of the appointment. It is the warrant for the
exercise of the powers and duties of the office to
The President does not have the prerogative to which the officer is commissioned [DE LEON].
voluntarily submit an appointment for confirmation
by the CA [Bautista v. Salonga, G.R. No. 86439 (1989)]. Regular Ad Interim
Appointments Appointments
c. Regular and Ad Interim made while made “during
Definition Congress is in the recess of
[Matibag v. Benipayo, G.R. No. 149036 (2002)] and session [Sec. the Congress,
Constitutiona 16(2), Art. VII] whether
Par. 2, Sec. 16, Art. VII. The President shall have l Basis voluntary or
compulsory.”
the power to make appointments during the recess
[Id.]
of the Congress, whether voluntary or compulsory,
but such appointments shall be effective only until Nature of
Permanent Permanent
disapproved by the Commission on Appointments Appointment
or until the next adjournment of the Congress. 1. President 1. President
nominates. nominates
2. CA 2. Commissio
Ad interim appointments to the Constitutional
confirms. n is issued
Commissions are permanent and irrevocable Steps in the
3. Commissio 3. Appointee
appointments. Such do not violate the Constitutional Appointment
n is issued. accepts,
prohibition against acting appointments to these Process
4. Appointee qualifies for
commissions [See Matibag v. Benipayo, supra].
accepts, office, and
qualifies for assumes his
office [i.e. duties.
Page 199 of 382

takes the 4. CA Limited application to Presidential

oath], and confirms appointments: The constitutional prohibition on
assumes his midnight appointments only applies to the President
duties [De Rama v. CA, G.R. No. 131136 (2001)].
Upon Immediately
confirmation after Note: the Civil Service Commission may issue rules
When the and regulations prohibiting local chief executives
by the CA appointment,
appointee from making appointments during the last days of
subject to a)
may take oath their tenure. Appointments of local chief executives
disapproval by
and assume must conform to these civil service rules and
the CA or b)
office regulations in order to be valid [Provincial Gov’t of
“bypass” by
the CA, infra. Aurora v. Marco, G.R. No. 202331 (2015)].
d. Special Rules and Doctrines on The grant to the President of the power to appoint
OICs in ARMM does not violate the Constitution:
Presidential Appointments The appointing power is embodied in Sec. 16, Art VII
of the Constitution, which pertinently states that the
PROHIBITION ON MIDNIGHT President shall appoint all other officers of the
APPOINTMENTS government whom the President may be authorized
by law to appoint. Since the President’s authority to
Sec. 15, Art. VII. Two months immediately before appoint OICs emanates from RA No. 10153, it falls
the next presidential elections and up to the end of under this group of officials that the President can
his term, a President or Acting President shall not appoint. Thus, the assailed law rests on clear
make appointments, except temporary constitutional basis [Kida v. Senate, G.R. No. 197271
appointments to executive positions when (2011)].
continued vacancies therein will prejudice public
service or endanger public safety.
3. Rules on Acceptance and
General rule: Two months immediately before the next Revocation
presidential elections up to end of the term of the
President a. Four Elements of a Valid,
Exception: All elements must concur: Effective, and Completed
1. Temporary appointments; Appointment
2. To executive positions; and
3. When continued vacancies will (a) prejudice 1. Authority to appoint and evidence of the
public service or (b) endanger public safety exercise of the authority;
2. Transmittal of the appointment paper and
Policy: The outgoing President is prevented from evidence of the transmittal;
continuing to rule the country indirectly after the end 3. A vacant position at the time of appointment;
of his term [Velicaria-Garafil v. Office of the President, and
G.R. No. 203372 (2015)]. 4. Receipt of the appointment paper and
acceptance of the appointment by the appointee
Inapplicability to the Judiciary: The midnight who possesses all the qualifications and none of
appointments ban in the constitution does not apply the disqualifications.
to the Judiciary. The applicable provisions on the
periods to fill up vacancies in the judiciary in Art. VIII “The [above] elements should always concur in the
will prevail over the midnight appointments making of a valid (which should be understood as
prohibition in Art. VII [See De Castro v. JBC, G.R. No. both complete and effective) appointment […] The
191002 (2010)]. concurrence of all these elements should always apply
• De Castro expressly overturned the long-standing [.] These steps in the appointment process should
rule in In re Valenzuela (1998) which applied the always concur and operate as a single process. There
midnight appointments ban to judicial positions. is no valid appointment if the process lacks even one
step” [Velicaria-Garafil v. Office of the President, supra].
Page 200 of 382

The appointee enjoys security of tenure and may only

Appointment not final without transmittal: “It is be removed (1) for cause and (2) with due process.
not enough that the President signs the appointment Note that while a completed appointment cannot be
paper. There should be evidence that the President revoked, there are exceptions.
intended the appointment paper to be issued. It could
happen that an appointment paper may be dated and Exceptions:
signed by the President months before the 1. The appointment is an absolute nullity [Mitra v.
appointment ban, but never left his locked drawer for Subido, G.R. No. 21961 (1967)].
the entirety of his term. Release of the appointment Hence, if the appointment was a prohibited
paper through the [Malacañang Records Office midnight appointment, it can be revoked by the
(MRO)] is an unequivocal act that signifies the (next) President en masse through executive
President’s intent of its issuance” [Velicaria-Garafil v. order [See, e.g. Velicaria-Garafil v. Office of the
Office of the President, supra]. President, supra; Aytona v. Castillo, supra].
Hence, even if the appointment letter was dated prior 2. There is fraud on the part of the appointee [Id.].
to the midnight appointments ban, supra, cut-off
date, for as long as the transmittal to the MRO was
after the cut-off date, the appointment is
unconstitutional for violating the midnight
appointments ban [Id.].
N.B. The appointments in Velicaria-Garafil did not

require CA confirmation. It is submitted that the rule
there would also apply to appointments requiring CA
confirmations, subject to necessary modifications.
b. Rule on Acceptance
General Rule: A person cannot be compelled to accept
a public office.
Exceptions: When citizens are required, under

conditions provided by law, to render personal
military or civil service (See Sec. 4, Art. II,
Constitution)
N.B. See Art. 234, Revised Penal Code: “The penalty

of arresto mayor or a fine not exceeding 1,000 pesos, or
both, shall be imposed upon any person who, having
been elected by popular election to a public office,
shall refuse without legal motive to be sworn in or to
discharge the duties of said office.” This is not an
exception to the general rule, but it merely punishes
the failure to accept the elective public office.
c. Irrevocability of a Valid,
Effective, and Completed
Appointment
General Rule: An appointment, once made, is
irrevocable and not subject to reconsideration.
Page 201 of 382

D. Eligibility and 2. Power to Prescribe

Qualification Qualifications
Requirements a. Who May Prescribe
Qualifications
Definition
1. Constitution: When the qualifications are
Eligibility: The state or quality of being legally fitted prescribed by the Constitution, they are generally
or qualified to be chosen exclusive, except where the Constitution itself
provides otherwise.
Qualification: Endowment/act which a person must
do before he can occupy a public office. May be Hence, Congress cannot pass a statute that
understood in two senses: requires drug testing for candidates for the House
a. Endowment: refers to the qualities or attributes and Senate, as the qualifications of members of
which make an individual eligible for public Congress are provided in the Constitution [See
office. It must be possessed at the time of Social Justice Society v. Dangerous Drugs Board, G.R.
appointment or election and continuously for as No. 157870 (2008)].
long as the official relationship continues
b. Act: refers to the act of entering into the 2. Congress: In the absence of constitutional
performance of the functions of the office. inhibition, Congress has the same right to
provide disqualifications that it has to provide
N.B. Failure to perform an act required by law could qualifications for office [DE LEON].
affect the officer’s title to the given office, e.g. the
office of any elected official who fails or refuses to b. Restrictions on the Power of
take his oath of office within six months from his
proclamation shall be considered vacant unless said Congress to Prescribe
failure is for cause or causes beyond his control [Sec. Qualifications
11, Omnibus Election Code].
1. Congress cannot exceed its constitutional
An oath of office is a qualifying requirement for a powers;
public office. Only when the public officer has 2. Congress cannot impose conditions of eligibility
satisfied this prerequisite can his right to enter into the inconsistent with constitutional provisions;
position be considered plenary and complete. Until 3. The qualification must be germane to the
then, he has none at all, and for as long as he has not position ("reasonable relation" rule);
qualified; the holdover officer is the rightful occupant 4. Where the Constitution establishes specific
[Lecaroz v. Sandiganbayan, G.R. No. 130872 (1999)]. eligibility requirements for a particular
constitutional office, the constitutional criteria
Once proclaimed and duly sworn in office, a public are exclusive, and Congress cannot add to them
officer is entitled to assume office and to exercise the except if the Constitution expressly or impliedly
functions thereof. The pendency of an election gives the power to set qualifications.
protest is not sufficient basis to enjoin him from 5. Congress cannot prescribe qualifications so
assuming office or from discharging his functions detailed as to practically amount to making a
[Mendoza v. Laxina (2003)]. legislative appointment: it is unconstitutional and
therefore void for being a usurpation of executive
power;
Examples of Prohibited Qualifications in Jurisprudence:

• A proviso which limits the choices of the
appointing authority to only one eligible [Flores v.
Drilon, supra];
Page 202 of 382

• Designating an unqualified person. The People's must exist at the time of the election or
Court Act, which provided that the President appointment, and that their existence only at
could designate Judges of First Instance, Judges- the time of the commencement of the term
at-large of First Instance or Cadastral Judges to of office or induction of the candidate or
sit as substitute Justices of the Supreme Court in appointee into office is not sufficient to
treason cases without them necessarily having to qualify him to office.
possess the required constitutional qualifications
of a regular Supreme Court Justice [Vargas v. Reconciliation of the two views: If the
Rilloraza, G.R. No. L-1612 (1948)]; provision refers to “holding of office,”
• Automatic transfer to a new office. A legislative rather than to eligibility to office, in defining
enactment abolishing a particular office and the qualifications, the courts are inclined to
providing for the automatic transfer of the hold that the qualifications are to be
incumbent officer to a new office created determined at the time of the
[Manalang v. Quitoriano, G.R. No. L-6898 (1954)]; commencement of the term [DE LEON].
• Requiring inclusion in a list. A provision that
impliedly prescribes inclusion in a list submitted This is consistent with the rule on liberal
by the Executive Council of the Phil. Medical interpretation of eligibility requirements for
Association as one of the qualifications for public office.
appointment; and which confines the selection of
the members of the Board of Medical Examiners Qualifications are of a continuing nature:
to the 12 persons included in the list [Cuyegkeng v. Qualification is of a continuing nature, and must exist
Cruz, G.R. No. 16263 (1960)]. throughout the holding of the public office. Once the
qualifications are lost, the public officer forfeits the
Note: the Constitution itself, however, may require office.
inclusion in a list as a pre-requisite to appointment
(e.g. the JBC list of nominees) No estoppel in ineligibility: Knowledge of
ineligibility of a candidate and failure to question such
ineligibility before or during the election is not a bar
3. Time of Possession of to questioning such eligibility after such ineligible
Qualifications candidate has won and been proclaimed. Estoppel
will not apply in such a case [Castañeda v. Yap, G.R.
a. If law specifies: At the time specified by the No. L-5379 (1952)].
Constitution or law; e.g. in Constitution:
1. Sec. 3, Art. VI: “No person shall be a Senator Citizenship requirement should be possessed at
unless he is […] on the day of the election, is the start of term: The Local Government Code does
at least […]” not specify any particular date or time when the
2. Sec. 2, Art. VII: “No person may be elected candidate must possess the required citizenship,
President unless he is […] at least forty years unlike for residence and age. The requirement is to
of age on the day of the election […]” ensure that no alien shall govern our people and
b. If law does not specify: If time is unspecified, country or a unit of territory thereof. An official
there are two views: begins to govern or discharge his functions only upon
1. Qualification during commencement of proclamation and on start of his term. This liberal
term or induction into office: The word interpretation gives spirit, life and meaning to our law
“eligible” as used in constitutions and on qualifications consistent with its purpose [Frivaldo
statutes, has reference to the capacity not of v. COMELEC, G.R. No. 120295 (1996)].
being elected or appointed to office, but of
holding office, and that, therefore, if Note: Constitutional offices require natural-born
qualified at the time of commencement of citizenship, hence this is a non-issue for them.
the term or induction into office,
disqualification of the candidate or Presumption of eligibility: Doubts as to the
appointee at the time of election or eligibility of a candidate are presumed in favor of one
appointment is immaterial; who has been elected or appointed to public office.
2. Qualification/eligibility during election
or appointment: Conditions of eligibility
Page 203 of 382

“The right to public office should be strictly Members of the Constitutional Commission
construed against ineligibility. The right of a citizen to
hold office is the general rule, ineligibility the CSC COMELEC COA
exception, and therefore, a citizen may not be Natural-born citizen
deprived of this right without proof of some 35 years old at the time of appointment
disqualification specifically declared by law” [De Not a candidate for any elective position in the
Leon]. election immediately preceding appointment
(a) CPA with
4. Qualifications Prescribed by at least 10
years of
the Constitution auditing
With proven experience;
For President and Vice-President [Sec. 2-3 Art. capacity for College degree OR
VII] public holder (b) Member of
a. Natural-born citizen administration the Bar
b. Registered voter engaged in
c. Able to read and write practice of law
d. 40 years old on day of election for at least 10
e. Resident of the Philippines for at least 10 years years
immediately preceding election day Chairman and
At no time
majority should
For Senator [Sec. 3, Art. VI] shall all
be members of
a. Natural-born citizen Members of
the bar who
b. 35 years old on election day the Com-
have been
c. Able to read and write mission
engaged in the
d. Registered voter belong to the
practice of law
e. Resident of the Philippines for at least 2 years same
for at least 10
immediately preceding election day profession
years.
Sec. 1(1), Art. Sec. 1(1), Art. Sec. 1(1), Art.
For Members of the House of Representatives IX-B IX-C IX-D
[Sec. 6, Art. VI]
a. Natural-born citizen “Practice of law” means any activity, in or out of
b. 25 years old on election day court, which requires the application of law, legal
c. Able to read and write procedure, knowledge, training and experience.
d. Registered voter in district in which he shall be Generally, to practice law is to give notice or render
elected any kind of service which requires the use in any
e. Resident thereof for not less than one year degree of legal knowledge or skill [Cayetano v. Monsod,
immediately preceding election day G.R. No. 100113 (1991)].
N.B. Residency and registration in the district (i.e. “Residency” in election law, refers to domicile, i.e. the
requirements 4 and 5) are not required for partylist place where a party actually or constructively has his
representatives. permanent home, where he intends to return. To
successfully effect a change of domicile, the candidate
Members of the Supreme Court and lower must prove an actual removal or an actual change of
collegiate courts [Sec. 7(1), Art. VIII] domicile [Aquino v. COMELEC, G.R. No. 120265
a. Natural born citizen (1995)].
b. At least 40 years old
c. 15 years or more as a judge or engaged in law There is a presumption in favor of domicile of origin.
practice Domicile requires the twin elements of actual habitual
d. Of proven Competence, Integrity, Probity and residence and animus manendi (intent to permanently
Independence remain). Domicile of origin is not easily lost; it is
deemed to continue absent a clear and positive proof
of a successful change of domicile [Romualdez-Marcos
v. COMELEC, G.R. No. 119976 (1995)].
Page 204 of 382

3. Commission on Appointments, which requires

5. Particular Qualifications proportional representation [Art. VI, Sec. 18,
Constitution];
4. Vacancies in local Sanggunians, except the
a. Religious Test or Qualification is Sangguniang Barangay, which requires that the
not Required appointee come from the same political party as
that of the sanggunian member who caused the
Sec. 5, Art. III, Constitution. No religious test vacancy [Sec. 45(b), Local Government Code]
shall be required for the exercise of civil or political
rights. d. No Property Qualifications
b. Qualification Standards and Since sovereignty resides in the people, it is necessarily

implied that the right to vote and to be voted should
Requirements under the Civil not be dependent upon a candidate’s wealth. Poor
Service Law people should also be allowed to be elected to public
office because social justice presupposes equal
Qualification standards enumerate the minimum opportunity for both rich and poor [Maquera v. Borra
requirements for a class of positions in terms of & Aurea v. COMELEC, G.R. Nos. L-24761 & L-
education, training and experience, civil service 24828 (1965)].
eligibility, physical fitness, and other qualities required
for successful performance [Sec. 22, Book V, Admin. The requirement that a candidate post a bond worth
Code]. a year’s salary is unconstitutional for effectively
imposing a property qualification. No person shall, by
The Departments and Agencies are responsible for reason of poverty, should be denied the chance to be
continuously establishing, administering and elected to public office [Maguera v. Borra, supra].
maintaining the qualification standards as an incentive
to career advancement [Sec. 7, Rule IV, Omnibus e. Aliens are Not Eligible for Public
Rules].
Office
Such establishment, administration, and maintenance
shall be assisted and approved by the CSC and shall The purpose of the citizenship requirement is to
be in consultation with the Wage and Position ensure that no alien, i.e., no person owing allegiance
to another nation, shall govern our people and
Classification Office [Id.].
country or a unit of territory thereof [Frivaldo v.
COMELEC, supra].
It shall be established for all positions in the 1st and
2nd levels [Sec. 1, Rule IV, Omnibus Rules]
f. Effect of Pardon upon the
c. Political Qualifications for Office Disqualification to Hold Public
Office
Political qualifications refer to membership in
political parties, including those registered in the General Rule: Pardon will not restore the right to hold
party-list system. public office. (Art. 36, Revised Penal Code)
General Rule: Political qualifications are not required Exception: When the pardon’s terms expressly restores
for public office. such (Art. 36, RPC);
Exceptions: Rule under Risos-Vidal v. COMELEC [G.R. No.

1. Membership in the electoral tribunals of either 206666 (2015)]:
the House of Representatives or Senate, which Risos-Vidal v. Estrada has raised questions about the
requires proportional representation [Art. VI, organization of the above traditional rule, particularly
Sec. 17, Constitution]; as to whether the terms of the pardon must expressly
2. Party-list representation; restore political rights.
Page 205 of 382

The Court broadly held there that the “pardoning

power of the President cannot be limited by legislative
E. Disabilities and
action,” and added that “Articles 36 and 41 of the
Revised Penal Code cannot, in any way, serve to
Inhibitions of Public
abridge or diminish the exclusive power and Officers
prerogative of the President to pardon persons
convicted of violating penal statutes.”
Disqualifications to Hold
Under Risos-Vidal, if the wording of the pardon is Public Office
“complete, unambiguous, and unqualified,” it
includes the restoration of civil and political rights Individuals who lack any of the qualifications
because it is “unfettered by Articles 36 and 41 of the prescribed by the Constitution or by law for a public
Revised Penal Code” [Id.]. office are ineligible (i.e. disqualified from holding such
office).
Authority to prescribe disqualifications: The

legislature has the right to prescribe disqualifications
in the same manner that it can prescribe
qualifications, provided the prescribed
disqualifications do not violate the Constitution.
Constitutional
Disqualifications
a. In General
1. Losing candidates cannot be appointed to any
governmental office within one year after such
election. [Sec. 6, Art. IX-B]
2. Elective officials during their tenure are ineligible
for appointment or designation in any capacity to
any public office or position [Sec. 7(1), Art. IX-
B] unless they forfeit their seat
3. Appointive officials shall not hold any other
governmental position, unless otherwise allowed
by law or his position’s primary functions [Sec.
7(2), Art. IX-B]
This is the general Constitutional prohibition on

holding multiple offices. There is a specific
provision applicable to high-ranking officials of
the executive department as explained in Civil
Liberties Union v. Executive Secretary.
There is no violation of the constitutional

provision when another office is held by a public
officer in an ex officio capacity (where one can’t
receive compensation or other honoraria
anyway), as provided by law and as required by
the primary functions of his office [National
Amnesty Commission v. COA, G.R. No. 156982
(2004)].
Page 206 of 382

4. Impeachment: “Judgment in cases of b. Specific Constitutional

impeachment shall not extend further than
removal from office and disqualification to hold Disqualifications
any office under the Republic of the Philippines
[.]” [Sec. 3(7), Art. XI] Public Officer Disqualifications
The President, Shall not hold any other office or
On the holding of multiple offices by high- Vice President, employment during their tenure,
ranking executive department officials [Civil the Members of unless otherwise provided in the
Liberties Union v. Executive Secretary, G.R. No. 83896 the Cabinet and Constitution. (Art. VII, Sec. 13)
(1991)] their deputies or [See Civil Liberties Union v. Executive
assistants Secretary, supra]
Par. 1, Sec. 13, Art. VII, Constitution. The
President, Vice-President, the Members of the 1. Incompatible Office: May not
Cabinet, and their deputies or assistants shall not, hold during his term any
unless otherwise provided in this Constitution, other office or employment
hold any other office or employment during their in the Government, or any
tenure. subdivision, agency or
instrumentality thereof,
Senator or
including government-owned
The prohibition in Sec. 13, Art. VII is a special rule in Member of the
or -controlled corporations
relation to Sec. 7, Art. IX of the Constitution. House of
or their subsidiaries; AND
Representatives
2. Prohibited Office: Shall also
Covered officials:
not be appointed to any
1. President
office when such was created
2. Vice-President
or its emoluments were
3. Members of the Cabinet, and their deputies or
increased during his term.
assistants
[Sec. 13, Art. VI]
N.B. “Members of the Cabinet” here are synonymous Shall not be designated to any
with “heads of the executive departments,” i.e. the agency performing quasi-judicial
prohibition does not apply to all officers of cabinet or administrative functions. [Sec.
Members of the
rank. [Civil Liberties Union v. Executive Secretary, 12, Art. VIII]
Supreme Court
Resolution on the Motion for Reconsideration] and other courts
Rationale: Anathema to judicial
established by
General Rule: The holding of any other office or independence, since this would
law
employment is prohibited for the covered officials in subject members of the judiciary
Sec. 13, Art. VII. to the power of control of
executive officials.
Exceptions: 1. Shall not hold any other
1. Unless otherwise provided in the Constitution office or employment during
(e.g. Secretary of Justice as ex officio member of their tenure [Sec. 2, Art. IX-
the JBC); or A; Sec. 8, Art. XI]; AND
2. Ex Officio positions: Members of the
2. Just not have been candidates
Constitutional
for any elective position in
Requirements for valid ex-officio holding: Commission
the elections immediately
1. The holding of the ex-officio office is provided preceding their appointment.
by law; [Sec. 1, Art. IX-B; Sec. 1, Art.
2. The holding is required by the primary functions IX-C; Sec. 1, Art. IX-D]
of their position; and
3. The position is held without additional 1. Same disqualifications and
compensation. prohibitions as members of
Ombudsman
the Constitutional
and his Deputies
Commission, supra [Sec. 8,
Art. XI]; AND
Page 207 of 382

2. Shall not be qualified to run

for any office in the election b. Prohibition on Holding Offices
immediately succeeding their in Private Sector
cessation from office. [Sec.
11, Art. XI] Private Practice of the Profession: Sec. 7 of R.A.
Shall not be appointed during 6713 generally provides for the prohibited acts and
President’s tenure as: transactions of public officials and
1. Members of the employees. Subsection (b)(2) prohibits them from
Constitutional Commissions engaging in the private practice of their profession
The President’s
OR during their incumbency.
spouse and
2. Office of the Ombudsman
relatives by
OR Sec. 7(b)(1) of R.A. 6713 considers it unlawful for
consanguinity or
3. (a) Secretaries, (b) public officials and employees during their
affinity within
undersecretaries, (c) incumbency to own, control, manage, or accept
the fourth civil
chairmen or heads of bureaus employment as officer, employee, consultant,
degree
or offices, including counsel, broker, agent, trustee or nominee in any
government-owned-or - private enterprise regulated, supervised or licensed by
controlled corporations. [Sec. their office unless expressly allowed by law.
13, Art. VII]
Exception: A public official or employee can engage in
the practice of his or her profession under the
Other Disqualifications and following conditions: (1) the private practice is
Prohibitions authorized by the Constitution or by the law; and (2)
the practice will not conflict, or tend to conflict, with
his or her official functions.
a. In General
1. Mental or physical incapacity; c. Prohibition on Nepotic
2. Misconduct or crime: Persons convicted of Appointments
crimes involving moral turpitude are usually
disqualified from holding public office; General Rule on Nepotism: The Civil Service Law
3. Removal or suspension from office: This prohibits all appointments in the national and local
disqualification is not presumed, and cannot be governments or any branch or instrumentality thereof
imposed when not provided in the constitution made in favor of the relative of:
or in statutes; 1. appointing authority;
4. Previous tenure of office: See prohibitions on 2. recommending authority;
reappointment for specific Constitutional offices; 3. chief of the bureau or office; or
5. Consecutive terms limit: 4. person exercising immediate supervision over the
a. Vice-President: 2 consecutive terms appointee
b. Senator: 2 consecutive terms
c. Representative: 3 consecutive terms In the last two cases, it is immaterial who the
d. Elective local officials = 3 consecutive terms appointing or recommending authority is. To
[Sec. 8, Art. X, Constitution] constitute a violation of the law, it suffices that an
6. Holding more than one office: to prevent offices appointment is extended or issued in favor of a
of public trust from accumulating in a single relative of the chief of the bureau or office, or the
person, and to prevent individuals from deriving, person exercising immediate supervision over the
directly or indirectly, any pecuniary benefit by appointee [CSC v. Dacoycoy, G.R. No. 135805 (1999)]
virtue of their holding of dual positions.
The restriction against nepotic appointments extends
to appointments made by a group of individuals
acting as a body. The Court has deemed the
appointment of a daughter of a sitting Commissioner
to a position in the CHR as nepotic even if made by
Page 208 of 382

the Commission as a body. [Cortes v. CSC, G.R. No. • Hence, the phrase “dual citizenship” in R.A. No.
200103 (2014)]. 7160 [Local Government Code], sec. 40(d) must
be understood as referring to “dual allegiance”
Relative: One who is related within the third degree [Mercado v. Manzano, G.R. No. 135083 (1999)].
of either consanguinity or of affinity [Sec. 59, Civil
Service Law].
Exceptions: The prohibition on nepotic appointments

in the Civil Service Law does not apply if the
appointee is:
1. person employed in a confidential capacity
2. teachers
3. physicians
4. member of the Armed Forces of the Philippines
d. Disqualifications in the Local

Government Code
The following persons are disqualified from running
for any elective local position:
1. Sentenced by final judgment for an offense
involving moral turpitude or for an offense
punishable by 1 year or more of imprisonment,
within 2 years after serving sentence;
2. Removed from office as a result of an
administrative case;
3. Convicted by final judgment for violating the
oath of allegiance to the Republic;
4. Dual citizenship;
5. Fugitive from justice in criminal or non-political
cases here or abroad;
6. Permanent residents in a foreign country or those
who have acquired the right to reside abroad and
continue to avail of the same right after the
effectivity of the Local Government Code; or
7. Insane or feeble-minded.
Dual citizenship is different from dual allegiance.

• Dual citizenship arises when, as a result of the
concurrent application of the different laws of
two or more states, a person is simultaneously
considered a national by the said states.
• Dual allegiance, on the other hand, refers to the
situation in which a person simultaneously owes,
by some positive act, loyalty to two or more
states.
• While dual citizenship is involuntary, dual
allegiance is the result of an individual’s volition.
The Constitutional Commission was not
concerned with dual citizens per se but with
naturalized citizens who maintain their allegiance
to their countries of origin even after their
naturalization.
Page 209 of 382

fixed salary or wages, per diems, fees, commissions,

F. Rights and Liabilities of or perquisites of whatsoever character.
Public Officers Distinguished from honorarium which is
something given not as a matter of obligation but in
Rights of Public Officers appreciation for services rendered.
a. In General Salary – personal compensation to be paid to the

[DE LEON] public officer for his services, and it is generally a
fixed annual or periodical payment depending on the
1. Rights incident to public office time and not on the amount of the services he may
a. The rights of one elected or appointed to render
office are, in general, measured by the
Constitution or the law under which he was Distinguished from wages in that salary is given to
elected or appointed. officers of higher degree of employment than those
b. Right to office – The just and legal claim to to whom wages are given.
exercise the powers and the responsibilities
of the public office. Constitutional Provisions Regarding
Compensation of Public Officers
2. Rights as a citizen
a. Protection from publication commenting on Sec. 10, Art. VI. The salaries of Senators and
his fitness and the like Members of the House of Representatives shall be
• The mere fact that one occupies a public determined by law. No increase in said
office does not deprive him of the compensation shall take effect until after the
protection accorded to citizens by the expiration of the full term of all the Members of
Constitution and the laws. the Senate and the House of Representatives
• However, by reason of the public approving such increase.
character of his employment or office, a
public officer is, in general, held not Sec. 6, Art. VII. The President shall have an
entitled to the same protection from official residence. The salaries of the President and
publications commenting on his fitness Vice-President shall be determined by law and
and the like, as is accorded to the shall not be decreased during their tenure. No
ordinary citizen. increase in said compensation shall take effect until
b. Engaging in certain political and business after the expiration of the term of the incumbent
activities during which such increase was approved. They
• The governmental interest in shall not receive during their tenure any other
maintaining a high level service by emolument from the Government or any other
assuring the efficiency of its employees source.
in the performance of their tasks may
require public employees to suspend or Sec. 10, Art. VIII. The salary of the Chief Justice
refrain from certain political or business and of the Associate Justices of the Supreme
activities that are embraced within the Court, and of judges of lower courts shall be fixed
constitutional rights of others, when by law. During their continuance in office, their
such activities are reasonably deemed salary shall not be decreased.
inconsistent with their public status and
duties. Sec. 8, Art. IX-B. No elective or appointive public
officer or employee shall receive additional,
b. Right to Compensation double, or indirect compensation, unless
[DE LEON] specifically authorized by law, nor accept without
the consent of the Congress, any present,
Compensation – in reference to the remuneration of emolument, office, or title of any kind from any
public officers means pay for doing all that may be foreign government.
required of the official, whether it is in the form of a
Page 210 of 382

Sec. 5, Art. IX-B. The Congress shall provide for

the standardization of compensation of c. Other Rights
government officials and employees, including
those in government-owned or controlled 1. Rights under the Constitution
corporations with original charters, taking into
account the nature of the responsibilities Right to self-organization
pertaining to, and the qualifications required for The right to self-organization shall not be denied to
their positions. government employees. [Sec. 2(5), Art. IX-B]
Government employees in the civil service are
Basis of Right granted the right to form unions enjoyed by workers
The relation between an officer and the public is not in the private sector.
the creation of contract, nor is the office itself a
contract. Hence, his right to compensation is not the However, the constitutional grant to government
creation of contract. It exists as the creation of law workers of the right to form labor organizations or
and belongs to him not by force of any contract but unions does not guarantee them the right to bargain
because the law attaches it to the office. collectively with the government or to engage in
concerted activities including the right to strike, which
The right to compensation grows out of the services are enjoyed by private employees. They are prohibited
rendered. After services have been rendered, the from staging strikes, demonstrations, mass leaves,
compensation thus earned cannot be taken away by a walk-outs and other forms of mass actions which will
subsequent law. result in temporary stoppage or disruption of public
services.
As a general proposition, a public official is not
entitled to any compensation if he has not rendered Right to protection of temporary employees
any service [Acosta v. CA, G.R. No. 132088 (2000)]. Employees in the government given temporary
appointments do not enjoy security of tenure. They
Salary Not Subject to Garnishment shall be given such protection as may be established
The salary of a public officer may not, by by law to prevent indiscriminate dismissals and to see
garnishment, attachment or order of execution, be to it that their separation or replacement is made only
seized before being paid to him and, appropriated for for justifiable reasons
the payment of his debts.
Freedom of members of Congress from arrest
The salary check of a government officer or employee and from being questioned
does not belong to him before it is physically A Senator or Member of the House of
delivered to him. Until that time, the check belongs to Representatives shall, in all offenses punishable by
the government as public fund and may not be not more than six years imprisonment, be privileged
garnished. The functions and public services rendered from arrest while Congress is in session. No member
by the State cannot be allowed to be paralyzed or shall be questioned nor be held liable in any other
disrupted by the diversion of public funds from their place for any speech or debate in the Congress or in
legitimate and specific objects, as appropriated by law any committee thereof [Sec. 11, Art. VI].
[De la Victoria v. Burgos, G.R. No. 111190(1995)].
Right not to be removed or suspended except
Right of a de facto officer to salary – Where there is
for cause provided by law
no de jure officer, a de facto officer, who in good faith
Implicit in the constitutional prohibition against
has had possession of the office and has discharged
removal or suspension except for cause, is the
the duties pertaining thereto, is legally entitled to the
existence of a charge, due hearing, and the finding of
emoluments of the office, and may in an appropriate
guilt by the proper authority.
action recover the salary, fees and other
compensations attached to the office.
2. Rights under the Civil Service Decree
and the New Administrative Code
a. Right to preference in promotion

b. Right to present complaints and grievances
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c. Right not to be suspended or dismissed except

for cause as provided by law and after due An officer who has been lawfully separated or
process suspended from his office is not entitled to
d. Right to organize compensation for the period during which he was so
suspended. Where an officer was unlawfully removed
See Personnel Actions under The Civil Service and was prevented for a time by no fault of his own
below. from performing the duties of his office, he may
recover backwages, and the amount that he had
3. Rights under the Revised Government earned in other employment during his unlawful
Service Insurance Act removal should not be deducted from his unpaid
salary.
Covered employees are entitled to retirement
benefits, separation benefits, unemployment or 6. Right to Property, Devices and
involuntary separation benefits, disability benefits, Inventions
survivorship benefits, funeral benefits and life
insurance benefits. Title to a public office carries with it the right, during
the incumbency of the officer, to the insignia and
Right to Retirement Pay – given to government property thereof.
employees to reward them for giving giving the best
years of their lives in the service of their country. The question whether records, discoveries,
Retirement laws are liberally construed in favor of the inventions, devices, data and the like, made or
retiree [Profeta v. Drilon, G.R. No. 104139 (1992)]. It prepared by an officer while he is occupying the
may not be withheld and applied to his indebtedness office, belong to the public, must be determined with
to the government [Tantuico v. Domingo, G.R. No. reference to the facts of each case.
96422 (1994)]. a. Where such are indispensable in the proper
conduct of the office, the officer may not take
4. Right to Reimbursement and them as his own property.
Indemnity b. If, not being required by law, they are prepared
by the officer apart from his official duties and
When a public officer, in the due performance of his are not indispensable in the proper conduct of
duties, has been expressly or impliedly required by law the office, the officer may acquire a property right
to incur expenses on the public account, not covered therein.
by his salary or commission and not attributable to his
own neglect or default, the reasonable and proper Liabilities of Public Officers
amount thereof forms a legitimate charge against the
public for which he should be reimbursed.
a. In General
Within the same limits, the officer is entitled to be
indemnified by the public against the consequences of The liability of a public officer to an individual or the
acts which he has been expressly or impliedly required public is based upon and is co-extensive with his duty
to perform upon the public account, and which are to the individual or the public. Public officers in
not manifestly illegal and which he does not know to respect of the persons to whom their duty is owing,
be wrong. are divided into 2 classes – those whose duty is owed
solely to the public and those who duty is owed in
some degree to the individuals. An individual has no
5. Right to Reinstatement and Back cause of action against a public officer for a breach of
Salary duty owed solely to the public [DE LEON].
Reinstatement means the restoration to a state or An individual can hold a public officer personally
condition from which one had been removed or liable for damages on account of an act or omission
separated. One who is reinstated assumes the position that violates a constitutional right only if it results in a
he had occupied prior to the dismissal. Back salary or particular wrong or injury to the former [Vinzons-
wages is a form of relief that restores the income that Chato v. Fortune Tobacco, G.R. No. 141309 (2008)].
was lost by reason of unlawful dismissal
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A public officer is not liable for the injuries sustained 3. Art. 34, Civil Code – liability of peace officers
by another as a consequence of official acts done for render aid or protection to a person;
within the scope of his authority, except as otherwise subsidiary liability of municipal corporations in
provided by law [NACHURA]. such case
4. Sec. 38(2), Chapter 9, Book I, Admin. Code –
A public officer shall not be civilly liable for acts done liability for neglecting to perform a duty without
in the performance of his official duties, unless there just cause within (i) a period fixed by law or
is a clear showing of bad faith, malice or negligence regulation; or (ii)a reasonable period, if no period
[Sec. 38(1), Chapter 9, Book I, Admin. Code]. is fixed.
However, under Sec. 24 of the Local Government Code, local Liability on Contracts – the public officer shall be
governments and their officials are expressly not personally liable on contracts he enters into if he acted
exempt from liability for death or injury to persons or without, or exceeded his authority
damage to property.
Liability on Tort – The public officer shall be
b. Three-Fold Responsibility of personally liable if he goes beyond the scope of his
authority, or exceeds the powers conferred upon him
Public Officers by law
A public officer is under a three-fold responsibility for
violation of duty or for wrongful act or omission: e. Liability of Superior Officers for
1. Civil Liability: if the individual is damaged by Acts of Subordinate Officers
such violation, the official shall, in some cases, be
held liable civilly to reimburse the injured party A head of a department or a superior officer shall not
2. Criminal Liability: if the law has attached a be civilly liable for the wrongful acts, omissions of
penal sanction, the officer may be punished duty, negligence or misfeasance of his subordinates,
criminally. The mere fact that an officer is acting unless he has actually authorized by written order the
in an official capacity will not relieve him from specific act or misconduct complained of [Sec. 38(3),
criminal liability. Chapter 9, Book I, Administrative Code].
3. Administrative Liability: such violation may
also lead to imposition of fine, reprimand, f. Liability of Subordinate Officers
suspension or removal from office, as the case
may be. No subordinate officer or employee shall be civilly
liable for acts done by him in good faith in the
c. Liability of Ministerial Officers performance of his duties. However, he shall be liable
[NACHURA] for wilful or negligent acts done by him which are
contrary to law, morals, public policy and good
1. Nonfeasance - Neglect or refusal to perform an customs even if he acted under orders or instructions
act which is the officer’s legal obligation to of his superiors [Sec. 39, Chapter 9, Book I, Admin.
perform Code].
2. Misfeasance – Failure to use that degree of care,
skill, and diligence required in the performance of g. Non-Applicability of the
official duty
3. Malfeasance – The doing, through ignorance, Doctrine of Command
inattention or malice, of an act which he had no Responsibility and the Principle
legal right to perform of Respondeat Superior to Public
Officers
d. Statutory Liability
Neither the principle of command responsibility (in
1. Art. 32, Civil Code – liability for failure or military or political structural dynamics) nor the
neglect to perform official duty doctrine of respondeat superior (in quasi delicts) applies
2. Art. 33, Civil Code – liability for violating rights in the law of public officers. The negligence of the
and liberties of private individuals subordinate cannot be ascribed to his superior in the
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absence of evidence of the latter’s own negligence chosen to because he was deemed fit and
[Reyes v. Rural Bank of San Miguel, G.R. No. 154499 competent to exercise such judgment.
(2004)].
Exception: The power to substitute another in his
Exception: The President, being the commander-in- place has been expressly granted by law.
chief of all armed forces, necessarily possesses control
over the military that qualifies him as a superior within b. As to the Obligation of the
the purview of the command responsibility doctrine.
[In the Matter of the Petition for Writ of Amparo and Habeas Officer to Perform His/Her
Data in favor of Noriel H. Rodriguez; Rodriguez v. Powers and Duties
Macapagal-Arroyo, G.R. No. 191805 (2011)]
1 MANDATORY
Classification of Powers and Powers conferred on public officers are generally
construed as mandatory although the language
Duties may be permissive, where they are for the benefit
of the public or individuals.
a. As to Nature
2. PERMISSIVE
a. MINISTERIAL Statutory provisions define the time and mode in
Official duty is ministerial when it is absolute, which public officers will discharge their duties,
certain and imperative involving merely and those which are obviously designed merely
execution of a specific duty arising from fixed to secure order, uniformity, system and dispatch
and designated facts. Where the officer or official in public business are generally deemed directory.
body has no judicial power or discretion as to the
interpretation of the law, and the course to be If the act does not affect third persons and is not
pursued is fixed by law, their acts are ministerial clearly beneficial to the public, permissive words
only. will not be construed as mandatory.
General Rule: Performance of duties of this nature c. As to the Relationship of the

may be properly delegated to another. Officer to His/Her Subordinates
Exceptions: 1. POWER OF CONTROL
a. Delegation is expressly prohibited by law; or It implies the power of an officer to manage,
b. The law expressly requires that the act be direct or govern, including the power to alter or
performed by the officer in person. modify or set aside what a subordinate had done
in the performance of his duties and to substitute
b. DISCRETIONARY his judgment for that of the latter.
Acts which necessarily require the exercise of
reason in the adaptation of means to an end, and 2. POWER OF SUPERVISION
discretion in determining how or whether the act Supervisory power is the power of mere
shall be done or the course pursued. When the oversight over an inferior body which does not
law commits to any officer the duty of looking include any restraining authority over such body.
into facts and acting upon them, not in a way
which it specifically directs, but after a discretion A supervising officer merely sees to it that the
in its nature, the function is discretionary (e.g. rules are followed, but he himself does not lay
quasi-judicial acts). down such rules, nor does he have the discretion
to modify or replace them.
General Rule: A public officer cannot delegate his
discretionary duties to another.
d. Authority of Public Officers
Rationale: In cases where the execution of the
office requires exercise of judgment or discretion Authority of public officers consists of those which
by the officer, the presumption is that he was are:
1. expressly conferred by law;
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2. incidental to the exercise of the powers granted; c. To owe the State and the Constitution
and allegiance at all times [Sec. 18, Art. XI]
3. necessarily implied [Nachura, 2015]
Doctrine of necessary implication – all powers 2. Obligations under the Code of

necessary for the effective exercise of the express Conduct and Ethical Standards for
powers are deemed impliedly granted [NACHURA] Public Officials and Employees
Authority can be exercised only during the term when a. Act promptly on letters and requests
the public officer is, by law, invested with the rights b. All public officials shall, within fifteen (15)
and duties of the office. working days from receipt, respond to
letters, telegrams or other means of
Source of Powers and Authority [DE LEON] communication sent by the public. The reply
Under our political system, the source of must contain the answer taken on the
governmental authority is found in the People. request.
Directly or indirectly through their chosen c. Submit annual performance reports
representatives, they create such offices and agencies d. All heads or other responsible officers of
as they deem to be desirable for the administration of agencies of the government or of GOCCs
the public functions and declare in what manner and shall, within forty-five (45) working days
by what persons they shall be exercised. Their will from the end of the year, render a full and
finds its expression in the Constitution and the laws. complete report of performance and
accomplishments, as prescribed by existing
The right to be a public officer, then, or to exercise rules and regulations of the agency, office or
the powers and authority of a public office, must find corporation concerned.
its source in some provision of the public law. e. Process documents and papers expeditiously
f. All official papers and documents must be
In the absence of a valid grant, public officials are processed and completed within a
devoid of power. A public official exercises power, reasonable time from the preparation
not rights. The Government itself is merely an agency thereof and must contain, as far as
through which the will of the State is expressed and practicable, not more than three (3)
enforced. Its officers therefore are likewise agents signatories therein.
entrusted with the responsibility of discharging its g. Act immediately on the public’s personal
functions. As such there is no presumption that they transactions
are empowered to act. There must be a delegation of h. All public officials and employees must
such authority, either express or implied [Villegas v. attend to anyone who wants to avail himself
Subido, G.R. No. L-26534 (1969)]. of the services of their offices, and must, at
all times, act promptly and expeditiously.
But once the power is expressly granted, it will be i. Make documents accessible to the public
broadly construed in line with the doctrine of j. All public documents must be made
necessary implication. accessible to, and readily available for
inspection by, the public within reasonable
e. Duties of Public Officers working hours [DE LEON, citing Sec. 5,
R.A. 6713].
1. General (Constitutional) duties
a. To be accountable to the people; to serve
them with utmost responsibility, integrity,
loyalty and efficiency; to act with patriotism
an justice; and to lead modest lives [Sec. 1,
Art. IX]
b. To submit a declaration under oath of his
assets, liabilities and net worth upon
assumption of office and as often thereafter
as may be required by law [Sec. 17, Art. XI]
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G.De Facto Officers vs. De c. Color of title to the office or general acquiescence
by the public
Jure Officers There is color of title to the office in ANY of the
following circumstances:
De Facto Doctrine a. There is no known appointment or election, but
people are induced by circumstances of
It is the doctrine that a person who is admitted and reputation or acquiescence to suppose that he is
sworn into office by the proper authority is deemed to the officer he assumes to be. Consequently,
be rightfully in such office until: people do not to inquire into his authority, and
a. he is ousted by judicial declaration in a proper they submit to him or invoke his action;
proceeding; or b. He possessed public office under color of a
b. his admission thereto is declared void. known and valid appointment or election, but he
failed to conform to some precedent requirement
Purpose: to ensure the orderly functioning of or condition (e.g., taking an oath or giving a
government. The public cannot afford to check the bond);
validity of the officer's title each time they transact c. He possessed public office under color of a
with him. known election or appointment, but such is
VOID because:
De Facto Officer Defined 1. He is ineligible;
• The electing or appointing body is not
One who has the reputation of being the officer that empowered to do such;
he assumes to be, and yet is not a good officer in point • His exercise of his function was
of law [Torres v. Ribo, G.R. No. L-2051 (1948)]. defective or irregular; and
• The public does not know of such
ineligibility, want of authority, or
Elements of a De Facto irregularity.
Officership 2. He possessed public office under color of an
election or an appointment by or pursuant to
a. A validly existing public office (i.e. a de jure a public, unconstitutional law, before the
office) same is adjudged to be such
b. Actual physical possession of the office in good
faith.
Distinguished from Other Officers

Officer De Jure v. Officer De Facto
De Jure De Facto
a. A de jure office exists; a. De jure office;
b. He is legally qualified for the office; b. He assumed office under color of right
c. He is lawfully chosen to such office; or general acquiescence by the public;
Requisites
d. He undertakes to perform the duties of c. He actually and physically possessed the
such office according to law’s prescribed office in good faith.
mode.
Reputation: he possesses office and performs
Basis of Right: he has the lawful right/title to the
its duties under color of right, but he is not
Authority office
technically qualified to act in all points of law
In a direct proceeding (quo warranto) ; cannot
How Ousted Cannot be ousted even in a direct proceeding
be ousted collaterally
Validity of Valid, subject to exceptions (e.g. acting Valid as to the public until his title to the offie
Official Acts beyond his scope of authority, etc.) is adjudged insufficient
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De Jure De Facto
Rightfully entitled to compensation’ the Conditionally entitled to receive
Rule on
principle of “no work, no pay” is inapplicable compensation: only when no de jure officer is
Compensation
to him declared and only for actual services rendered
Officer De Facto v. Intruder

De Facto Intruder
He becomes officer with color of title under He possesses office and performs official acts
Nature
the circumstances discussed above without actual or permanent authority
Basis of None: neither lawful title nor color of right to
Color of right or title to office
Authority office
Validity of Valid as to the public until his title to the Absolutely void; his acts can be impeached at
“official” acts office is adjudged insufficient any time in any proceeding
Entitled to receive compensation only when
Rule on
no de jure officer is declared and only for actual Not entitled to compesantion at all
Compensation
services rendered
Note: An intruder/usurper may grow into a de facto officer if his assumption of office is acquiesced in, as when he
continues to act for so long a time as to afford a strong presumption that he has been duly appointed or elected [DE
LEON].
Officer Created under an De Facto Officer’s Official

Unconstitutional Statute Acts are Not Subject to
The prevalent view is that a person appointed or
Collateral Attack
elected in accordance with a law later declared to be
A de facto officer’s and his acts’ validity cannot be
unconstitutional may be considered de facto at least
collaterally questioned in proceedings where he is not
before the declaration of unconstitutionality.
a party, or which were not instituted to determine the
very question.
Legal Effects of Acts of De
Facto Officers Remedy: Quo warranto proceedings filed by:
a. The person claiming entitlement to the office;
b. The Republic of the Philippines (represented by
[Monroy v. CA, G.R. No. L-23258 (1967)]
the Solicitor-General or a public prosecutor).
a. As regards the officers themselves: A party suing or
defending in his own right as a public officer
must show that he is an officer de jure. It is not Liability of De Facto
sufficient that he be merely a de facto officer. Officers
b. As regards the public and third persons: The acts of a
de facto officer are valid as to third persons and
[DE LEON]
the public until his title to office is adjudged
insufficient.
A de facto officer generally has the same degree of
liability and accountability for official acts as a de jure
Rationale: The doctrine is intended not for the
officer.
protection of the public officer, but for the protection
The de facto officer may be liable for all imposable
of the public and individuals who get involved in the
penalties for ANY of the following acts:
official acts of persons discharging the duties of a
a. usurping or unlawfully holding office;
public office.
b. exercising the functions of public office without
lawful right;
c. ineligibility for the public office as required by
law
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The officer cannot excuse responsibility for crimes

committed in his official capacity by asserting his de
H. Termination of Official
facto status. Relation
Right to Compensation of Expiration of the Term or
De Facto Officer Tenure of the Office
General Rule: A de facto officer cannot sue for the General rule: Upon the expiration of the officer’s term,
recovery of salary, fees or other emoluments attached his rights, duties and authority as a public officer must
to the office, for the duties he has performed. His ipso facto cease.
acts, as far as he himself is concerned, are void.
Exception: Unless he is authorized by law to hold over.
Moreover, the rightful incumbent may recover from
the de facto officer the salary received by the latter Where an office is created, or an officer is appointed,
during his wrongful tenure. A de facto officer, not for the purpose of performing a single act or the
having good title, takes the salaries at his risk and must accomplishment of a given result, the office
account to the de jure officer for whatever salary he terminates and the officer’s authority ceases with the
received during the period of his wrongful tenure, accomplishment of the purposes which called it into
even if he occupied the office in good faith [Monroy v. being.
CA, supra].
Term of office – the time during which the officer
Exception: Where there is no de jure officer, a de facto may claim to hold the office as of right and fixes the
officer, who in good faith has had possession of the interval after which the several incumbents shall
office and has discharged the duties pertaining succeed one another. It is a fixed and definite period
thereto, is legally entitled to the emoluments of the of time to hold office, perform its functions and enjoy
office, and may in an appropriate action recover the its privileges and emoluments until the expiration of
salary, fees and other compensations attached to the said period.
office [Civil Liberties Union v. Executive Secretary, supra].
Tenure of office – the period during which the
Moreover, in the case of Gen. Manager, Philippine Ports incumbent actually holds office.
Authority v. Monserate [G.R. No . 129616 (2002)], the
Court held that while the assumption of the de jure
officer of another position under protest and Reaching the Age Limit
acceptance of corresponding emoluments do not
constitute abandonment of her rightful office, she
(Retirement)
cannot recover full back wages for such rightful
This mode of termination results in the compulsory
office. She is only entitled to back pay differentials
and automatic retirement of a public officer.
between the salary rates for the lower position she
assumed and the position she is rightfully entitled to,
Compulsory Retirement Age
which amounts are to be paid by the de facto officer.
a. Members of the Judiciary – 70 yrs old
b. Other government officers and employees – 65
yrs old [new GSIS Charter]
c. Optional retirement age – after rendition of the
minimum number of years of service [RA 1616]
Death or Permanent
Disability
The death of the incumbent of an office, which is by
law to be filled by one person only, necessarily renders
the office vacant. The public official cease to hold
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office upon his death and all his rights, duties and Revocation of Resignation
obligations pertinent to the office are extinguished. A resignation can be validly withdrawn before the
public official is notified of its acceptance [Republic v.
Permanent disability covers both physical or mental Singun, G.R. No. 149356 (2008)].
disability.
Art. 238 of the RPC makes it an offense for any public
Resignation officer who, before acceptance of his resignation,
abandons his office to the detriment of the public
service.
Resignation – the act of giving up or the act of a
public officer by which he declines his office and
Acceptance of resignation
renounces the further right to use it. It is an
a. As provided by law
expression of the incumbent in some form, express
b. If the law is silent on who shall accept and the
or implied, of the intention to surrender, renounce
public officer is an appointive officer, tender to
and relinquish the office and the acceptance thereof
the appointing authority. If elective, tender to
by competent lawful authority [Ortiz v. COMELEC,
those authorized by law
G.R. No. 78957 (1988)].
Resigning Public
Requisites: Accepting Authority
Officer
a. Intention to relinquish a part of the term
b. Act of relinquishment President and VP Congress
c. Acceptance by the proper authority, either Members of Congress Respective Houses
expressly or implied Governors, Vice-
Governors, and Mayors
Forms of resignation and Vice-Mayors of
President
a. Where a law requires that resignation is to be Highly Urbanized Cities
made in any particular form, that form must be and Independent
substantially complied with. Component Cities
b. Where no such form is prescribed, no particular City Mayors and Vice
mode is required, but the resignation may be Mayors of Component
made by any method indicative of the purpose. It Cities, and Municipal Governor
need not be in writing, unless so required by law. Mayors and Vice-
A written resignation, delivered to the board or Mayors
officer authorized to receive it and fill the Sanggunian Members Sanggunian concerned
vacancy thereby created, is prima facie, but not Elective Barangay Municipal or City
conclusive evidence of the intention to relinquish Officials Mayors
the office. Appointive Public
Appointing Authority
Officers
N.B. Courtesy resignation cannot properly be
interpreted as a resignation in the legal sense for it is Acceptance of an
not necessarily a reflection of a public official’s
intention to surrender his position. Rather, it Incompatible Office
manifests his submission to the will of the political
authority and the appointing power [Ortiz v. General Rule: One who, while occupying one office,
COMELEC, supra]. accepts another office incompatible with the first ipso
facto vacates the first office.
When resignation is effective
a. Date specified in the tender Exceptions:
b. If no such date is specified, resignation shall be a. Where the public officer is authorized by law to
effective when the public officer receives notice accept the other office (ex officio capacity).
of the acceptance of his resignation, NOT the b. If the public officer accepts a forbidden office, the
date of the letter or notice of acceptance [Gamboa holding of the second office is absolutely void.
v. CA, G.R. No. L-38068 (1981)]
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Rationale: It is contrary to the policy of the law that the employees who are absent for at least 30 days
same individual should undertake to perform without approved leave (AWOL) shall be
inconsistent and incompatible duties. dropped from the service after due notice [Civil
Service Rules].
When Incompatible
Incompatibility is to be found in the character of the
offices and their relation to each other, in the
Prescription of Right to
subordination of one to the other and in the nature of Office
the functions and duties which attach to them
Under the Rules of Court, quo warranto is the proper
It exists where: remedy against a public officer for his ouster from
a. There is conflict in such duties and functions, so office. The petition should be filed within one (1) year
that the performance of the duties of one after the cause of such ouster or the right of the
interferes with the performance of the duties of plaintiff to hold such office or position arose;
the other as to render it improper from otherwise, the action will be barred. The filing of an
consideration of public policy for one person to administrative action does not suspend the period for
retain both. filing the appropriate judicial proceeding.
b. One is subordinate to the other and is subject in
some degree to its supervisory power for Rationale for the one year period: Title to public office
obviously in such a situation, the design that one should not be subjected to uncertainties but should
acts as a check on the other would be frustrated. be determined as speedily as possible.
c. The Constitution or the law itself declares the
incompatibility even though there is no In Republic vs. Sereno, the Court held that of the
inconsistency in the nature and functions of the Petitioner is a private individual, the one-year period
offices. applies. If it is the government itself seeking relief, the
period does not apply. It is based on the basic
Abandonment of Office principle that prescription does not lie against the
State as found in the Civil code
Abandonment – voluntary relinquishment of an
office by the holder of all right, title, or claim thereto Removal
with the intention of not reclaiming it or terminating
his possession and control thereof. Removal – ouster of an incumbent public officer
before the expiration of his term. It implies that the
Requisites office exists after the ouster. Another term used is
a. Intention to abandon dismissal [DE LEON].
b. Overt act by which the intention is carried into
effect It is the forcible and permanent separation of the
incumbent from office before the expiration of his
Distinguished from Resignation term [Ingles v. Mutuc, G.R. No. L-20390(1968)].
While resignation in general is a formal
relinquishment, abandonment is a voluntary MODES OF REMOVAL
relinquishment through non-user. Non-user refers to
a neglect to use a privilege or a right or to exercise an Removal from office may be express or implied.
easement or an office [Municipality of San Andres, a. Appointment of another officer in the place of
Catanduanes v. CA, G.R. No. 118883 (1998)]. the incumbent operates as a removal if the latter
was notified [DE LEON].
What may Constitute as Abandonment b. The transfer of an officer or employee without
a. Abandonment may result from acquiescence by his consent from one office to another, whether
the officer in his wrongful removal [Canonizado v. it results in promotion or demotion,
Aguirre, G.R. No. 133132 (2001)]. advancement or reduction in salary, is equivalent
b. An officer or employee shall be automatically to his illegal removal or separation from the first
separated from the service if he fails to return to office [Gloria v. CA, G.R. No. 119903 (2000)].
the service after the expiration of one-year leave c. Demotion to a lower position with a lower rate
of absence without pay. Also, officers and of compensation is also equivalent to removal if
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no cause is shown for it [De Guzman v. CSC, G.R. c. Not for personal or political reasons
No. 101105 (1994)]. d. Cannot be implemented in a manner contrary to
law
Limitations
a. Constitutional guarantee of security of tenure. Limitations
No officer or employee of the civil service shall a. Except when restrained by the Constitution, the
be removed or suspended except for cause Congress has the right to abolish an office, even
provided by law [Sec. 2(3), Art IX-B, during the term for which an existing incumbent
Constitution]. may have been elected. Valid abolition of office
b. Removal or resignation from office is not a bar does not constitute removal of the incumbent.
to a finding of administrative liability [Office of the b. No law shall be passed reorganizing the Judiciary
President v. Cataquiz, G.R. No. 183445 (2011)]. when it undermines the security of tenure of its
c. Removal not for a just cause, or non-compliance members [Sec. 2, Art. VIII, Constitution].
with the prescribed procedure constitutes a c. The fundamental principle afforded to civil
reversible error and entitles the officer or service employees against removal “except for
employee to reinstatement with back salaries and cause as provided by law” does not protect them
without loss of seniority rights. against abolition of the positions held by them in
the absence of any other provision expressly or
Elements of Removal for Cause impliedly prohibiting abolition thereof [Castillo v.
a. The cause is a legal cause, i.e. determined by law Pajo, G.R. No. L-11262 (1958)].
and not the appointing power
b. As a general rule, the cause must be connected to Reorganization – reduction of personnel,
the functions and duties of the office consolidation of offices, or abolition thereof by
c. The cause must be of a substantial nature as to reason of economy or redundancy of functions. It
directly affect the interest of the public could result in the loss of one’s position through
d. The removal must be after due process removal or abolition of an office. However, for a
reorganization for the purpose of economy or to
Extent of President’s Removal Power make the bureaucracy more efficient to be valid, it
a. With respect to non-career officers exercising must pass the test of good faith; otherwise, it is void
purely executive functions whose tenure is not ab initio [United Claimant Association of NEA v. NEA,
fixed by law (i.e. members of the Cabinet), the G.R. No. 187107 (2012)].
President may remove them with or without
cause and Congress may not restrict such power. Reorganization is valid provided they are pursued in
b. With respect to officers exercising quasi- good faith
legislative or quasi-judicial functions (e.g.
members of the SEC), they may be removed only Attrition – reduction of personnel as a result of
on grounds provided by law to protect their resignation, retirement, dismissal in accordance with
independence. existing laws, death or transfer to another office [Sec.
c. With respect to constitutional officers removable 2(a), RA 7430 Attrition Law]
only by means of impeachment, and judges of
lower courts, they are not subject to the removal Conviction for a Crime
of the President.
When the penalties of perpetual or temporary
Impeachment absolute disqualification or penalties of perpetual or
temporary special disqualification are imposed upon
See Accountability of Public Officers below. conviction of a crime, termination of official relation
results, for one of the effects of the imposition of said
Abolition penalties is the deprivation of the public office which
the offender may have held.
Requisites [Mendoza v. Quisumbing, G.R. No. 78053
Conviction means conviction in a trial court. It
(1990)]:
contemplates a court finding guilt beyond reasonable
a. Abolition must be done in good faith
doubt followed by a judgment upholding and
b. Clear intent to do away with the office
implementing such finding.
Page 221 of 382

I. The Civil Service

Non-User
The office of any official elected who fails or refuses 1. Scope
to take his oath of office within six months from his
proclamation shall be considered vacant, unless said Embraces all branches, subdivisions, instrumentalities
failure is for a cause or causes beyond his control [Sec. and agencies of the Government, including
11, B.P. 881]. government-owned and controlled corporations with
original charters [Sec. 2(1), Art. IX-B, Constitution]
Recall
2. Jurisdiction of the Civil
It is a method of removal prior to the expiration of Services Commission (CSC)
the term of a public officer on account of loss of
confidence exercised directly by the registered voters
of a local government unit.
a. Exclusive Jurisdiction
1. Disciplinary cases
Filing of a Certificate of 2. Cases involving “personnel action” affecting the
Candidacy by an Appointive Civil Service employees:
a. Appointment through certification
Official b. Promotion
c. Transfer
In Quinto v. COMELEC [G.R. No. 189698 (2010)], d. Reinstatement
the Supreme Court upheld the constitutionality of e. Reemployment
Sec. 13 (3) of RA 9369 and Sec. 66 of BP 881 which f. Detail,
states that an appointive officials is ipso facto resigned g. Reassignment
from his office upon the filing of a certificate of h. Demotion
candidacy. An elective official who files a certificate i. Separation
of candidacy is not deemed resigned from his 3. Employment status
position. 4. Qualification standards
Rationale: Substantial distinctions exist between N.B. As to the power of the CSC to review an
elective officials and appointive officials. The former appointee’s qualifications: The only function of the
occupy their office by virtue of the mandate of the CSC is to review the appointment in the light of the
electorate. On the other hand, appointive officials requirements of the Civil Service Law, and when it
hold their office by virtue of their designation thereto finds the appointee to be qualified and all other legal
by an appointing authority. Also, under the requirements have been otherwise satisfied, it has no
Administrative Code of 1987, appointive officials, as choice but to attest to the appointment [Lapinid v.
officers and employees in the civil service, are strictly CSC, G.R. No. 96298 (1991)].
prohibited from engaging in any partisan political
activity or take part in any election except to Note: In TIDCORP v. CSC [G.R. No. 182249 (2013)],
vote. Elective officials, by the very nature of their the Court clarified that The CSC’s rule-making power,
positions, may engage in partisan political activities. albeit constitutionally granted, is still limited to the
implementation and interpretation of the laws it is
tasked to enforce. Thus, a law which exempts an
agency from rules on position classification cannot be
overridden by a CSC Memorandum Circular.
b. Limitations
1. It cannot order the replacement of the appointee
simply because it considers another employee to
be better qualified [Lapinid v. CSC, supra].
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2. The CSC cannot co-manage or be a surrogate confidence inherent in their relationship

administrator of government offices and [CSC v. Javier, G.R. No. 173264 (2008)].
agencies. c. Highly Technical – requires possession of
3. It cannot change the nature of the appointment technical skill or training in a superior degree.
extended by the appointing officer [Luego v. CSC, (e.g. City Legal Officer)
G.R. No. L-69136 (1986)].
N.B. It is the nature of the position which
The authority of city or municipal mayors to exercise determines whether a position is policy
administrative supervision over city/municipal civil determining, primarily confidential or highly
registrars is not exclusive, but concurrent with the technical.
CSC. The CSC, as the central personnel agency of the
government, has the power to appoint and discipline 2. Non-career Service – Entrance on bases other
its officials and employees and to hear and decide than those of the usual tests. Tenure limited to a
administrative cases instituted by or brought before it period specified by law or which is coterminous
directly or on appeal [Mamiscal v. Abdullah, A.M. No. with the appointing authority or the duration of
SCC-13-18-J (2015)]. a particular project (i.e. elective officials,
Department Heads and Members of Cabinet)
3. Appointments to the Civil
b. Recall of Appointments
Service
Grounds [Admin. Code IRR, Rule VI, § 20; De Rama
a. Classification of Positions in the v. CA (2001)]
Civil Service 1. Non-compliance with the procedures/criteria
provided by the agency’s Merit Promotion Plan
1. Career Service – characterized by (a) entrance 2. Failure to pass through the agency’s
based on merit and fitness to be determined as Selection/Promotion Board
far as practicable by competitive examinations, or 3. Violation of existing collective agreement
based on highly technical qualifications, (b) between management and employees relative to
opportunity for advancement to higher career promotion
positions, and (c) security of tenure. 4. Violation of other existing civil service laws, rules
and regulations
General Rule: Appointments to the Career Service
is to be determined as far as practicable by N.B. The above grounds are available despite initial
competitive examination. approval by the CSC of the appointment.
Exceptions: Appointments to the following DISTINGUISHED FROM RECALL UNDER

positions are exempt from the competitive THE LOCAL GOVERNMENT CODE
examination requirement. The CSC has the power to recall an appointment
which has been initially approved when it is shown
a. Policy determining - where the officer is that the same was issued in disregard of pertinent CSC
vested with the power of formulating laws, rules and regulations. In contrast, recall under
policies for the government or any of its Sec 69-75 of the Local Government Code is a mode
agencies, subdivisions, or instrumentalities. of removal of a public official by the people before
b. Primarily Confidential – the officer enjoys the end of his term of office. [Garcia v. COMELEC,
primarily such close intimacy with the G.R. No. 111511 (1993)]
appointing authority which insures freedom
intercourse without embarrassment or c. Appointments Not Requiring
freedom of misgiving of betrayal of personal CSC Approval
trust on confidential matters of the state [De
Los Santos v. Mallare, G.R. No. L-3881 1. Presidential appointments
(1950)]. The position characterized by the 2. Members of the AFP
close proximity of positions of the appointee 3. Police forces
as well as the high degree of trust and 4. Firemen
Page 223 of 382

5. Jail guards g. Reassignment

h. Remotion
d. Limitations on Power to Appoint i. Separation
1. Constitutional limitations a. Promotion

a. Prohibition on nepotic appointments by the
President Promotion– movement from one position to
b. Midnight appointments ban another with increase in duties and responsibilities as
c. Grant of power of appointment to officers authorized by law and is usually accompanied by an
and bodies other than the President increase in pay.
d. Grant of exclusive power to appoint officials
and employees of the judiciary to the SC NEXT-IN-RANK RULE
e. Recommendation of the JBC for The person next in rank shall be given preference in
appointments to the SC and lower courts promotion when the position immediately above his
f. Grant of exclusive power to appoint officials is vacated. BUT the appointing authority still
and employees of the Constitutional exercises discretion and is not bound by this rule,
Commissions to the same although he is required to specify the “special reason
g. One-year appointments ban for losing or reasons” for not appointing the officer next-in-
candidates rank.
h. Non-appointment or designation of elective
officials This rule specifically applies only in cases of
i. Prohibition on holding multiple offices for promotion. It neither grants a vested right to the
appointive officials holder nor imposes a ministerial duty on the
j. Grant of exclusive power to appoint officials appointing authority to promote such person to the
and employees of the Ombudsman to the next higher position.
same
k. Recommendation of the JBC for The rule means that old employees should considered
appointments of the Ombudsman and his first on the assumption that they have gained not only
deputies superior skills but also greater dedication to the public
2. Limitations found in statutes service.
3. Restrictions as developed under jurisprudence;
e.g. However, the law does not preclude the infusion of
a. Appointing authority cannot preempt new blood, younger dynamism, or necessary talents
appointing power of successor [Aytona v. into the government service provided that the acts of
Castillo, G.R. No. L-19313 (1962)] the appointing power are bonafide for the best
b. Appointing authority cannot appoint himself interest of the public service and the person chosen
to a vacancy has the needed qualifications [Cabagnot v. CSC, G.R.
c. No appointment to a post which is not No. 93511 (1993)].
vacant
AUTOMATIC REVERSION RULE
4. Personnel Actions All appointments involved in a chain of promotions
must be submitted simultaneously for approval by the
Commission.
Any action denoting the movement or progress of
personnel in the civil service is known as personnel
The disapproval of the appointment of a person
action.
proposed to a higher position invalidates the
promotion of those in the lower positions and
It includes:
automatically restores them to their former positions.
a. Appointment through certification
However, the affected persons are entitled to
b. Promotion
payment of salaries for services actually rendered at a
c. Transfer
rate fixed in their promotional appointments [Sec. 13
d. Reinstatement
of the Omnibus Rules Implementing Administrative
e. Reemployment
Code].
f. Detail
Page 224 of 382

Requisites: Requisites for validity

1. Series of promotions 1. Only for a limited period.
2. All promotional appointments are 2. Only for employees occupying professional,
simultaneously submitted to the Commission for technical and scientific positions.
approval 3. Temporary in nature.
3. The Commission disapproves the appointment
of a person to a higher position. e. Reassignment
b. Transfer An employee may be reassigned from one
organizational unit to another in the SAME agency.
Transfer – movement from one position to another
which is of equivalent rank, level or salary without It is a management prerogative of the CSC and any
break in service. department or agency embraced in the Civil Service
and does not constitute removal without cause.
This may be imposed as an administrative remedy.
Requisites for validity
General Rule: If transfer is without consent, it violates 1. No reduction in rank, status or salary.
security of tenure. 2. The reassignment is from one organizational unit
to another in the same agency.
Exceptions 3. Should have a definite date or duration (c.f.
1. Temporary Appointee Detail). Otherwise, a floating assignment would
2. Career Executive Service Personnel whose status be tantamount to a diminution in status or rank.
and salaries are based on ranks, not on position.
f. Reemployment
c. Reinstatement
Names of persons who have been appointed
Reinstatement– technically the issuance of a new permanently to positions in the career service and
appointment and is discretionary on the part of the who have been separated as a result of reduction in
appointing power. force and/or reorganization, shall be entered in a list
from which selection for reemployment shall be
It cannot be the subject of an application for a writ of made.
mandamus.
Requisites for validity

1. Any permanent appointee of a career service
position
2. No commission of delinquency or misconduct,
and is not separated.
3. The reinstatement is to a position in the same
level for which the officer is qualified.
Reinstatement has the same effect as executive

clemency, which completely obliterates the adverse
effects of the administrative decision which found
him guilty of dishonesty. He is restored ipso facto upon
grant of such. Application for reinstatement =
unnecessary.
d. Detail
Detail – movement of an employee from one agency
to another without the issuance of an appointment.
Page 225 of 382

8. Inefficiency and incompetence in the

J. Accountability of Public performance of official duties;
Officers 9. Receiving for personal use of a fee, gift or other
valuable thing in the course of official duties or
in connection therewith when such fee, gift, or
Discipline [Cruz] other valuable thing is given by any person in the
hope or expectation of receiving a favor or better
Officers and employees in the Civil Service, including treatment than that accorded other persons, or
those appointed to policy-determining, primarily committing acts punishable under the anti-graft
confidential and highly technical positions, enjoy laws;
security of tenure and may not be suspended or 10. Conviction of a crime involving moral turpitude;
dismissed except for cause as provided by law. They 11. Improper or unauthorized solicitation of
may, however, be disciplined if they violate their contributions from subordinate employees and
public trust and fail to serve with utmost by teachers or school officials from school
responsibility, integrity, loyalty, and efficiency and act children;
with patriotism and justice, and lead modest lives. 12. Violation of existing Civil Service Law and rules
or reasonable office regulations;
a. Grounds 13. Falsification of official document;
14. Frequent unauthorized absences or tardiness in
Section 60 (Local Government Code). Grounds reporting for duty, loafing or frequent
for Disciplinary Actions. - An elective local official unauthorized absences from duty during regular
may be disciplined, suspended, or removed from office hours;
office on any of the following grounds: 15. Habitual drunkenness;
1. Disloyalty to the Republic of the Philippines; 16. Gambling prohibited by law;
2. Culpable violation of the Constitution; 17. Refusal to perform official duty or render
3. Dishonesty, oppression, misconduct in office, overtime service;
gross negligence, or dereliction of duty; 18. Disgraceful, immoral or dishonest conduct prior
4. Commission of any offense involving moral to entering the service;
turpitude or an offense punishable by at least 19. Physical or mental incapacity or disability due to
prision mayor; immoral or vicious habits;
5. Abuse of authority; 20. Borrowing money by superior officers from
6. Unauthorized absence for fifteen (15) subordinates or lending by subordinates to
consecutive working days, except in the case of superior officers;
members of the sangguniang panlalawigan, 21. Lending money at usurious rates of interest;
sangguniang panlungsod, sangguniang bayan, 22. Willful failure to pay just debts or willful failure
and sangguniang barangay; to pay taxes due to the government;
7. Application for, or acquisition of, foreign 23. Contracting loans of money or other property
citizenship or residence or the status of an from persons with whom the office of the
immigrant of another country; and employee concerned has business relations;
8. Such other grounds as may be provided in this 24. Pursuit of private business, vocation or
Code and other laws. An elective local official profession without the permission required by
may be removed from office on the grounds Civil Service rules and regulations;
enumerated above by order of the proper court 25. Insubordination;
26. Engaging directly or indirectly in partisan
political activities by one holding a non-political
b. Civil service law office;
27. Conduct prejudicial to the best interest of the
1. Dishonesty; service;
2. Oppression; 28. Lobbying for personal interest or gain in
3. Neglect of duty; legislative halls or offices without authority;
4. Misconduct; 29. Promoting the sale of tickets in behalf of private
5. Disgraceful and immoral conduct; enterprises that are not intended for charitable or
6. Being notoriously undesirable; public welfare purposes and even in the latter
7. Discourtesy in the course of official duties; cases if there is no prior authority;
Page 226 of 382

30. Nepotism person in the course of their official duties or in

connection with any operation being regulated
Grounds for disciplinary action under the Code of by, or any transaction which may be affected by
Conduct and Ethical Standards. (Sec. 7, RA 6713) the functions of their office.
In addition to acts and omissions of public officials
and employees now prescribed in the Constitution As to gifts or grants from foreign governments,
and existing laws, the following shall constitute the Congress consents to:
prohibited acts and transactions of any public official a. The acceptance and retention by a public
and employee and are hereby declared to be unlawful: official or employee of a gift of nominal
value tendered and received as a souvenir or
1. Financial and material interest. - Public officials and mark of courtesy;
employees shall not, directly or indirectly, have b. The acceptance by a public official or
any financial or material interest in any employee of a gift in the nature of a
transaction requiring the approval of their office. scholarship or fellowship grant or medical
treatment; or
2. Outside employment and other activities related thereto. - c. The acceptance by a public official or
Public officials and employees during their employee of travel grants or expenses for
incumbency shall not: travel taking place entirely outside the
a. Own, control, manage or accept Philippine (such as allowances,
employment as officer, employee, transportation, food, and lodging) of more
consultant, counsel, broker, agent, trustee or than nominal value if such acceptance is
nominee in any private enterprise regulated, appropriate or consistent with the interests
supervised or licensed by their office unless of the Philippines, and permitted by the head
expressly allowed by law; of office, branch or agency to which he
b. Engage in the private practice of their belongs.
profession unless authorized by the
Constitution or law, provided, that such The Ombudsman shall prescribe such
practice will not conflict or tend to conflict regulations as may be necessary to carry out the
with their official functions; or purpose of this subsection, including pertinent
c. Recommend any person to any position in a reporting and disclosure requirements.
private enterprise which has a regular or
pending official transaction with their office. Nothing in this Act shall be construed to restrict
These prohibitions shall continue to apply for a or prohibit any educational, scientific or cultural
period of one (1) year after resignation, exchange programs subject to national security
retirement, or separation from public office, requirements.
except in the case of subparagraph (b) (2) above,
but the professional concerned cannot practice
his profession in connection with any matter
Jurisdiction
before the office he used to be with, in which case
The Secretaries and heads of agencies and
the one-year prohibition shall likewise apply.
instrumentalities, provinces, cities and municipalities
shall have jurisdiction to investigate and decide
3. Disclosure and/or misuse of confidential information. -
matters involving disciplinary action against officers
Public officials and employees shall not use or
and employees under their jurisdiction. Their decision
divulge, confidential or classified information
shall be final in case the penalty imposed is suspension
officially known to them by reason of their office
for not more than 30 days or fine in an amount not
and not made available to the public, either:
exceeding 30 days’ salary.
a. To further their private interests, or give
undue advantage to anyone; or
In case the decision rendered by a bureau or office
b. To prejudice the public interest.
head is appealable to the Commission, the same may
be initially appealed to the department and finally to
4. Solicitation or acceptance of gifts. - Public officials and
the Commission and pending appeal, the same shall
employees shall not solicit or accept, directly or
be executor except when the penalty is removal, in
indirectly, any gift, gratuity, favor, entertainment,
which case the same shall be executory only after
loan or anything of monetary value from any
confirmation by the Secretary concerned.
Page 227 of 382

investigate charges against the respondent by

The Commission shall decide upon appeal all preventing the latter from using his position or office
administrative disciplinary cases involving the to influence witnesses, to intimidate them, or to
imposition of a penalty of suspension for more than tamper with the records which may be vital in the
30 days, or fine in an amount exceeding 30 days’ prosecution of the case against him.
salary, demotion in rank or salary transfer, removal or
dismissal from office. b. Kinds of Preventive Suspension
A complaint may be filed directly with the 1. Preventive suspension pending
Commission by a private citizen against a government
official or employee in which case it may hear and investigation
decide the case or it may deputize any department,
agency, official, or group of officials to conduct the The proper disciplining authority may preventively
investigation. suspend any subordinate officer under his authority
pending an investigation, if the charge against such
Disciplinary cases and cases involving “personnel officer involves dishonesty, oppression or grave
actions” affecting employees in the civil service are misconduct or neglect in the performance of duty or
within the exclusive jurisdiction of the Civil Service if there are reasons to believe that the respondent is
Commission, which is the sole arbiter of guilty of the charges which would warrant his removal
controversies relating to the civil service. from service [Sec. 51, Chapter 6, Subtitle A, Title I,
Book V, Admin. Code].
Executive Order No. 151, or the Presidential
Commission Against Graft and Corruption, exercises No compensation is due for the period of preventive
jurisdiction to investigate all administrative suspension pending investigation. Such preventive
complaints involving graft and corruption filed in any suspension is authorized by the Civil Service Law and
form or manner against presidential appointees in the cannot, therefore, be considered “unjustified” even if
executive department of the government, including later the charges are dismissed. It is one of those
those in GOCCs. Such jurisdiction extends to non- sacrifices which holding a public office requires for
presidential appointees who may have acted in the public good. For this reason, it is limited to 90
conspiracy or who may have been involved with a days unless the delay in the conclusion of the
presidential appointee. investigation is due to the employee concerned [DE
LEON].
The Sandiganbayan has exclusive original jurisdiction
over presidents, directors or trustees, or managers of 2. Preventive suspension pending appeal
GOCCs, without any distinction with respect to the
manner of their creation, whenever charges of graft An appeal [from the decision of the disciplinary
and corruption are involved. authority] shall not stop the decision from being
executory, and in case the penalty is suspension or
RA No. 4670, otherwise known as the Magna Carta removal, the respondent shall be considered as having
for Public School Teachers, covers and governs been under preventive suspension during the
administrative proceedings involving public school pendency of the appeal in the event he wins the appeal
teachers. (Cruz) [Sec. 47(4), Chapter 6, Subtitle A, Title I, Book V,
Admin. Code].
Dismissal, preventive Employees are entitled to compensation for the
suspension, reinstatement period of their suspension pending appeal if they are
found innocent. Such suspension is actually punitive
and back salaries and it is precisely because respondent is penalized
before his sentence is confirmed that he should be
a. Preventive Suspension and Back paid his salaries in the event he is exonerated. It would
Salaries be unjust to deprive him of his pay as a result of
immediate execution of the decision against him and
continue to do so even after it is shown that he is
Preventive Suspension is a disciplinary measure which
is intended to enable the disciplinary authority to
Page 228 of 382

innocent of the charges for which he was suspended 2. Elective Officials [Sec. 63, R.A. 7160]
[DE LEON]. a. By – Against
i. President – Elective official of a
Pending province, Highly Urbanized City or
Pending Appeal
Investigation Independent Component City
Not a penalty, but only ii. Governor – Elective official of
a means of enabling the Component City or municipality
disciplining authority to Punitive in character iii. Mayor – Elective official of a barangay
conduct unhampered b. When – at any time after the issues are joined
investigation c. Requisites:
If exonerated – i. After the issues are joined;
reinstated with full pay ii. Evidence of guilt is strong; and
No backwages due for
for the period of iii. Given the gravity of the offense, there
the period of
suspension is great probability that the
suspension even if
continuance in office of the
found innocent unless
If reprimanded – respondent could:
suspension is
cannot claim 1) influence the witnesses; or
unjustified
backwages; penalty is 2) pose a threat to the safety and
commuted integrity of the records and other
evidence.
c. Rules on Preventive Suspension d. Duration
i. Single administrative case – not to
exceed 60 days
1. Appointive Officials
ii. Several administrative cases – not
a. NOT a Presidential Appointee
more than 90 days within a single year
i. By – the proper disciplining authority
on the same ground or grounds
ii. Against – any subordinate officer or
existing and known at the time of the
employee under such authority
first suspension
iii. When – pending an investigation
e. Preventive suspension of an elective local
iv. Grounds –
official is not an interruption of the 3-term
a. Charge involves dishonesty,
limit rule [Aldovino v. COMELEC, G.R. No.
oppression or grave misconduct,
184836 (2009)]
neglect in the performance of duty;
or
Note: The authority to preventively suspend is
b. There are reasons to believe that
exercised concurrently by the ombudsman, pursuant
respondent is guilty of the charges
to R.A. 6770, which authorizes preventive suspension
which would warrant his removal
of 6 months [Hagad v. Gozo-Dadole, G.R. No. 108072
from the service
(1995)].
v. Period – administrative investigation
must be terminated within 90 days,
otherwise the respondent shall be d. Illegal Dismissal, Reinstatement
automatically reinstated unless the and Back Salaries
delay in the disposition of the case is
due to the fault, negligence or petition Reinstatement means the restoration to a state or
of the respondent, in which case the condition from which one had been removed or
period of delay shall not be counted separated. One who is reinstated assumes the position
b. Presidential Appointee he had occupied prior to the dismissal.
Preventive suspension in the case of presidential Back salary or wages is a form of relief that restores
appointees which may initially be justified under the the income that was lost by reason of unlawful
circumstances may raise a due process question if dismissal.
continued for an unreasonable period of time [DE
LEON]. Duty of Plaintiff to Prove His/Her Right to
Office
Page 229 of 382

For a plaintiff to succeed in seeking reinstatement to known the life and character of candidates, of their
an office, he must prove his right to the office. In a right to elect officers.
quo warranto proceeding, the person suing must show
that he has a clear right to the office allegedly held In Carpio-Morales v. Court of Appeals [G.R. Nos.
unlawfully by another. Absent that right, the lack of 217126-27, November 10, 2015], the Court explicitly
qualification or eligibility of the supposed usurper is abandoned the condonation doctrine.
immaterial.
Continued application of the condonation doctrine is
Where removal or suspension lawful– An officer simply inconsistent and impermissible under the
who has been lawfully separated or suspended from present Constitution which explicitly mandates that
his office is not entitled to compensation for the public office is a public trust and that public officials
period during which he was so suspended, even if it shall be accountable to the people at all times.
be subsequently determined that the cause for which However, the Court’s abandonment of the
he was suspended was unjustified (so long as the condonation doctrine should be prospective in
preventive suspension was within the periods application and as a general rule will be recognized as
provided by law). “good law”; prior to its abandonment.
Where removal or suspension unlawful – Where

an officer was unlawfully removed and was prevented
Impeachment
for a time by no fault of his own from performing the
Impeachment – method of national inquest into the
duties of his office, he may recover backwages, and
conduct of public men.
the amount that he had earned in other employment
during his unlawful removal should not be deducted
It is the power of Congress to remove a public official
from his unpaid salary.
for serious crimes or misconduct as provided in the
Constitution [Corona v. Senate, G.R. No. 200242
OTHER RULES
(2012)].
The award for backwages is limited to a maximum
Purpose: To protect the people from official
period of 5 years and not to full back salaries from
delinquencies or malfeasances. It is primarily intended
illegal dismissal up to reinstatement.
for the protection of the State, not for the punishment
of the offender.
N.B.: In Campol v. Balao [G.R. No. 197634, (2016)], the
Court awarded full backwages to an illegally dismissed
In Repblic vs. Sereno, the Court held that Quo Warranto
employee.
and impeachment are distinct in terms of jurisdiction,
grounds, applicable rules and limitation. The
A petition for quo warranto and mandamus affecting
existence of the other will not prevent the
title to public office must be filed within 1 year from
commencement of the other remedy. Hence, the rule
the date the petitioner is ousted from his position.
against forum shopping will not apply because of the
The claim for back salaries and damages is also subject
difference in cause of action (usurping in QW,
to the 1-year prescriptive period [DE LEON].
commission of offense in impeachment) and reliefs
(exclusion from office for QW, removal from office
e. Condonation doctrine for impeachment).
What is the Condonation Doctrine? Does this still Under the Constitution, it uses the term “MAY be
apply? removed from office” thus indicative of mere
In essence the condonation doctrine states that since possibility, an opportunity or option. Since it denotes
the penalty of removal may not be extended beyond option to remove, it admits of an alternative mode.
the term in which the public officer was elected for Moreover, the enumeration of impeachable offenses
each term is separate and distinct, an elective official's as absolute is equivalent to saying that it does not
re-election serves as a condonation of previous mean complete instances of the entire causes of
misconduct, thereby cutting the right to remove him removal from offices.
therefor. This is based on the theory that courts may
not deprive the electorate, who are assumed to have To construe the Constitution as limiting only removal
thru impeachment would deprive the State a remedy
Page 230 of 382

to correct a public wrong arising from the defective Ombudsman [Secs. 5 to 14,
or void appointments.
Art. XI, Constitution in
a. Impeachable Officers relation to R.A. 6770]
1. President
2. Vice-President
a. Functions
3. Members of the Supreme Court
4. Members of the Constitutional Commissions Powers and Functions under R.A. 6770
5. Ombudsman 1. Investigate any act or omission of any public
official, employee, office or agency which
All other public officers and employees may be appears to be illegal, unjust, improper, or
removed from office as provided by law, but not by inefficient. This may be done by the Ombudsman
impeachment [Sec. 2, Art. XI, Constitution]. on its own or upon complaint.
2. Direct any public official or employee, or any
government subdivision, agency or
b. Grounds for Impeachment instrumentality, as well as of any government-
owned or controlled corporation with original
1. Culpable violation of the Constitution charter:
2. Treason a. To perform and expedite any act or duty
3. Bribery required by law, or
4. Graft and corruption b. To stop, prevent, and correct any abuse or
5. Other high crimes, or impropriety in the performance of duties
6. Betrayal of public trust. 3. Direct the officer concerned:
a. To take appropriate action against a public
c. Procedure official or employee at fault, and
b. To recommend the latter’s removal,
The House of Representatives has the sole power to suspension, demotion, fine, censure, or
initiate all cases of impeachment while the Senate sits prosecution, and
as a court for the trial of impeachment cases [Sec. 3 c. To ensure compliance therewith.
(1) and (6), Art. XI, Constitution]. 4. Direct the officer concerned, in any appropriate
case, and subject to such limitations as may be
No impeachment proceedings shall be initiated provided by law, to furnish it with copies of
against the same official more than once within a documents relating to contracts or transactions
period of one year [Sec. 3 (5), Art. XI, Constitution]. entered into by his office involving the
disbursement or use of public funds or
The term “to initiate” refers to: properties. The Ombudsman can also report any
1. The filing of the impeachment complaint, irregularity to the Commission on Audit for
coupled with appropriate action.
2. Congress’ taking initial action of said complaint 5. Request any government agency for assistance
(i.e. referral to the House Committee on Justice) and information necessary in the discharge of its
[Francisco v. House of Representatives, G.R. No. responsibilities, and to examine, if necessary,
160261 (2003)]. pertinent records and documents.
6. Publicize matters covered by its investigation
d. Judgment when circumstances so warrant and with due
prudence.
Judgment in cases of impeachment shall not extend 7. Determine the causes of inefficiency, red tape,
further than removal from office and disqualification mismanagement, fraud, and corruption in the
to hold any office under the Republic of the Government and make recommendations for
Philippines, but the party convicted shall nevertheless their elimination and the observance of high
be liable and subject to prosecution, trial, and standards of ethics and efficiency.
punishment, according to law [Sec. 3, Art. XI, 8. Promulgate its rules of procedure and exercise
Constitution]. such other powers or perform such functions or
Page 231 of 382

duties as may be provided by law [Sec. 13, Art. The Deputy Ombudsman is also subject to the
XI, Const.] disciplinary authority of the Ombudsman, and not the
9. Administer oaths, issue subpoena and subpoena President [Gonzales III v. Office of the President, G.R. No.
duces tecum, and take testimony in any 196231 (2014)].
investigation or inquiry, including the power to
examine and have access to bank accounts and Preventive Suspension
records; The Ombudsman or his Deputy may preventively
10. Punish for contempt in accordance with the suspend any officer or employee under his authority
Rules of Court and under the same procedure pending an investigation:
and with the same penalties provided therein; 1. If in his judgment the evidence of guilt is strong,
11. Delegate to the Deputies, or its investigators or and
representatives such authority or duty as shall 2. Either of the following are present:
ensure the effective exercise or performance of a. The charge against such officer or employee
the powers, functions, and duties herein or involves dishonesty, oppression or grave
hereinafter provided; misconduct or neglect in the performance of
12. Investigate and initiate the proper action for the duty;
recovery of ill-gotten and/or unexplained wealth b. The charges would warrant removal from
amassed after February 25, 1986 and the the service; or
prosecution of the parties involved therein [For c. The respondent's continued stay in office
Nos. 9-12, Sec. 15, R.A. 6770] may prejudice the case filed against him [Sec.
24, R.A. 6770].
ADMINISTRATIVE JURISDICTION
The preventive suspension shall continue until the
General Rule: The Office of the Ombudsman has case is terminated by the Office of the Ombudsman
disciplinary authority over all elective and appointive but not more than six (6) months, without pay, except
officials of the government and its subdivisions, when the delay in the disposition of the case by the
instrumentalities and agencies, including Members of Office of the Ombudsman is due to the fault,
the Cabinet, local government, government-owned or negligence or petition of the respondent, in which
controlled corporations and their subsidiaries [Sec. case the period of such delay shall not be counted in
21, R.A. 6770] computing the period of suspension herein provided
[Sec. 24, R.A. 6770].
Exceptions: The Ombudsman has no disciplinary
power over the following [Sec. 21, R.A. 6770]: Prior notice and hearing is not required before
1. Officials who may be removed only by suspension may be meted out. Suspension is not a
impeachment punishment or penalty but only a preventive measure
2. Members of Congress to prevent the respondent from using his position or
3. Members of the Judiciary office to influence or intimidate prospective witnesses
or tamper with the records which may be vital in the
However, the Office of the Ombudsman has the prosecution of the case against them.
power to investigate any serious misconduct in office
committed by officials removable by impeachment, CRIMINAL JURISDICTION
for the purpose of filing a verified complaint for
impeachment, if warranted [Sec. 22, R.A. 6770]. The Ombudsman exercises primary jurisdiction to
investigate any act or omission of the public officer in
N.B. The disciplinary power of the Ombudsman is criminal cases cognizable by the Sandiganbayan
not exclusive but is shared with other disciplinary
authorities of the government. It has concurrent jurisdiction with other investigative
agencies with respect to criminal cases involving
The disciplinary power of the Ombudsman over public officers cognizable by regular courts [Office of
elective officials is concurrent with the power vested the Ombudsman v. Rodriguez, G.R. No. 172700 (2010)].
in the officials specified in the Local Government
Code of 1991 [Hagad v. Dozo-Dadole, supra].
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b. Judicial Review in Office of the Special

Administrative Proceedings Prosecutor
Remedy: Petition for review under Rule 43 of the
Rules of Court with the Court of Appeals. a. Appointment
N.B. The second paragraph of Sec. 14, R.A. 6770, The Ombudsman and his Deputies, including the
which states that “[n]o court shall hear any appeal or Special Prosecutor, shall be appointed by the
application for remedy against the decision or President from a list of at least twenty-one (21)
findings of the Ombudsman, except the Supreme Court, nominees prepared by the Judicial and Bar Council,
on pure question of law,” is unconstitutional. and from a list of three (3) nominees for each vacancy
Effectively, Congress increased the appellate thereafter, which shall be filled within three (3)
jurisdiction of the Supreme Court without its advice months after it occurs, each of which list shall be
and concurrence. By confining the remedy to a Rule published in a newspaper of general circulation. (Sec.
45 appeal, the provision takes away the remedy of 4, R. A. 6670)
certiorari, grounded on errors of jurisdiction, in
denigration of the judicial power constitutionally b. Qualifications
vested in courts [Carpio-Morales v. CA, G.R. No.
217126-27 (2015)]. The Ombudsman and his Deputies, including the
Special Prosecutor, shall be
Decisions or resolutions of the Ombudsman in 1. natural-born citizens of the Philippines,
administrative cases absolving the respondent of the 2. at least forty (40) years old,
charge or imposing upon him the penalty of public 3. of recognized probity and independence,
censure or reprimand, suspension of not more than members of the Philippine Bar, and
one month, or a fine equivalent to one month salary, 4. must not have been candidates for any elective
is final and unappealable [AGPALO]. national or local office in the immediately
preceding election whether regular or special.
In all other cases, the decision shall become final after
the expiration of 10 days from receipt thereof by the The Ombudsman must have, for ten (10) years or
respondent, unless a motion for reconsideration or a more, been a judge or engaged in the practice of law
petition for review is filed with the CA pursuant to in the Philippines. (Sec. 5, R.A. 6670)
Rule 43 of the Rules of Court [AGPALO].
c. Term of Office
c. Judicial Review in Penal
Proceedings The Ombudsman and his Deputies, including the
Special Prosecutor, shall serve for a term of seven (7)
General Rule: Courts cannot review the exercise of years without reappointment. (Sec. 7, R.A. 6670)
discretion of the Ombudsman in prosecuting or
dismissing a criminal complaint filed before it [Loquias d. Powers
v. Ombudsman, G.R. No. 139396 (2000)].
The Office of the Special Prosecutor shall, under the
Exception: When the Ombudsman’s findings are supervision and control and upon the authority of the
tainted with grave abuse of discretion. Ombudsman, have the following powers:
1. To conduct preliminary investigation and
See Carpio-Morales v. CA, supra. prosecute criminal cases within the jurisdiction of
the Sandiganbayan;
2. To enter into plea bargaining agreements; and
3. To perform such other duties assigned to it by
the Ombudsman.
The Special Prosecutor shall have the rank and salary

of a Deputy Ombudsman. (Sec. 11, par. 4, R.A. 6670)
Page 233 of 382

exceeding One Million Pesos

e. Restrictions (Php1,000,000.00) [R.A. No. 10660].
No writ of injunction shall be issued by any court to In the absence of any allegation that the offense
delay an investigation being conducted by the charged was necessarily connected with the discharge
Ombudsman under this Act, unless there is a prima of the duties or functions of a public officer, the
facie evidence that the subject matter of the ordinary court, not the Sandiganbayan, has
investigation is outside the jurisdiction of the Office jurisdiction to hear and decide the case.
of the Ombudsman.
No court shall hear any appeal or application for What is controlling is not whether the phrase
remedy against the decision or findings of the "committed in relation to public office" appears in the
Ombudsman, except the Supreme Court, on pure Information. What determines the jurisdiction of the
question of law. (Sec. 14, R.A. 6670) Sandiganbayan is the specific factual allegation in the
Information that would indicate close intimacy
between the discharge of the accused's official duties
The Sandiganbayan and the commission of the offense charged in order
to qualify the crime as having been committed in
a. Nature and Composition relation to public office. The relation between the
crime and the office must be direct and not accidental,
The Sandiganbayan is created under P.D. 1606 as that is, the relation has to be such that, in the legal
amended by R.A. 8249. It is a special court, of the sense, the offense cannot exist without the office.
same level as the Court of Appeals and possessing all
the inherent powers of a court of justice. c. Officials and Private Individuals
Subject to its Jurisdiction
It is composed of a presiding justice and fourteen
associate justices who shall be appointed by the
Under Sec, 4(a) and (b) of P.D. 1606, as amended, the
President.
Sandiganbayan shall exercise exclusive original
jurisdiction over the cases mentioned in (1) above
b. Exclusive Original Jurisdiction where one or more of the accused are officials
occupying the following positions in the government,
1. Over the following crimes, when committed by whether in a permanent, acting or interim capacity at
public officials and employees classified as Salary the time of the commission of the offense:
Grade 27 or higher: 1. Officials of the executive branch occupying the
a. Violations of R.A. 3019 and 1379; positions of regional director and higher,
b. Crimes committed by public officers and otherwise classified as Grade '27' and higher, of
employees embraced in Chapter II, Sec. 2, the Compensation and Position Classification
Title VII, Book II of the Revised Penal Act of 1989 (R.A. 6758), specifically including:
Code; a. Provincial governors, vice-governors,
c. Other offenses or felonies, whether simple members of the sangguniang panlalawigan,
or complexed with other crimes, committed and provincial treasurers, assessors,
in relation to their office. engineers, and other provincial department
heads;
2. Civil and criminal cases filed pursuant to and in b. City mayors, vice-mayors, members of the
connection with Executive Orders No. 1, 2, 14, sangguniang panlungsod, city treasurers,
and 14-a issued in 1986 assessors, engineers, and other city
department heads;
Provided, That the Regional Trial Court shall c. Officials of the diplomatic service occupying
have exclusive original jurisdiction where the the position of consul and higher;
information: d. Philippine army and air force colonels, naval
a. does not allege any damage to the captains, and all officers of higher rank;
government or any bribery; or e. Officers of the Philippine National Police
b. alleges damage to the government or bribery while occupying the position of provincial
arising from the same or closely related
transactions or acts in an amount not
Page 234 of 382

director and those holding the rank of senior

superintendent or higher;
K. Ill-Gotten Wealth
f. City and provincial prosecutors and their
assistants, and officials and prosecutors in Ill-gotten wealth – any asset, property, business
the Office of the Ombudsman and special enterprise or material possession of any person
prosecutor; acquired by himself directly or indirectly through
2. Presidents, directors or trustees, or managers of dummies, nominees, agents, subordinates and/or
government-owned or controlled corporations, business associates by any combination or series of
state universities or educational institutions or the following means or similar schemes:
foundations; 1. Through misappropriation, conversion, misuse,
3. Members of Congress and officials thereof or malversation of public funds or raids on the
classified as Grade "27" and up under the public treasury;
Compensation and Position Classification Act of 2. By receiving, directly or indirectly, any
1989; commission, gift, share, percentage, kickbacks or
4. Members of the judiciary without prejudice to the any other form of pecuniary benefit from any
provisions of the Constitution; person and/or entity in connection with any
5. Chairpersons and members of Constitutional government contract or project or by reason of
Commissions, without prejudice to the the office or position of the public officer
provisions of the Constitution; and concerned;
6. All other national and local officials classified as 3. By the illegal or fraudulent conveyance or
Grade "27" and higher under the Compensation disposition of assets belonging to the National
and Position Classificafion Act of 1989. Government or any of its subdivisions, agencies
or instrumentalities or government-owned or
In case private individuals are charged as co- controlled corporations and their subsidiaries,
principals, accomplices or accessories with the public 4. By obtaining, receiving or accepting directly or
officers or employees, including those employed in indirectly any shares of stock, equity or any other
government-owned or -controlled corporations, they form of interest or participation including the
shall be tried jointly with said public officers and promise of future employment in any business
employees in the proper courts which shall exercise enterprise or undertaking;
exclusive jurisdiction over them. 5. By establishing agricultural, industrial or
commercial monopolies or other combinations
and/or implementation of decrees and orders
d. Exclusive Appellate Jurisdiction intended to benefit particular persons or special
interests, or
The Sandiganbayan shall exercise exclusive appellate 6. By taking undue advantage of official position,
jurisdiction over final judgments, resolutions or authority, relationship, connection or influence
orders of regional trial courts whether in the exercise to unjustly enrich himself or themselves at the
of their own original jurisdiction or of their appellate expense and to the damage and prejudice of the
jurisdiction. Filipino people and the Republic of the
Philippines [Sec. 1, R.A. 7080].
e. Appellate Jurisdiction of the
Supreme Court RECOVERY OF ILL-GOTTEN WEALTH
The appellate jurisdiction of the Supreme Court is Sec. 15, Art. XI, Constitution. The right of the
limited to questions of law over decisions and final State to recover properties acquired by public
orders of the Sandiganbayan [Republic v. Sandiganbayan, officials or employees, from them or from their
G.R. No. 102508 (2002)]. nominees or trasferees, shall not be barred by
prescription, laches or estoppel.
N.B. This provision applies only to civil actions for

recovery of ill-gotten wealth and not to criminal cases.
Thus, prosecution of offenses arising from, relating
or incident to, or involving ill-gotten wealth in the said
provision may be barred by prescription [Presidential
Page 235 of 382

Ad-hoc Fact Finding Committee on Behest Loans v. Desierto,

G.R. No. 130140 (1999)].
L. Term Limits
Authority to Prosecute See Local Governments below for the rules on term
R.A. 1379 expressly authorizes the OSG to prosecute limits summarized in Abundo v. COMELEC, supra.
cases of forfeiture of property unlawfully acquired by
any public officer or employee [Argana v. Republic, All Elective Local Officials
G.R. No. 147227 (2004)].
Except Barangay Officials
PLUNDER [Sec. 2, R.A. 7080]
[Sec. 8, Art. X, Constitution; Sec. 43, LGC]
Punishable Acts
1. Any public officer who, by himself or in Term of office: 3 years from noon of June 30, 1992
connivance with members of his family, relatives or the date provided by law
by affinity or consanguinity, business associates,
subordinates or other person, amasses, All local officials first elected during the local
accumulates or acquires ill-gotten wealth through elections immediately following the ratification of the
a combination or series of overt or criminal acts 1987 Constitution shall serve until noon of June 30,
in the aggregate amount or total value of at least 1992;
Php50,000,000.00 (as amended by Sec. 12 of R.A. a. No official shall serve for more than 3
7659) consecutive terms for the same position;
2. Any person who participated with the said officer b. Voluntary renunciation of the office for any
in the commission of plunder shall likewise be length of time is not an interruption in the
punished. continuity of his service for the full term for
which he was elected
Penalty
Life imprisonment with perpetual absolute
disqualification from holding any public office. The
D. Barangay and
court shall declare any and all ill-gotten wealth and Sanggunuang Kabataan
their interests and other incomes and assets including
the properties and shares of stocks derived from the Officials
deposit or investment thereof forfeited in favor of the
State [AGPALO]. [Sec. 2, R.A. 9164, Sec. 11, R.A. 10742]
Term of office: 3 years
No barangay elective official shall serve for more than

3 consecutive terms in the same position
1. Reckoned from the 1994 barangay elections
2. Voluntary renunciation of office for any length of
time shall not be considered as an interruption.
Page 236 of 382

U.P. LAW BOC ADMINISTRATIVE LAW POLITICAL LAW
ADMINISTRATIVE
LAW
Political Law
Page 237 of 382

XIII. ADMIN LAW B. Administrative Agencies
A. General Principles Definition

Sec. 2, Book VII, Admin Code. "Agency"
Definition includes any department, bureau, office,
commission, authority or officer of the National
Administrative Law is that branch of modern law Government authorized by law or executive order
under which the executive department of the to make rules, issue licenses, grant rights or
government, acting in a quasi-legislative or quasi- privileges, and adjudicate cases; research
judicial capacity, interferes with the conduct of the institutions with respect to licensing functions;
individual for the purpose of promoting the well- government corporations with respect to
being of the community [Roscoe Pound, cited in Irene R. functions regulating private right, privileges,
Cortes, Philippine Administrative Law: Cases and Materials occupation or business; and officials in the
(1984)]. exercise of disciplinary power as provided by law.
Administrative law is the law concerning the powers Administrative agencies are the organs of
and procedures of administrative agencies, including government, other than a court and other than the
specially the law governing judicial review of legislature, which affect the rights of private parties
administrative actions [K. Davis, Administrative Law either through adjudication or through rule-making
Treatise 1 (1958), cited in DE LEON]. [NACHURA].
2 Historical Considerations An administrative agency may be described as a body

endowed with quasi-legislative and quasi-judicial
powers for the purpose of enabling it to carry out the
a. Why Did Administrative laws entrusted for enforcement or execution
Agencies Come About? [CRUZ].
1. Growing complexities of modern life An administrative agency is defined as "[a]

2. Multiplication of number of subjects needing government body charged with administering and
government regulation; and implementing particular legislation. Examples are
3. Increased difficulty of administering laws workers' compensation commissions ... and the like.
[Pangasinan Transportation v. Public Service ... The term 'agency' includes any department,
Commission, G.R. No. 47065 (1940)] independent establishment, commission,
administration, authority board or bureau [Republic v.
b. Why are Administrative CA G.R. No. 90482 (1991), citing Black’s Law
Dictionary].
Agencies Needed?
Because the government lacks: When is an Agency
1. Time (to respond to problems) Administrative?
2. Expertise, and
3. Organizational aptitude for effective and Where its function is primarily regulatory even if it
continuing regulation of new developments in conducts hearings and determines controversies to
society [STONE]. carry out its regulatory duty.
On its rule-making authority, it is administrative

when it does not have discretion to determine what
the law shall be but merely prescribes details for the
enforcement of the law.
Page 238 of 382

Manner of Creation C. Powers of Administrative

a. Constitutional Agencies – those created by the Agencies
Constitution (e.g. CSC, COMELEC, COA,
CHR) The powers of administrative agencies are:
b. Statutory Agencies (e.g. NLRC, SEC, PRC, 1. Quasi-legislative (Rule-making)
Social Security Commission, Bureau of 2. Quasi-judicial (Adjudicatory); and
Immigration, Intellectual Property Office, 3. Determinative powers
Games and Amusement Board, Energy a. Enabling powers - permit the doing of an
Regulatory Commission, and Insurance act which the law undertakes to regulate and
Commission) which would be unlawful without
c. Executive Orders/Authorities of law (e.g. government approval (e.g. issuance of
Fact-finding Agencies) licenses to engage in particular business or
occupation)
EXECUTIVE POWER TO CREATE AD HOC b. Directing powers - order the performance
COMMITTEES of particular acts to ensure compliance with
The Executive is given much leeway in ensuring that the law and often exercised for corrective
our laws are faithfully executed. As stated above, the purposes
powers of the President are not limited to those • Dispensing powers - allows the
specific powers under the Constitution. One of the administrative officer to relax the
recognized powers of the President granted pursuant general operation of a law or exempt
to this constitutionally mandated duty is the power to from performance of a general duty
create ad hoc committees. This flows from the • Examining powers - enables the
obvious need to ascertain facts and determine if laws administrative body to inspect the
have been faithfully executed. […] There is no records and premises, and investigate
usurpation on the part of the Executive of the power the activities, of persons or entities
of Congress to appropriate funds, because there will coming under its jurisdiction
be no appropriation, but only an allotment or • Summary powers - those involving
allocation of existing funds already appropriated use by administrative authorities of
[Biraogo v. Phil. Truth Commission, G.R. Nos. 192935 force upon persons or things without
and 193036 (2010)]. necessity of previous judicial warrant
[Cruz]
Kinds
Quasi-legislative or rule-making power is the power
a. Government grant or gratuity, special to make rules and regulations that results in delegated
privilege (e.g. Bureau of Lands, Phil. Veterans legislation that is within the confines of the granting
Admin., GSIS, SSS, PAO); statute and the doctrine of non-delegability and
b. Carrying out the actual business of separability of powers. x x x Quasi-judicial or
government (e.g. BIR, Bureau of Customs, administrative adjudicatory power is the power to
Bureau of Immigration, Land Registration hear and determine questions of fact to which the
Authority); legislative policy is to apply and to decide in
c. Service for public benefit (e.g. Phil Post, PNR, accordance with the standards laid down by the law
MWSS, NFA, NHA); itself in enforcing and administering the same law.
d. Regulation of businesses affected with The administrative body exercises its quasi-judicial
public interest (e.g. Insurance Commission, power when it performs in a judicial manner an act
LTFRB, NTC, HLURB); that is essentially of an executive or administrative
e. Regulation of private businesses and nature, where the power to act in such manner is
individuals (e.g. SEC); incidental to or reasonably necessary for the
f. Adjustment of individual controversies performance of the executive or administrative duty
because of a strong social policy involved entrusted to it [The Chairman and Executive Director,
(e.g. ECC, NLRC, SEC, DAR, COA). Palawan Council for Sustainable Development v. Lim, G.R.
No. 183173 (2016)].
Page 239 of 382

Does the grant of such powers to Administrative Agencies d. Delegation to local governments; and
violate the Doctrine of Separation of Powers? e. Delegation to administrative bodies
No. Administrative agencies became the catch basin [Abakada v. Ermita, G.R. No. 168056 (2005)]
for the residual powers of the three branches. The
theory of the separation of powers is designed to a. Legislative Delegation
forestall overaction resulting from concentration of
power. However, with the growing complexity of Requisites for a Valid Delegation
modern life, there is a constantly growing tendency 1. Completeness Test – The law must be complete
toward the delegation of greater powers by the in itself and must set forth the policy to be
legislature [Pangasinan Transportation v. Public Service executed.
Commission, No. 47065 (1940)].
The law must be complete in all its terms and
Doctrine of Necessary Implication – [W]hat is conditions when it leaves the legislature such that
implied in a statute is as much a part thereof as that when it reaches the delegate the only thing he will
which is expressed. Every statute is understood, by have to do is enforce it. [Eastern Shipping Lines,
implication, to contain all such provisions as may be Inc. v. POEA, G.R. No. 76633 (1988)]; and
necessary to effectuate its object and purpose, or to
make effective rights, powers, privileges or 2. Sufficient Standards Test – The law must fix a
jurisdiction which it grants, including all such standard, the limits of which are sufficiently
collateral and subsidiary consequences as may be determinate or determinable, to which the
fairly and logically inferred from its terms. Ex delegate must conform [Abakada v. Ermita, G.R.
necessitate legis. And every statutory grant of power, No. 168056 (2005)].
right or privilege is deemed to include all incidental
power, right or privilege. This is so because the The legislature may delegate to executive officers or
greater includes the lesser, expressed in the maxim, in bodies the power to determine certain facts or
eo plus sit, simper inest et minus [Chua v. CSC, G.R. No. conditions, or the happening of contingencies, on
88979 (1993)]. which the operation of a statute is, by its terms, made
to depend, but the legislature must prescribe
Quasi-Legislative (Rule- sufficient standards, policies or limitations on their
authority [Abakada v. Ermita, supra].
Making Power)
Sufficient Standard
The authority delegated by the law-making body to 1. Defines legislative policy, marks its limits, maps
the administrative agency to adopt rules and regulations out its boundaries and specifies the public agency
intended to carry out the provisions of a law and to apply it; and
implement a legislative policy [CRUZ]. 2. Indicates the circumstances under which the
legislative command is to be effected [Santiago v.
Doctrine of Subordinate Legislation - Power to COMELEC, G.R. 127325 (1997); Abakada v.
promulgate rules and regulations is only limited to Ermita, supra].
carrying into effect what is provided in the legislative
enactment. Forms of the sufficient standard
1. Express;
Non-Delegation Doctrine - Potestas delegata non 2. Implied [Edu v. Ericta, G.R. No. L-32096 (1970)];
delegare potest. What has been delegated cannot be or
delegated. 3. Embodied in other statutes on the same matter
and not necessarily in the same law being
The general rule barring delegation of legislative challenged [Chiongbian v. Orbos, G.R. No. 96754
powers is subject to the following recognized (1995)].
limitations or exceptions:
a. Delegation of tariff powers to the President [Sec. In case of a delegation of rate-fixing power, the only
28 (2), Art. VI, Constitution]; standard which the legislature is required to prescribe
b. Delegation of emergency powers to the for the guidance of the administrative authority is that
President [Sec. 23 (2), Art. VI, Constitution]; the rate be reasonable and just. However, it has been
c. Delegation to the people at large; held that even in the absence of an express
Page 240 of 382

requirement as to reasonableness, this standard may Legislative Rules Interpretative Rules

be implied [PHILCOMSAT v. Alcuaz, G.R. No. procedure in passing to be notified and heard
84818 (1989)]. rules. before the issuance of
the ruling.
The power conferred upon an administrative agency
to issue rules and regulations necessary to carry out NOTICE AND HEARING
its functions has been held to be an adequate source
of authority to delegate a particular function, unless 1. In the exercise of quasi-judicial functions
by express provision of the Act or by implication it As a general rule, notice and hearing, as the
has been withheld [Realty Exchange Venture Corp. v. fundamental requirements of procedural due
Sendino, G.R. No. 109703 (1994)]. process, are essential only when an
administrative body exercises its quasi-judicial
b. Kinds of Administrative Rules function.
and Regulations 2. In the exercise of quasi-legislative function
In the performance of its executive or legislative
1. Supplementary legislation – pertains to rules
functions, such as issuing rules and regulations,
and regulations to fix details in the execution of
an administrative body need not comply with the
a policy in the law. e.g. IRRs of the Labor Code.
requirements of notice and hearing [Corona v.
United Harbor Pilots Association of the Philippines,
2. Interpretative legislation – pertains to rules
G.R. No. 111953 (1997), citing PHILCOMSAT
and regulations construing or interpreting the
v. Alcuaz, G.R. No. 84818 (1989)].
provisions of a statute to be enforced and they
are binding on all concerned until they are
Can the power to hear and decide a case be
changed, e.g. BIR Circulars.
delegated?
The rule that requires an administrative officer to
Legislative Rules v. Interpretative Rules
exercise his own judgment and discretion does
Legislative Rules Interpretative Rules not preclude him from utilizing, as a matter of
Promulgated pursuant practical administrative procedure, the aid of
Passed pursuant to its
to its quasi-legislative/ subordinates to investigate and report to him the
quasi-judicial capacity.
rule-making functions. facts, on the basis of which the officer will make
Create a new law, a Merely clarify the his decisions. x x x There is no abnegation of
new policy, with the meaning of a pre- responsibility by the officer if his subordinates
force and effect of existing law by inferring heard the case as the decision remains with and
law. its implications. is made by the officer. [American Tobacco Co. vs.
Need publication. Need not be published. Director of Patents, G.R. No. L-26803 (1975)]
The court may review
So long as the court the correctness of the 3. In the issuance of interpretative rulings
finds that the interpretation of the law When an administrative rule is merely
legislative rules are given by the interpretative in nature, its applicability needs
within the power of administrative body, and nothing further than its bare issuance for it gives
the administrative substitute its own view no real consequence more than what the law
agency to pass, as seen of what is correct. If it is itself has already prescribed.
in the primary law, not within the scope of
then the rules bind the the administrative When, upon the other hand, the administrative
court. The court agency, the court cannot rule goes beyond merely providing for the means
cannot question the only invalidate the same that can facilitate or render least cumbersome the
wisdom or correctness but also substitute its implementation of the law but substantially adds
of the policy decision or to or increases the burden of those governed, it
contained in the rules. interpretation or give its behooves the agency to accord at least to those
own set of rules. directly affected a chance to be heard, and
Due process means Due process involves thereafter to be duly informed, before that new
that the body whether the parties were issuance is given the force and effect of law
observed the proper afforded the opportunity
Page 241 of 382

[Commissioner of Internal Revenue v. CA, G.R. No. of two or more interpretations, the
119761 (1996)]. administrative agency should make known
its official position.
Certain cigarette brands were initially treated as 4. Administrative construction/interpretation
other locally manufactured cigarettes subject to not binding on the court as to the proper
45% ad valorem tax. BIR issued Revenue construction of a statute, but generally it is
Memorandum Circular (RMC) 37-93 placing given great weight, has a very persuasive
these brands under a different category subject influence and may actually be regarded by
to an increased rate of 55% ad valorem tax. the courts as the controlling factor. [Lim Hoa
Ting vs. Central Bank of the Philippines, G.R. No.
HELD: Evidently, in order to place "Hope L-10666 (1958)]
Luxury," "Premium More," and "Champion" 5. Administrative interpretation is merely
cigarettes within the scope of the amendatory advisory; Courts finally determine what the
law and subject them to an increased tax rate, the law means [Victorias Milling Co., Inc. v. Social
now disputed RMC 37-93 had to be issued. In so Security Commission, G.R. No. 16704 (1962)]
doing, the BIR not simply interpreted the law; 6. Contingent legislation – Pertains to rules
verily, it legislated under its quasi-legislative and regulations made by an administrative
authority. The due observance of the authority on the existence of certain facts or
requirements of notice, of hearing, and of things upon which the enforcement of the
publication should not have been then ignored law depends.
[Commissioner of Internal Revenue v. CA, G.R. No.
119761 (1996)]. c. Requisites for Validity
COMELEC issued Resolution No. 9615 limiting Requisites of a valid administrative rule
the broadcast and radio advertisements of 1. Within the scope or authority of law;
candidates and political parties for national 2. Authorized by law;
election positions to an aggregate total of one 3. Reasonable
hundred twenty (120) minutes and one hundred 4. To be valid, such rules and regulations must be
eighty (180) minutes, respectively. reasonable and fairly adapted to secure the end
in view. If shown to bear no reasonable relation
HELD: Resolution No. 9615 needs prior to the purposes for which they are authorized to
hearing before adoption. The new Resolution be issued, then they must be held to be invalid
introduced a radical change in the manner in [Lupangco v. CA, G.R. No. 77372 (1988)]; and
which the rules on airtime for political 5. Promulgated in accordance with prescribed
advertisements are to be reckoned. As such there procedure
is a need for adequate and effective means by
which they may be adopted, disseminated and Tests to determine validity of rules [DE LEON]
implemented. In this regard, it is not enough that 1. If it exceeds the authority conferred to it;
they be published – or explained – after they 2. If it conflicts with the governing statute;
have been adopted. For failing to conduct prior 3. If it extends or modifies the statute;
hearing before coming up with Resolution No. 4. If it has no reasonable relationship to the
9615, said Resolution, specifically in regard to the statutory purpose; and
new rule on aggregate airtime is declared 5. If it is arbitrary or unreasonable or
defective and ineffectual [GMA Network, Inc. v. unconstitutional.
COMELEC, G.R. No. 205357 (2014)].
Where a rule or regulation has a provision not
Restrictions on interpretative regulations: expressly stated or contained in the statute being
1. Does not change the character of a implemented, that provision does not necessarily
ministerial duty; contradict the statute. A legislative rule is in the
2. Does not involve unlawful use of legislative nature of subordinate legislation, designed to
or judicial power. implement a primary legislation by providing the
3. Administrative Interpretations: May details thereof. All that is required is that the
eliminate construction and uncertainty in regulation should be germane to the objects and
doubtful cases. When laws are susceptible purposes of the law; that the regulation be not in
Page 242 of 382

contradiction to but in conformity with the standards FILING REQUIREMENT

prescribed by the law [Holy Spirit Homeowners
Association, Inc. v. Defensor, G.R. No. 163980 (2006)]. Sec. 3, Book VII, Admin. Code. Filing. – (1)
Every agency shall file with the University of the
d. Rules on Publication Philippines Law Center three (3) certified copes of
every rule adopted by it. Rules in force on the date
1. Administrative rules and regulations are subject of the effectivity of this Code which are not filed
to the publication and effectivity rules of the within three (3) months from that date shall not
Admin Code. thereafter be the basis of any sanction against any
2. Publication Requirement: E.O. 200 (Art. 2, Civil party or persons. […]
Code) requires publication of laws in the Official
Gazette or in a newspaper of general circulation. The Administrative Code of 1987, particularly
Publication is indispensable, especially if the rule Section 3 of Book VII thereof, expressly requires
is general. each agency to file with the Office of the National
Administrative Register (ONAR) of the University of
Publication is mandatory for the following to be the Philippines Law Center three certified copies of
effective: every rule adopted by it. Administrative issuances
1. Laws not only of general application, but also which are not published or filed with the ONAR are
laws of local application, private laws; ineffective and may not be enforced [GMA v.
2. Presidential decrees and executive orders MTRCB, G.R. No. 148579 (2007)].
promulgated by the President in the exercise of
legislative powers whenever the same are validly EFFECTIVITY: 15 days after filing and publication
delegated by the legislature or, at present, directly
conferred by the Constitution, including even Sec. 4, Book VII, Admin. Code. Effectivity. –
those naming a public place after a favored In addition to other rule-making requirements
individual or exempting him from certain provided by law not inconsistent with this Book,
prohibitions or requirements; each rule shall become effective fifteen (15) days
3. Administrative rules and regulations enforcing or from the date of filing as above provided unless a
implementing existing law pursuant also to a different date is fixed by law, or specified in the
valid delegation; rule in cases of imminent danger to public health,
4. City charters; and safety and welfare, the existence of which must be
5. Circulars issued by the Monetary Board not expressed in a statement accompanying the rule.
merely interpreting but "filling in the details" of The agency shall take appropriate measures to
the Central Bank Act which that body is make emergency rules known to persons who may
supposed to enforce be affected by them.
Publication is not necessary for the following to be Note:

effective: 1. The Admin. Code requires filing.
1. Interpretative regulations; 2. The Civil Code requires publication.
2. Regulations which are merely internal in nature 3. Because the Admin. Code does not preclude
(regulating only the personnel of the other rule-making requirements provided by law
administrative agency need not the published); (i.e. the Civil Code), both publication and filing
3. Letters of instructions issued by administrative must be satisfied before the 15 day-count begins.
superiors concerning the rules or guidelines to be
followed by their subordinates in the These requirements of publication and filing were put
performance of their duties; in place as safeguards against abuses on the part of
4. Internal instructions issued by an administrative lawmakers and as guarantees to the constitutional
agency; and right to due process and to information on matters of
5. Municipal ordinances which are governed by the public concern and, therefore, require strict
Local Government Code [Tañada v. Tuvera, G.R. compliance. Failure to comply with the requirements
No. L-63915 (1986)] of publication and filing of administrative issuances
renders said issuances ineffective [Republic v. Pilipinas
Shell Petroleum, G.R. No. 173918 (2008)].
Page 243 of 382

Exceptions:
1. Different date is fixed by law or specified in the f. Power to Amend, Revise, Alter
rule; and
2. In case of imminent danger to public health, or Repeal Rules
safety and welfare.
Following the doctrine of necessary implication, [t]he
grant of express power to formulate implementing
e. Penal Rules rules and regulations must necessarily include the
power to amend, revise, alter, or repeal the same
Sec. 6, Book VII, Admin. Code. Omission of [Yazaki Torres Manufacturing, Inc. v. CA, G.R. No.
Some Rules. – (2) Every rule establishing an 130584 (2006)].
offense or defining an act which, pursuant to law
is punishable as a crime or subject to a penalty
shall in all cases be published in full text. Quasi-Judicial
(Adjudicatory) Power
General Rule: Rules must not provide penal sanctions.
The power of the administrative agency to determine
Exception: “A violation or infringement of a rule or questions of fact to which the legislative policy is to
regulation validly issued can constitute a crime apply, in accordance with the standards laid down by
punishable as provided in the authorizing statute and the law itself [Smart Communications v. NTC, G.R. No.
by virtue of the latter” [People v. Maceren, G.R. No. L- 151908 (2003)].
32166 (1977)].
a. Source
For an administrative regulation to have the force of
penal law:
Incidental to the power of regulation but is often
1. The violation of the administrative regulation
expressly conferred by the legislature through specific
must be made a crime by the delegating statute
provisions in the charter of the agency.
itself; and
2. The penalty for such violation must be provided
by the statute itself [Perez v. LPG Refillers b. Distinctions from Judicial
Association of the Philippines, Inc., G.R. No. 159149 Proceedings and Other Powers
(2006), citing U.S. v. Panlilio, G.R. No. L-9876
(1914)]. Distinguished from Judicial Proceedings
Administrative Judicial
Penal laws and regulations imposing penalties must Nature of
be published before it takes effect [People v. Que Po Inquisitorial Adversarial
Proceedings
Lay, G.R. No. 6791 (1954)]. Follow
technical
Can administrative bodies make penal rules? NO. Rules of
Liberally applied rules in the
Penal statutes are exclusive to the legislature and Procedure
Rules of
cannot be delegated. Administrative rules and Court
regulations must not include, prohibit or punish acts Decision
which the law does not even define as a criminal act includes
[People v. Maceren, G.R. No. L-32166 (1977)]. Nature and Decision limited
matters
Extent of to matters of
brought as
In a prosecution for a violation of an administrative Decision general concern
issue by the
order, it must clearly appear that the order is one parties
within the scope of authority conferred upon the The agency itself
administrative body and the order will be scrutinized may be a party to Only the
with special care [People v. Maceren, G.R. No. L-32166 Parties
the proceedings private parties
(1977)] before it
Page 244 of 382

Distinguished from Investigative Power [DE

LEON] 1. Subpoena Power – In any contested case, the
The purpose of an investigation is to discover, find agency shall have the power to require the
out, learn, obtain information. Nowhere included is attendance of witnesses or the production of
the notion of settling, deciding or resolving books, papers, documents and other pertinent
controversies in the facts inquired into by application data.
of the law to the facts established by the inquiry.
2. Contempt Power
Distinguished from Legislative or Rule-Making General Rule: Apply for the aid of RTC.
Power [DE LEON]
1. Quasi-judicial action involves enforcement of Exception: If the law gives agency contempt
liabilities as they stand on present or past facts power.
and under laws supposed to exist, while quasi-
legislation looks to the future and changes 3. Power to issue Search Warrant or Warrant of
existing conditions by making a new rule to be Arrest
applied prospectively.
2. Adjudication applies to named persons or to General Rule: Only judges may issue.
specific situations while the legislation lays down
general regulations that apply to classes of Under the express terms of our Constitution, it
persons or situations. is doubtful whether the arrest of an individual
may be ordered by any authority other than the
Requisites for a Valid Exercise judge if the purpose is merely to determine the
1. Jurisdiction existence of a probable cause, leading to an
2. Due process administrative investigation. [Qua Chee Gan v.
Deportation Board, No. L-10280 (1963), decided
General Rule: A tribunal, board or officer exercising under the 1935 Constitution. Note that the 1987
judicial functions acts without jurisdiction if no and 1935 Constitutions are the same in limiting
authority has been conferred to it by law to hear and the issuance of warrants of arrest to a judge.]
decide cases. Under Article III, Section 2, of the 1987
• Jurisdiction to hear must be explicit or by Constitution, only judges, and no other, who
necessary implication, conferred through the may issue warrants of arrest and search. The
terms of the enabling statute. exception is in cases of deportation of illegal and
• Effect of administrative acts outside undesirable aliens, whom the President or the
jurisdiction—Void. Commissioner of Immigration may order
• Rationale: They are mere creatures of law and arrested, following a final order of deportation,
have no general powers but only such as have for the purpose of deportation [Salazar v.
been conferred upon them by law. Achacoso, G.R. No. 81510 (1990)].
Board of Commissioners v. De La Rosa [G.R. Nos.

c. Powers Included in Quasi- 95122 (1991)] reiterates the rule that for a
Judicial Function warrant of arrest issued by the Commissioner of
Immigration to be valid, it must be for the sole
Sec. 13, Book VII, Admin. Code. Subpoena. - purpose of executing a final order of
In any contested case, the agency shall have the deportation.
power to require the attendance of witnesses or
the production of books, papers, documents and A warrant of arrest issued by the Commissioner
other pertinent data, upon request of any party of Immigration for purposes of investigation
before or during the hearing upon showing of only is null and void for being unconstitutional.
general relevance. Unless otherwise provided by
law, the agency may, in case of disobedience, Exception: A warrant may be issued by the
invoke the aid of the Regional Trial Court within administrative agency following a final order
whose jurisdiction the contested case being heard
falls. The Court may punish contumacy or refusal It is different if the order of arrest is issued to
as contempt. carry out a final finding of a violation, either by
Page 245 of 382

an executive or legislative officer or agency duly authorized

for the purpose, as then the warrant is not that Due process does not require that actual taking of
mentioned in the Constitution which is issuable testimony be before the same officer who will decide
only on probable cause. Such for example, would the case. As long as a party is not deprived of his right
be a warrant of arrest to carry out a final order of to present his own case and submit evidence in
deportation, or to effect compliance of an order support thereof, and the decision is supported by the
of contempt. [Qua Chee Gan vs. Deportation Board, evidence in the record, there is no question that the
G.R. No. L-10280 (1963)] requirements of due process and fair trial are fully
met [American Tobacco Co. v. Director of Patents, G.R.
d. Administrative Due Process No. L-26803 (1975)].
While administrative agencies are free from the The actual exercise of the disciplining authority's
rigidity of certain procedural requirements, they prerogative requires a prior independent
cannot entirely ignore or disregard the fundamental consideration of the law and the facts. Failure to
and essential requirements of due process in trials and comply with this requirement results in an invalid
investigations of an administrative character [Ang decision. The disciplining authority should not
Tibay v. CIR, G.R. No. L-46496 (1940)]. merely and solely rely on an investigator's
recommendation, but must personally weigh and
A decision rendered without due process is void ab assess the evidence gathered [DOH v. Camposano,
initio and may be attacked at any time directly or G.R. No. 157684 (2005)].
collaterally by means of a separate action or
proceeding where it is invoked [Garcia v. Molina, G.R. One may be heard, not solely by verbal presentation
No. 157383 (2010)]. but also, and perhaps even many times more
creditably than oral argument, through pleadings
In administrative proceedings, the essence of due [Mutuc v. CA, G.R. No. 48108 (1990)].
process lies simply in the opportunity to explain one’s
side or to seek reconsideration of the action or ruling The right to counsel is not imperative in
complained of. What is proscribed is the absolute administrative investigations because such inquiries
lack of notice or hearing [Office of the Ombudsman v. are conducted merely to determine whether there are
Coronel, G.R. No. 164460 (2006)]. facts that merit disciplinary measures against erring
public officers and employees, with the purpose of
CARDINAL PRIMARY RIGHTS maintaining the dignity of government service
Ang Tibay v. CIR [G.R. No. L-46496 (1940)] lays [Lumiqued v. Exevea, G.R. No. 117565 (1997)].
down the cardinal primary rights:
1. Right to a hearing (includes the right of a party Presence of a party at a trial is not always the essence
to present his own case and submit evidence in of due process. All that the law requires to satisfy
support thereof) adherence to this constitutional precept is that the
2. The tribunal must consider the evidence parties be given notice of the trial, an opportunity to
presented be heard. Where the defendant failed to appear on
3. Decision must be supported by evidence. the date set for the trial, of which he was previously
4. Evidence must be substantial. notified, he is deemed to have forfeited his right to
5. Quantum of Proof: Substantial Evidence be heard in his defense [Asprec v. Itchon, G.R. No. L-
6. The amount of relevant evidence which a 21685 (1966)].
reasonable mind might accept as adequate to
justify a conclusion [Sec. 5, Rule 133, Rules of All that the law requires is the element of fairness;
Court] that the parties be given notice of trial and
7. Decision must be rendered on the evidence 1. An opportunity to be heard
presented at the hearing or at least contained in 2. In administrative proceedings, an opportunity to
the record and disclosed to the parties affected seek reconsideration
8. Independent consideration of judge (must not 3. An opportunity to explain one’s side
simply accept the views of a subordinate)
9. Decision rendered in such a manner as to let the Any defect in the observance of due process is cured
parties know the various issues involved and the by the filing of a motion for reconsideration, and that
reasons for the decision rendered. denial of due process cannot be successfully invoked
Page 246 of 382

by a party who was afforded the opportunity to be conclusions of law [Albert v. Gangan, G.R. No. 126557
heard [Vivo v. PAGCOR, G.R. No. 187854 (2013)]. (2001)].
The principle that a person cannot be prejudiced by Section 14, Article VIII of the 1987 Constitution (i.e.,
a ruling rendered in an action or proceeding in which “No decision shall be rendered by any court without expressing
he was not made a party conforms to the therein clearly and distinctly the facts and the law on which it
constitutional guarantee of due process of law is based.”) need not apply to decisions rendered in
[Aguilar v. O’Pallick, G.R. No. 182280 (2013)]. administrative proceedings. Said section applies only
to decisions rendered in judicial proceedings [Solid
The law, in prescribing a process of appeal to a higher Homes, Inc. v. Laserna, G.R. No. 166051 (2008)].
level, contemplates that the reviewing officer is a
person different from the one who issued the There is no requirement in Ang Tibay v. CIR that the
appealed decision. Otherwise, the review becomes a decision must express clearly and distinctly the facts
farce; it is rendered meaningless [Rivera v. CSC, G.R. and the law on which it is based for as long as the
No. 115147 (1995)]. administrative decision is grounded on evidence, and
expressed in a manner that sufficiently informs the
Is a trial necessary? parties of the factual and legal bases of the decision,
No. The holding of an adversarial trial is the due process requirement is satisfied [Solid Homes,
discretionary. Parties cannot demand it as a matter of Inc. v. Laserna, G.R. No. 166051 (2008)].
right [Vinta Maritime Co., Inc. v. NLRC, G.R. No.
113911 (1978)]. The order, it is true, does not make its own discussion
of the evidence or its own findings of fact, but such
BUT the right of a party to confront and cross-examine is not necessary if the court is satisfied with the report
opposing witness is a fundamental right which is part of due of its examiner or referee which already contains a
process. If without his fault, this right is violated, he is full discussion of the evidence and the findings of fact
entitled to have the direct examination stricken off based thereon. The situation differs if the court
the record [Bachrach Motor Co., Inc. v. CIR, G.R. No. disagrees with the report in which case it should state
L-26136 (1978)]. the reasons for its disagreement. If it is in full accord
with the report, it is purposeless to repeat what the
While the right to cross-examine is a vital element of examiner has already found in it. [Graciano Indias vs.
procedural due process, the right does not necessarily Philippine Iron Mines, G.R. No. L-9987 (1957)]
require an actual cross examination but merely an **Note: in Indias, the “court” being referred to was
opportunity to exercise this right if desired by the the Court of Industrial Relations which was an
party entitled to it [Gannapao v. CSC, G.R. No. 180141 administrative agency
(2011)].
Note: However, in the Admin. Code, it is provided
However, disciplinary cases involving students need that:
not necessarily include the right to cross examination
[UP Board of Regents v. CA, G.R. No. 134625 (1999), Sec. 14, Book VII. Decision. – Every decision
citing Ateneo de Manila University v. Capulong, G.R. No. rendered by the agency in a contested case shall be
99327 (1993)]. in writing and shall state clearly and distinctly the
facts and the law on which it is based. The agency
Evidence on record must be fully disclosed to the shall decide each case within thirty (30) days
parties [American Inter-Fashion v. Office of the President. following its submission. The parties shall be
G.R. No. 92422 (1991)], but respondents in notified of the decision personally or by registered
administrative cases are not entitled to be informed mail addressed to their counsel of record, if any,
of findings of investigative committees but only of or to them.
the decision of the administrative body [Pefianco v.
Moral, G.R. No. 132248 (2000)]. Due process is violated when
1. There is failure to sufficiently explain the reason
It is a basic tenet of due process that the decision of for the decision rendered; or
a government agency must state the facts and the law 2. If not supported by substantial evidence; or
on which the decision is based, and not merely
Page 247 of 382

3. Imputation of a violation and imposition of a or cancellation of a license; i.e. when the

fine despite absence of due notice and hearing grant, renewal, denial or cancellation of a
[Globe Telecom v. NTC, G.R. No. 143964 (2004)]. license is required to be preceded by notice
and hearing [Sec. 17(1), Book. VII, Admin.
SELF-INCRIMINATION Code]
1. The right against self-incrimination may be 3. All licensing procedures, when a license is
invoked by the respondent at the time he is called withdrawn, suspended, revoked or annulled
by the complainant as a witness. [Sec. 17(2), Book. VII, Admin. Code]
2. If he voluntarily takes the witness stand, he can
be cross examined; but he may still invoke the Exception: Notice and hearing not required in cases of
right when the question calls for an answer (a) willful violation of pertinent laws, rules and
which incriminates him for an offense other than regulations or (b) when public security, health, or
that charged [People v. Ayson, G.R. No. 85215 safety require otherwise [Sec. 17(2), Book. VII,
(1989)]. Admin. Code].
NOTICE AND HEARING e. Administrative Appeal and

When required: Review
1. When the law specifically requires it; or
2. When it affects a person’s status and liberty Different kinds of administrative appeal and review
[DE LEON]:
When not required: 1. That which inheres in the relation of
1. Urgent reasons; administrative superior to administrative
2. Discretion is exercised by an officer vested with subordinate where determinations are made at
it upon an undisputed fact [Suntay v. People, G.R. lower levels of the same administrative system;
No. L-9430 (1957)]; 2. That embraced in statutes which provide for a
3. If it involves the exercise of discretion and there determination to be made by a particular officer
is no grave abuse; of body subject to appeal, review, or
4. When it involves rules to govern future conduct redetermination by another officer or body in the
of persons or enterprises, unless law provides same agency or in the same administrative
otherwise; or system;
5. In the valid exercise of police power. 3. That in which the statute attempts to make a
court a part of the administrative scheme by
It is a constitutional commonplace that the ordinary providing in terms or effect that the court, on
requirements of procedural due process yield to the review of the action of an administrative agency,
necessities of protecting vital public interests, shall exercise powers of such extent that they
through the exercise of police power [Pollution differ from ordinary judicial functions and
Adjudication Board v. CA, G.R. No. 93891 (1991)]. involve a trial de novo of matters of fact or
discretion and application of the independent
Article 8 of the Civil Code recognizes judicial judgment of the court;
decisions, applying or interpreting statutes as part of 4. That in which the statute provides that an order
the legal system of the country. But administrative made by a division of a Commission or Board
decisions do not enjoy that level of recognition. A has the same force and effect as if made by the
memorandum-circular of a bureau head could not Commission subject to a rehearing by the full
operate to vest a taxpayer with a shield against judicial Commission, for the ‘rehearing’ is practically an
action [Philippine Bank of Communications v. CIR, G.R. appeal to another administrative tribunal;
No. 112024 (1999)]. 5. That in which the statute provides for an appeal
to an officer on an intermediate level with
Notice and Hearing under the Admin. Code subsequent appeal to the head of the department
Required in the following instances: or agency; and
1. Contested cases [Sec. 3, Book VII, Admin. 6. That embraced in statutes which provide for
Code] appeal at the highest level, namely, the President.
2. Insofar as practicable, to certain licensing
procedures, involving grant, renewal, denial
Page 248 of 382

A party must prove that it has been affected or have, upon their finality, the force and effect of a final
aggrieved by an administrative agency in order to judgment within the purview of the doctrine of res
entitle it to a review by an appellate administrative judicata, which forbids the reopening of matters once
body or another administrative body. judicially determined by competent authorities.
The appellate administrative agency may conduct General Rule: Res judicata does not apply in
additional hearings in the appealed case, if deemed administrative adjudication relative to citizenship.
necessary [Reyes v. Zamora, G.R. No. L-46732 (1979)].
Exception: For res judicata to be applied in cases of
N.B. Under the Doctrine of Qualified Political citizenship, the following must be present:
Agency [Villena v. Secretary of Interior, G.R. No. L- 1. A person's citizenship must be raised as a
46570 (1939)], a decision of the department head material issue in a controversy where said person
generally need not be appealed to the Office of the is a party;
President, since the department head (e.g. Secretary) 2. The Solicitor General or his authorized
is the alter ego of the President, and the former’s acts representative took active part in the resolution
are presumably the President’s. However, the thereof; and
doctrine does not apply when (a) the act is repudiated 3. The finding or citizenship is affirmed by SC
by the President, or (b) the act is required (by law) to be [Board of Commissioners v. De la Rosa, G.R. Nos.
performed specifically by the department head. 95122 (1991)].
f. Administrative Res Judicata Res judicata may not be invoked in labor relations
proceedings because they are non-litigious and
When it applies summary in nature [Nasipit Lumber Co., Inc. v. NLRC,
The doctrine of res judicata applies only to judicial or G.R. No. 54424 (1989)].
quasi-judicial proceedings and not to the exercise of
purely administrative functions. Administrative Due to the difference between the quantum of
proceedings are non-litigious and summary in nature; evidence, procedure, and sanctions imposed in
hence, res judicata does not apply [Nasipit Lumber Co. criminal and administrative proceedings, the findings
v. NLRC, G.R. No. 54424 (1989)]. and conclusions in one should not necessarily be
binding on the other [Ocampo v. Office of the
Requisites: Ombudsman, G.R. No.114683 (2000)].
1. The former judgment must be final;
2. It must have been rendered by a court having The basis of administrative liability differs from
jurisdiction over the subject matter and the criminal liability. The purpose of administrative
parties; proceedings is mainly to protect the public service,
3. It must be a judgment on the merits; and based on the time-honored principle that a public
4. There must be identity of parties, subject matter office is a public trust. On the other hand, the
and cause of action [Ipekdijan Merchandising v. purpose of the criminal prosecution is the
CTA, G.R. No. L-14791 (1963)]. punishment of crime [Ferrer v. Sandiganbayan, G.R.
No. 161067 (2008)].
While it is true that this Court has declared that the
doctrine of res judicata applies only to judicial or Forum Shopping
quasi-judicial proceedings, and not to the exercise of There is forum-shopping whenever, as a result of an
administrative powers, we have also limited the latter adverse opinion in one forum, a party seeks a
to proceedings purely administrative in nature. favorable opinion (other than by appeal or certiorari)
Therefore, when the administrative proceedings take in another. The principle applies not only with
on an adversary character, the doctrine of res respect to suits filed in the courts but also in
judicata certainly applies [Heirs of Maximino Derla v. connection with litigation commenced in the courts
Heirs of Catalina Derla Vda. De Hipolito, G.R. No. while an administrative proceeding is pending, in
157717 (2011)]. order to defeat administrative processes and in
anticipation of an unfavorable administrative ruling
Effect and a favorable court ruling.
Decisions and orders of administrative bodies
rendered pursuant to their quasi-judicial authority
Page 249 of 382

The test for determining whether a party has violated

the rule against forum shopping is where a final b. Investigative Powers
judgment in one case will amount to res judicata in the
action under consideration [Fortich v. Corona, G.R. Administrative agencies’ power to conduct
No. 131457 (1998), citing First Philippine International investigations and hearings, and make findings and
Bank v. CA (1996)]. recommendations thereon is inherent in their
functions as administrative agencies.
The rule against forum shopping applies only to
judicial cases or proceedings, not to administrative General Rule: Findings of fact by administrative
cases [Office of the Ombudsman v. Rodriguez, G.R. No. agencies and quasi-judicial bodies, which have
172700 (2010)]. acquired expertise because of their jurisdiction is
confined to specific matters, are generally accorded
Note: Office of the Ombudsman v. Rodriguez involved two not only great respect but even finality, absent a
administrative cases against a punong barangay (one showing of grave abuse of discretion. [Marlow
filed before the Ombudsman and the other filed Navigation Philippines Inc. vs. Heirs of Ricardo S. Ganal,
before the Sangguniang Bayan). G.R. No. 220168 (2017)]
Fact-Finding, Investigative, Exception: Equally settled that one of the exceptions

to the above rule is when the factual findings of the
Licensing, and Rate-Fixing quasi-judicial agencies concerned are conflicting or
Powers contrary with those of the CA
"Investigate" means to examine, explore, inquire or

a. Ascertainment of Fact delve or probe into, research on, study. The
dictionary definition of "investigate" is "to observe or
A statute may give to non-judicial officers: study closely: inquire into systematically. "to search
1. The power to declare the existence of facts or inquire into; to subject to an official probe; to
which call into operation the statute’s provisions, conduct an official inquiry." The purpose of
and investigation is to discover, to find out, to learn,
2. May grant to commissioners and other obtain information. Nowhere included or intimated
subordinate officers the power to ascertain and is the notion of settling, deciding or resolving a
determine appropriate facts as a basis for controversy involved in the facts inquired into by
procedure in the enforcement of particular laws. application of the law to the facts established by the
inquiry [Cariño v. CHR, G.R. No. 96681 (1991)].
Such functions are merely incidental to the exercise
of power granted by law to clear navigable streams of
unauthorized obstructions. They can be conferred c. Licensing Function
upon executive officials provided the party affected
is given the opportunity to be heard [Lovina v. Moreno, Sec. 17, Book VII, Admin. Code. Licensing
G.R. No. L-17821 (1963)]. Procedure. –
1. When the grant, renewal, denial or
The Legislature has said that before any hemp is cancellation of a license is required to be
exported from the Philippine Islands it must be preceded by notice and hearing, the
inspected, graded, baled, and has created a board for provisions concerning contested cases shall
that purpose and vested it with the power and apply insofar as practicable.
authority to do the actual work. That is not a 2. Except in cases of willful violation of
delegation of legislative power. It is nothing more pertinent laws, rules and regulations or when
than a delegation of administrative power in the Fiber public security, health, or safety requires
Board, to carry out the purpose and intent of the law. otherwise, no license may be withdrawn,
[Alegre vs. Insular Collector of Customs, G.R. No. L-30783 suspended, revoked or annulled without
(1929] notice and hearing.
Sec. 18, Book VII, Admin. Code. Non-

expiration of License. – Where the licensee has
Page 250 of 382

made timely and sufficient application for the proposed rates shall have been published in a
renewal of a license with reference to any activity newspaper of general circulation at least 2 weeks
of a continuing nature, the existing license shall before the first hearing thereon.
not expire until the application shall have been
finally determined by the agency. Generally, the power to fix rates is a quasi-legislative
function, i.e. it is meant to apply to all. However, it
Sec. 2, Book VII, Admin. Code. Definitions. – becomes quasi-judicial when the rate is applicable only
10. “License” includes the whole or any part of to a particular party, predicated upon a finding of fact
any agency permit, certificate, passport, [PHILCOMSAT v. Alcuaz, G.R. No. 84818 (1989),
clearance, approval, registration, charter, citing Vigan Electric Light Co. v. Public Service
membership, statutory exemption or other Commission, G.R. No. L-19850 (1964)].
form of permission, or regulation of the
exercise of a right or privilege. N.B. The old doctrine is if the rate-fixing power is
11. “Licensing” includes agency process quasi-legislative, it need not be accompanied by prior
involving the grant, renewal, denial, notice and hearing. Under the Admin. Code (supra),
revocation, suspension, annulment, the distinction seems to have been disregarded, since
withdrawal, limitation, amendment, the provision did not qualify the character of the rate-
modification or conditioning of a license. fixing, and now requires prior notice (via publication)
before the hearing.
When are notice and hearing required in licensing?
Only if it is a contested case. Otherwise, it can be Can the power to fix rates be delegated to a
dispensed with (e.g., driver’s licenses). common carrier or other public service? NO. The
latter may propose new rates, but these will not be
A license or permit is not a contract between the effective without the approval of the administrative
sovereignty and the licensee. Rather, it is a special agency [KMU v. Garcia, G.R. No. 115381 (1994)].
privilege, a permission or authority to do what is
within its terms. It is always revocable [Gonzalo Sy What are considered in the fixing of rates?
Trading v. Central Bank, G.R. No. L-41480 (1976)]. 1. The present valuation of all the property of a
public utility, and
Note: the Admin. Code, however, prescribes notice 2. The fixed assets.
and hearing before it can be revoked, subject to
certain exceptions. The property is deemed taken and condemned by the
public at the time of filing the petition, and the rate
should go up and down with the physical valuation of
d. Fixing of Rates, Wages, and the property [Ynchausti v. Public Utility Commissioner,
Prices G.R. No. L-17665 (1922)].
Sec. 2, Book VII, Admin. Code. Definitions. – The charter of Manila International Airport
3. “Rate” means any charge to the public for a Authority (MIAA), as amended, directly vests the
service open to all and upon the same terms, power to determine revisions of fees, charges and
including individual or joint rates, tolls, rates in the “ministry head” and even requires
classification or schedules thereof, as well as approval of the cabinet. The ministry head who has
communication, mileage, kilometrage and the power to determine the revision of fees, charges
other special rates which shall be imposed by and rates of the MIAA is now the DOTC Secretary.
law or regulation to be observed and followed As an attached agency of the DOTC, the MIAA is
by any person. governed by the Administrative Code of 1987 which
requires notice and public hearing in the fixing of
PUBLICATION REQUIREMENT FOR rates [MIAA v. Airspan Corp., G.R. No. 157581
RATE-FIXING (2004)].
Sec. 9, Book. VII, Admin Code. Public

Participation. – […] (2) In the fixing of rates, no
rule or final order shall be valid unless the
Page 251 of 382

D. Judicial Recourse and The Bangko Sentral ng Pilipinas (BSP) Monetary

Review Board is a quasi-judicial agency exercising quasi-
judicial powers or functions. The Court of Appeals
General Rule: Judicial review may be granted or has appellate jurisdiction over final judgments,
withheld as Congress chooses, except when the orders, resolutions or awards of the BSP Monetary
Constitution requires or allows it. Thus, a law may Board on administrative complaints against banks
provide that the decision of an administrative agency and quasi-banks. Nothing in R.A. 7653 or in R.A.
shall be final and not reviewable and it would still not 8791 explicitly allows an appeal of the decisions of
offend due process. the BSP Monetary Board to the Court of Appeals.
However, this shall not mean that said decisions are
However, Sec. 1, par. 2, Art. VIII of the beyond judicial review [United Coconut Planters Bank v.
Constitution, which provides that judicial power E. Ganzon, Inc., G.R. No. 168859 (2009)].
includes the duty of the courts of justice to settle
actual controversies involving rights which are legally EXTENT OF JUDICIAL REVIEW
demandable and enforceable, and to determine 1. Questions of Law
whether or not there has been a grave abuse of a. Constitutionality of the law creating the
discretion amounting to lack or excess of jurisdiction agency and granting it powers
on the part of any branch or instrumentality of the b. Validity of agency action if these transcend
Government, clearly means that judicial review of limits established by law
administrative decisions cannot be denied the courts c. Correctness of interpretation or application
when there is an allegation of grave abuse of of the law
discretion [NACHURA].
2. Questions of Fact
It is generally understood that as to administrative
agencies exercising quasi-judicial or legislative power Sec. 25, Book VII, Admin. Code. Judicial
there is an underlying power in the courts to Review. – (5) Review shall be made on the basis
scrutinize the acts of such agencies on questions of of the record taken as a whole. The findings of fact
law and jurisdiction even though no right of review is of the agency when supported by substantial
given by statute. xxx Judicial review is proper in case evidence shall be final except when specifically
of lack of jurisdiction, grave abuse of discretion, error provided otherwise by law.
of law, fraud or collusion [San Miguel Corp. v. NLRC,
G.R. No. L-39195 (1975), citing Timbancaya v. Vicente, General Rule: Findings of fact by the agency are final
G.R. No. L-19100 (1963)]. when supported by substantial evidence.
Rationale: Exceptions:
1. There is an underlying power of the courts to a. Specifically allowed otherwise by law
scrutinize the acts of such agencies on questions b. Fraud, imposition, or mistake other error of
of law and jurisdiction even though no right of judgment in evaluating the evidence [Ortua v.
review is given by statute; Singson Encarnacion, G.R. No. L-39919 (1934)]
2. The purpose of judicial review is to keep the c. Error in appreciation of pleadings and
administrative agency within its jurisdiction and interpretation of the documentary evidence
protect the substantial rights of the parties; presented by the parties [Tan Tiong Teck v. SEC,
3. It is that part of the checks and balances which G.R. No. L-46471 (1940)]
restricts the separation of powers and forestalls d. Decision of the agency was rendered by an
arbitrary and unjust adjudications [St. Martin’s almost divided agency and that the division was
Funeral Homes v. NLRC, G.R. No. 130866 precisely on the facts as borne out by the
(1998)]. evidence [Gonzales v. Victory Labor Union, G.R.
No. L-2256 (1969)]
N.B. Rule 43 of the Rules of Court provides that the
Court of Appeals shall have appellate jurisdiction 3. Questions of Discretion
over awards, judgments, final orders or resolutions of When a matter has been committed to agency
or authorized by any quasi-judicial agency in the discretion, courts are reluctant to disturb agency
exercise of its quasi-judicial functions. action on it. But a party may get a court to
Page 252 of 382

intervene against arbitrary action and grave abuse the judicial process is suspended pending referral of
of discretion [CORTES] such issues to the administrative body for its view
[Industrial Enterprises, Inc. v. CA, supra].
Doctrine of Primary The doctrine of primary jurisdiction does not warrant
Administrative Jurisdiction a court to arrogate unto itself authority to resolve a
controversy the jurisdiction over which is initially
General Rule: Courts will not intervene if the question lodged with an administrative body of special
to be resolved is one which requires the expertise of competence [Vidad v. RTC, G.R. No. 98084 (1993)].
administrative agencies and the legislative intent on
the matter is to have uniformity in the rulings [Panama Rationale: In this era of clogged docket courts, the
Refining Co. v. Ryan, 293 U.S. 388 (1935)]. need for specialized administrative boards with the
special knowledge and capability to hear and
It can only occur where there is a concurrence of determine promptly disputes on technical matters has
jurisdiction between the court and the administrative become well-nigh indispensable. Between the power
agency. lodged in an administrative body and a court, the
unmistakable trend has been to refer it to the former
It is a question of the court yielding to the agency [GMA v. ABS CBN, G.R. No. 160703 (2005)].
because of the latter’s expertise, and does not amount
to ouster of the court [Texas & Pacific Railway v. REQUISITES
Abilene, 204 U.S. 426 (1907)]. 1. An administrative body and a regular court have
concurrent and original jurisdiction
It is the recent jurisprudential trend to apply the 2. Question to be resolved requires expertise of
doctrine of primary jurisdiction in many cases that administrative agency
demand the special competence of administrative 3. Legislative intent on the matter is to have
agencies. It may occur that the Court has jurisdiction to uniformity in rulings
take cognizance of a particular case, which means that the 4. Administrative agency is performing a quasi-
matter involved is also judicial in character. However, judicial or adjudicatory function (not rule-
if the determination of the case requires the expertise, making or quasi-legislative function [Smart v.
specialized skills and knowledge of the proper NTC, G.R. No. 151908 (2003)]
administrative bodies because technical matters or
intricate questions of facts are involved, then relief a. When the Doctrine is Applicable
must first be obtained in an administrative proceeding before a
remedy will be supplied by the courts even though the matter is 1. If the agency has exclusive (original) jurisdiction (i.e.
within the proper jurisdiction of a court [Industrial Enterprises, Doctrine of Exhaustion would apply);
Inc. v. CA, G.R. No. 88550 (1990)]. 2. When the issue is not within the competence of the
administrative body to act on (e.g. pure questions
Well-entrenched is the rule that courts will not of law, over which the expertise is with the
interfere in matters which are addressed to the sound courts);
discretion of the government agency entrusted with
the regulation of activities coming under the special Regular courts have jurisdiction in cases where
and technical training and knowledge of such agency. what is assailed is the validity or constitutionality
Administrative agencies are given a wide latitude in the of a rule or regulation issued by the
evaluation of evidence and in the exercise of their adjudicative administrative agency in the performance of its
functions, latitude which includes the authority to take judicial quasi-legislative function [Smart v. NTC, supra]
notice of facts within their special competence [Quiambao v.
CA, G.R. No. 128305 (2005)]. 3. When the issue involved is clearly a factual question
that does not require specialized skills and knowledge for
The doctrine of primary jurisdiction applies where a claim resolution to justify the exercise of primary
is originally cognizable in the courts, and comes into jurisdiction.
play whenever enforcement of the claim requires the
resolution of issues which, under a regulatory
scheme, have been placed within the special
competence of an administrative body; in such case,
Page 253 of 382

b. Effect REQUISITES
a. The administrative agency is performing a quasi-
While no prejudicial question strictly arises where one judicial function;
is a civil case and the other is an administrative b. Judicial review is available; and
proceeding, in the interest of good order, it behooves c. The court acts in its appellate jurisdiction.
the court to suspend its action on the cases before it
pending the final outcome of the administrative Rationale:
proceedings [Vidad v. RTC, supra]. a. Legal reason: The law prescribes a procedure.
b. Practical reason: To give the agency a chance to
Does not per se have the effect of restraining or correct its own errors and prevent unnecessary
preventing the courts from the exercise of their and premature resort to the courts
lawfully conferred jurisdiction. A contrary rule would c. Reasons of comity: Expedience, courtesy,
unduly expand the doctrine of primary jurisdiction convenience.
[Conrad and Co., Inc. v. CA, G.R. No. 115115 (1995)]. d. Separation of powers: which enjoins upon the
Judiciary a becoming policy of non-interference
All the proceedings of the court in violation of the with matters falling primarily (albeit not
doctrine and all orders and decisions rendered exclusively) within the competence of other
thereby are null and void [Province of Aklan v. Jody King departments.
Construction and Development Corp., G.R. No. 197592
(2013)]. a. Exceptions to the Doctrine
Note: The court may raise the issue of primary The exceptions may be condensed into three:
jurisdiction sua sponte and its invocation cannot be 1. Grave abuse of discretion;
waived by the failure of the parties to argue it as the 2. Pure question of law; or
doctrine exists for the proper distribution of power 3. No other plain, speedy, and adequate remedy.
between judicial and administrative bodies and not
for the convenience of the parties [Euro-Med However, the long list has been developed by
Laboratories Phil., Inc. v. Province of Batangas, G.R. No. jurisprudence. It is prudent to cite it over the
148106 (2006)]. shortened list.
1. Purely legal questions [Castro v. Secretary, G.R.
Doctrine of Exhaustion of No. 132174 (2001)]
2. There is grave doubt as to the availability of the
Administrative Remedies administrative remedy [Pascual v. Provincial Board,
supra]
General Rule: Where the law has delineated the 3. Steps to be taken are merely matters of form.
procedure by which administrative appeal or remedy [Pascual v. Provincial Board, supra]
could be effected, the same should be followed 4. Administrative remedy not exclusive but merely
before recourse to judicial action can be initiated. cumulative or concurrent to a judicial remedy.
[Pascual v. Provincial Board, G.R. No. L-11959 (1959)] [Pascual v. Provincial Board, supra]
5. There are circumstances indicating urgency of
One of the reasons for exhaustion of administrative judicial intervention [DAR v. Apex Investment,
remedies is our well-entrenched doctrine on G.R. No. 149422 (2003)]
separation of powers, which enjoins upon the 6. Rule does not provide plain, speedy, adequate
Judiciary a becoming policy of non-interference with remedy [Information Technology Foundation v.
matters falling primarily (albeit not exclusively) within COMELEC, G.R. No. 159139 (2004)]
the competence of other departments. Courts, for 7. Resort to exhaustion will only be oppressive and
reasons of law, comity and convenience, should not patently unreasonable [Cipriano v. Marcelino, G.R.
entertain suits unless the available administrative No. L-27793 (1972)]
remedies have first been resorted to and the proper 8. Where the administrative remedy is only
authorities have been given an appropriate permissive or voluntary and not a prerequisite to
opportunity to act and correct their alleged errors, if the institution of judicial proceedings [Corpus v.
any, committed in the administrative forum [Antolin Cuaderno, Sr., G.R. No. L-17860 (1962)]
v. Domondon, G.R. No. 165036 (2010)].
Page 254 of 382

9. Application of the doctrine will only cause great Failure to observe the doctrine of exhaustion of
and irreparable damage which cannot be administrative remedies does not affect the Court’s
prevented except by taking the appropriate court jurisdiction.
action [De Lara, Jr. v. Cloribel, G.R. No. L-21653
(1965)] If not invoked at the proper time, this ground is
10. When it involves the rule-making or quasi- deemed waived and the court can take cognizance of
legislative functions of an administrative agency the case and try it [Republic v. Sandiganbayan, G.R. Nos.
[Smart v. NTC, supra] 112708-09 (1996)].
11. Administrative agency is in estoppel [Republic v.
Sandiganbayan, supra] c. When Appeals to the Office of
12. Doctrine of qualified political agency
(respondent is a department secretary whose acts the President are Required
as an alter ego of the President bears the implied
and assumed approval of the latter) [Demaisip v. A decision or order issued by a department or agency
CA, G.R. No. L-13000 (1959); Pagara v. CA G.R. need not be appealed to the Office of the President
No. 96882 (1996)] when there is a special law that provides for a
13. Subject of controversy is private land in land case different mode of appeal. If the law does not provide
proceedings [Soto v. Jareno, G.R. No. L-38962 for a specific relief, appeals may be taken to the
(1986)] Office of the President [Moran v. Office of the President,
14. Violation of due process [Pagara v. CA, supra] G.R. No. 192957 (2014)].
15. Where there is unreasonable delay or official
inaction that will irretrievably prejudice the When OP is not exercising quasi-judicial
complainant [Republic v. Sandiganbayan, supra] functions
16. Administrative action is patently illegal When the OP itself represents a party, i.e., the
amounting to lack or excess of jurisdiction [DAR Republic, to a contract, it merely exercises a
v. Apex Investment, supra] contractual right by cancelling/revoking said
17. Resort to administrative remedy will amount to agreement—a purely administrative action which
a nullification of a claim [Paat v. CA, G.R. No. should not be considered quasi-judicial in nature.
111107 (1997); Alzate v. Aldana, G.R. No. L- Thus, absent the OP's proper exercise of a quasi-
14407 (1960)] judicial function, the CA has no appellate jurisdiction
18. No administrative review provided for by law over the case [Narra Nickel Mining and Development
[Estrada v. CA, G.R. No. 137862 (2004)] Corp. v. Redmont Consolidated Mines Corp., G.R. No.
19. Issue of non-exhaustion of administrative 202877 (2015)].
remedies rendered moot [see enumeration in
Estrada v. CA, supra] Doctrine of Doctrine of
20. When the claim involved is small Exhaustion of Primary
21. When strong public interest is involved Administrativ Administrativ
22. In quo warranto proceedings [see enumeration in e Remedies e Jurisdiction
Lopez v. City of Manila, G.R. No. 127139 (1999)] Concurrent
23. Law expressly provides for a different review Original
Jurisdictio
procedure [Samahang Magbubukid v. CA, G.R. Appellate Jurisdiction
n of Court
No. 103953 (1999)] with Admin
Body
The court yields
b. Effect of Failure to Exhaust to the
Administrative Remedies jurisdiction of
Ground for Exhaustion of
the
A direct action in court without prior exhaustion of Non- administrative
administrative
administrative remedies, when required, is premature, exercise of remedy a
agency because
warranting its dismissal on a motion to dismiss Jurisdictio condition
of its
grounded on lack of cause of action. n precedent.
specialized
knowledge or
expertise.
Page 255 of 382

Court Suspend
Dismiss
Action Judicial Action
Doctrine of Finality of
Administrative Action
Courts will not interfere with the act of an
administrative agency before it has reached finality or
it has been completed.
Rationale: Without a final order or decision, the power

has not been fully and finally exercised.
Prohibition is not the proper remedy [when] the

enabling law itself, which is B.P. Blg. 325, has
specifically tasked the Cabinet to review and approve
any proposed revisions of rates of fees and charges.
Petitioners should have availed of this easy and accessible
remedy instead of immediately resorting to the judicial process
[Paredes v. CA, G.R. No. 113357 (1996)].
EXCEPTIONS TO THE DOCTRINE OF

FINALITY [Peña v. GSIS, G.R. No. 159520 (2006)]
a. Correction of clerical errors
b. Nunc pro tunc entries which cause no prejudice to
any party
c. Void judgments
d. Whenever circumstances transpire after the
finality of the decision rendering its execution
unjust and inequitable
After a judgment has become final, if there is

evidence of an event or circumstance which would
affect or change the rights of the parties thereto, the
court should be allowed to admit evidence of such
new facts and circumstances, and thereafter suspend
execution thereof and grant relief as the new facts and
circumstances warrant [Candelario v. Cañizares, G.R.
No. 17688 (1962).
Page 256 of 382

U.P. LAW BOC ELECTION LAW POLITICAL LAW
ELECTION LAW
Political Law
Page 257 of 382

XIV. ELECTION b. Special: One held to fill a vacancy in office

before the expiration of the full term for which
LAW the incumbent was elected.
c. Plebiscite: The electoral process by which an
initiative on the Constitution is approved or
A. Suffrage rejected by the people [Sec. 3(e), R.A. No. 6735].
d. Referendum: The power of the electorate to
approve or reject a legislation through an
Definitions election called for the purpose [Sec. 3(c), R.A.
No. 6735].
Suffrage: The right to vote in the election of officers a. Referendum on Statutes or referring to
chosen by the people and in determination of laws passed by Congress;
questions submitted to the people. b. Referendum on Local Law, referring to
laws, resolutions, or ordinances passed by
Election: The means by which the people choose regional assemblies and local legislative
their officials for a definite and fixed period and to bodies [Id.].
whom they entrust for the time being the exercise of e. Initiative: The power of the people to propose
the powers of government. amendments to the Constitution or to propose
and enact legislation through an election called
for the purpose [Sec. 3(a), R.A. No. 6735].
Sources of Election Law a. Initiative on the Constitution: Petition
proposing amendments to the Constitution.
Non-Exhaustive Listing: b. Initiative on Statutes: Petition proposing
• Constitution to enact a national legislation.
• B.P. Blg. 881 (Omnibus Election Code) c. Initiative on local legislation: Petition
• R.A. No. 6735 (1989) (Initiative and Referendum proposing to enact a regional, provincial,
Act) city, municipal or barangay law, resolution
• R.A. No. 7160 (1991) (Local Government Code) or ordinance [Id.].
• R.A. No. 7166 (1991) (Electoral Reforms Act of • The constitutional provision on people's
1991) initiative to amend the Constitution can only
• R.A. No. 7941 (1995) (Party-List Act) be implemented by law to be passed by
• R.A. No. 8189 (1996) (Registration of Voters Congress [see Sec. 2, Art. XVII,
Act) Constitution]. No such law has been passed.
R.A. No. 6735 is incomplete, inadequateor
• R.A. No. 9006 (2001) (Fair Elections Act)
wanting in essential terms and conditions
• R.A. No. 9189 (2003) (Overseas Absentee insofar as initiative on amendments to the
Voting Act) Constitution is concerned [Defensor-Santiago
• R.A. No. 9225 (2003) (Repatriation Act) v. COMELEC, G.R. No. 127325 (1997)].
• R.A. 8436, as amended by R.A. 9369 (Automated • Section 2 of Art. XVII Constitution is
Election System) limited to proposals to amend—not to
revise—the Constitution [see Lambino v.
Kinds of Elections COMELEC, G.R. No. 174153 (2006)].
f. Recall: the termination of official relationship of
a. Regular: One provided by law for the election a local elective official for loss of confidence
of officers either nation-wide or in certain prior to the expiration of his term through the
subdivisions thereof, after the expiration of the will of the electorate [see Sec. 69, LGC].
full term of the former officers.
• The SK election is not a regular election Election Period
because the latter is participated in by youth
with ages ranging from 15-21 (18-24 for General Rule: The election period shall commence 90
officials, and as per RA 10742), some of days before the day of the election and shall end 30
whom are not qualified voters to elect local days thereafter [Art. IX-C, Sec. 9, Const.].
or national elective officials [Paras v.
COMELEC, G.R. No. 123169 (1996)].
Page 258 of 382

Exception: Special cases, when otherwise fixed by the

COMELEC [Id.].
B. Qualification and
Disqualification of Voters
Qualifications in General
[Art. V, Sec. 1, 1987 Const.]
Sec. 1. Suffrage may be exercised by all citizens of

the Philippines, not otherwise disqualified by law,
who are at least eighteen years of age, and who
shall have resided in the Philippines for at least
one year and in the place wherein they propose to
vote, for at least six months immediately
preceding the election. No literacy, property, or
other substantive requirement shall be imposed on
the exercise of suffrage. [Sec. 1, Art. V, Const.]
a. Citizenship: Voters must be Filipino citizen by

birth or naturalization.
It is incumbent upon one who claims Philippine

citizenship to prove to the satisfaction of the
court that he is really Filipino. Any doubt
regarding citizenship must be resolved in favor
of the State [Go v. Ramos, G.R. No. 167569
(2009)].
b. Age: At least 18 at the time of the election.

c. Residency: The voter must be a resident of (1)
the Philippines for at least 1 year, and (2) the
place wherein they propose to vote for at least 6
months immediately preceding the election.
N.B. Any person who temporarily resides in

another city, municipality or country solely by
any of the following reasons shall not be deemed
to have lost his original residence:
1. Employment in private or public service;
2. Educational activities;
3. Work in the military or naval reservations
within the Philippines;
4. Service in the AFP, PNP; or
5. Confinement or detention in government
institutions [Sec. 9, R.A. No. 8189]
It is not necessary that a person should have a

house in order to establish his residence or
domicile in a municipality. It is enough that he
should live there, provided that his stay is
accompanied by his intention to reside therein
permanently [Romualdez-Marcos v. COMELEC,
G.R. No. 119976 (1995)].
Page 259 of 382

vote upon the expiration of 5 years after the

In election cases, the Court treats domicile and service of sentence; or
residence as synonymous terms. Both import not c. Insane or incompetent persons as declared by
only an intention to reside in a fixed place but competent authority [Sec. 11, R.A. 8189, Voter’s
also personal presence in that place, coupled Registration Act of 1996].
with conduct indicative of such intention
[Pundaodaya v. COMELEC, G.R. No. 179313
(2009)].
Special Rules for Overseas
Absentee Voters
There is nothing wrong in an individual changing
residences so he could run for an elective post, a. Qualifications
for as long as he is able to prove that he has
effected a change of residence for the period 1. Filipino citizen;
required by law [Aquino v. COMELEC, G.R. No. 2. Abroad on the day of the election;
120265 (1995)]. 3. At least 18 years of age on the day of the election;
and
A candidate does not automatically regain his 4. Not otherwise disqualified by law [Sec. 3(f)-4,
residence after the retention or reacquisition of R.A. 9189]
Philippine citizenship under RA No. 9225. He
must still establish the fact of residence [Caballero
v. COMELEC, G.R. No. 209835 (2015)]. b. Disqualifications
d. Not otherwise disqualified by law The following are disqualified from voting under the
Overseas Absentee Voting law:
N.B. No literacy, property or other substantive 1. Lost their Filipino citizenship in accordance with
requirement shall be imposed on the exercise of Philippine laws;
suffrage [Art. V, Sec. 1, Const.]. 2. Expressly renounced their Philippine citizenship
and who have pledged allegiance to a foreign
Hence, Congress may impose limitations on the country;
statutory right of suffrage. This provision is 3. Committed and convicted in a final judgment by
merely “geared towards the elimination of a court or tribunal of an offense punishable by
irrelevant standards that are purely based on imprisonment of not less than 1 year, including
socio-economic considerations that have no those who have committed and been found
bearing on the right of a citizen to intelligently guilty of Disloyalty as defined under Article 137
cast his vote and to further the public good” of the RPC;
[Kabataan Partylist v. COMELEC, G.R. No. 4. Immigrant or a permanent resident who is
221318 (2015)]. recognized as such in the host country
Exception: He/she executes, upon registration, an

Disqualifications in General affidavit prepared for the purpose by the
Commission declaring that:
The following shall be disqualified from registering: a. He/she shall resume actual physical
a. Sentenced by final judgment to suffer permanent residence in the Philippines not
imprisonment for not less than 1 year (unless later than 3 years from approval of his/her
granted a plenary pardon or an amnesty) shall registration;and
automatically reacquire right to vote upon the b. He/she has not applied for citizenship in
expiration of 5 years after the service of sentence; another country
b. Adjudged by final judgment for having
committed any crime involving disloyalty to the Effect of failure to return: Cause for the
duly constituted government (e.g. rebellion, removal of his/her name from the National
sedition, violation of the firearms law) or any Registry of Absentee Voters and his/her
crime against national security (unless restored to permanent disqualification to vote in absentia
full civil and political rights in accordance with (i.e. through overseas absentee voting).
law) shall automatically reacquire the right to
Page 260 of 382

5. Citizen previously declared insane or

incompetent by competent authority in the
C. Registration of Voters
Philippines or abroad, as verified by the
Philippine embassies, consulates or Foreign Definition and Nature
Service establishments concerned [Sec. 5, R.A.
9189]. Registration [of voters]: The act of accomplishing
and filing of a sworn application for registration by a
qualified voter before the election officer of the city
or municipality wherein he resides and including the
same in the book of registered voters upon approval
by the Election Registration Board [Sec. 3a, R.A.
8189].
Registered voter – in order that a qualified elector

may vote in any election, plebiscite or referendum, he
must be registered in the Permanent List of Voters
for the city or municipality in which he resides [Sec.
115, B.P. Blg. 881].
Rationale for registration requirements, qualifications, and

disqualifications: The right to vote is not a natural right
but is a right created by law. Suffrage is a privilege
granted by the State to such persons or classes as are
most likely to exercise it for the public good [People v.
Corral, G.R. No. L-42300 (1936)].
Condition Precedent: Registration does not confer

the right to vote but it is a condition precedent to the
exercise of the right [Yra v. Abano, G.R. No. L-30187
(1928)].
Biometrics validation requirement is not an

unconstitutional substantive requirement: Even
if failure to comply with the biometrics validation
requirement will result in the deactivation of the
voter’s registration [under R.A. No. 10367 or the
Biometrics Law of 2013], it is not unconstitutional.
The requirement is a “mere aspect of the registration
procedure, of which the State has the right to
reasonably regulate” [Kabataan Partylist v.
COMELEC, G.R. No. 221318 (2015)].
“Proceeding from the significance of registration as a

necessary requisite to the right to vote, the State
undoubtedly, in the exercise of its inherent police
power, may then enact laws to safeguard and regulate
the act of voter's registration for the ultimate purpose
of conducting honest, orderly and peaceful election“
[Akbayan-Youth v. COMELEC, G.R. No. 147066
(2001)].
Page 261 of 382

ELECTION REGISTRATION BOARDS

System of Continuing There shall be in each city and municipality as many
Election Registration Boards (“ERB”) as there are
Registration of Voters election officers therein [Sec. 15, R.A. 8189].
Period of Registration Composition: The ERB shall be composed of three

Generally, daily: The personal filing of application of members:
registration of voters shall be conducted daily in the a. Chairman: Election Officer. If disqualified,
office of the Election Officer during regular office COMELEC shall designate an acting Election
hours. Officer.
b. Members:
Exception [i.e. when registration is prohibited]: No 1. Public school official most senior in rank;
registration shall be conducted within and
a. 120 days before a regular election 2. Local civil registrar, or in his absence, the
b. 90 days before a special election [Sec. 8, R.A. city or municipal treasurer. If neither are
8189] available, any other appointive civil service
official from the same locality as designated
COMELEC Resolution 8585, which set the deadline by the COMELEC.
for voter registration to Oct. 31, 2009 (election was
May 10, 2010, or more than 120 days), was declared Disqualifications: Relation to each other or to any
null and void because Sec. 8 of RA 8189 has incumbent city or municipal elective official within
determined that the period of 120 days before a the 4th civil degree of consanguinity or affinity [Sec.
regular election and 90 days before a special election 15, R.A. 8189].
is enough time for the COMELEC to make all the
necessary preparations with respect to the coming Change of residence or address
elections. COMELEC is granted the power to fix a. Change of residence to another city or
other periods and dates for pre-election activities municipality: The registered voter may apply
only if the same cannot be reasonably held within the with the Election Officer of his new residence
period provided by law. There is no ground to hold for the transfer of his registration records [Sec.
that the mandate of continuing voter registration 12, R.A. 8189].
cannot be reasonably held within the period provided b. Change of address in the same municipality or
by Sec. 8 of R.A. 8189 [Palatino v. COMELEC, G.R. city: Voter shall immediately notify the Election
No. 189868 (2009)]. Officer in writing [Sec. 13, R.A. 8189].
Manner of registration for illiterate or disabled Challenges to right to register [Sec. 18, R.A. No.
voters 8189]
1. For illiterate persons: May register with the Any
assistance of the Election Officer or any member 1. voter;
of an accredited citizen’s arms. By 2. candidate; or
2. or physically disabled persons: Application for 3. representative of a registered
registration may be prepared by: political party
a. Any relative within the 4th civil degree of 1. In writing, stating the ground
consanguinity or affinity; therefor
b. By the Election Officer; or 2. Under oath; and
c. Any member of an accredited citizen’s arm Form 3. Attached to the application,
[Sec. 14, R.A. 8189] together with proof of notice of
hearing to the challenger and the
N.B. Definition of disabled voter under the AES: A applicant
person with impaired capacity to use the Automated Must be filed not later than the 2nd
Election System (“AES”) [Sec. 2(11), R.A. 9369]. Monday of the month in which the
When
same is scheduled to be heard or
filed
processed by the ERB.
Page 262 of 382

Should 2nd Monday fall on a non- Ground for Specific Mode of

working holiday, filing may be made Deactivation Reactivation
on the next following working day and political rights in
[Sec. 18, R.A. 8189] accordance with law)
Hearing 3rd Monday of the month Insane or incompetent General mode of
Decision Before the end of the month persons as declared by reactivation
competent authority
Remedy in Case of Did not vote in the 2
successive preceding
Approval/Disapproval of regular elections
[excluding: SK
Application for Registration elections]
Registration has been
Aggrieved party may file a petition for exclusion or
ordered excluded by
inclusion, infra, as the case may be, with the MTC.
the Court
Loss of Filipino
Deactivation of Registration citizenship
Deactivation: Process of deactivating the REACTIVATION OF REGISTRATION

registration of certain persons, removing their
registration records from the corresponding precinct Ground: The grounds for the deactivation no longer
book of voters and placing the same in the inactive exist.
file, properly marked “deactivated” and dated in Procedure: Any voter whose registration has been
indelible ink. deactivated may file with the Election Officer a
sworn application for reactivation of his registration
Causes of Deactivation [Sec. 27, R.A. 8189] in the form of an affidavit stating the ground, supra.
The board shall remove the registration records of
the following persons from the corresponding Filing is any time not later than 120 days before a
precinct book of voters and place the same in the regular election and 90 days before a special election.
inactive file:
The Election Officer shall submit said application to
Ground for Specific Mode of the ERB and if approved, the Election Officer shall
Deactivation Reactivation retrieve the registration record from the inactive file
Sentenced by final 1. Plenary pardon or and include the same in the corresponding precinct
judgment to suffer an amnesty; or book of voters.
imprisonment for not 2. Automatically,
less than 1 year (unless upon the expiration Local heads or representatives of political parties
granted a plenary of 5 years after the shall be properly notified on approved applications
pardon or an amnesty) service of sentence [Sec. 28, R.A. 8189].
as certified by clerks
of courts Certified List of Voters
Adjudged by final Automatically, upon
judgment for having expiration of 5 years List of Voters: Refers to an enumeration of names
committed any crime after the service of of registered voters in a precinct duly certified by the
involving disloyalty to sentence Election Registration Board for use in the election.
the duly constituted
government (e.g. Preparation: The ERB shall prepare and post a
rebellion, sedition, certified list of voters 90 days before a regular election
violation of the and 60 days before a special election [Sec. 30, R.A.
firearms law) or any 8189].
crime against national
security (unless Posting: Copies of the certified list along with a
restored to full civil certified list of deactivated voters categorized by
Page 263 of 382

precinct per barangay, within the same period shall be day of elections [Sec. 3 (f), R.A. 9189, as amended by
posted in the office of the Election Officer and in the Sec. 2, R.A. 10590].
bulletin board of each city/municipal hall. Upon
payment of the fees as fixed by the Commission, the Covered Elections: Elections for president, vice-
candidates and heads shall also be furnished copies president, senators and party-list representatives, as
thereof [Sec. 30, RA 8189]. well as in all national referenda and plebiscites [Sec. 4
, R.A. 9189, as amended by R.A. 10590]
Grounds when List of Voters will be Altered
a. Deactivation/Reactivation Personal registration required: Registration as an
b. Exclusion/Inclusion overseas absentee voter shall be done in person at any
c. Cancellation of Registration in case of death post abroad or at designated registration centers
d. New voters outside the post or in the Philippines approved by the
e. Annulment of Book of Voters Commission [Sec.5, R.A. 9189, as amended by R.A.
f. Transfer of Residence 10590].
Transfer to another precinct: The precinct National Registry of Overseas Voters: The
assignment of a voter in the permanent list of voters consolidated list prepared, approved and maintained
shall not be changed/altered/transferred to another by the COMELEC, of overseas voters whose
precinct without the express written consent of the applications for registration as absentee voters,
voter. Provided, however, that the voter shall not including those registered voters under R.A. 8189
unreasonably withhold such consent. Any violation who have applied to be certified as absentee voters,
thereof shall constitute an election offense [Sec. 4, have been approved by the Election Registered
R.A. 8189]. Board, indicating the post where the overseas voter is
registered [Sec. 3 (e), R.A. 9189, as amended by R.A.
Annulment of Book of Voters 10590].
The COMELEC shall, upon verified petition of any a. The Commission shall maintain a National
voter or election officer or duly registered political Registry of Overseas Voters (NROV) containing
party, and after notice and hearing, annul any book of the names of registered overseas voters and the
voters that is: posts where they are registered.
a. Not prepared in accordance with R.A. 8189 or b. The Commission shall maintain a registry of
the Voters’ Registration Act of 1996 voters (ROV) per municipality, city or district
b. Prepared through fraud, bribery, forgery, containing the names of registered overseas
impersonation, intimidation, force, or any similar voters domiciled therein. The Commission shall
irregularity; or provide each and every municipality, city or
c. Contains data that are statistically improbable district with a copy of their respective ROVS for
their reference [Sec. 9, R.A. 9189, as amended by
No order, ruling or decision annulling a book of R.A. 10590; this is now renumbered as Sec. 13].
voters shall be executed within 90 days before an
election [Sec. 39, R.A. 8189].
Special Rules for Overseas

Absentee Voters
Overseas Voting: Process by which qualified
citizens of the Philippines abroad exercise their right
to vote [Sec. 3a, R.A. 9189, The Overseas Absentee
Voting Act, as amended by R.A. 10590, The Overseas
Voting Act of 2013].
Overseas Voter: Citizen of the Philippines who is

qualified to register and vote under this Act, not
otherwise disqualified by law, who is abroad on the
Page 264 of 382

D. Inclusion and Petition for Inclusion Petition for Exclusion

Who may file
Exclusion Proceedings
1. One whose Any
application for 1. registered voter;
Jurisdiction in Inclusion and registration has been 2. representative of a
Exclusion Case disapproved by the political party; or
BEI or 3. the Election Officer
Original and Exclusive Jurisdiction: The 2. One whose name
Municipal and Metropolitan Trial Courts shall have has been stricken out
original and exclusive jurisdiction over all cases of from the list
inclusion and exclusion of voters in their respective Period to decide
cities or municipalities. [Sec. 33, R.A. 8189] Within 15 days Within 10 days
after its filing from its filing
The nature of the MTC’s jurisdiction is limited. The
jurisdiction of the MTC “over exclusion cases is
limited only to determining the right of the voter to Special Rules on Overseas
(a) remain in the list of voters or (b) to declare that
the challenged voter is not qualified to vote in the
Absentee Voters
precinct in which he is registered, specifying the
ground of the voters disqualification.” Hence, the Petition for Inclusion Petition for Exclusion
trial court has no power to order the change or [Sec 9.3, RA 9189, as [Sec. 9.1, RA 9189, as
transfer of registration from one place of residence to inserted by R.A. 10590] inserted by R.A. 10590]
another for it is the function of the ERB as provided When to file
under Section 12 of R.A. No. 8189 [Domino v.
COMELEC, G.R. No. 134015 (1999)]. Within ten (10) days Not later than one
from receipt of notice hundred eighty (180)
Appellate Jurisdiction: Decisions of the MTC or denying the MR, with the days before the start of
MeTC may be appealed by the aggrieved party to the proper MTC in the City the overseas voting
RTC within 5 days from receipt of notice thereof. No of Manila or where the period with the proper
motion for reconsideration shall be entertained [Sec. overseas voter resides in MTC in the City of
33, R.A. 8189]. the Philippines, at the Manila or where the
petitioner’s option. overseas voter resides in
Generally, no res judicata: A decision in an exclusion the Philippines, at the
or inclusion proceeding, even if final and Note: If the application petitioner option.
unappealable, does not acquire the nature of res has been disapproved,
judicata [Domino v. COMELEC, supra]. the applicant or his
authorized representative
Exception: The decision is res judicata as to the right may file a Motion for
to remain in the list of voters or for being excluded Reconsideration (MR)
therefrom for the particular election in relation to before the Resident
which the proceedings had been held [Id.]. Election Registration
Board (RERB) within a
period of five (5) days
Process from receipt of the notice
of disapproval.
Petition for Inclusion Petition for Exclusion Who may file
When to file Applicant Any interested person
Any time except 105 days Any time except 100 days Period to decide
before a regular election before a regular election
or 75 days before a or 65 days before a Within 15 days after its Within 15 days after its
special election special election filing, but not later than filing, but not later than
120 days before the start 120 days before the start
Page 265 of 382

Petition for Inclusion Petition for Exclusion

[Sec 9.3, RA 9189, as [Sec. 9.1, RA 9189, as
E. Political Parties
inserted by R.A. 10590] inserted by R.A. 10590]
of the overseas voting of the overseas voting
Legal Basis and Purpose
period. period.
Sec. 6, Art. IX-C, Constitution. A free and open
party system shall be allowed to evolve according
to the free choice of the people.
Sec. 7, Art. IX-C, Constitution. No votes cast in

favor of a political party, organization, coalition
shall be valid, except for those registered under the
party-list system.
Purpose: To enable Filipino citizens belonging to

marginalized and underrepresented sectors,
organizations and parties, and who lack well-defined
political constituencies but who could contribute to
the formulation and enactment of appropriate
legislation that will benefit the nation as a whole, to
become members of the House of Representatives
[Sec. 2, R.A. 7941].
Definitions
a. In general
Political party: "Political party" or "party", when
used in this Act, means an organized group of
persons pursuing the same ideology, political ideas or
platforms of government and includes its branches
and divisions [Sec. 60, B.P. Blg. 881].
b. Under the Party-List System

[Sec. 3, R.A. 7941, Party-List
System Act]
Party: Either a political party or a sectoral party or a
coalition of parties.
Party-list system: Mechanism of proportional

representation in the election of representatives to
the House of Representatives from national, regional
and sectoral parties or organizations or coalitions
registered with the COMELEC.
Political party: An organized group of citizens

advocating an ideology or platform, principles and
policies for the general conduct of government and
which, as the most immediate means of securing their
adoption, regularly nominates certain of its leaders
and members as candidates for public office.
Page 266 of 382

[T]he COMELEC’s power to register political parties

3 KINDS OF PARTIES necessarily involved the determination of the persons
1. National party: Constituency is spread over the who must act on its behalf. Thus, the COMELEC
geographical territory of at least a majority of the may resolve an intra-party leadership dispute, in a
regions. proper case brought before it, as an incident of its
2. Regional party: Constituency is spread over the power to register political parties” [Atienza v.
geographical territory of at least a majority of the COMELEC, G.R. No. 188920 (2010)].
cities and provinces comprising the region.
3. Sectoral party: Organized group of citizens
belonging to any of the following sectors
Registration
including labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, elderly, a. Purposes of Registration
handicapped, women, youth, veterans, overseas
workers and professionals whose principal 1. To acquire juridical personality;
advocacy pertains to the special interests and 2. To qualify for subsequent accreditation;
concerns of their sector. 3. To entitle it to rights and privileges granted to
political parties [Sec. 61, B.P. Blg. 881]; and
The enumeration of marginalized and under- 4. To participate in the party-list system [Sec. 5,
represented sectors is not exclusive. The crucial R.A. 7941].
element is not whether a sector is specifically
enumerated, but whether a particular organization b. Registration under the Party-List
complies with the requirements of the Constitution
and RA 7941 [Ang Ladlad LGBT Party v. COMELEC,
system
G.R. No. 190582 (2010)].
Any organized group of persons may register as a
party, organization or coalition for purposes of the
Sectoral organization: Group of citizens or a
party-list system.
coalition of groups of citizens who share similar
physical attributes or characteristics, employment,
interests or concerns. File with the COMELEC not later than 90 days
before the election a petition verified by its
Coalition: An aggrupation of duly registered president or secretary stating its desire to
national, regional, sectoral parties or organizations participate in the party-list system as a national,
for political and/or election purposes. regional or sectoral party or organization or a
coalition of such parties or organizations attaching
thereto its constitution, by-laws, platform or
Jurisdiction of the program of government, list of officers, coalition
COMELEC Over Political agreement and other relevant information as the
COMELEC may require.
Parties 
COMELEC shall publish the petition in at least 3
a. Registration of Political Parties: national newspapers of general circulation

1. For political parties, in general, see Sec. 60, B.P. COMELEC shall, after due notice and hearing,
Blg. 881 resolve the petition within 15 days from the date it
2. For party-lists, see R.A. 7941, Party-List System was submitted for decision, but in no case later
Act, secs. 5-7, infra. than 60 days before elections
[Sec. 5, R.A. 7941]
b. Resolution of Intra-Party
Disputes c. Groups which Cannot be
Registered as Political Parties
“[T]he COMELEC’s powers and functions under
Section 2, Article IX-C of the Constitution, "include 1. Religious denominations and sects;
the ascertainment of the identity of the political party 2. Those which seek to achieve their goals through
and its legitimate officers responsible for its acts." violence or unlawful means;
Page 267 of 382

3. Those which refuse to uphold and adhere to the thereof to all precincts for posting in the polling
Constitution; or places on election day. The names of the party-list
4. Those supported by foreign governments [Art. nominees shall not be shown on the certified list.
IX-C, Sec. 2 (5), Constitution].
The portion of Section 7 stating that the “names of
d. Grounds for the party-list nominees shall not be shown on the
Refusal/Cancellation of certified list” is not in itself unconstitutional, but it
cannot be used by the COMELEC to justify its
Registration refusal to disclose the nominees upon proper request.
COMELEC has a constitutional duty to disclose and
The COMELEC may, motu proprio or upon verified release the names of the nominees (when requested)
complaint of any interested party, refuse or cancel, in light of the right to information and the
after due notice and hearing, the registration of any constitutional policy of full disclosure and
national, regional or sectoral party, organization or transparency in government [Bantay Republic Act 7941
coalition on any of the following grounds: v. COMELEC, G.R. No. 177271 (2007)].
1. Religious sect or denomination, organization or
association, organized for religious purposes;
2. Advocates violence or unlawful means to seek its
e. Nomination of Party-List
goal; Representatives
3. Foreign party or organization;
4. Receives support from any foreign government, Each registered party, organization or coalition shall
foreign political party, foundation, organization, submit to the COMELEC not later than 45 days
whether directly or through any of its officers or before the election a list of names, not less than 5,
members or indirectly through third parties for from which party-list representatives shall be chosen
partisan election purposes; in case it obtains the
5. Violates or fails to comply with laws, rules or required number of votes.
regulations relating to elections;
6. Declares untruthful statements in its petition; A person may be nominated:
7. Ceased to exist for at least 1 year; 1. In 1 list only;
8. Fails to participate in the last 2 preceding 2. If he/she has given his/her consent in writing;
elections; or 3. Is not a candidate for any [other] elective office;
9. Fails to obtain at least 2% of the votes cast under 4. Has not lost his bid for an elective office in the
the party-list system in the 2 preceding elections immediately preceding election.
for the constituency in which it has registered.
[Sec. 6, R.A. 7941] No change of names or alteration shall be allowed
after the same shall have been submitted to the
“[T]he disqualification for failure to garner 2% party- COMELEC except when:
list votes in two preceding elections should now be 1. the nominee dies;
understood, in light of the Banat ruling, to mean 2. the nominee withdraws his nomination;
failure to qualify for a party-list seat in two preceding 3. the nominee becomes incapacitated.
elections for the constituency in which it has
registered[,]” and not failure to garner 2% per se [Phil. A COMELEC resolution adding to the above
Guardians Brotherhood v. COMELEC, G.R. No. grounds the withdrawal of the nomination by the
190529 (2010)]. political party is invalid for being ultra vires.
Moreover, there is a clear legislative intent to deprive
Certified List of Registered Parties the party-list organization of the right to change its
nominee (once submitted to the COMELEC), for the
Sec. 7, R.A. 7941. Certified List of Registered “allowing the party-list organization to change its
Parties. - The COMELEC shall, not later than nominees through withdrawal of their nominations,
sixty (60) days before election, prepare a certified or to alter the order of the nominations after the
list of national, regional, or sectoral parties, submission of the list of nominees circumvents the
organizations or coalitions which have applied or voters’ demand for transparency” [Lokin v.
who have manifested their desire to participate COMELEC, G.R. No. 179431 (2010)].
under the party-list system and distribute copies
Page 268 of 382

f. Parameters in Allocation of Seats a. Allocating one (1) seat for every whole
integer (e.g. if a party garners 2.73% of the
for Party-List Representatives vote, assign it two [2] more seats; if 1.80%,
assign it one [1] more seat); then
Four parameters of the party-list system [Banat v. b. Allocating the remaining seats (i.e. total seats
COMELEC, G.R. No. 179271 (2009)]: minus Round 1 and Round 2a allocations) to
1. 20% Allocation: 20% of the total number of the those next in rank until all seats are
membership of the House of Representatives is completely distributed.
the maximum number of seats available to party-
list organizations. Step 6: Apply the 3-Seat Cap, if necessary.
2. 2% Threshold: Garnering 2% of the total votes
cast in the party-list elections guarantees a party-
list organization one (1) seat. g. Guidelines as to Who May
3. Additional Seats: The additional seats, that is, Participate in the Party-List
the remaining seats after allocation of the Elections
guaranteed seats, shall be distributed to the
party-list organizations including those that 1. Three different groups may participate in the
received less than two percent of the total votes. party-list system: (1) national parties or
organizations, (2) regional parties or
N.B. The continued operation of the 2% organizations, and (3) sectoral parties or
threshold to the allocation of the additional seats organizations.
is unconstitutional because this threshold 2. National parties or organizations and regional
mathematically and physically prevents the filling parties or organizations do not need to organize
up of the available party-list seats. along sectoral lines and do not need to represent
any “marginalized and underrepresented” sector.
4. 3-Seat Cap: The three-seat cap is constitutional. 3. Political parties can participate in party-list
elections provided they register under the party-
N.B. It is intended by the Legislature to prevent list system and do not field candidates in
any party from dominating the party-list system. legislative district elections. A political party,
There is no violation of the Constitution because whether major or not, that fields candidates in
the 1987 Constitution does not require absolute legislative district elections can participate in
proportionality for the party-list system. party-list elections only through its sectoral wing
that can separately register under the party-list
Rules on Computation of Seats: Two-Round system. The sectoral wing is by itself an
Allocation independent sectoral party, and is linked to a
political party through a coalition.
Step 1: Compute total number of seats allocated for 4. Sectoral parties or organizations may either be
party-list representatives “marginalized and underrepresented” or lacking
in “well-defined political constituencies.” It is
Step 2: Rank all party-list candidates from highest to enough that their principal advocacy pertains to
lowest based on the number of votes they garnered the special interest and concerns of their sector.
The sectors that are “marginalized and
Step 3: Compute for each party-list candidate’s underrepresented” include labor, peasant,
percentage of votes garnered in relation to the total fisherfolk, urban poor, indigenous cultural
number of votes cast for party-list candidates. communities, handicapped, veterans, and
overseas workers. The sectors that lack “well-
Step 4: Round 1 – Allocate one (1) seat each for party- defined political constituencies” include
list that garnered at least 2% of the total number of professionals, the elderly, women, and the youth.
votes. 5. A majority of the members of sectoral parties or
organizations that represent the “marginalized
Step 5: Round 2 – Assign additional seats from the and underrepresented” must belong to the
balance (i.e. total number of party-list seats minus “marginalized and underrepresented” sector
Round 1 allocations) by: they represent. Similarly, a majority of the
members of sectoral parties or organizations that
Page 269 of 382

lack “well-defined political constituencies” must

belong to the sector they represent. The
F. Candidacy
nominees of sectoral parties or organizations
that represent the “marginalized and Qualifications of Candidates
underrepresented,” or that represent those who
lack “well-defined political constituencies,” Candidate: Any person who files his certificate of
either must belong to their respective sectors, or candidacy within prescribed period shall only be
must have a track record of advocacy for their considered as a candidate at the start of the campaign
respective sectors. The nominees of national and period for which he filed his certificate of candidacy
regional parties or organizations must be bona-fide [Sec. 15, R.A. 9369].
members of such parties or organizations.
6. National, regional, and sectoral parties or This includes any registered national, regional, or
organizations shall not be disqualified if some of sectoral party, organization or coalition thereof that
their nominees are disqualified, provided that has filed a manifestation to participate under the
they have at least one nominee who remains party-list system which has not withdrawn or which
qualified [Atong Paglaum v. COMELEC, G.R. No. has not been disqualified before the start of the
203766 (2013)]. campaign period [COMELEC Res. 8758, Feb. 4,
2010].
h. Effect of Unimplemented Term-
Sharing Agreement a. Qualifications
The fact that the nominees of a party to the party-list Qualifications prescribed by law are continuing
elections entered in a term-sharing agreement is not requirements and must be possessed for the duration
a sufficient ground for the cancellation of the party’s of the officer's active tenure [Frivaldo v. COMELEC,
registration and accreditation if such agreement was supra; Labo v. COMELEC, supra].
not implemented [Senior Citizens’ Party-List v.
COMELEC, G.R. No. 206844-45 (2013)]. See: Qualifications under Law on Public Officers
above.
i. Effect of Change of Affiliation
b. Disqualifications
Any elected party-list representative who changes his
political party or sectoral affiliation: Under Section 68 of the Omnibus Election Code:
1. During his term of office shall forfeit his seat; or 1. Is a permanent resident of or an immigrant to a
2. Within 6 months before an election shall not be foreign country [unless he has waived such status
eligible for nomination as party-list in accordance with the residency requirement for
representative under his new party or the concerned position];
organization [Sec. 15, R.A. 7941] 2. Given money or other material consideration to
influence, induce or corrupt voters or public
“Section 15 covers changes in both political party and officials performing electoral functions;
sectoral affiliation. And the latter may occur within 3. Committed acts of terrorism to enhance his
the same party since multi-sectoral party-list candidacy;
organizations are qualified to participate in the 4. Spent in his election campaign an amount in
Philippine party-list system. Hence, a nominee who excess of that allowed;
changes his sectoral affiliation within the same party 5. Solicited, received or made prohibited
will only be eligible for nomination under the new contributions;
sectoral affiliation if the change has been effected at 6. Violated provisions of the Omnibus Election
least six months before the elections” [Amores v. Code, specifically:
HRET, G.R. No. 189600 (2010)]. a. Engaged in election campaign or partisan
political activity outside the campaign period
and not pursuant to a political party
nomination [Sec. 80];
b. Removed, destroyed, defaced lawful
election propaganda [Sec. 83];
Page 270 of 382

c. Engaged in prohibited forms of election b. Any offense for which he has been
propaganda [Sec. 85]; sentenced to a penalty of more than 18
d. Violated election rules and regulations on months imprisonment; or
election propaganda through mass media c. A crime involving moral turpitude [Sec. 12].
[Sec. 86];
e. Coerced, intimidated, compelled, or N.B. As to disqualifications under Sec. 12:
influenced any of his subordinates, • These will not apply if the person has been given
members, or employees to aid, campaign or plenary pardon or amnesty.
vote for or against any candidate or aspirant • These are deemed removed upon declaration by
for the nomination or selection of competent authority that the
candidates [Sec. 261.d] – expressly repealed insanity/incompetence has been removed, or
by R.A. No. 7890. The effect of this repeal after the expiration of a period of five years from
is to remove Section 261(d) from among service of sentence.
those listed as ground for disqualification
under Section 68 of the Omnibus Election In Magno v. COMELEC [G.R. No. 147904 (2002)], it
Code [see Javier v. COMELEC, G.R. No. was held that there appears to be an irreconcilable
215847 (2016)]; conflict between the five-year disqualification period
f. Threatened, intimidated, caused, inflicted or under Sec. 12, OEC and the two-year disqualification
produced any violence, injury, punishment, period under Sec. 40 of the Local Government Code
damage, loss or disadvantage upon any (infra). Court held that Sec. 40 of the LGC is deemed
person or of the immediate members of his to have repealed Sec. 12 of the OEC, the former
family, his honor or property, or used fraud being the later legislative enactment. Furthermore,
to compel, induce or prevent the registration Sec. 40 of the LGC partakes of a special law
of any voter, or the participation in any applicable to candidates for local elective positions as
campaign, or the casting of any vote, or any opposed to Sec. 12 of the OEC which applies to
promise of such registration, campaign, candidates for any public office. Thus, the former
vote, or omission therefrom [Sec. 261.e]; must prevail over the latter.
g. Unlawful electioneering [Sec. 261.k];
h. Violated the prohibition against release, Under Section 40 of the Local Government Code
disbursement or expenditure of public funds
45 days before a regular election or 30 days 1. Sentenced by final judgment for an offense
before a special election [Sec. 261.v]; (a) involving moral turpitude or (b)
i. Solicited votes or undertook propaganda on punishable by at least 1-year imprisonment.
election day for or against any candidate or
any political party within the polling place or The disqualification lasts for two years after
within a 30m radius [Sec. 261.cc.6]; and service of sentence.
j. Conviction for robbery by final judgment
with the penalty of prision mayor, to which The provision “within 2 years after serving
perpetual special disqualification attaches by sentence” applies both to (1) those who have
operation of law, is not a ground for a been sentenced by final judgment for an offense
petition under Section 68 because robbery is involving moral turpitude and (2) those who
not one of the offenses enumerated in have been sentenced by final judgment for an
Section 68. Insofar as crimes are concerned, offense punishable by one year or more of
Section 68 refers only to election offenses imprisonment
under the Omnibus Election Code and not
to crimes under the Revised Penal Code Those who have not served their sentence by
[Jalosjos, Jr. v. COMELEC, G.R. No. 193237 reason of the grant of probation should not be
(2012)]. disqualified from running for a local elective
office because the 2-year period of ineligibility
Under Section 12 of the Omnibus Election Code does not even begin to run [Moreno v.
1. Insane or incompetent COMELEC, G.R. No. 168550 (2006)].
2. Sentenced by final judgment for:
a. Subversion, insurrection, rebellion;
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2. Removed from office as a result of an Hence, based on jurisprudence, the mere filing
administrative case. of certificate of candidacy is a sufficient form of
renunciation for dual citizens but not for those
This disqualification does not retroactively apply who reacquired/retained Filipino citizenship
to those who were removed from office as a under R.A. 9225.
result of an administrative case before the
effectivity of the LGC [Grego v. COMELEC, While the act of using a foreign passport is not
G.R. No. 125955 (1997)]. one of the acts constituting renunciation and loss
of Philippine citizenship, it is nevertheless an act
3. Convicted by final judgment for violating the which repudiates the very oath of renunciation
oath of allegiance to the Republic of the required for a former Filipino citizen who is also
Philippines. a citizen of another country to be qualified to run
for a local elective position [Maquiling v.
4. Dual citizenship. COMELEC, G.R. 195649 (2013)].
Dual citizenship as a disqualification must refer Compare Maquiling with Poe-Llamanzares v.

to citizens with dual allegiance. For candidates COMELEC: There, the use of the foreign
with mere dual citizenship, the filing of passport by the presidential candidate occurred
certificate of candidacy is considered as an before she formally renounced her foreign
election of Filipino citizenship and renunciation citizenship; hence, the use was not taken against
of foreign citizenship [Mercado v. Manzano, supra]. her.
For a natural born Filipino, who reacquired or 5. Fugitive from justice in criminal and non-
retained his Philippine citizenship under RA political cases here and abroad.
9225, to run for public office, he must: (1) meet
the qualifications for holding such public office “Fugitive from justice” includes (a) those who
as required by the Constitution and existing laws; flee after conviction to avoid punishment and (b)
and (2) make a personal and sworn renunciation those who, after being charged, flee to avoid
of any and all foreign citizenships before any prosecution. This presupposes knowledge by the
public officer authorized to administer oath fleeing subject of either an already instituted
[Japzon v. COMELEC, G.R. No. 180088 (2009)]. indictment or of a promulgated judgment of
conviction [Rodriquez v. COMELEC, G.R. No.
With respect to a person with dual allegiance, 120099 (1996)].
candidate’s oath of allegiance to the Republic of
the Philippines and his Certificate of Candidacy 6. Insane or feeble-minded.
do not substantially comply with the requirement
of a personal and sworn renunciation of foreign Filing of Certificates of
citizenship. Section 5(2) of R.A. No.
9225 compels natural-born Filipinos, who have Candidacy
been naturalized as citizens of a foreign country,
but who reacquired or retained their Philippine Sec. 73, B.P. Blg. 881. No person shall be eligible
citizenship (1) to take the oath of allegiance for any elective public office unless he files a
under Section 3 of Republic Act No. 9225, sworn certificate of candidacy within the period
and (2) for those seeking elective public fixed herein.
offices in the Philippines, to additionally
execute a personal and sworn By who: The certificate of candidacy shall be filed by
renunciation of any and all foreign citizenship the candidate (a) personally or (b) by his duly
before an authorized public officer prior or authorized representative.
simultaneous to the filing of their certificates of
candidacy, to qualify as candidates in Philippine When: Any day from the commencement of the
elections. [Jacot v. Dal, G.R. No. 179848 (2008); election period but not later than the day before the
De Guzman v. COMELEC, G.R. No. 129118 beginning of the campaign period.
(2009)].
Page 272 of 382

In cases of postponement or failure of election, no b. Substitution of Candidates

additional certificate of candidacy shall be accepted
except in cases of substitution of candidates [Sec. 75, Grounds: If after the last day for filing of the
B.P. Blg. 881]. certificates of candidacy, an official candidate of a
registered political party (a) dies, (b) withdraws or (c)
Effect of filing of 2 certificates of candidacy is disqualified for any cause, he may be substituted by
a. No person shall be eligible for more than one a candidate belonging to and nominated by the same
office to be filled in the same election. political party.
b. If he files a certificate of candidacy for more than
one office he shall not be eligible for either. When allowed: No substitute shall be allowed for
any independent candidate [Recabo, Jr. v. COMELEC,
Exception: Before the expiration of the period for the G.R. No. 134293 (1999)]
filing of certificates of candidacy, the person who has
filed more than one certificate of candidacy, may: Deadline: The substitute must file his certificate of
a. declare under oath the office for which he desires candidacy not later than mid-day of the election day.
to be eligible and If the death, withdrawal or disqualification should
b. cancel the certificate of candidacy for the other happen between the day before the election and mid-
office/s [Sec. 73, B.P. Blg. 881] day of the election day, certificate may be filed with:
1. any Board of Election Inspectors in the political
a. Automatic Resignation subdivision where he is a candidate or
2. with the COMELEC if it is a national position
Any person holding a public appointive office or [Sec. 77, B.P. Blg. 881]
position including active members of the AFP, and
other officers and employees in GOCCs, shall be N.B. For there to be a valid substitution of a
considered ipso facto resigned from his office upon the candidate, the latter must have filed a valid certificate
filing of his certificate of candidacy [Sec. 66(1), B.P. of candidacy.
Blg. 881].
A person who is disqualified under Sec. 68 OEC is
Applies to employees of GOCCs without an original only prohibited from continuing as a candidate but
charter [PNOC Energy Devt. Corp. v. NLRC, G.R. No. his CoC remains valid. He may therefore be
79182 (1993)]. substituted.
Any person holding an elective office or position On the other hand, a person whose CoC is cancelled
shall not be considered resigned upon the filing of his or denied due course under Sec. 78 for false material
certificate of candidacy for the same or any other representation is considered to have a CoC that is
elective office or position [Sec. 4, Comelec void ab initio. Thus, he cannot be validly substituted
Resolution No. 8678, Guidelines on the Filing of [Talaga v. COMELEC, G.R. No. 196804 (2012)].
Certificates of Candidacy and Nomination of Official
Candidates of Registered Political Parties in c. Ministerial Duty of COMELEC
Connection with the May 10, 2010 National and
Local Elections]. to Receive Certificates of
Candidacy
SC upheld the validity of the COMELEC Resolution
in Sec. 67, B.P. Blg. 881, which deemed elective Duty of COMELEC [Sec. 76, B.P. Blg. 881]
officials automatically resigned from office upon General Rule: The COMELEC shall have the
filing of their certificate of candidacy was repealed by ministerial duty to receive and acknowledge receipt
Sec. 14 R.A 9006, Fair Election Act. This means that of the certificates of candidacy provided said
such elective official is no longer deemed resigned certificates are: under oath and contain all the
when he files his CoC for any position. On the required data and in the form prescribed by the
allegation that the rule was violative of equal Commission.
protection, the Court found substantial distinctions
among appointive and elective officials [Quinto v. The COMELEC has no discretion to give or not to
COMELEC, G.R. No. 189698 (2010)]. give due course to a certificate of candidacy filed in
Page 273 of 382

due form [Abcede v. Imperial, G.R. No. L-13001 (a) The COMELEC, motu proprio;
Who
(1958)]. (b) Any interested party;
may
(c) Any registered candidate for the
initiate
While the COMELEC may look into patent defects same office [R.A. No. 6646]
in the certificate, it may not go into matters not Within 5 days from the last day for
appearing on their face When to
filing of certificates of candidacy.
file
[R.A. No. 6646]
Exception: COMELEC may go beyond the face of the
certificate of candidacy: Grounds: Certificate of candidacy has been filed:
1. Nuisance candidates 1. To put the election process in mockery or
2. Petition to deny due course to or cancel a disrepute or
certificate of candidacy [See Romualdez-Marcos v. 2. To cause confusion among the voters by the
COMELEC, supra] similarity of the names of the registered
candidates or
The Court also recently held that even without a 3. Clearly demonstrate that the candidate has no
petition to deny course to or cancel a certificate of bona fide intention to run for the office for
candidacy, the COMELEC is under a legal duty to which the certificate of candidacy has been filed
cancel the CoC of anyone suffering from the and thus prevent a faithful determination of the
accessory penalty of perpetual special disqualification true will of the electorate [Sec. 69, B.P. Blg. 881]
to run for public office by virtue of a final judgment
of conviction. The final judgment of conviction is COMELEC Resolution No. 9599, amending Sec. 5
notice to the COMELEC of the disqualification of of Rule 24 of the COMELEC Rules of Procedure, as
the convict from running for public office [Jalosjos v. amended by COMELEC Resolution No. 9523:
COMELEC , G.R. No. 193237 (2012)]. 1. If the person declared as a nuisance candidate
and whose certificate of candidacy has been
d. Nuisance Candidates cancelled or denied due course does not have the
same name and/ or surname as a bona fide
Petition to declare a duly registered candidate as candidate for the same office, the votes cast for
a nuisance candidate such nuisance candidate shall be deemed stray
pursuant to Section 9 of Rule 23.
Sec. 69, B.P Blg. 881. The Commission may motu 2. If the person declared as a nuisance candidate
proprio or upon a verified petition of an interested and whose certificate of candidacy has been
party, refuse to give due course to or cancel a cancelled or denied due course has the same
certificate of candidacy if it is shown that said name and/or surname as a bona fide candidate for
certificate has been filed to put the election the same office, the votes cast shall not be
process in mockery or disrepute or to cause considered stray but shall be counted and tallied
confusion among the voters by the similarity of for the bona fide candidate. However, if there are
the names of the registered candidates or by other two or more bona fide candidates with the same
circumstances or acts which clearly demonstrate name and/or surname as the nuisance candidate,
that the candidate has no bona fide intention to the votes cast for the nuisance candidate shall be
run for the office for which the certificate of considered as stray votes.
candidacy has been filed and thus prevent a
faithful determination of the true will of the The denial or cancellation of COCs of nuisance
electorate. candidates may be "motu proprio or upon a verified
petition of an interested party," "subject to an
opportunity to be heard." The opportunity to be
See R.A. No. 6646 (1988) (Electoral Reforms Law
heard is a chance "to explain one's side or an
of 1987), which has new provisions on nuisance
opportunity to seek a reconsideration of the action or
candidates. Sec. 5 provides for the procedure in cases
ruling complained of." In election cases, due process
of nuisance candidates. The repealing clause of R.A.
requirements are satisfied "when the parties are
No. 6646 is a general repealing clause and did not
afforded fair and reasonable opportunity to explain
repeal Sec. 69 of the Omnibus Election Code.
their side of the controversy at hand” [Timbol v.
COMELEC, G.R. No. 206004 (2015)].
Page 274 of 382

e. Petition to Deny or Cancel determination of qualification may be by statute, by

executive order or by a judgment of a competent
Certificates of Candidacy court or tribunal.
[Sec. 78, B.P. Blg. 881] If a candidate cannot be disqualified without a prior
finding that he or she is suffering from a
Who may disqualification "provided by law or the
Any person
initiate Constitution," neither can the certificate of candidacy
Any time not later than 25 days from be cancelled or denied due course on grounds of false
When to
the time of the filing of the certificate representations regarding his or her qualifications,
file
of candidacy without a prior authoritative finding that he or she is
Any material representation not qualified, such prior authority being the necessary
Exclusive
contained therein as required under measure by which the falsity of the representation can
grounds
Section 74 hereof is false. be found. The only exception that can be conceded
are self-evident facts of unquestioned or
unquestionable veracity and judicial confessions.
Elements of the ground: Such are, anyway, bases equivalent to prior decisions
1. Materiality: The false representation must against which the falsity of representation can be
pertain to a material fact (and not to a mere determined [Poe-Llamanzares v. COMELEC, G.R. No.
innocuous mistake) [Jalover v. Osmeña, G.R. No. 221697 (2016)].
209286 (2014)] that affects the right of the
candidate to run for the election for which he f. Effects of Disqualification
filed his COC. Such material fact refers to a
candidate’s eligibility or qualification for elective
N.B. Disqualification (under Sec. 68, among others)
office like citizenship, residence or status as a
does not void a certificate of candidacy (COC), i.e.
registered voter.
the candidate is merely prohibited from continuing as
2. Intent to Deceive: Aside from the requirement
a candidate. In contrast, Cancellation (under Sec. 78)
of materiality, the false representation must
results in the COC being void ab initio, i.e. the person
consist of a deliberate attempt to mislead,
was never a valid candidate.
misinform, or hide a fact that would otherwise
render a candidate ineligible. In other words, it
Rules if the Candidate is Disqualified
must be made with the intention to deceive the
electorate as to the would-be candidate’s
1. If the disqualification becomes final before
qualifications for public office [Salic Maruhom v.
election day: Any candidate who has been
COMELEC, G.R. No. 179430 (2009)].
declared by final judgment to be disqualifiedshall
not be voted for and the votes cast for him shall
Jurisdiction over a petition to cancel a certificate
not be counted.
of candidacy lies with the COMELEC in division
and not with the COMELEC en banc [Garvida v.
Hence, generally, if Candidate X has already been
Sales, G.R. No. 124893 (1997)].
disqualified before election day but still garnered
the highest number of votes, those votes are
The ineligibility of the candidate may be based
considered as stray votes. The candidate with
not only on the Omnibus Election Code, but
the next highest number of votes will be
also other provisions of law, e.g. perpetual
proclaimed [See Codilla v. De Venecia, G.R. No.
special disqualification under the Revised Penal
150605 (2002)].
Code [See Jalsosjos v. COMELEC, supra].
2. If the disqualification is not yet final on
The COMELEC cannot itself, in the same
election day: If a candidate is not declared by
cancellation case, decide the qualification or lack
final judgment before any election to be
thereof of the candidate.
disqualified and he is voted for and receives the
winning number of votes in such election, the
The facts of qualification must beforehand be
Court or COMELEC shall continue with the
established in a prior proceeding before an authority
trial and hearing of the action, inquiry, or protest
properly vested with jurisdiction. The prior
and upon motion of the complainant or any
Page 275 of 382

intervenor, may during the pendency thereof, Decisions of the Court holding that the second-
order the suspension of the proclamation of such placer cannot be proclaimed winner if the first-placer
candidate whenever the evidence of his guilt is is disqualified or declared ineligible should be limited
strong [Sec. 6, R.A. 6646]. to situations where the certificate of candidacy of the
first-placer was valid at the time of filing but
3. If the disqualification is adjudged and subsequently had to be cancelled because of a
becomes final after election day: Maquiling v. violation of law that took place, or a legal impediment
COMELEC (2013) abandoned the rule in Labo, that took effect, after the filing of the certificate of
Jr. v. COMELEC (supra) that when the voters are candidacy.
well aware within the realm of notoriety of a
candidate’s disqualification and still cast their If the certificate of candidacy is void ab initio, then
votes in favor said candidate, then the eligible legally the person who filed such void certificate of
candidate obtaining the next higher number of candidacy was never a candidate in the elections at
votes may be deemed elected. The Court held any time. All votes for such noncandidate are stray
that the rule is a mere obiter that further votes and should not be counted. Thus, such
complicated the rules affecting qualified noncandidate can never be a first-placer in the
candidates who placed second to ineligible ones. elections [Jalosjos, Jr. v. COMELEC, supra].
The electorate’s awareness of the candidate’s g. Withdrawal of Candidates

disqualification is not a prerequisite for the
disqualification to attach to the candidate. The A person who has filed a certificate of candidacy may,
very existence of a disqualifying circumstance prior to the election, withdraw the same by
makes the candidate ineligible. Knowledge by submitting to the office concerned a written
the electorate of a candidate’s disqualification is declaration under oath [Sec. 73, B.P. Blg. 881].
not necessary before a qualified candidate who
placed second to a disqualified one can be Effects of filing or withdrawal of a certificate of
proclaimed as the winner. The second-placer in candidacy
the vote count is actually the first placer among 1. Filing or withdrawal shall not affect whatever
the qualified candidates. civil, criminal or administrative liabilities which a
candidate may have incurred [Sec. 73, B.P. Blg.
That the disqualified candidate has already been 881].
proclaimed and has assumed office is of no 2. Substitution: If the candidate who withdraws is
moment. The subsequent disqualification based the official candidate of a registered or accredited
on a substantive ground that existed prior to the political party, “the same political party may file
filing of the certificate of candidacy voids not a certificate of candidacy to replace the
only the COC but also the proclamation. candidate.” The substitute must file his COC not
later than mid-day of election day [Sec. 77, B.P.
Note: The purpose of a disqualification proceeding is Blg. 881].
to prevent the candidate (a) from running or, if
elected, (b) from serving, or (c) to prosecute him for
violation of the election laws [Ejercito v. COMELEC,
G.R. No. 212398 (2014)].
Rule if the COC is Cancelled

A cancelled certificate of candidacy void ab initio
cannot give rise to a valid candidacy, and much less
to valid votes. Whether the CoC is cancelled before
or after the elections is immaterial because the
cancellation on such ground means he was never a
candidate from the very beginning, his certificate of
candidacy being void ab initio. [Aratea v. COMELEC,
G.R. No. 195229 (2012); Jalosjos, Jr. v. COMELEC,
supra].
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G.Campaign a. Prohibited Campaigning Days
Election campaign or partisan political activity: It is unlawful for any person to engage in an election
An act designed to promote the election or defeat of campaign or partisan political activity on:
a particular candidate or candidates to a public office 1. Maundy Thursday
[Sec. 79, B.P. Blg. 881]. 2. Good Friday
3. Eve of Election Day and
Campaign includes: 4. Election Day [Sec. 3, COMELEC Resolution
8758]
• Forming organizations or groups of persons;
• Holding political caucuses, meetings, rallies or In Penera v. COMELEC [G.R. No. 181613 (2009)], at
other similar assemblies; the time the supposed premature campaigning took
• Making speeches or commentaries; place, Penera was not officially a “candidate”
• Publishing or distributing campaign literature or although she already filed her certificate of candidacy.
materials for the purpose of soliciting votes Under Section 15 of R.A. 9369, a person who files his
and/or undertaking any campaign or certificate of candidacy is considered a candidate only
propaganda to support or oppose the election of at the start of the campaign period, and unlawful acts
any candidate. applicable to such candidate take effect only at the
start of such campaign period. Thus, a candidate is
Campaign does not include: liable for an election offense only for acts done
• Acts performed for the purpose of enhancing during the campaign period, not before. Before the
the chances of aspirants for nomination for start of the campaign period, such election offenses
candidacy to a public office by a political party, cannot be committed and any partisan political
aggroupment, or coalition of parties [e.g. activity is lawful.
primaries, conventions];
• Public expressions of opinions or discussions of b. Campaign Periods
probable issues in a forthcoming election or on
attributes or criticisms of probable candidates Sec. 5, R.A. 7166
proposed to be nominated in a forthcoming President, Vice-President, 90 days
political party convention [Sec. 79, B.P. Blg. 881]. Senators before the
(i.e. offices with national day of the
Persons Prohibited from campaigning: constituencies) election.
1. Members of the board of election inspections Members of the House of 45 days
[Sec. 173, B.P. Blg. 881] Representatives, Elective before the
2. Civil service officers or employees [Art. IX-B, Local Government Officials day of the
Sec. 2 (4), Const.] (except Barangay Officials) election
3. Members of the military [Art. XVI, Sec. 5 (3),
Const.]
4. Foreigners, whether juridical or natural persons. c. Equal Access to Media Time
[Sec. 81, B.P. Blg. 881] and Space
Premature Campaigning Print advertisements shall not exceed 1/4 page, in

broad sheet and 1/2 page in tabloids thrice a week
per newspaper, magazine or other publications.
General Rule: Any election campaign or partisan
political activity for or against any candidate outside
Bona fide candidates and registered political parties
of the campaign period is prohibited and shall be
running for nationally elective office are entitled to
considered as an election offense [Sec. 80, B.P. Blg.
not more than 120 mins of TV advertisement and 180
881].
mins of radio advertisement whether by purchase or
by donation.
Exception: Political parties may hold political
conventions to nominate their official candidates
Bona fide candidates and registered political parties
within 30 days before the start of the period for filing
running for locally elective office are entitled to not
a certificate of candidacy [Sec. 15, R.A. 9369].
more than 60 mins of TV advertisement and 90 mins
Page 277 of 382

of radio advertisement whether by purchase or by voters' preference for candidates or publicly

donation. discussed issues during the campaign period.
Broadcast stations or entities are required to submit N.B. Sec. 5.4 of RA 9006 providing that surveys
copies of their broadcast logs and certificates of affecting national candidates shall not be published
performance to the COMELEC for the review and 15 days before an election and surveys affecting local
verification of the frequency, date, time and duration candidates shall not be published 7 days before an
of advertisement broadcast for any candidate or election is unconstitutional because (1) it imposes a
political party. prior restraint on the freedom of expression, (2) it is
a direct and total suppression of a category of
All mass media entities are required to furnish the expression even though such suppression is only for
COMELEC with a copy of all contracts for a limited period, and (3) the governmental interest
advertising, promoting or opposing any political sought to be promoted can be achieved by means
party or the candidacy of any person for public office other than the suppression of the freedom of
within 5 days after its signing. expression [Social Weather Stations, Inc. v. COMELEC,
G.R. No. 147571 (2001)].
No franchise or permit to operate a radio or TV
station shall be granted or issued, suspended or Exit polls may only be taken subject to the following
cancelled during the election period. requirements:
1. Pollsters shall not conduct their surveys within
Any mass media columnist, commentator, 50m from the polling place, whether said survey
announcer, reporter, on-air correspondent or is taken in a home, dwelling place and other
personality who is a candidate for any elective public places
office or is a campaign volunteer for or employed or 2. Pollsters shall wear distinctive clothing
retained in any capacity by any candidate or political 3. Pollsters shall inform the voters that they may
party shall: refuse to answer; and
1. Be deemed resigned, if so required by their 4. The result of the exit polls may be announced
employer or after the closing of the polls on election day and
2. Take a leave of absence from his/her work as must clearly identify the total number of
such during the campaign period respondents, and the places where they were
taken. Said announcement shall state that the
No movie, cinematograph or documentary shall be same is unofficial and does not represent a trend
publicly exhibited in a theater, television station or [Sec. 5, R.A. 9006].
any public forum during the campaign period which:
1. Portrays the life or biography of a candidate The holding of exit polls and the dissemination of
2. Is portrayed by an actor or media personality their results through mass media constitute an
who is himself a candidate [Sec. 6, R.A. 9006]. essential part of the freedoms of speech and of the
press. Hence, the Comelec cannot ban them totally in
N.B. The airtime rules are applied on a per station the guise of promoting clean, honest, orderly and
basis. COMELEC Resolution No. 9615, which credible elections [ABS-CBN Broadcasting Corp. v.
adopts the "aggregate-based" airtime limits (i.e. COMELEC, G.R. No. 133486 (2000)].
applying the limits to all TV and radio stations taken
as a whole) unreasonably restricts the guaranteed e. Rallies, Meetings, Other
freedom of speech and of the press [GMA Network,
Inc. v. Commission on Elections, G.R. No. 205357 Political Activity
(2014)].
Application for Rallies, Meetings and Other
Political Activity
d. Election Surveys 1. All applications for permits must immediately be
posted in a conspicuous place in the city or
Definition: The measurement of opinions and municipal building, and the receipt thereof
perceptions of the voters as regards a candidate's acknowledged in writing.
popularity, qualifications, platforms or a matter of 2. Applications must be acted upon in writing by
public discussion in relation to the election, including local authorities concerned within 3 days after
Page 278 of 382

their filing. If not acted upon within said period, d. Grantees of franchises, incentives, exemptions,
they are deemed approved. allocations or similar privileges or concessions by
3. The only justifiable ground for denial of the the government or any of its divisions,
application is when a prior written application by subdivisions or instrumentalities, including
any candidate or political party for the same GOCCs
purpose has been approved. e. Grantees, within 1 year prior to the date of the
4. Denial of any application for said permit is election, of loans or other accommodations in
appealable to the provincial election supervisor excess of P100,000 by the government or any of
or to the COMELEC whose decision shall be its divisions, subdivisions or instrumentalities
made within 48 hours and which shall be final including GOCCs
and executory [Sec. 87, B.P. Blg. 881]. f. Educational institutions which have received
grants of public funds amounting to no less than
Prohibited Contributions P100,000
g. Officials or employees in the Civil Service, or
members of the Armed Forces of the Philippines
Contribution: Gift, donation, subscription, loan,
h. Foreigners and foreign corporations, including
advance or deposit of money or anything of value, or
foreign governments [Sec. 95 and 96, B.P. Blg.
a contract, promise or agreement to contribute (1)
881].
whether or not legally enforceable, (2) made for
influencing the results of the elections.
N.B. The underlying commonality is conflict of
• Excludes services rendered without interest in sensitive government operations, or areas
compensation by individuals volunteering their where government grants licenses and special
time in behalf of a candidate or political party; permits.
• Includes the use of facilities voluntarily donated
by other persons, the money value of which can Prohibited Fund-Raising Activities
be assessed based on the rates prevailing in the a. The following are prohibited if held for raising
area [Sec. 94, B.P. Blg. 881]. campaign funds or for the support of any
candidate from the start of the election period up
Expenditures: Payment of money or anything of to and including election day:
value or a contract, promise or agreement to make an 1. Dances
expenditure for the purpose of influencing the results 2. Lotteries
of the election 3. Cockfights
• Includes the use of facilities personally owned by 4. Games
the candidate, the money value of the use of 5. Boxing bouts
which can be assessed based on the rates 6. Bingo
prevailing in the area [Sec. 94, B.P. Blg. 881]. 7. Beauty contests
8. Entertainments, or cinematographic,
Prohibited Contributions theatrical or other performances
a. From Public or private financial institutions. b. For any person or organization, civic or religious,
Unless: directly or indirectly, to solicit and/or accept
1. The financial institutions are legally in the from (1) any candidate or (2) from his campaign
business of lending money manager, agent or representative, or (3) any
2. The loan is made in accordance with laws person acting in their behalf, any gift, food,
and regulations AND transportation, contribution or donation in cash
3. The loan is made in the ordinary course of or in kind from the start of the election period
business up to and including election day
b. Natural and juridical persons operating a public
utility or in possession of or exploiting any Except: Normal and customary religious stipends,
natural resources of the nation tithes, or collections on Sundays and/or other
c. Natural and juridical persons who hold contracts designated collection days [Sec. 97, B.P. Blg. 881]
or sub-contracts to supply the government or
any of its divisions, subdivisions or Prohibited Donations
instrumentalities, with goods or services or to What: Donations by candidate, spouse, relative within
perform construction or other works 2nd civil degree of consanguinity or affinity,
Page 279 of 382

campaign manager, agent or representative; provided free of charge by" followed by the
treasurers, agents or representatives of political party true and correct name and address of the
When: During campaign period, day before and day broadcast entity [Sec. 4.2, R.A. 9006].
of the election [Sec. 104. B.P. Blg. 881]. c. Print, broadcast or outdoor advertisements
donated to the candidate or political party
Prohibited whether directly or indirectly shall not be printed, published, broadcast or
a. Donation, contribution or gift in cash or in kind exhibited without the written acceptance by
b. Undertake or contribute to the construction or said candidate or political party. Written
repair of roads, bridges, school buses, acceptance must be attached to the
puericulture centers, medical clinics and advertising contract and submitted to the
hospitals, churches or chapels cement COMELEC within 5 days after its signing
pavements, or any structure for public use or for [Sec. 4.3, R.A. 9006, cf. Sec. 6.3, R.A. 9006].
the use of any religious or civic organization. 6. All other forms of election propaganda not
prohibited by the Omnibus Election Code or the
Exceptions: Fair Election Act of 2001 [Sec. 3, R.A. 9006].
a. Normal and customary religious dues or
contributions b. Prohibited Acts
b. Periodic payments for legitimate scholarships
established and school contributions habitually For any foreigner
made before the prohibited period [Sec. 104, 1. Aid any candidate or political party, directly or
B.P. Blg. 881] indirectly
2. Take part or influence in any manner in any
Lawful and Prohibited election
3. Contribute or make any expenditure in
Election Propaganda connection with any election campaign or
partisan political activity [Sec. 81, B.P. Blg. 881]
a. Lawful and Prohibited Election
Propaganda For any person during the campaign period
1. Remove, destroy, obliterate or in any manner
1. Pamphlets, leaflets, cards, decals, stickers, or deface or tamper with lawful election
other written or printed materials not larger than propaganda
8.5x14 inches 2. Prevent the distribution of lawful election
2. Handwritten or printed letters urging voters to propaganda [Sec. 83, B.P.881]
vote for or against any political party or
candidate For any candidate, political party, organization
3. Cloth, paper or cardboard posters, framed or or any person
posted, not larger than 2x3 feet 1. Give or accept, directly or indirectly, free of
4. Streamers not larger than 3x8 feet are allowed at charge, transportation, food or drinks or things
a public meeting or rally or in announcing the of value during the five hours before and after a
holding of such. May be displayed 5 days before public meeting, on the day preceding the
the meeting or rally and shall be removed within election, and on the day of the election;
24 hours after such 2. Give or contribute, directly or indirectly, money
5. Paid advertisements in print or broadcast media or things of value for such purpose [Sec. 89, B.P.
a. Bear and be identified by the reasonably Blg. 881]
legible or audible words “political
advertisement paid for” followed by the true Note: Sec. 85 “Prohibited election propaganda” of
and correct name and address of the B.P. Blg. 881 was repealed by Sec. 14 R.A. 9006.
candidate or party for whose benefit the
election propaganda was printed or aired Limitations on Expenses
[Sec. 4.1, R.A. 9006].
b. If the broadcast is given free of charge by For Candidates
the radio or TV station, identified by the 1. President and VP: P10 for every voter currently
words "airtime for this broadcast was registered
Page 280 of 382

2. Other candidates: P3 for every voter currently

registered in the constituency where he filed his
H. Board of Election
certificate of candidacy Inspectors (BEI) and
For Candidates without a political party Board of Canvassers
P5 for every voter
(BOC)
For political parties
P5 for every voter currently registered in the Board of Election Inspectors
constituency or constituencies where it has official
candidates [Sec. 13, R.A. 7166]
a. Composition of Board of
Statement of Contributions Election Inspectors
and Expenses Composition [Sec. 13, RA 6646 and Sec. 164, B.P.
Blg. 881]
Every candidate and treasurer of the political party 1. Chairman – public school teacher
shall file: 2. Poll Clerk – public school teacher
a. In duplicate with the COMELEC 3. Two members, each representing the two
b. The full, true and itemized statement of all accredited political parties
contributions and expenditures in connection
with the election Qualifications [Sec. 166, B.P. Blg. 881]
c. Within 30 days after the day of the election 1. Good moral character and irreproachable
reputation
Effect of failure to file statement 2. Registered voter of the city or municipality
No person elected to any public office shall enter 3. Never been convicted of any election offense or
upon the duties of his office until he has filed the any other crime punishable by more than 6
statement of contributions and expenditures months of imprisonment, and there is no
information pending against him for any election
The same prohibition shall apply if the political party offense
which nominated the winning candidate fails to file 4. Speak, read and write English or the local dialect
the statements 5. At least 1 member of the BEI shall be an
information technology-capable person who is
Administrative fines (except candidates for trained and certified by the DOST to use the
elective barangay office) [Sec. 14, RA 7166] Automated Elections System (“AES”) (where
• 1st offense – P1,000-P30,000 in the discretion of AES shall be adopted) [Sec. 3, RA 9369]
the Commission to be paid within 30 days from
receipt of notice of such failure otherwise it shall Disqualifications [Sec. 167, B.P. Blg. 881]
be enforceable by a writ of execution issued by 1. Related within 4th degree of consanguinity or
the Commission against the properties of the affinity to any member of the BEI
offender 2. Related within 4th degree of consanguinity or
• 2nd and subsequent offense – P2,000-P60,000 in affinity to any candidate to be voted for in the
the discretion of the Commission. In addition, polling place or his spouse
the offender shall be subject to perpetual 3. Engaged in any partisan political activity or take
disqualification to hold public office part in the election (except to discharge his duties
as such and to vote) [Sec. 173, B.P. Blg. 881]
b. Powers of Board of Election

Inspectors
1. Conduct the voting in the polling place and
administer the electronic counting of votes,
Page 281 of 382

including the testing and sealing of the PCOS devices used in the printing of the election returns
machine [Sec. 20, R.A. 9369].
2. Print the election returns and transmit
electronically the election results through the use b. Composition of Board of
of the PCOS machine to the:
a. City/Municipal Board of Canvassers Canvassers [Sec. 20, R.A. 6646]
b. Central Server
c. Transparency Server (Dominant Majority Province City Municipality
Party/Dominant Minority Party/Accredited Chairman
Citizens’ Arm/ KBP Server
3. Act as deputies of the Commission in the Provincial City election Election
conduct of the elections election registrar or a registrar or
4. Maintain order within the polling place and its supervisor or lawyer of COMELEC
premises; keep access thereto open and lawyer in the COMELEC; representative
unobstructed; enforce obedience to its lawful COMELEC In cities with
orders and prohibit the use of cellular phones regional office more than 1
and camera by the voters. If any person refuses election
to obey the lawful orders of the BEI, or conducts registrar,
himself in a disorderly manner in its presence or COMELEC
within its hearing and thereby interrupts or shall designate
disturbs its proceedings, the BEI may issue an Vice-Chairman
order in writing directing any peace officer to
Municipal
take said person into custody until the Provincial fiscal City fiscal
treasurer
adjournment of the meeting, but such order shall
not be executed as to prevent said person from Member
voting. A copy of such written order shall be Provincial City Most senior
attached to the Minutes superintendent superintendent district school
5. Furnish to watchers Certificate of Votes (CEF of schools of schools supervisor or in
No. A13) upon request his absence, a
6. Perform such other functions as prescribed by principal of the
the Code or by the rules and regulations school district
promulgated by the Commission or elementary
[Sec. 10, COMELEC Resolution 9640, General school
Instructions for BEI on Testing and Sealing,
Voting, Counting and Transmission of Election
In case of non-availability, absence, disqualification
Results]
due to relationship, or incapacity for any cause of any
of the members, COMELEC may appoint the
Board of Canvassers following as substitutes, in the order named:
a. Definitions and Functions Province City Municipality

Chairman
Canvass: The process by which the results in the
election returns are tallied and totaled. Ranking Ranking lawyer
Ranking lawyer of
lawyer of the of the
the COMELEC
Certificates of canvass: Official tabulations of votes COMELEC COMELEC
accomplished by district, municipal, city and Vice-Chairman
provincial canvassers based on the election returns,
which are the results of the ballot count at the • Provincial • City auditor
auditor • Municipal
precinct level. or
Administrato
• Registrar equivalent;
r;
Function of the BOC: The BOC shall canvass the of Deeds • Registrar of
• Municipal
votes by consolidating the electronically transmitted • Clerk of Deeds;Cler
Assessor;
results or the results contained in the data storage Court k of Court
Page 282 of 382

nominate nominated • Clerk of

d by the by the Court NATIONAL BOC FOR PRESIDENT AND
Executive Executive nominated by VICE-PRESIDENT
Judge of Judge of the Executive Composition: The Senate and the House of
the RTC; the RTC; Judge of the Representatives in joint public session.
• Any other • Any other MTC;
available available Functions:
• Any other
appointiv appointive 1. Upon receipt of the certificates of canvass, the
available
e city official President of the Senate shall, not later than 30
appointive
provincial days after the day of the election, open all the
municipal
official certificates in the presence of the Senate and the
official
House of Representatives in joint public session.
Member 2. Congress upon determination of the authenticity
Same as for and the due execution thereof in the manner
Same as for Same as for Vice- provided by law shall:
Vice-
Vice-Chairman Chairman a. canvass all the results for president and vice-
Chairman
president and
b. proclaim the winning candidates [Sec. 22,
Prohibitions on BOC
R.A. 9369].
1. Chairman and members shall not be related
within the 4th civil degree of consanguinity or
NATIONAL BOC FOR SENATORS AND
affinity to any of the candidates whose votes will
PARTY-LIST REPRESENTATIVES.
be canvassed by said board, or to any member of
Composition: The chairman and members of the
the said board [Sec. 222, B.P. Blg. 881].
COMELEC sitting en banc
2. No member or substitute member shall be
transferred, assigned or detailed outside of his
Function
official station, nor shall he leave said station
It shall canvass the results by consolidating the
without prior authority of the COMELEC
certificates of canvass electronically transmitted.
during the period beginning election day until the
Thereafter, the national board shall proclaim the
proclamation of the winning candidates [Sec.
winning candidates for senators and party-list
223, B.P. Blg. 881].
representatives [Sec. 23, R.A. 9369].
3. No member shall feign illness to be substituted
on election day until the proclamation of the
winning candidates. Feigning of illness Proclamation
constitutes an election offense [Sec. 224, B.P.
Blg. 881]. Proclamation shall be after the canvass of election
returns, in the absence of a perfected appeal to the
Certificate of Canvass and Statement of Votes COMELEC. The BOC shall proclaim the candidates
1. Within one hour after the canvassing, the who obtained the highest number of votes cast in the
Chairman of the district or provincial BOC or province, city, municipality or barangay, on the basis
the city BOC of those cities which comprise one of the certificates of canvass.
or more legislative districts shall electronically
transmit the certificates of canvass to: Failure to comply with this duty constitutes an
a. COMELEC sitting as the National BOC for election offense [Sec. 231, B.P. Blg. 881].
senators and party-list representatives and
b. Congress as the National BOC for the When proclamation void
president and vice president, directed to the a. When it is based on incomplete returns
President of the Senate [Sec. 20, R.A. 9369]. [Castromayor v. COMELEC, G.R. No. 120426
2. The certificates of canvass transmitted (1995)] or
electronically and digitally signed shall be b. When there is yet no complete canvass [Jamil v.
considered as official election results and shall be COMELEC, G.R. No. 123648 (1997)].
used as the basis for the proclamation of a
winning candidate [Sec. 20, R.A. 9369]. A void proclamation is no proclamation at all, and the
3. 30 copies shall be distributed in accordance with proclaimed candidate’s assumption into office cannot
Sec. 21, R.A. 9369.
Page 283 of 382

deprive the COMELEC of its power to annul the

proclamation.
I. Remedies and
Partial proclamation
Jurisdiction in Election
Notwithstanding pendency of any pre-proclamation Law
controversy, COMELEC may summarily order
proclamation of other winning candidates whose
election will not be affected by the outcome of the
Petition not to Give Due
controversy [Sec. 21, R.A. 7166]. Course to or Cancel a
Election resulting in a tie Certificate of Candidacy
The BOC, by resolution, upon 5 days notice to all tied
candidates, shall hold a special public meeting at Sec. 78, OEC. Petition to deny due course to
which the board shall proceed to the drawing of lots or cancel a certificate of candidacy. – A
of tied candidates and shall proclaim as elected the verified petition seeking to deny due course or to
candidates who may be favored by luck [Sec. 240, cancel a certificate of candidacy may be filed by
B.P. Blg. 881]. the person exclusively on the ground that any
material representation contained therein as
There is a tie when: required under Section 74 hereof is false. The
a. 2 or more candidates receive an equal and petition may be filed at any time not later than
highest number of votes; or twenty-five days from the time of the filing of the
b. 2 or more candidates are to be elected for the certificate of candidacy and shall be decided, after
same position and 2 or more candidates received due notice and hearing, not later than fifteen days
the same number of votes for the last place in the before the election.
number to be elected.
Sec. 69, OEC. Nuisance candidates. – The
Proclamation of a Lone Candidate Commission may motu proprio or upon a verified
Upon the expiration of the deadline for the filing of petition of an interested party, refuse to give due
certificates of candidacy in a special election called to course to or cancel a certificate of candidacy if it
fill a vacancy in an elective position other than for is shown that said certificate has been filed to put
President and VP, when there is only 1 qualified the election process in mockery or disrepute or to
candidate, he shall be proclaimed elected without cause confusion among the voters by the similarity
holding the special election upon certification by the of the names of the registered candidates or by
COMELEC that he is the only candidate for the other circumstances or acts which clearly
office and is therefore deemed elected [Sec. 2, R.A. demonstrate that the candidate has no bona fide
8295 (Law on Proclamation of Solo Candidates)]. intention to run for the office for which the
certificate of candidacy has been filed and thus
prevent a faithful determination of the true will of
the electorate.
Petition for Disqualification

Sect. 68, OEC. Disqualifications. – Any
candidate who, in an action or protest in which he
is a party is declared by final decision of a
competent court guilty of, or found by the
Commission of having (a) given money or other
material consideration to influence, induce or
corrupt the voters or public officials performing
electoral functions; (b) committed acts of
terrorism to enhance his candidacy; (c) spent in his
election campaign an amount in excess of that
allowed by this Code; (d) solicited, received or
Page 284 of 382

made any contribution prohibited under Sections foreign country shall not be qualified to run for
89, 95, 96, 97 and 104; or (e) violated any of any elective office under this Code, unless said
Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, person has waived his status as permanent
v, and cc, subparagraph 6, shall be disqualified resident or immigrant of a foreign country in
from continuing as a candidate, or if he has been accordance with the residence requirement
elected, from holding the office. Any person who provided for in the election laws.
is a permanent resident of or an immigrant to a
COMPARISON AMONG SECTIONS 68, 78, AND 69:

Sec. 68 Sec. 78 Sec. 69
Nature Petition for disqualification Petition to deny due course or cancel COC
a. Sec. 12, B.P. Blg. 881 Material Nuisance
1. Declared by competent authority representation Candidate:
insane or incompetent in the COC is a. .COC filed to put the
2. Sentenced by final judgment for false election process in
subversion, insurrection, rebellion, mockery or disrepute
or any offense for which the b. Causing confusion
sentence is more than 18 months, among voters by
or crime involving moral turpitude similarity of names of the
b. Sec. 68, B.P. Blg. 881 registered candidates
1. Given money or other material c. Other circumstances or
consideration to influence, induce acts which clearly
or corrupt the voters or public demonstrate the lack of a
Grounds
officials performing electoral bona fide intention to run
functions for office
2. Committed acts of terrotirsm to
enhance candidacy
3. Campaign expenses exceed the
amount allowed in the OEC
4. Soliciting, receiving or making
prohibited contributions
5. Other prohibited acts enumerated
in OEC
c. Sec. 40 (Disqualifications), Local
Government Code
Person is prohibited to continue as a Person is not treated as a candidate at all, as if
Effect
candidate he/she never filed a COC
Substitution Allowed Prohibited
Any time before proclamation of the Within 25 days
Period for Within 5 days from last day
winning candidate (COMELECT Res. No. from filing of
filing of filing COCs
8696) COC
Petition to Declare Failure

b. Failure of elections
of Elections
Grounds
a. What constitutes an election In any of such cases the failure or suspension of
election must affect the result of the election
Plurality of votes sufficient for: 1. Election in any polling place has not been held
1. a choice conditioned on the plurality of valid on the date fixed due to force majeure, violence,
votes or terrorism, fraud, or other analogous causes.
2. a valid constituency regardless of the actual 2. Election in any polling place had been suspended
number of votes cast. before the hour fixed for the closing of the
Page 285 of 382

U.P. LAW BOC LOCAL GOVERNMENTS POLITICAL LAW
voting due to force majeure, violence, terrorism, there was voting, the election nonetheless
fraud, or other analogous causes. resulted in a failure to elect; and
2. The votes not cast would affect the results of the
After the voting and during the preparation and election.
transmission of the election returns or in the custody
or canvass thereof such election results in a failure to f. Procedure:
elect due to force majeure, violence, terrorism, fraud
or other analogous causes [Sec. 6, B.P. Blg. 881]. 1. Petitioner files verified petition with the Law
Department of the COMELEC.
Sec. 4, R.A. 7166. The postponement, 2. Unless a shorter period is deemed necessary by
declaration of failure of election and the calling of circumstances, within 24 hours, the Clerk of
special elections as provided in Sections 5, 6 and 7 Court concerned serves notices to all interested
of the Omnibus Election Code shall be decided by parties, indicating therein the date of hearing,
the Commission sitting en banc by a majority vote through the fastest means available.
of its members. The causes for the declaration of 3. Unless a shorter period is deemed necessary by
a failure of election may occur before or after the the circumstances, within 2 days from receipt of
casting of votes or on the day of the election. the notice of hearing, any interested party may
Sec. 6, B.P. Blg. 881. The COMELEC shall call for file an opposition with the Law Department of
the holding or continuation of the election not the COMELEC.
held, suspended or which resulted in a failure to 4. The COMELEC proceeds to hear the petition.
elect upon a verified petition by any interested The COMELEC may delegate the hearing of the
party and after due notice and hearing. case and the reception of evidence to any of its
officials who are members of the Philippine Bar.
When: On a date reasonably close to the date of the 5. The COMELEC then decides whether to grant
election not held, suspended or which resulted in a or deny the petition. This lies within the
failure to elect BUT not later than 30 days after the exclusive prerogative of the COMELEC.
cessation of the cause of such postponement or
suspension of the election or failure to elect [Sec. 6,
B.P. Blg. 881].
Pre-Proclamation
Controversy
c. Declaration of failure of election
Pre-Proclamation Controversy – Questions
It is neither an election case nor a pre-proclamation regarding proceedings of the board of canvassers
controversy [Borja v. Comelec, G.R. No. 133495 which may be raised by any candidate or by any
(1996)]. registered political party or coalition of political
parties, or by any accredited and participating party
The COMELEC does not exercise its quasi-judicial list group, before the board or directly with the
functions when it declares a failure of elections Commission [Rule 3, Sec. 1, COMELEC Resolution
pursuant to R.A. No. 7166. Rather, the COMELEC No. 8804].
performs its administrative function when it exercises
such power [Abayon v. HRET, G.R. No. 222236, May COMELEC Resolution No. 8804 applies to election
3, 2016]. disputes under the Automated Election System
(AES) using the Precinct Count Optical Scan (PCOS)
and shall cover pre-proclamation controversies and
d. Jurisdiction election protests [Rule 1, Sec. 2, COMELEC
Resolution No. 8804].
COMELEC, sitting en banc, may declare a failure of
election by a majority vote of its members.
a. Jurisdiction
e. Requisites COMELEC has exclusive jurisdiction over pre-
proclamation cases. [Rule 3, Sec. 2, COMELEC
The following conditions must concur:
Resolution No. 8804]. It may order, motu proprio or
1. No voting has taken place in the precincts
upon written petition, the partial or total suspension
concerned on the date fixed by law, or even if
Page 286 of 382

of the proclamation of any candidate-elect or annul 4. Substituted or fraudulent returns in controverted

partially or totally any proclamation, if one has been polling places were canvassed, the results of
made [Sec. 242, B.P. Blg. 881]. which materially affected the standing of the
aggrieved candidate(s) [Sec. 243, B.P. Blg. 881]
b. When Not Allowed 5. Correction of manifest errors [Sec. 4(e), Rule 27,
COMELEC Rules of Procedure]
For the positions of President, Vice-President,
Senator, and Member of the House of N.B. In Rule 3, Sec. 1 of COMELEC Resolution No.
Representatives [Sec. 15, R.A. 7166]. 8804 (promulgated March 22, 2010) there are only 2
issues covered in a pre-proclamation controversy: (1)
Under Sec. 15 of R.A. 7166, what is allowed is the illegal composition of the BOC, and (2) illegal
correction of "manifest errors in the certificate of proceedings of the BOC.
canvass or election returns", either motu proprio by the
appropriate canvassing authority or upon written Illegal composition of the BOC
complaint of an interested person. To be manifest, Exists when, among other similar circumstances, any
the errors must appear on the face of the certificates of the members do not possess legal qualifications
of canvass or election returns sought to be corrected and appointments. The information technology
and/or objections thereto must have been made capable person required to assist the BOC by RA
before the board of canvassers and specifically noted 9369 shall be included as among those whose lack of
in the minutes of their respective proceedings [Chavez qualifications may be questioned [Sec. 1, Rule 4,
v. COMELEC, G.R. No. 105323 (1992)]. This is also COMELEC Resolution No. 8804].
reiterated in Sec. 38 of RA 9369.
Illegal proceedings of the BOC
Under Sec. 37 of RA 9369, if any certificate of Exists when the canvassing is a sham or mere
canvass or supporting statement of votes by ceremony, the results of which are predetermined
city/municipality or by precinct bears erasures or and manipulated as when any of the following
alterations which may cast doubt as to the veracity of circumstances are present:
the number of votes stated therein and may affect the 1. Precipitate canvassing
result of the election, the procedure for pre- 2. Terrorism
proclamation controversies is adopted. 3. Lack of sufficient notice to the members of the
BOC
4. Improper venue
c. Nature of Proceedings [Sec. 2, Rule 4, COMELEC Resolution No. 8804]
Heard summarily by the COMELEC after due notice
and hearing. This is because canvass and e. Issues that Cannot be Raised
proclamation should be delayed as little as possible.
1. Appreciation of ballots, as this is performed by
the BEI at the precinct level and is not part of
d. Issues that May be Raised the proceedings of the BOC [Sanchez v.
COMELEC, G.R. No. 78461 (1987)]
This enumeration is restrictive and exclusive: 2. Technical examination of the signatures and
1. Illegal composition or proceedings of the board thumb marks of voters [Matalam v. COMELEC,
of election canvassers G.R. No. 123230 (1997)]
2. Canvassed election returns are either: 3. Prayer for re-opening of ballot boxes [Alfonso v.
a. Incomplete; COMELEC, G.R. No. 107847 (1994)]
b. Contain material defects; 4. Padding of the Registry List of Voters of a
c. Appear to be tampered with or falsified; or municipality, massive fraud and terrorism
d. Contain discrepancies in the same returns or [Ututalum v. COMELEC, G.R. No. 84843-44
in other authentic copies (1990), citing Espaldon v. COMELEC, G.R. No.
3. The election returns were: L-78987 (1987)]
a. Prepared under duress, threats, coercion, 5. Challenges directed against the Board of
intimidation; or Election Inspectors [Ututalum v. COMELEC,
b. Obviously manufactured or not authentic supra]
Page 287 of 382

6. Fraud, terrorism and other illegal electoral PRE-PROCLAMATION CONTROVERSIES

practices. These are properly within the office of UNDER COMELEC RESOLUTION NO. 8804
election contests over which electoral tribunals
have sole, exclusive jurisdiction [Loong v. If filed before the BOC
COMELEC , G.R. No. 133676 (1996)]. 1. Upon receipt of the verified petition, the BOC
shall immediately announce the fact of the filing
f. Procedure of said petition and the ground/s raised
2. BOC shall immediately deliberate on the petition
FOR QUESTIONS INVOLVING THE and make a prompt resolution within 24 hrs;
COMPOSITION OR PROCEEDINGS OF reduced into writing
THE BOARD OF CANVASSERS, OR
CORRECTION OF MANIFEST ERRORS If the decision is in favor of the petition, it shall
immediately inform the Commission of its
Where: Either in the Board of Canvassers or directly resolution; the Commission shall make appropriate
with the COMELEC [Sec. 17, R.A. 7166]. action
When: A petition involving the illegal composition or In no case shall the receipt by the BOC of the
proceedings of the board, must be filed immediately electronically transmitted precinct, municipal, city or
when the board begins to act as such [Laodenio v. provincial results, be suspended by the filing of the
COMELEC, G.R. No. 122391 (1997)], or at the time said petition
of the appointment of the member whose capacity to
sit as such is objected to if it comes after the Appeal of an adverse resolution
canvassing of the board, or immediately at the point 1. The petitioner may appeal an adverse resolution
where the proceedings are or begin to be illegal. by the BOC to the COMELEC, by notifying the
Otherwise, by participating in the proceedings, the BOC of his or her intent to appeal, through a
petitioner is deemed to have acquiesced in the verbal and a written and verified notice of appeal.
composition of the BOC. 2. Notice on the BOC shall not suspend the formal
proclamation of the official results of the
• If the petition is for correction, it must be filed
election until the final resolution of the appeal.
not later than 5 days following the date of
3. 48 hrs. from such notice to the BOC, the
proclamation, and must implead all candidates
petitioner shall submit before the Board a
who may be adversely affected thereby [Sec.
Memorandum on appeal stating the reasons why
5(b), Rule 27, COMELEC Rules of Procedure].
the resolution being questioned is erroneous and
should be reversed
FOR MATTERS RELATING TO THE
4. Upon receipt by the BOC of the memorandum,
PREPARATION, TRANSMISSION,
the Board shall forward the entire records of the
RECEIPT, CUSTODY AND APPRECIATION
petition at the expense of the petitioner
OF THE ELECTION RETURNS AND
5. Upon receipt of the records, the petition shall be
CERTIFICATES OF CANVASS
docketed by the Clerk of Commission and
submitted to the COMELEC en banc for
Where: Only with the Board of Canvassers
consideration and decision
6. Within 5 days, the COMELEC shall render its
When: At the time the questioned return is presented
decision on appeal
for inclusion in the canvass [Sec. 17, R.A. 7166].
If filed directly with the Commission
Who: Any candidate, political party or coalition of
1. Upon receipt of the petition by the COMELEC,
political parties [Sec. 5(b), Rule 27, COMELEC Rules
the Clerk of the Commission shall docket the
of Procedure].
same and send summons to the BOC concerned
with an order directing it to submit, through the
Non-compliance with any of the steps above is fatal
fastest verifiable means available, its answer
to the pre-proclamation petition [Fernandez v.
within 48 hrs.
COMELEC, G.R. No. 171821 (2006)].
2. COMELEC en banc shall resolve the petition
within 5 days from the filing of the answer or
upon the expiration of the period to file the same
Page 288 of 382

4. When the proclamation is null and void, since

g. Effect of Filing of Pre- the proclamation is no proclamation at all and
the proclaimed candidate's assumption of office
Proclamation Controversy cannot deprive the COMELEC of the power to
declare such nullity and annul the proclamation
The period to file an election contest shall be
suspended during the pendency of the pre-
proclamation contest in the COMELEC or the i. Effect of Filing Petition to Annul
Supreme Court. or Suspend Proclamation
The recourse by certiorari to the Supreme Court, The filing of the petition suspends the running of the
which is a right secured to the defeated party under period to file an election protest or quo warranto [Sec.
Section 7, Title A, Article IX of the 1987 248, B.P. Blg. 881].
Constitution, is part of the annulment proceeding.
The case is not over until the Supreme Court has No law provides for a reglementary period within
given its verdict, hence, the computation of the ten- which to file a petition for the annulment of an
day-period for filing an election contest does not election if there is as yet no proclamation [Loong v.
begin until that verdict has been handed down by the COMELEC, supra].
Supreme Court [Gallardo v. Rimando, G.R. No. 91718
(1990)]. Election Protest
The right of the prevailing party in the pre-
Election protest: A contest between the defeated
proclamation contest to the execution of
and winning candidates on the ground of frauds or
COMELEC’s decision does not bar the losing party
irregularities in the casting and counting of the
from filing an election contest [Gallardo v. Rimando,
ballots, or in the preparation of the returns. It raises
supra].
the question of who actually obtained the plurality of
the legal votes and therefore is entitled to hold the
Despite the pendency of a pre-proclamation contest,
office [Samad v. COMELEC, G.R. No. 107854
the COMELEC may, motu proprio or upon the filing
(1993)].
of a verified petition and after due notice and hearing
order the proclamation of other winning candidates
General Rule [applicable to protest and quo warranto]:
whose election will not be affected by the outcome
The filing of an election protest or a petition for quo
of the controversy [Sec. 247, B.P. Blg. 881].
warranto precludes the subsequent filing of a pre-
proclamation controversy, or amounts to the
h. Effect of Proclamation of abandonment of one earlier filed, thus depriving the
Winning Candidate COMELEC of the authority to inquire into and pass
upon the title of the protestee or the validity of his
General Rule: A pre-proclamation controversy shall no proclamation.
longer be viable after the proclamation and
assumption into office by the candidate whose The reason is that once the competent tribunal has
election is contested. The remedy is an election acquired jurisdiction of an election protest or a
protest before the proper forum. petition for quo warranto, all questions relative thereto
will have to be decided in the case itself and not in
However, the prevailing candidate may still be another proceeding. This procedure will prevent
unseated even though he has been proclaimed and confusion and conflict of authority. Conformably,
installed in office if: the Court has ruled in a number of cases that after a
1. The opponent is adjudged the true winner of the proclamation has been made, a pre-proclamation
election by final judgment of court in an election case before the COMELEC is no longer viable
contest; [Samad v. COMELEC, supra].
2. The prevailing party is declared ineligible or
disqualified by final judgment of a court in a quo Exceptions:
warranto case; or a. The board of canvassers was improperly
3. The incumbent is removed from office for cause. constituted;
b. Quo warranto was not the proper remedy;
Page 289 of 382

c. What was filed was not really a petition for quo

warranto or an election protest but a petition to g. Payment of Docket fee
annul a proclamation;
d. The filing of a quo warranto petition or an election Protestant has to pay a docket fee of P300 and an
protest was expressly made without prejudice to additional docket fee if there is a claim for damages.
the pre-proclamation controversy or was made Failure to pay the basic docket fee shall result to the
ad cautelam; and dismissal of the protest [Soller v. COMELEC, G.R.
e. The proclamation was null and void [Samad v. No. 139853 (2000)].
COMELEC, supra].
h. Effect of Filing Petition to Annul
a. Nature
or to Suspend the Proclamation
Summary proceeding of a political character
The filing with the Commission of a petition to annul
or to suspend the proclamation of any candidate shall
b. Purpose suspend the running of the period within which to
file an election protest or quo warranto proceedings
To ascertain the candidate lawfully elected to office [Sec. 248, B.P. Blg. 881].
c. Who May File Quo warranto

A candidate who has duly filed a certificate of
Petition for quo warranto: Under the Omnibus
candidacy and has been voted for.
Election Code raises in issue the disloyalty or
ineligibility of the winning candidate. It is a
d. When proceeding to unseat the respondent from office but
not necessarily to install the petitioner in his place
Within 10 days after the proclamation of the results [Samad v. COMELEC, supra].
of the election.
In a quo warranto proceeding, the petitioner is not
It is suspended during the pendency of a pre- occupying the position in dispute. Moreover, under
proclamation controversy the Omnibus Election Code, quo warranto is proper
only for the purpose of questioning the election of a
It should be decided within 15 days from filing in case candidate on the ground of disloyalty or ineligibility
of barangay officials [Samad v. COMELEC, supra].
e. Who Has Jurisdiction It is a proceeding to unseat the ineligible person from

office but not to install the protestant in his place. In
1. COMELEC: Over all contests relating to the this sense, it is strictly speaking, not a contest where
elections, returns and qualifications of all elective the parties strive for supremacy. While the
regional, provincial and city officials [Sec. 250, respondent may be unseated, the petitioner will not
B.P. Blg. 881] be seated.
2. RTC: Over contests involving municipal officials
[Sec. 251, B.P. Blg. 881] a. Who May File
3. MTC: Over election contests involving barangay
officials [Sec. 252, B.P. Blg. 881] Any voter
f. Grounds b. When to File

1. Fraud Within 10 days after the proclamation of the results
2. Terrorism of the election.
3. Irregularities
4. Illegal acts committed before, during, or after the
casting and counting of votes
Page 290 of 382

e. Execution Pending Appeal

c. Who has Jurisdiction
The trial court may grant a motion for execution
1. COMELEC: Over petitions for quo warranto pending appeal because the mere filing of an appeal
involving regional, provincial and city officials does not divest the trial court of its jurisdiction over
[Sec. 253, B.P. Blg. 881] a case and to resolve pending incidents. The grant
2. RTC: over petitions for quo warranto involving must be based on “valid and special reasons,” i.e.:
municipal officials [Sec. 253, B.P. Blg. 881] 1. The public interest is involved or the will of the
3. MTC: over petitions for quo warranto involving electorate
barangay officials [Sec. 253, B.P. Blg. 881] 2. The shortness of the remaining portion of the
term
d. Grounds 3. The length of time that the election contest has
been pending
1. Ineligibility
2. Disloyalty to the Republic The rule is strictly construed against the movant and
only when the reason is of such urgency will such
DISTINCTION BETWEEN AN ELECTION execution pending appeal be allowed, as it is an
PROTEST AND QUO WARRANTO [Lokin v. exception to the general rule.
COMELEC, supra]
Election Protest Quo warranto

Strictly a contest between
Refers to questions of
the defeated and winning
disloyalty or ineligibility
candidates based on
of the winning candidate.
grounds of election
It is a proceeding to
frauds or irregularities as
unseat the ineligible
to who actually obtained
person from office, but
the majority of the legal
not to install the
votes and therefore is
protestant in place
entitled to hold the office
Can only be filed by a
Can be filed by any voter.
candidate who has duly
It is not considered a
filed a certificate of
contest where the parties
candidacy and has been
strive for supremacy
voted for
A protestee may be While the respondent
ousted and the protestant may be unseated, the
seated in the office petitioner will not be
vacated seated
Quo warranto in an Quo warranto in an

Elective Office Appointive Office
Issue is the eligibility or Issue is the legality of the
loyalty of the officer-elect appointment
Court or tribunal cannot
declare the protestant (or
The court determines
the candidate who
who of the parties has
obtained the second
legal title to the office
highest number of votes)
as having been elected
Page 291 of 382

J. Prosecution of Election
Preferential Disposition of
Offenses Election Offenses
Jurisdiction over Election The investigating officer shall resolve the case within
Offenses 5 days from submission.
COMELEC has exclusive jurisdiction to investigate The courts shall give preference to election cases over
and prosecute cases involving violation of election all other cases except petitions for writ of habeas
laws [Sec. 2 (6), Art. IX-C, Constitution]. corpus.
However, it may validly delegate the power to the a. Election Offenses

Provincial Prosecutor or to the Ombudsman.
Registration
In the event that the COMELEC fails to act on any 1. Failure of the Board of Election Inspectors to
complaint within 4 months from its filing, the post the list of voters in each precinct [Sec. 9,
complainant may file the complaint with the fiscal or R.A. 7166];
the Department of Justice, if warranted [Sec. 265, 2. Change or alteration or transfer of a voter's
B.P. Blg. 881]. precinct assignment in the permanent list of
voters without the express written consent of the
It is not the duty of the COMELEC, as investigator voter [Sec. 4, R.A. 8189]
and prosecutor, to gather proof in support of a
complaint filed before it [Kilosbayan v. COMELEC, Certificate of candidacy
G.R. No. 128054 (1997)]. 1. Continued misrepresentation or holding out as a
candidate of a disqualified candidate or one
The jurisdiction of the COMELEC to disqualify declared by final and executory judgment to be a
candidates is limited to those enumerated in section nuisance candidate [Sec. 27f, R.A. 6646]
68 of the Omnibus Election Code. All other election 2. Knowingly inducing or abetting such
offenses are beyond the ambit of COMELEC misrepresentation of a disqualified or nuisance
jurisdiction. They are criminal and not administrative candidate [Sec. 27f, R.A. 6646];
in nature. Pursuant to sections 265 and 268 of the 3. Coercing, bribing, threatening, harassing,
Omnibus Election Code, the power of the intimidating, terrorizing, or actually causing,
COMELEC is confined to the conduct of inflicting or producing violence, injury,
preliminary investigation on the alleged election punishment, torture, damage, loss or
offenses for the purpose of prosecuting the alleged disadvantage to discourage any other person or
offenders before the regular courts of justice [Codilla, persons from filing a certificate of candidacy in
Sr. v. De Venecia, supra]. order to eliminate all other potential candidates
from running in a special election [Sec. 5, R.A.
Trial and decision 8295]
General Rule: RTCs have exclusive original jurisdiction
to try and decide any criminal actions or proceedings Election campaign
for violation of election laws [Sec. 268, B.P. Blg. 881]. 1. Appointment or use of special policemen, special
agents or the like during the campaign period
Exception: MTCs exercise jurisdiction only over [Sec. 261m, B.P. Blg. 881]
offenses relating to failure to register or to vote 2. Use of armored land, water or aircraft during the
campaign period [Sec. 261r, B.P. Blg. 881]
N.B. Failure to register to vote is no longer an offense 3. Unlawful electioneering [Sec. 261k, B.P. Blg.
881]
4. Acting as bodyguards or security in the case of
policemen and provincial guards during the
campaign period [Sec. 261t, B.P. Blg. 881]
5. Removal, destruction, obliteration, or tampering
of lawful election propaganda, or preventing the
Page 292 of 382

distribution thereof [Sec. 83, B.P. Blg. 881 vis-à- prior approval of the COMELEC [Sec. 261h,
vis Sec. 262, B.P. Blg. 881] B.P. Blg. 881]
Voting Transfer and detail must be construed in their

1. Vote-buying and vote-selling [Sec. 261a, B.P. legal and technical meaning. The act of the
Blg. 881] Mayor of physically transferring the office area
2. Conspiracy to bribe voters [Sec. 261b, B.P. Blg. of the municipal civil registrar from its old
881]: A disputable presumption of a conspiracy location to the Office of the Mayor “some little
to bribe voters is created when there is proof that steps” away does not constitute an election
at least 1 voter in different precincts representing offense under this provision [Causing v.
at least 20% of the total precincts in any COMELEC, G.R. No. 199139 (2014)].
municipality, city or province has been offered,
promised or given money, valuable 3. Intervening of public officers and employees in
consideration or other expenditure by a the civil service in any partisan political activity
candidate's relatives, leaders and/or [Sec. 261i, B.P. Blg. 881]
sympathizers for the purpose of promoting the 4. Use of public funds for an election campaign
election of such candidate [Sec. 28, R.A. 6646] [Sec. 261o, B.P. Blg. 881]
3. Coercion of subordinates to vote for or against 5. Illegal release of prisoners before and after
any candidate [Sec. 261d, B.P. Blg. 881] – election [Sec. 261n, B.P. Blg. 881]
expressly repealed by R.A. No. 7890 [see Javier v. 6. Release, disbursement or expenditure of public
COMELEC (supra)] funds during the prohibited period [Sec. 261v,
4. Dismissal of employees, laborers, or tenants for B.P. Blg. 881]
refusing or failing to vote for any candidate [Sec. 7. Construction of public works, etc. during the
261d(2), B.P. Blg. 881] – expressly repealed by prohibited period [Sec. 261w, B.P. Blg. 881]
R.A. No. 7890 [see Javier v. COMELEC, supra] 8. Suspension of elective local officials during the
5. Being a flying voter [Sec. 261z (2), B.P. Blg. 881] election period without prior approval of the
COMELEC [Sec. 261x, B.P. Blg. 881]
Counting of votes
1. Tampering, increasing, decreasing votes, or Coercion, intimidation, violence
refusal to correct tampered votes after proper 1. Coercion of election officials and employees
verification and hearing by any member of the 2. Threats, intimidation, terrorism, use of
board of election inspectors [Sec. 27b, R.A. fraudulent devices or other forms of coercion
6646] [Sec. 261e, B.P. Blg. 881]
2. A special election offense to be known as 3. Use of undue influence [Sec. 261j, B.P. Blg. 881]
electoral sabotage and the penalty to be imposed 4. Carrying deadly weapons within the prohibited
shall be life imprisonment [Sec. 42, RA 9369] area [Sec. 261p, B.P. Blg. 881]
3. Refusal to issue to duly accredited watchers the 5. Carrying firearms outside residence or place of
certificate of votes cast and the announcement business [Sec. 261q, B.P. Blg. 881]
of the election, by any member of the board of 6. Organization or maintenance of reaction forces,
election inspectors [Sec. 27c, R.A. 6646] strike forces, or similar forces during the election
period [Sec. 261u, B.P. Blg. 881]
Canvassing
Any chairperson of the board of canvassers who fails Other prohibitions
to give notice of meeting to other members of the 1. Unauthorized printing of official ballots and
board, candidate or political party as required [Sec. election returns with printing establishments that
27e, R.A. 6646] are not under contract with the COMELEC
[Sec. 27a, R.A. 6646]
Acts of government or public officers 2. Wagering upon the results of elections [Sec.
1. Appointment of new employees, creation of new 261c, B.P. Blg. 881]
positions, promotion, or giving salary increases 3. Sale, etc. of intoxicating liquor on the day fixed
within the election period [Sec. 261g, B.P. Blg. by law for the registration of voters in the polling
881] place, or the day before the election or on
2. Transfer of officers and employees in the civil election day [Sec. 261dd (1), B.P. Blg. 881]
service within the election period without the
Page 293 of 382

4. Opening booths or stalls within 30 meters of any
5.
polling place [Sec, 261dd (2), B.P. Blg. 881]
Holding fairs, cockfights, etc. on Election Day
Prescription
[Sec. 261dd (3), B.P. Blg. 881]
Five years from the date of their commission. If the
6. Refusal to carry election mail during the election
discovery of the offense be made in an election
period [Sec. 261dd (4), B.P. Blg. 881]. In
contest proceeding, the period of prescription shall
addition to the prescribed penalty, such refusal
commence on the date on which the judgment in
constitutes a ground for cancellation or
such proceedings becomes final and executory [Sec.
revocation of certificate of public convenience
267, B.P. Blg. 881].
or franchise.
7. Discrimination in the sale of airtime [Sec. 261dd
(5), B.P. Blg. 881] In addition to the prescribed Grant of Transactional
penalty, such refusal constitutes a ground for
cancellation or revocation of the franchise.
Immunity
Note: Good faith is not a defense, as election offenses Any person guilty of violations of Sec. 261a (Vote-
are generally mala prohibita. buying and vote-selling) and 261b (Conspiracy to
bribe voters) of B.P. Blg. 881 who voluntarily gives
information and willingly testifies on any violation of
b. Penalties said sections in any official investigation or
proceeding shall be exempt from prosecution and
For individuals punishment for the offenses with reference to which
1. Imprisonment of not less than 1 year but not his information and testimony were given, without
more than 6 years, without probation [Sec. 264, prejudice to his liability for perjury or false testimony
B.P. Blg. 881] [Sec. 28, RA 6646].
2. Disqualification to hold public office
3. Deprivation of the right of suffrage
Prohibited Acts under R.A.
For a Foreigner 9369
1. Imprisonment of not less than 1 year but not
more than 6 years (without probation); a. Utilizing without authorization, tampering with,
2. Deportation after service of sentence damaging, destroying or stealing:
1. Official ballots, election returns, and
For a Political Party certificates of canvass of votes used in the
Payment of a fine not less than P10,000 after a system; and
criminal conviction 2. Electronic devices or their components,
peripherals or supplies used in the AES such
Persons Required by Law to Keep Prisoners in as counting machine, memory
their Custody pack/diskette, memory pack receiver and
For prisoners illegally released from any penitentiary computer set
or jail during the prohibited period, where such b. Interfering with, impeding, absconding for
prisoners commit any act of intimidation, terrorism purpose of gain, preventing the installation or
or interference in the election, prison mayor in its use of computer counting devices and the
maximum period [Sec. 264, B.P. Blg. 881]. processing, storage, generation and transmission
of election results, data or information
Arrests in Connection with c. Gaining or causing access to using, altering,
destroying or disclosing any computer data,
Election Campaign program, system software, network, or any
computer-related devices, facilities, hardware or
Only upon a warrant of arrest issued by a competent equipment, whether classified or declassified
judge after all the requirements of the Constitution d. Refusal of the citizens' arm to present for perusal
have been strictly complied with its copy of election return to the board of
canvassers
e. Presentation by the citizens' arm of tampered or
spurious election returns
Page 294 of 382

f. Refusal or failure to provide the dominant

majority and dominant minority parties or the
citizens' arm their copy of election returns and
g. The failure to post the voters' list within the
specified time, duration and in the designated
location shall constitute an election offense on
the part the election officer concerned.
PENALTIES
General Rule:
a. Imprisonment of 8 years and one day to 12 years
without possibility of parole
b. Perpetual disqualification to hold public and any
non-elective public office and
c. Deprivation of the right of suffrage.
Exceptions: Those convicted of the crime of electoral

sabotage, which includes acts or offenses committed
in any of the following instances:
a. National elective office: When the tampering,
increase and/or decrease of votes perpetrated or
the refusal to credit the correct votes or to
deduct tampered votes is/are committed in the
election of a national elective office which is
voted upon nationwide and the tampering,
increase and/ or decrease of votes or refusal to
credit the correct votes or to deduct tampered
votes, shall adversely affect the results of the
election to the said national office to the extent
that losing candidate/s is /are made to appear
the winner/s
b. Regardless of the elective office involved: When
the tampering, increase and/or decrease of votes
committed or the refusal to credit the correct
votes or to deduct tampered votes perpetrated is
accomplished in a single election document or in
the transposition of the figure / results from one
election document to another and involved in
the said tampering increase and/or decrease or
refusal to credit correct votes or deduct
tampered votes exceed 5,000 votes, and that the
same adversely affects the true results of the
election
c. Any and all other forms or tampering increase/s
and/ or decrease/s of votes perpetuated or in
cases of refusal to credit the correct votes or
deduct the tampered votes, where the total votes
involved exceed 10,000 votes
Any and all other persons or individuals determined

to be in conspiracy or in connivance with the
members of the BEIs or BOCs involved shall be
meted the same penalty of life imprisonment.
Page 295 of 382

LOCAL
GOVERNMENTS
Political Law
Page 296 of 382

XV. LOCAL Hence, “provinces, chartered cities, and barangays

can best exemplify public corporations.”
GOVERNMENTS On the other hand, the Philippine Society for the
Prevention of Cruelty to Animals, while created by
A. Public Corporations Act No. 1285, is a private corporation as (1) it is not
subject to state control, and (2) its powers to arrest
offenders of animal welfare laws and to serve
1. Concept processes have been withdrawn by C.A. No. 148
[Philippine Society for the Prevention of Cruelty to Animals v.
Corporation: An artificial being created by operation COA, G.R. No. 169752 (2007)].
of law, having the right of succession and the powers,
attributes and properties expressly authorized by law c. Public Corporation v. GOCC
or incident to its existence [Sec. 2, Corp. Code; Sec.
2, Act No. 1459]. Government-
Owned or –
Public Corporation: One formed or organized for Public
Controlled
the government of a portion of the state. Its purpose Corporation
Corporation
is for the general good and welfare [Sec. 3, Act No. (GOCC)
1459]. An agency
organized as a
Private Corporation: One formed for some private stock or non-
purpose, benefit, aim, or end [Sec. 3, Act No. 1459]. stock
For the
corporation,
a. Public Corporation v. Private government of
vested with
a portion of the
Corporation state, and the
functions
Purpose relating to
general good
Public Private public needs
and welfare
Corporation Corporation whether
[Sec. 3, Act.
For the governmental or
No. 1459]
government of a proprietary in
For some private nature [Sec.
portion of the
purpose, benefit, 2(13), Admin.
Purpose state, and the
aim, or end [Sec. Code]
general good and
3, Act. No. 1459]
welcome [Sec. 3,
Act. No. 1459] By special
By the will of the charters or
Creation By law
By the state, incorporators, under the
Creation either by general with the Corporation
or special act recognition of the Code
state Owned by the
[MARTIN] Government
directly or
through its
b. Test to Identify Public or Private instrumentalities
Character Formed and either wholly,
Ownership organized by or, where
“The true criterion […] is the totality of the relation the state applicable as in
of the corporation to the State. If the corporation is the case of stock
created by the State as the [State’s] own agency or corporations, to
instrumentality to help it in carrying out its the extent of at
governmental functions, then the corporation is least 51% of its
considered public; otherwise, it is private.” capital stock
Page 297 of 382

Government-
Public
Owned or –
Controlled
Classifications
Corporation
Corporation
There are two kinds of public corporation, namely,
(GOCC)
municipal and non-municipal [Nat’l Waterworks &
[Sec. 2(13), Sewerage Authority v. NWSA Consolidated Unions, supra].
Admin. Code]
Organized as a
stock or non- a. Quasi-Public Corporations
stock
corporation • Public corporations created as agencies of the
[Sec. 2(13), State for a narrow and limited purpose;
Admin. Code; • Not possessed with powers and liabilities of self-
MIAA v. CA, governing corporations; and
G.R. No. • Take charge of some public or state work for the
Constituted by 155650 (2006)] general welfare (other than government of a
law and community) [MARTIN]
possessed of Independent • Include Quasi-Municipal Corporations (e.g.
substantial agency of the water districts)
control over its government for
own affairs administrative A quasi-public corporation is a species of private
Nature and purposes corporations, but the qualifying factor is the type of
Status Autonomous service the former renders to the public: if it performs
in the sense Has corporate a public service, then it becomes a quasi-public
that it is given powers to be corporation [Philippine Society for the Prevention of Cruelty
more powers, exercised by its to Animals v. COA, supra].
authority, board of
responsibilities, directors, and its
and resources own assets and
b. Municipal Corporations
liabilities [Nat’l
Waterworks & A municipal corporation is an agency of the State to
Sewerage regulate or administer the local affairs of the town,
Authority v. city, or district which is incorporated [Nat’l
NWSA Waterworks & Sewerage Authority v. NWSA Consolidated
Consolidated Unions, supra].
Unions, G.R. No.
L18939 (1964)]
The mere fact that the Government happens to be a

majority stockholder does not make it a public
corporation [National Coal Co. v. CIR, G.R. No. L-
22619 (1924)].
By becoming a stockholder of a corporation, the

Government divests itself of its sovereign character
so far as respects the transactions of the corporation
[Bacani v. Nat’l Coconut Corp., G.R. No. L-9657 (1956)].
Vesting of corporate powers on a government

instrumentality does not make the latter a GOCC if
it is not organized as a stock or non-stock
corporation [MIAA v. CA, G.R. No. 155650 (2006)].
Page 298 of 382

B. Municipal Corporations Political/

Governmental
Corporate/
Proprietary
City of Davao, G.R. No.
Elements 148622 (2002)]
LGU acts as agent of
LGU acts as agent of
a. Legal creation or incorporation; the community in
the national
b. Corporate name by which the entity is known administration of local
government. [Republic v.
and in which all corporate acts are done; affairs [Republic v. City of
City of Davao, supra]
c. Population which is invested with the powers of Davao, supra]
the corporation through duly constituted officers Examples: Examples:
and agents; and • Regulations against • Municipal
d. Territory within which the local government fire, disease; waterworks,
exercises civil and corporate functions • Preservation of markets, wharves,
[MARTIN]. public peace; fisheries;
• Establishment of • Maintenance of
Nature and Function schools, public parks, cemeteries,
offices, etc. golf courses, etc.
a. Dual Nature
Requisites for Creation,
Sec. 15, LGC. Political and Corporate Nature Conversion, Division,
of Local Government Units. – Every LGU
created under this Code is a body politic and Merger, or Dissolution
corporate. It shall exercise powers both as a
political subdivision of the National Government, Sec. 1, Art. X, Constitution. The territorial and
and as a corporate entity representing the political subdivisions are the provinces, cities,
inhabitants of its territory. municipalities, and barangays. There shall be
autonomous regions in Muslim Mindanao and the
b. Dual Functions Cordilleras as hereinafter provided.
The powers of a municipality are twofold in Sec. 10, Art. X, Constitution. No province, city,
character: public, governmental, or political on the municipality, or barangay may be created, divided,
one hand, and corporate, private, or proprietary on merged, abolished, or its boundaries substantially
the other [Torio v. Fontanilla G.R. No. L-29993 altered, except in accordance with the criteria
(1978)]. established in the Local government code and
subject to approval by a majority of the votes cast
Political/ Corporate/ in a plebiscite called for the purpose in the political
Governmental Proprietary unit or units directly affected.
Exercised in
Exercised for the
administering the
special benefit and a. General Requirements
powers of the state and
advantage of the
promoting the public 1. Law or Ordinance
community and include
welfare and they
those which are
include the legislative, A local government unit may be created, divided,
ministerial, private, and
judicial, public, and merged, abolished, or its boundaries substantially
corporate [Torio v.
political [Torio v. altered EITHER:
Fontanilla, supra]
Fontanilla, supra] a. By law enacted by Congress in the case of
Concern health, safety, Seek to obtain special provinces, cities, municipalities, and any other
advancement of public corporate benefits or political subdivision; OR
good and welfare as earn pecuniary profit. b. By ordinance passed by the Sangguniang
affecting the public [Republic v. City of Davao, Panlalawigan or Sangguniang Panlungsod in the
generally. [Republic v. supra] case of a barangay within its territorial
jurisdiction [Sec. 6, LGC].
Page 299 of 382

This includes:
N.B. In the case of the creation of barangays by the a. Conversion (e.g. from a city to a highly
Sangguniang Panlalawigan, the recommendation of urbanized city) [Sec. 453, LGC; see also Tobias v.
the Sangguniang Bayan concerned shall be necessary. Abalos, G.R. No. 114783 (1994)]
[Sec. 385, LGC] b. Downgrading (e.g. from an independent
component city to a component city) [Miranda v.
Power of creation is legislative in nature Aguirre, G.R. No. 133064 (1999), on the
• The authority to create municipal corporations is downgrading of Santiago City, Isabela]
essentially legislative in nature [Pelaez v. Auditor
General, G.R. No. L-23825 (1965).] General Rule: The plebiscite shall be conducted by the
• The enactment of a LGC is not a sine qua non for COMELEC within 120 days from the date of
the creation of a municipality, and before the effectivity of the law or ordinance, unless said law or
enactment of such, the power remains plenary ordinance fixes another date [Sec. 10, LGC].
except that creation should be approved in a
plebiscite [Torralba v. Sibagat, G.R. No. L-59180 Exception: The Constitution recognizes that the power
(1987)]. to fix the date of elections is legislative in nature. But
the Court upheld the COMELEC’s broad power or
To whom and what power may be delegated authority to fix other dates for a plebiscite, as in
• To local legislative bodies: “Under its plenary special elections, to enable the people to exercise
legislative powers, Congress can delegate to local their right of suffrage. The COMELEC thus has
legislative bodies the power to create local residual power to conduct a plebiscite even beyond
government units, subject to reasonable the deadline prescribed by law [Cagas v. COMELEC,
standards and provided no conflict arises with G.R. No. 209185 (2013)].
any provision of the Constitution” [Sema v.
COMELEC, G.R. No. 177597 (2008)]. When Plebiscite is NOT Required: There is no
need for any plebiscite in the creation, dissolution, or
N.B. Note that it has done so by delegating the any other similar action on the following:
power to create barangays. a. Legislative Districts: Legislative districts are
not political subdivisions through which
functions of the government are carried out
• Not to the President: The power is inherently
[Bagabuyo v. COMELEC, G.R. No. 176970
legislative, and to grant the President the power
(2008)].
to create or abolish municipal corporations
b. Administrative Regions: Administrative
would allow him to exercise over LGUs the
regions are not territorial and political
power of control denied to him by the
subdivisions. The power to create and merge
Constitution [Pelaez v. Auditor General, supra].
administrative regions is traditionally vested in
• Power to create provinces cannot be delegated: the President. Hence, the merger of provinces
Section 19, Article VI of RA 9054 is that did not vote for inclusion in the ARMM into
unconstitutional insofar as it grants to the existing administrative regions does not require a
ARMM Regional Assembly the power to create plebiscite [See Abbas v. COMELEC, G.R. No.
provinces and cities. Congress’ delegation of the 89651 (1989)].
power to create a province includes the creation
of a legislative district, which is unconstitutional, Where a Plebiscite is Held: The plebiscite must be
since legislative districts may be created or “in the political units directly affected”
reapportioned only by an Act of Congress [Sema
• When the law states that the plebiscite shall be
v. COMELEC, supra].
conducted “in the political units directly
affected,” it means that the residents of the
2. Plebiscite political entity who would be economically
dislocated by the separation of a portion thereof
When a Plebiscite is Required: When an LGU is have the right to vote in said plebiscite [Padilla v.
created, divided, merged, abolished, or its boundaries COMELEC, G.R. No.103328 (1992)].
substantially altered. [Sec. 10, LGC]
• “Material Change” as standard: If the creation,
division, merger, abolition or substantial
alteration of boundaries of an LGU will cause a
Page 300 of 382

material change in the political and economic Rationale: If all amendments to the Organic Act have
rights of a political unit, the residents of such to undergo the plebiscite requirement before
political unit should have the right to participate becoming effective, this would hamper the ARMM’s
in the required plebiscite [Miranda v. Aguirre progress by impeding Congress from enacting laws
(1999)]. that timely address problems as they arise in the
• In the conversion of a component city to a highly region, as well as weighing down the ARMM
urbanized city, the residents of the province government with the costs that unavoidably follow
must participate. The conversion of the city will, the holding of a plebiscite [Abas Kida v. Senate, G.R.
among others, result in reduction in taxing No. 196271 (2011)].
jurisdiction and reduced economic viability of
the province [Umali v. COMELEC, G.R. No. b. Specific Requirements
203974 (2014)].
• The inhabitants of a neighboring city (e.g. San The creation of a local government unit or its
Juan) are properly excluded from a plebiscite conversion from one level to another level shall be
concerning the conversion of a city (e.g. based on verifiable indicators of viability and
Mandaluyong) to a highly urbanized city [see projected capacity to provide services, which include:
Tobias v. Abalos, supra]. 1. Income,
2. Population, and/or
PLEBISCITE REQUIREMENT FOR 3. Land Area [Sec. 7, LGC]
AUTONOMOUS REGIONS
Which Requirements Must be Satisfied:
Par. 2, Sec. 18, Art. X, Constitution. The
creation of autonomous region shall be effective 1. Income; AND
when approved by a majority of the votes cast by Province or
2. EITHER population OR land
the constituent units in a plebiscite called for the City
area
purpose. However, only provinces, cities, and
geographic areas voting favorably in such 1. Income;
plebiscite shall be included in the autonomous Municipality 2. Population; AND
region. 3. Land Area
1. Population; AND
Majority Requirement: What is required by the Barangay
2. Territorial contiguity
Constitution is a simple majority of votes approving
the Organic Act in individual constituent units. INCOME
Income must be sufficient to provide for all essential
A double majority [in (1) all constituent units put government facilities and services and special
together, (2) as well as in the individual constituent functions commensurate with the size of its
units] is not required [Abbas v. COMELEC, supra]. population [Sec. 7(a), LGC].
Sole province cannot validly constitute an What is included in average annual income: Income
autonomous region: An autonomous region cannot accruing to the general fund, exclusive of special
be created if only one province approved of its funds, transfers, and non-recurring income [Sec. 442,
creation in the plebiscite called for the purpose 450, 461, LGC].
[Ordillo v. COMELEC, G.R. No. 93054 (1990), on the
• The internal revenue allotment (IRA) forms part
plebiscite concerning the Cordilleras].
of the income of the LGU. The funds generated
from local taxes, IRA, and national wealth
Not all amendments require plebiscite: Only
utilization proceeds accrue to the general fund of
amendments to, or revisions of, the Organic Act
the LGU [Alvarez v. Guingona, G.R. No. 118303
constitutionally essential to the creation of
(1996)].
autonomous regions —those aspects specifically
mentioned in the Constitution which Congress must
Exception: Component cities created under R.A. 9009,
provide for in the Organic Act—require ratification
which mandates that the income requirement be
through a plebiscite.
satisfied through locally generated revenue of at least
P100M. [League of Cities v. Ermita (2008)]
Page 301 of 382

SUMMARY OF VERIFIABLE INDICATORS

Population OF VIABILITY
Population shall be determined as the total number Income Pop Land Area
of inhabitants within the territorial jurisdiction of the
local government unit [Sec. 7(b), LGC]. Total
Average
number
annual
Land Area (Territory) of Generally,
income for
The land area must be: inhabitant must be
the last 2
1. Contiguous, unless it comprises of two or more s within contiguous
consecutiv
islands or is separated by an LGU independent LGU’s
e years
of the others; territory
2. Properly identified by metes and bounds with Lands
technical descriptions; and Departmen National
Compliance Manage-
3. Sufficient to provide for such basic services and t of Statistics
attested by: ment
facilities to meet the requirements of its populace Finance Office
Bureau
[Sec. 7(c), LGC].
Province P20M
2,000 sq.
Land Area Requirements; Exceptions [Sec. 461, (1991 250,000
km.
Need not Need not be LGC] prices)
follow land contiguous Highly
area Urbanized P50M
Under the City (1991 200,000 100 sq. km.
LGC: No [Sec. 452, prices)
1) Composed
exception. LGC]
of 2 or more
islands; OR Component
Under the
2) Separated by City
LGC IRR:
cities which do [Sec. 450, P100M
Province composed of 1
not contribute LGC, as (2000 150,000 100 sq. km.
or more islands
to the income amended by prices)
[Art. 9(2), LGC
of the province R.A. No.
IRR; Navarro v.
[Sec. 461(b), 9009]
Ermita, G.R.
LGC]
No. 180050 Municipalit
(2011)] P2.5M
y
Composed of 1 Composed of 2 (1991 25,000 50 sq. km.
[Sec. 442,
or more islands or more islands prices)
City LGC]
[Sec. 450(b), [Sec. 450(b),
LGC] LGC] 2,000; OR
no
Composed of 1 Composed of 2 Barangay no 5,000 (if
requiremen
or more islands or more islands [Sec. 386, requiremen in Metro
Municipality t except for
[Sec. 442(a), [Sec. 442(b), LGC] t Manila or
contiguity
LGC] LGC] HUCs)
Composed of 2
or more islands General Rule: All requirements are minimum
Barangay no requirement
[Sec. 386(b),
LGC] c. Other LGUs
1. Special Metropolitan Political
Subdivisions
A special metropolitan political subdivision is:

a. created by Congress,
b. subject to a plebiscite,
Page 302 of 382

c. whose component cities and municipalities sovereignty as well as territorial integrity of the
retain their basic autonomy and are entitled to Republic of the Philippines.
their own local executive and legislative
assemblies, and Sec. 11, Art. X, Constitution. The Congress may,
d. whose jurisdiction shall be limited to basic by law, create special metropolitan political
services requiring coordination. subdivisions, subject to a plebiscite as set forth in
Section 10 hereof. The component cities and
N.B. The MMDA is not an LGU, much less a special municipalities shall retain their basic autonomy
metropolitan political subdivision. “The MMDA is a and shall be entitled to their own local executive
‘development authority’ which is a ‘national agency, and legislative assemblies. The jurisdiction of the
not a political government unit’” [MMDA v. Bel-Air, metropolitan authority that will thereby be created
G.R. No. 135962 (2000)]. shall be limited to basic services requiring
• The scope of the MMDA's function is limited to coordination.
the delivery of [7 basic services enumerated in its
charter.] It is not vested with police power, let
Sec. 16, Art. X, Constitution. The President shall
alone legislative power. All its functions are
exercise general supervision over autonomous
administrative in nature [MMDA v. Bel-Air,
regions to ensure that laws are faithfully executed.
supra].
2. Independent Component Cities and Sec. 17, Art. X, Constitution. All powers,
functions, and responsibilities not granted by this
Highly Urbanized Cities
Constitution or by law to the autonomous regions
shall be vested in the National Government.
Sec. 12, Art. X, Constitution. Cities that are
highly urbanized, as determined by law, and
component cities whose charters prohibit their Sec. 21, Art. X, Constitution. The preservation
voters from voting for provincial elective officials, of peace and order within the regions shall be the
shall be independent of the province. The voters responsibility of the local police agencies which
of component cities within a province, whose shall be organized, maintained, supervised, and
charters contain no such prohibition, shall not be utilized in accordance with applicable laws. The
deprived of their right to vote for elective defense and security of the regions shall be the
provincial officials. responsibility of the National Government.
Independent Component Cities are those whose An autonomous region is created via the enactment
charters prohibit their voters from voting for of an organic act by Congress with participation of
provincial elective officials. They shall be the regional consultative commission. The organic
independent of the province [par. 2, Sec. 451, LGC]. act shall:
a. Define the basic structure of government for the
Highly Urbanized Cities are those that meet the region consisting of the executive department
higher population threshold for cities in the LGC and legislative assemblies, both of which shall be
[Sec. 452(a), LGC]. elective and representative of the constituent
political units; and,
b. Provides for special courts with personal, family,
3. Autonomous Regions and property law jurisdiction [Sec. 18, Art. X,
Constitution].
Sec. 15, Art. X, Constitution. There shall be
created autonomous regions in Muslim Mindanao An autonomous region is considered a form of
and in the Cordilleras consisting of provinces, local government in Section 1, Article X of the
cities, municipalities, and geographical areas Constitution.
sharing common and distinctive historical and From the perspective of the Constitution,
cultural heritage, economic and social structures, autonomous regions are considered one of the forms
and other relevant characteristics within the of local governments, as evident from Article X of
framework of this Constitution and the national the Constitution entitled “Local Government.”
Autonomous regions are established and discussed
under Sections 15 to 21 of this Article—the article
Page 303 of 382

wholly devoted to Local Government. That an LGC’s Conversion of De Facto Municipal

autonomous region is considered a form of local Corporations to De Jure
government is also reflected in Section 1, Article X of
the Constitution [Kida v. Senate, G.R. No. 196271 Sec. 442 (d), LGC. Municipalities existing as of
(2011)]. the date of the effectivity of this Code shall
continue to exist and operate as such. Existing
The organic act of autonomous regions shall provide municipal districts organized pursuant to
for legislative powers over: presidential issuances or executive orders and
a. Administrative organization; which have their respective set of elective
b. Creation of sources of revenues; municipal officials holding office at the time of the
c. Ancestral domain and natural resources; effectivity of this Code shall henceforth be
d. Personal, family, and property relations; considered as regular municipalities.
e. Regional urban and rural planning development;
f. Economic, social, and tourism development; 5. Sub-Provinces
g. Educational policies;
h. Preservation and development of cultural LGC’s Conversion of Sub-Provinces to Provinces
heritage; and
i. Such other matters as may be authorized by law
1st sentence, par. 1, Sec. 462, LGC. Existing sub-
for the promotion of the general welfare of the
provinces are hereby converted into regular
people of the region [Sec. 20, Art. X,
provinces upon approval by a majority of the
Constitution].
votes cast in a plebiscite to be held in the said sub-
provinces and the original provinces directly
N.B. The autonomous governments of Mindanao are
affected.
subject to the jurisdiction of our national courts.
[Limbona v. Mangellin, G.R. No. 80391 (1989)]
N.B. There are currently no more existing sub-
provinces in the Philippines.
4. De Facto Municipal Corporations
De Facto Municipal Corporations are formed when d. Other Material Changes

there is defect in the creation of a municipal
corporation but its legal existence has been 1. Division and Merger
recognized and acquiesced publicly and officially.
Requirements: Division and merger shall comply
Requisites: with the same requirements prescribed for the
a. Apparently valid law under which the creation of an LGU [Sec. 8, LGC].
corporation may be formed;
b. Attempt in good faith to organize the Limitations:
corporation; • Division shall not reduce the income,
c. Colorable compliance with law; and population, or land area of the LGU or LGUs
d. Assumption of corporate powers [Municipality of concerned to less than the minimum
Malabang v. Benito, G.R. No. L-28113 (1969)]. requirements prescribed;
• The income classification of the original LGU or
Collateral Attacks are NOT Allowed: The action LGUs shall not fall below its current
to attack its personality is reserved to the state in a classification prior to the division [Sec. 8, LGC].
proceeding for quo warranto or any other direct
proceeding. The proceeding must be: Effects:
a. Brought in the name of the Republic of the • Under the old Revised Administrative Code, the
Philippines; effect of division and merger are determined by
b. Commenced by the Solicitor General or the the law effecting such [Sec. 68]. There is no
fiscal when directed by the President; and equivalent provision in either the 1987
c. Timely raised [Municipality of San Narciso v. Administrative Code, the LGC, or the LGC IRR.
Mendez, G.R. No. 103702 (1994)].
• The following effects are taken from common
law:
Page 304 of 382

Effects of Merger Effects of Division The effects of downgrading from independent

Legal existence and right Legal existence of the component city to component city are:
of office of the annexed original LGU is a. The city mayor will be placed under the
LGU are terminated. extinguished. administrative supervision of the Governor;
Ordinances of the b. Resolutions and ordinances passed by the City
annexing LGU shall Council will have to be reviewed by the
prevail Provincial Board; and,
Successor LGUs acquire c. Taxes will have to be shared with the province
Title to property is [Miranda v. Aguirre, supra].
property, rights, powers,
acquired and debts are
and obligations falling
assumed by the annexing N.B. Power to create, divide, merge, abolish or
within their respective
LGU. substantially alter boundaries: The power to
territorial limits.
[MARTIN] create, divide, merge, abolish or substantially alter
boundaries of provinces, cities, municipalities or
2. Abolition barangays, is essentially legislative in nature. The
framers of the Constitution have, however, allowed
Ground: An LGU may be abolished when its for the delegation of such power in Sec. 10, Art. X of
income, population, or land area has been irreversibly the Constitution as long as (1) the criteria prescribed
reduced to less than the minimum standards in the LGC is met and (2) the creation, division,
prescribed for its creation as certified by the national merger, abolition or the substantial alteration of the
agencies concerned to the Congress or the boundaries is subject to the approval by a majority
sanggunian [Sec. 9, LGC]. vote in a plebiscite. With the twin criteria of standard
and plebiscite satisfied, the delegation to LGUs of the
Resulting Merger: The law or ordinance abolishing power to create, divide, merge, abolish or
an LGU shall specify the province, city, municipality, substantially alter boundaries has become a
or barangay with which the LGU sought to be recognized exception to the doctrine of non-
abolished will be incorporated or merged [Sec. 9, delegation of legislative powers [Umali v.
LGC]. COMELEC, G.R. No. 203974 (2014)].
No Automatic Abolition: The fact that nobody

resides in an LGU does not result in its automatic
cessation. The Congress or the sanggunian concerned
must pass a law or an ordinance for the abolition of
such LGU, subject to the mandatory requirement of
a plebiscite [Sultan Usman Sarangani v. COMELEC,
G.R. No. 135927 (2000)].
Dissolution does not occur due to:

a. Non-user or surrender of charter;
b. Failure to elect municipal officers;
c. Change of sovereignty; or
d. Change of name or boundaries [MARTIN].
3. Downgrading
Downgrading falls within the meaning of creation,

division, merger, abolition, or substantial alteration;
hence ratification in a plebiscite is necessary. There is
a material change in the political and economic rights
of the LGU's inhabitants as well as its budget, and
thus reasonable to require the consent of the affected
population.
Page 305 of 382

make it more longer accountable to

C. Principles of Local responsive. [Limbona v.
Mangellin, supra]
the national
government, but to its
Autonomy constituency. [Ganzon v.
CA, G.R. No. 93252
(1991)]
Sec. 2, Art. X, Constitution. The territorial and
political subdivisions shall enjoy local autonomy.
Devolution is the act by which the national
government confers power and authority upon the
Sec. 2, LGC. Declaration of Policy. various local government units to perform specific
a. It is hereby declared the policy of the State functions and responsibilities [Sec. 17, LGC].
that the territorial and political subdivisions
of the State shall enjoy genuine and The principle of local autonomy under the 1987
meaningful local autonomy to enable them to Constitution simply means decentralization [Basco v.
attain their fullest development as self-reliant PAGCOR, G.R. No. 91649 (1991)].
communities and make them more effective
partners in the attainment of national goals. N.B. Basco was decided prior to the LGC. Basco
Toward this end, the State shall provide for a holds that the Constitution guarantees
more responsive and accountable local decentralization, but says nothing which precludes
government structure instituted through a devolution. The Court later recognized that “the
system of decentralization whereby local centerpiece of LGC is the system of
government units shall be given more powers, decentralization[.] Indispensable thereto is
authority, responsibilities, and resources. The devolution and the LGC expressly provides that
process of decentralization shall proceed ‘[a]ny provision on a power of a local government
from the national government to the local unit shall be liberally interpreted in its favor, and in
government units. case of doubt, any question thereon shall be resolved
b. It is also the policy of the State to ensure the in favor of devolution of powers and of the lower
accountability of local government units local government unit’” [Tano v. Socrates, G.R. No.
through the institution of effective 110249 (1997), citing Sec. 5(a), LGC].
mechanisms of recall, initiative and
referendum. Note: The Constitution provides for political
c. It is likewise the policy of the State to require autonomy (and not merely administrative autonomy)
all national agencies and offices to conduct for autonomous regions [Cordillera Broad Coalition v.
periodic consultations with appropriate local COA, G.R. No. 79956 (1990)].
government units, nongovernmental and
people's organizations, and other concerned N.B. Local Autonomy and National
sectors of the community before any project Accountability
or program is implemented in their respective Where there is no express power in the charter of a
jurisdictions. municipality authorizing it to adopt ordinances
regulating certain matters which are specifically
Decentralization v. covered by a general statute, a municipal ordinance,
insofar as it attempts to regulate the subject which is
Devolution completely covered by a general statute of the
legislature, may be rendered invalid. Where the
Decentralization refers to either (1) decentralization subject is of statewide concern, and the legislature has
of administration or to (2) decentralization of power. appropriated the field and declared the rule, its
declaration is binding throughout the State. A reason
Decentralization of Decentralization of advanced for this view is that such ordinances are in
Administration Power excess of the powers granted to the municipal
Occurs when the Abdication of political corporation [Batangas CATV Inc. v. CA, G.R. No.
central government power in favor of 138810 (2004)].
delegates administrative LGUs declared to be
powers to political autonomous regions, N.B. Local Autonomy and Decision Making
subdivisions in order to making the latter no
Page 306 of 382

Police power is the power to prescribe regulations to Power of Supervision Power of Control
promote the health, morals, peace, education, good rules are followed, but performance or
order, safety, and general welfare of the people. As an they themselves do not accomplishment of an
inherent attribute of sovereignty, police power lay down such rules, nor act. If these rules are not
primarily rests with the State. In furtherance of the do they have the followed, they may, in
State's policy to foster genuine and meaningful local discretion to modify or their discretion, order
autonomy, the national legislature delegated the replace them. If the rules the act undone or redone
exercise of police power to local government units are not observed, they by their subordinates or
(LGUs) as agents of the State. Such delegation can be may order the work done even decide to do it
found in Section 16 of the LGC, which embodies the or redone, but only to themselves.
general welfare clause. Since LGUs exercise delegated conform to such rules.
police power as agents of the State, it is incumbent They may not prescribe
upon them to act in conformity to the will of their their own manner of
principal, the State. Necessarily, therefore, execution of the act.
ordinances enacted pursuant to the general welfare [Pimentel v. Aguirre, G.R. No.132988 (2000)]
clause may not subvert the State's will by
contradicting national statutes [City of Batangas v. Phil.
Shell Petroleum Corp., G.R. No. 195003 (2017)].
Local Fiscal Autonomy
Sec. 5, Art. X, Constitution. Each local
President’s Power of government unit shall have the power to create its
Supervision over Local own sources of revenues and to levy taxes, fees,
and charges subject to such guidelines and
Governments limitations as the Congress may provide,
consistent with the basic policy of local autonomy.
Such taxes, fees, and charges shall accrue
Sec. 4, Art. X, Constitution. The President of the exclusively to the local governments.
Philippines shall exercise general supervision over
local governments. Provinces with respect to Fiscal Autonomy and Self–Reliance: In order to
component cities and municipalities, and cities fully secure to the LGUs the genuine and meaningful
and municipalities with respect to component autonomy that would develop them into self-reliant
barangays, shall ensure that the acts of their communities and effective partners in the attainment
component units are within the scope of their of national goals, Section 17 of the Local
prescribed powers and functions. Government Code vested upon the LGUs the duties
and functions pertaining to the delivery of basic
The Constitution confines the President's power over services and facilities. While the aforementioned
local governments to one of general supervision. provision charges the LGUs to take on the functions
and responsibilities that have already been devolved
Supervision v. Control upon them from the national agencies on the aspect
Power of Supervision Power of Control of providing for basic services and facilities in their
Power of an officer to respective jurisdictions, paragraph (c) of the same
Overseeing; the power
alter or modify or nullify provision provides a categorical exception of cases
or authority of an officer
or set aside what a involving nationally-funded projects, facilities,
to see that subordinate
subordinate officer has programs and services.
officers perform their
done in the performance
duties
of his duties The essence of this express reservation of power by
If subordinate fails, If subordinate fails, the national government is that, unless an LGU is
superior may take such superior may substitute particularly designated as the implementing agency, it
action or step as the judgment of the has no power over a program for which funding has
prescribed by law to latter for that of the been provided by the national government under the
make them perform their former. annual general appropriations act, even if the
duties. program involves the delivery of basic services within
Supervising officials Officers in control lay the jurisdiction of the LGU [Pimentel Jr. v. Executive
merely see to it that the down the rules in the Secretary, G.R. No. 195770 (2012)].
Page 307 of 382

3. Consultation with (a) heads of both Houses of

Under existing laws, LGUs enjoy not only Congress, and (b) presidents of the liga. [par. 2,
administrative autonomy, but also local fiscal Sec. 284, LGC]
autonomy.
Automatic Release: The share of each LGU shall be
This means that LGUs have the power to create their released, without need of any further action, directly
own sources of revenue in addition to their equitable to the respective treasurer on a quarterly basis within
share in the national taxes released by the national five (5) days after the end of each quarter, and which
government, as well as the power to allocate their shall not be subject to any lien or holdback that may
resources in accordance with their own priorities. be imposed by the national government for whatever
purpose [Sec. 286(a), LGC].
It extends to the preparation of their budgets, and • Sec. 4 of A.O. 372, withholding 10% of the
local officials in turn have to work within the LGUs' IRA "pending the assessment and
constraints thereof. They are not formulated at the evaluation by the Development Budget
national level and imposed on local governments, Coordinating Committee of the emerging fiscal
whether they are relevant to local needs and resources situation" is invalid and unconstitutional. The
or not [Pimentel v. Aguirre, supra]. “temporary” nature of the retention by the
national government does not matter. Any
a. Sources of LGU Funds retention is prohibited [Pimentel v. Aguirre, supra].
• Since under Sec. 6, Art X of the Constitution,
1. Taxes, fees, and charges which accrue exclusively only the just share of local governments is
for their use and disposition qualified by the words “as determined by law,”
2. Just share in national taxes which shall be and not the release thereof, the plain implication
automatically and directly released to them is that Congress is not authorized by the
3. Equitable share in the proceeds from utilization Constitution to hinder or impede the automatic
and development of national wealth and release of the IRA [ACORD v. Zamora, G.R. No.
resources within their territorial jurisdiction [Sec. 144256 (2005)].
18, LGC]
c. Consultations
b. Internal Revenue Allotments
Sec. 26, LGC. Duty of National Government
Sec. 6, Art. X, Constitution. Local government Agencies in the Maintenance of Ecological
units shall have a just share, as determined by law, Balance. – It shall be the duty of every national
in the national taxes which shall be automatically agency or GOCC authorizing or involved in the
released to them. planning and implementation of any project or
program that may cause pollution, climatic
General Rule: LGUs shall have a 40% share in the change, depletion of non-renewable resources,
national internal revenue taxes based on the loss of cropland, rangeland, or forest cover, and
collection of the third fiscal year preceding the extinction of animal or plant species, to consult
current fiscal year [Sec. 284(c), LGC]. with the LGUs, NGOs, and other sectors
concerned and explain the goals and objectives of
Exception: When the national government incurs an the project or program, its impact upon the people
unmanageable public sector deficit, the President is and the community in terms of environmental or
authorized to reduce the IRA to 30% [Par. 2, Sec. ecological balance, and the measures that will be
284, LGC]. undertaken to prevent or minimize the adverse
effects thereof.
Requisites for the Exception:
1. Unmanageable public sector deficit; Sec. 27, LGC. Prior Consultations Required. –
2. Recommendation of the Secretaries of (a) No project or program shall be implemented by
Finance, (b) Internal and Local Government, government authorities unless the consultations in
and (c) Budget and Management; and Sections 2(c) and 26 hereof are complied with, and
prior approval of the sanggunian concerned is
obtained.
Page 308 of 382

c. The general welfare provisions in this Code

Section 26 must be read together with Sec. 27: shall be liberally interpreted to give more
Section 27 of the Code should be read in conjunction powers to local government units in
with Section 26 thereof. Thus, the projects and accelerating economic development and
programs mentioned in Section 27 should be upgrading the quality of life for the people in
interpreted to mean projects and programs whose the community;
effects are among those enumerated in Sections 26 d. Rights and obligations existing on the date of
and 27, to wit, those that: (1) may cause pollution; (2) effectivity of this Code and arising out of
may bring about climatic change; (3) may cause the contracts or any other source of presentation
depletion of non-renewable resources; (4) may result involving a local government unit shall be
in loss of crop land, rangeland, or forest cover; (5) governed by the original terms and conditions
may eradicate certain animal or plant species; and (6) of said contracts or the law in force at the time
other projects or programs that may call for the such rights were vested; and
eviction of a particular group of people residing in the e. In the resolution of controversies arising
locality where these will be implemented [Bangus Fry under this Code where no legal provision or
fisherfolk v. Lanzanas, G.R. No. 131442 (2003)]. jurisprudence applies, resort may be had to
the customs and traditions in the place where
As to Subic Special Economic Zone (SSEZ): the controversies take place.
Consultations are not required when the very law
unambiguously provides that the LGUs do not retain
their basic autonomy and identity when it comes to
matters specified by the law as falling under the
powers, functions and prerogatives of the SBMA.
Under R.A. No. 7227, the power to approve or
disapprove projects within the SSEZ is one such
power over which the SBMA’s authority prevails over
the LGU’s authority [Paje v. Casiño, G.R. No. 207257
(2015)].
d. Interpretation in Favor of Local

Autonomy
Sec. 5, LGC. Rules of interpretation. – In the
interpretation of the provisions of this Code, the
following rules shall apply:
a. Any provision on a power of a local
government unit shall be liberally interpreted
in its favor, and in case of doubt, any question
thereon shall be resolved in favor of
devolution of powers and of the lower local
government unit. Any fair and reasonable
doubt as to the existence of the power shall
be interpreted in favor of the local
government unit concerned;
b. In case of doubt, any tax ordinance or
revenue measure shall be construed strictly
against the local government unit enacting it,
and liberally in favor of the taxpayer. Any tax
exemption, incentive or relief granted by any
local government unit pursuant to the
provisions of this Code shall be construed
strictly against the person claiming it;
Page 309 of 382

b. Police power proper – Authorizes the

D. Powers of Local municipality to enact ordinances as may be
Government Units proper and necessary for the health and safety,
prosperity, morals, peace, good order, comfort
Sources of Power: and convenience of the municipality and its
1. 1987 Constitution inhabitants, and for the protection of their
2. Local Government Code and special laws property [Fernando v. St. Scholastica’s College, G.R.
3. Charter No. 161107 (2013)].
Four Categories of Powers Exercised by LGUs: Limitations

1. Powers expressly granted a. The General Welfare clause cannot be used to
2. Powers necessarily implied therefrom justify an act not authorized by law.
3. Powers necessary, appropriate, or incidental for b. The exercise must pass the test of a valid
efficient and effective governance ordinance [Rural Bank of Makati v. Municipality of
4. Powers essential to the promotion of the general Makati, G.R. No. 150763 (2004)].
welfare [Sec. 16, LGC]
Two-Pronged Test for an Ordinance to be
Within their respective territorial jurisdictions, Considered a Valid Police Power Measure
LGUs shall ensure and support: [Mosqueda v. Pilipino Banana Growers & Exporters
1. Preservation and enrichment of culture Association, Inc., G.R. No. 189185 (2016)]
2. Promotion of health and safety a. Formal
3. Enhancement of the right of the people to a 1. Enacted within the corporate powers of the
balanced ecology local government unit, and
4. Development of self-reliant scientific and 2. Passed according to procedure prescribed
technological capabilities by law
5. Improvement of public morals b. Substantive
6. Enhancement of economic prosperity and social 1. It must not contravene the Constitution or
justice any statute;
7. Promotion of full employment among residents 2. It must be fair, not oppressive;
8. Maintenance of peace and order 3. It must not be partial or discriminatory;
9. Preservation of the comfort and convenience of 4. It must not prohibit but may regulate trade
its inhabitants [Sec. 16, LGC] 5. It must be general and consistent with public
policy
6. It must not be unreasonable
Police Power (General
Welfare Clause) Illustrations: Valid Exercise of Police Power
• Prescribing zoning and classification of
Nature merchandise sold in the public market;
The police power of a municipal corporation extends • Condemnation and demolition of buildings
to all great public needs, and includes all legislation found to be in dangerous or ruinous condition;
and functions of the municipal government. The drift • Regulation of operation of tricycles;
is towards social welfare legislation geared towards • Zoning regulations [Patalinghug v. CA, G.R. No.
state policies to provide adequate social services, the 104786 (1994)];
promotion of general welfare, and social justice [Binay • Providing burial assistance to the poor [Binay v.
v. Domingo, G.R. No. 92389 (1991)]. Domingo, G.R. No. 92389 (1991)];
• Enforcement of fishery laws within LGU waters
TWO BRANCHES OF GENERAL WELFARE [Tano v. Socrates, G.R. No. 110249 (1997)]
CLAUSE
a. General legislative power – Authorizes Illustrations –Invalid Exercise of Police Power
municipal councils to enact ordinances and make • Prohibition of operation of night clubs, as it is a
regulations not repugnant to law and may be lawful trade or pursuit of occupation [Dela Cruz
necessary to carry into effect and discharge the v. Paras, G.R. No. L-42571-72 (1983)];
powers and duties conferred upon it by law
Page 310 of 382

• Rescinding of mayor's permits based on arbitrary to the public with the least inconvenience and
grounds [Greater Balanga Dev’t Corp. v. Mun. of expense to the condemning party and the property
Balanga, G.R. No. 83987 (1994)]. owner consistent with such benefit [Masikip v. City of
• Setting aside 6% of the total area of private Pasig, G.R. No. 136349 (2006)].
memorial type cemetery for charity burial of
deceased persons who are paupers [City Just Compensation
Government of Quezon City v. Ericta, L-34915 "Compensation" means an equivalent for the value of
(1983)] the land (property) taken. The word "just" is used to
intensify the meaning of the word "compensation;"
to convey the idea that the equivalent to be rendered
Eminent Domain for the property taken shall be real, substantial, full,
and ample. "Just compensation," therefore, means a
It is government's right to appropriate, in the nature fair and full equivalent for the loss sustained [The City
of a compulsory sale to the State, private property for of Manila v. Estrada, G.R. No. 7749 (1913)].
public use or purpose. Inherently possessed by the
national legislature, the power of eminent domain Just compensation is determined as of the time of
may be validly delegated to local governments, other taking [Sec. 19, LGC].
public entities and public utilities [Moday v. CA, G.R.
No. 107916 (1993)]. Valid and Definite Offer
The offer must be complete, indicating with
Requisites for the Exercise of Eminent Domain sufficient clearness the kind of contract intended and
by an LGU definitely stating the essential conditions of the
a. An ordinance is enacted by the local legislative proposed contract. An offer would require, among
council authorizing the local chief executive, in other things, a clear certainty on both the object and
behalf of the local government unit, to exercise the cause or consideration of the envisioned contract
the power of eminent domain or pursue [Jesus is Lord Christian School Foundation Inc. v.
expropriation proceedings over a particular Municipality of Pasig, G.R. No. 152230 (2005)].
private property;
b. The power is exercised for public use, purpose Requisites for the Immediate Entry by the LGU
or welfare, or for the benefit of the poor and the a. Filing of the complaint for expropriation
landless; sufficient in form and substance; AND
c. There is payment of just compensation based on b. Deposit of an amount equivalent to 15% of the
the fair market value of the property at the time fair market value of the property to be
of taking; and expropriated based on the current tax declaration
d. A valid and definite offer was previously made to [Sec. 19, LGC]
the owner of the property, but the offer was not
accepted [Heirs of Suguitan v. City of Mandaluyong, Upon compliance with the requisites, the issuance of
G.R. No. 135087 (2000)]. a writ of possession becomes ministerial. There is no
need for a hearing for the writ to issue [City of Iloilo v.
Jurisdiction Legaspi, G.R. No. 154614 (2004)].
An expropriation suit falls under the jurisdiction of
the RTCs. The subject of an expropriation suit is the Returning the Property
government’s exercise of eminent domain, a matter When private land is expropriated for a particular
that is incapable of pecuniary estimation [Barangay San public use and that purpose is abandoned, there is no
Roque v. Heirs of Pastor, G.R. No. 138896 (2000)]. “implied contract” that the properties will be used
only for the public purpose for which they were
Public Use, Purpose, or Welfare acquired. Property is to be returned only when it is
The very foundation of the right to exercise eminent expropriated with the condition that when said
domain is a genuine necessity and that necessity must purpose is ended or abandoned, the former owner
be of a public character. Moreover, the ascertainment reacquires the property so expropriated, and not
of the necessity must precede or accompany and not when the expropriation decree gives to the entity a
follow, the taking of the land. Necessity does not fee simple which makes the land the expropriator the
mean an absolute, but only a reasonable or practical absolute owner of the property [Air Transportation
necessity, such as would combine the greatest benefit Office v. Gopuco, G.R. No. 158563 (2005)].
Page 311 of 382

Note: Exemption of small property owners applies

Power of Eminent Domain: National only when the purpose of expropriation is for
Government v. Local Government Unit socialized housing.
Local Government
National Government
Unit Taxing Power
Inherent Power Delegated Power
An ordinance is always
No law is needed Sec. 5, Art. X, Constitution. Each local
required
government unit shall have the power to create its
Fair Market Value
FMV determined at the own sources of revenues and to levy taxes, fees,
(FMV) determined at the
time of taking and charges subject to such guidelines and
time of filing
limitations as the Congress may provide,
Assessed value of consistent with the basic policy of local autonomy.
15% FMV required to be
property required to be Such taxes, fees, and charges shall accrue
deposited in order to
deposited in order to exclusively to the local governments.
take immediate
take immediate
possession
possession
No formal and definite A formal and definite a. Fundamental Principles on
offer required offer is required Taxation by an LGU
Socialized Housing [Urban Development and 1. Taxation shall be uniform;
Housing Act, R.A. No. 7279] 2. Taxes, fees, and charges:
Under the Urban Development and Housing Act, a. Shall be equitable and based as far as
expropriation by an LGU for purposes of urban land practicable on the taxpayer's ability to pay;
reform and socialized housing shall occur only as a b. Shall be levied and collected only for a
last resort. It must be shown by the LGU that other public purpose;
methods of acquisition (community mortgage, land c. Shall not be unjust, excessive, oppressive, or
swapping, land assembly or consolidation, land confiscatory; and
banking, donation to the Government, joint venture d. Shall not be contrary to law, public policy,
agreements, and negotiated purchase) have been national economic policy, or in restraint of
exhausted [Sec. 10]. trade;
3. Collection shall in no case be left to any private
If all the other methods have been exhausted and person;
expropriation to continue, the LGU shall acquire 4. Revenue shall inure solely to the benefit of the
lands for socialized housing in the following order: levying LGU, unless otherwise specified; and
a. Government lands 5. Each LGU shall, as far as practicable, evolve a
b. Alienable lands of the public domain progressive system of taxation [Sec. 130, LGC]
c. Unregistered or abandoned and idle lands
d. Lands within Areas for Priority Development b. Withdrawal of Local Tax
e. Unacquired BLISS sites
f. Private lands [Sec. 9] Exemption Privileges
Furthermore, lands of small-property owners are Unless otherwise provided in the LGC, tax
exempt from expropriation for purposes of exemptions or incentives granted to, or enjoyed by all
socialized housing. “Small-property owners” are persons, whether natural or juridical, including
defined by two elements: government-owned or -controlled corporations were
a. They are owners of real property which consists withdrawn upon the effectivity of the LGC [Sec. 193,
of residential lands with an area of not more than LGC].
300 sq. meters in highly urbanized cities, and 800
sq. meters in other urban cities; and Privileges Retained: Tax exemption privileges of
b. They do not own real property other than the the following were not withdrawn by the LGC:
same [Sec. 3(q)]. 1. Local water districts;
2. Cooperatives duly registered under R.A. No.
6938;
3. Non-stock and non-profit hospitals; and
Page 312 of 382

4. Educational institutions [Sec. 193 and 234, Government, its agencies and instrumentalities, and
LGC]. local government units [Sec. 133(n) to (o), LGC].
c. Real Property Taxation An instrumentality of the State or National

Government is exempt from local taxation. [Sec.
Annual ad valorem tax on real property may be levied 133(o), LGC] Hence, the Manila International
by a: Airport Authority, being such an instrumentality and
1. Province; not being a GOCC, is exempt from local taxation
2. City; or [MIAA v. CA, G.R. No. 155650 (2006)].
3. Municipality within the Metropolitan Manila
Area [Sec. 232, LGC] However, GOCCs are [generally] not exempt from
local taxation [MIAA v. CA, supra].
Exemptions from Real Property Tax
The following are exempted from payment of the real Closure and Opening of
property tax:
1. Real property owned by the Republic of the Roads
Philippines or any of its political subdivisions
EXCEPT when the beneficial use thereof has Scope of LGU’s power to close [Sec. 21, LGC]
been granted, for consideration or otherwise, to Road, alley, park, or square is
a taxable person; National Local
2. Charitable institutions, churches, parsonages or Temporary closure Temporary or
convents appurtenant thereto, mosques, non- only Permanent closure
profit or religious cemeteries and all lands,
buildings, and improvements actually, directly, Requisites for Temporary Closure
and exclusively used for religious, charitable, or a. Via ordinance;
educational purposes; b. May be done due to:
3. All machineries and equipment that are actually, 1. Actual emergency;
directly and exclusively used by local water 2. Fiesta celebrations;
districts and government-owned or -controlled 3. Public rallies;
corporations engaged in the supply and 4. Agricultural or industrial fairs; or
distribution of water and/or generation and 5. Undertaking of public works and highways,
transmission of electric power; telecommunications, and waterworks
4. All real property owned by duly registered projects;
cooperatives as provided for under R.A. No. c. Duration of closure must be specified by the
6938; and local chief executive in a written order; and
5. Machinery and equipment used for pollution d. If for the purpose of athletic, cultural, or civil
control and environmental protection [Sec. 234, activities, these must be officially sponsored,
LGC]. recognized, or approved by the local government
[Sec. 21, LGC].
d. Other Limitations on Taxing
Note: A City, Municipality, or Barangay may also
Powers of LGUs temporarily close and regulate the use of any local
street, road, thoroughfare or any other public place
Taxes Already Imposed by the National where shopping malls, Sunday, flea or night markets,
Government: Generally, LGUs cannot impose taxes or shopping areas may be established for the general
that are already imposed by the National public [Sec. 21(d)].
Government (e.g. income tax, documentary stamp
tax, estate tax, customs duties, excise taxes under the Requisites for Permanent Closure
NIRC, VAT) [See Sec. 133, LGC]. a. Via ordinance approved by at least 2/3 of all
members of the Sanggunian;
Persons Exempted: LGUs cannot impose taxes, b. When necessary, an adequate substitute for the
fees, and charges on (a) countryside and barangay public facility that is subject to closure should be
business enterprises; (b) cooperatives duly registered provided;
under the Cooperative Code; and (c) the National
Page 313 of 382

c. Such ordinance must have provisions for the Ordinance Resolution

maintenance of public safety therein; and Intended to
d. If a freedom park is permanently closed, there permanently direct and Temporary in nature
must be a provision for its transfer or relocation control
to a new site [Sec. 21(a),(b)]. A third reading is not
e. Such property permanently withdrawn from necessary unless
public use may be used or conveyed for any A third reading is
decided otherwise by a
purpose for Which other real property belonging necessary
majority of all the
to the LGU may be lawfully used or conveyed sanggunian members
[Sec. 21(b)]. [Garcia v. COMELEC, G.R. No. 111230 (1994)]
Public Roads are Outside the Commerce of Man Presiding Officer

A public road may not be the subject of lease or Legislative Body Presiding Officer
contract, as public roads are properties for public use Sangguniang
outside the commerce of man [Dacanay v. Asistio, G.R. Vice-Governor
Panlalawigan
No. 93654 (1992)]. Sangguniang
Vice-Mayor
Panlungsod
As long as a property owner has reasonable access to Sangguniang Bayan Vice-Mayor
the general system of streets, he has no right to Sangguniang Barangay Punong Barangay
compensation for the closure of a public street. The
Constitution does not undertake to guarantee to a The presiding officer shall vote only to break a tie
property owner the public maintenance of the most [Sec. 49, LGC].
convenient route to his door [Cabrera v. CA, G.R. No.
78573 (1991)]. A temporary presiding officer shall be elected from
and by the members present and constituting a
Legislative Power quorum, in the event of the inability of the regular
presiding officer to preside at a session. The
a. Local Legislation temporary presiding officer shall certify within 10
days from the passage of ordinances enacted and
Who may exercise resolutions adopted by the sanggunian in the session
Local legislative power shall be exercised by the: over which he temporarily presided [Sec. 49, LGC].
1. Sangguniang panlalawigan for the province;
2. Sangguniang panlungsod for the city; Non-membership of Acting Governor: A Vice-
3. Sangguniang bayan for the municipality; and Governor who is concurrently an Acting Governor is
4. Sangguniang barangay for the barangay [Sec. 48, actually a quasi-Governor. He is deemed a non-
LGC] member of the sanggunian for the time being and so
cannot preside over its sessions. The procedure for
Requisites for Valid Ordinance the election of a temporary presiding officer in case
of inability of the regular presiding officer shall apply
See Two-Pronged Test for an Ordinance to be in such case [Gamboa v. Aguirre, G.R. No. 134213
Considered a Valid Police Power Measure under (1999)].
Police Power (General Welfare Clause) above.
Internal Rules of Procedure
Ordinance vs. Resolution On the first regular session following the election of
its members and within 90 days thereafter, the
Ordinance Resolution
sanggunian shall adopt or update its existing rules of
Mere declaration of the
procedure [Sec. 50, LGC].
Considered as law opinion of the
lawmaking body
On the first regular session the sanggunian concerned
On matters applying to shall adopt or update its existing rules of procedure.
persons or things in On a specific matter LGC, sec. 50 does not mandate that no other
general business may be transacted on the first regular
session [Malonzo v. Zamora, G.R. No. 137718 (2000)].
Page 314 of 382

The rules of procedure shall provide for: enactment or amendment of a particular

1. Organization of the Sanggunian and the election ordinance [Casiño v. CA, G.R. No. 91192 (1991)].
of its officers
2. Creation of Standing Committees When there is no quorum
3. Order and calendar of business for each session The presiding officer may declare a recess until such
4. The legislative process time as a quorum is constituted or a majority of the
5. Parliamentary procedures members present may also adjourn from day to day
6. Disciplinary rules for members for disorderly and may compel the attendance of any member
behavior and absences without justifiable cause absent without justifiable cause by designating a
for four (4) consecutive sessions, for which they member of the sanggunian to arrest the absent
may be censured, reprimanded, or excluded from member and present him at the session.
the session, suspended for not more than sixty
(60) days, or expelled: Provided, That the penalty The member designated shall be assisted by a
of suspension or expulsion shall require the member or members of the police force in the
concurrence of at least two-thirds (2/3) vote of territorial jurisdiction of the LGU concerned.
all the sanggunian members: Provided, further,
That a member convicted by final judgment to If there is still no quorum, no business shall be
imprisonment of at least one (1) year for any transacted. The presiding officer, upon proper
crime involving moral turpitude shall be motion duly approved by the members present, shall
automatically expelled from the sanggunian; and then declare the session adjourned for lack of
7. Such other rules as the sanggunian may adopt quorum [Sec. 53, LGC].
[Sec. 50, LGC].
SANGGUNIAN SESSIONS [Sec. 52, LGC]
Quorum
The presence of a quorum is required to transact 1. Regular Sessions
official business. A majority of all members of the First session following the election, the
Sanggunian who have been elected and qualified shall Sanggunian shall, by resolution, fix the day, time,
constitute a quorum [Sec. 53, LGC]. and place of its regular sessions.
The presence of the presiding officer is considered in Minimum Number of Regular Sessions:
determining the presence of a quorum since a • Sangguniang Panlalawigan, Panlungsod, and
presiding officer is considered a “member” of the Bayan: Once a week
sanggunian [La Carlota City v. Rojo, G.R. No. 181367 • Sangguniang Barangay: Twice a month
(2012)].
No two sessions, regular or special, may be held
Quorum shall be based on the total number of in a single day.
members elected and qualified. The filing of a leave
of absence does not affect a member's election to, General rule: All sessions shall be open to the
and qualification as member of, a local legislative public.
body [Zamora v. Caballero, G.R. No. 147767 (2004)].
Exception: Closed-door session is ordered by
General rule: A majority of the members present, there majority of the members present, there being a
being a quorum is required for the valid enactment of quorum, in the public interest or for reasons of
an ordinance or resolution [Art. 107(g), LGC IRR]. security, decency or morality.
Exception: When otherwise provided by the LGC: 2. Special Sessions
• Any ordinance or resolution authorizing or May be called by the local chief executive or by
directing the payment of money or creating a majority of the Sanggunian.
liability requires the approval of the majority of
all the sanggunian members [Rule VII, Sec. 14 Written notice to the members shall be served
(g), LGC IRR]. personally at their usual place of residence at
• It is legally permissible for the sanggunian to least 24 hours before the special session is held.
provide for a higher voting requirement for the
Page 315 of 382

No other matters may be considered except 2. ordinance or resolution adopting the local
those stated in the notice unless otherwise development plan or public investment program;
concurred in by 2/3 vote of those present, there or
being a quorum. 3. ordinance directing the payment of money or
creating liability
No Subpoena And Contempt Powers
Local legislative bodies do not have the power to In case of an item veto, the veto shall not affect the
subpoena witnesses and the power to punish non- items not objected to. If the veto is not overridden,
members for contempt in the exercise of their the items in the appropriations ordinance of the
legislative powers. They may only invite resource previous year corresponding to those vetoed shall be
persons who are willing to supply information which deemed re-enacted [Sec. 55(b), LGC].
may be relevant to the proposed ordinance [Negros
Oriental II Electric Cooperative, Inc. v. Sangguniang N.B. No veto for barangays.The veto power cannot
Panlungsod of Dumaguete, G.R. No. L-72492 (1987)]. be exercised by the punong barangay (since he is a
member of the sangguniang barangay). The punong
APPROVAL AND VETO OF ORDINANCES barangay signs the ordinances enacted by the
sangguniang barangay upon their approval. [Sec.
Approval: Local chief executive shall affix his 54(c)].
signature on each and every page of the ordinance
[Sec. 54(a), LGC]. PUBLICATION AND EFFECTIVITY OF
ORDINANCES
The signature of the local chief executive in the
approval of an ordinance or resolution is not a mere The following rules apply to:
ministerial act, as it requires the exercise of analysis 1. Ordinances and;
and judgment. This is part of the legislative process 2. Resolutions approving the local government
[De Los Reyes v. Sandiganbayan, G.R. No. 121215 plan and public investment programs.
(1997)].
Publication Effectivity
Disapproval (Veto): The local chief executive may General Rule [Sec. 59(a), LGC]
veto the ordinance, stating his reasons in writing. The Posted:
local chief executive may veto an ordinance or (1) in a bulletin board at
resolution only once [Sec. 55(a & c), LGC]. the entrance of the
provincial capitol or 10 days after posting,
Grounds fo Disapproval city, municipal, or unless otherwise stated
Under the LGC, only two grounds: barangay hall, as the in the ordinance
1. Ultra vires; or case may be; and
2. Prejudicial to public welfare [Sec. 55(a), LGC] (2) in at least 2 other
conspicuous places
Periods: The ordinance is returned with objections Highly Urbanized and Independent
to the Sanggunian within 15 days in the case of Component Cities [Sec. 59(d), LGC]
Sangguniang Panlalawigan, or within 10 days in the In addition to posting,
case of Sangguniang Panlungsod/Bayan; otherwise, main features of the
the ordinance shall be deemed approved [Sec. 54, ordinance shall be
LGC]. published once: 10 days after posting,
(a) in a local newspaper unless otherwise stated
Override: The veto may be overridden by the of general circulation; in the ordinance
Sanggunian upon a 2/3 vote of all its members [Sec. or if none,
54, LGC]. (b) in any newspaper of
general circulation
Item veto: The local chief executive, except the All Ordinances with Penal Sanctions [Secs.
punong barangay, shall have the power to veto any 511, 59(c), LGC]
particular item or items of an: (1) Posted at prominent Unless otherwise
1. appropriations ordinance; or places in the provincial provided therein, the
capitol, or city, ordinance shall take
Page 316 of 382

Publication Effectivity Sanggunian of

Sangguniang
municipal or barangay effect on the day Component Cities
Barangay
hall for a minimum following its and Municipalities
period of 3 consecutive publication, or at the By Whom
weeks; end of the period of Sangguniang
Sangguniang
(2) Gist of such penal posting, whichever Panlungsod or
Panlalawigan
ordinance shall be occurs later. Sangguniang Bayan
published in a When
newspaper of general Within 3 days from Within 10 days from
circulation within the approval, forwarded by approval, forwarded by
province where the the Secertary of the the Sangguniang
local legislative body Sanggunian Barangay
belongs; if none, How
posting shall be made in Sangguniang
all municipalities and Panlalawigan shall
cities of the said examine the documents
province or transmit them first to The sanggunian
Tax Ordinances and Revenue Measures [Sec. the Provincial Attorney concerned shall
188, LGC] (if none, to Provincial examine the ordinance
Within 10 days after Prosecutor) for
their approval, certified comments and
true copies shall be recommendations
published in full for 3 Grounds
consecutive days (a) in a 10 days after Whether consistent
newspaper of local publication or posting, If beyond the power
with law and the city
circulation, or, (b) if unless otherwise stated conferred upon the
and municipal
none, the same may be in the ordinance Sanggunian concerned
ordinances
posted in at least 2 Effect if Grounds are Present
conspicuous and Reviewing sanggunian
publicly accessible shall return the
places ordinance with its
N.B. Prior Hearing Requirement for Tax and Reviewing sanggunian
comments for
Revenue Measures: Public hearings must be shall declare such
adjustment,
conducted prior to the enactment of a tax ordinance or resolution
amendment, or
ordinance or revenue measure. [Sec. 187-188, invalid in whole or in
modification, in which
LGC] part
case, the effectivity of
the barangay ordinance
REVIEW OF ORDINANCES AND is suspended.
RESOLUTIONS (APPROVING LOCAL Period
DEVELOPMENT PLANS AND PUBLIC 30 days; if no action
INVESTMENT PROGRAMS) [Secs. 56 and 57, 30 days; if no action
after 30 days, presumed
LGC] after 30 days, deemed
consistent with law and
approved
valid
Sanggunian of
Sangguniang
Component Cities Note: Any attempt to enforce any ordinance or
Barangay
and Municipalities resolution approving the local development plan or
What public investment program, after the disapproval
(1) Ordinances thereof, shall be sufficient ground for the suspension
(2) Resolutions or dismissal of the official or employee concerned
approving local [Sec. 58, LGC].
All barangay
development plans and
ordinances
public investment
programs
Page 317 of 382

REVIEW OF TAX ORDINANCES BY THE within the legal powers of

SECRETARY OF JUSTICE [Sec. 187, LGC] the sanggunians to enact.
Within 30 days from the effectivity of tax ordinances Note: The Court dismissed an
or revenue measures, questions on their initiative petition, which
constitutionality or legality may be raised on appeal proposed the creation of a
to the Secretary of Justice. separate local legislative body, for
being ultra vires [Marmeto v.
Sec. of Justice shall render a decision within 60 days COMELEC, G.R. No. 213953
from receipt of appeal. (2017)]
Any proposition or ordinance
The appeal shall not have the effect of suspending the approved through the system of
effectivity of the ordinance and the accrual of the tax, initiative and referendum:
fee or charge. 1. Shall not be repealed,
modified, or amended by the
Within 30 days from receipt of Sec. of Justice’s sanggunian concerned
decision or the lapse of the 60-day period without the within six (6) months from
Sec. of Justice taking action, the aggrieved party may the date of its approval; and
file action with competent court. Limitations
2. May be amended, modified,
upon
or repealed by the
Sec. 187, LGC is valid as it is merely an exercise of Sanggunians
sanggunian within three (3)
the power of supervision [Drilon v. Lim, G.R. No. years thereafter by a vote of
112497 (1994)]. three-fourths (3/4) of all its
members
b. Local Initiative and Referendum
In case of barangays, the period
LOCAL INITIATIVE shall be eighteen (18) months
Initiative has been described as an instrument of [Sec. 125, LGC]
direct democracy whereby the citizens directly
propose and legislate laws as it is the citizens Procedure [Sec. 122, LGC]
themselves who legislate the laws, direct legislation 1. File petition with local legislature. Not less than
through initiative (along with referendum) is 1,000 registered voters in case of provinces and
considered as an exercise of original legislative power, cities, 100 in case of municipalities, and 50 in case
as opposed to that of derivative legislative power of barangays, may file a petition with the local
which has been delegated by the sovereign people to legislative body, proposing the adoption,
legislative bodies such as the congress [Marmeto v. enactment, repeal, or amendment, of any
COMELEC, G.R. No. 213953 (2017)]. ordinance or resolution.
2. Invoke initiative by giving notice. If no favorable
Legal process whereby the action thereon is made by local legislative body
registered voters of an LGU may within 30 days from its presentation, the
Definition proponents through their duly authorized and
directly propose, enact, or amend
an ordinance [Sec. 120, LGC] registered representatives may invoke their
All registered voters of the power of initiative, giving notice thereof to the
Exercised local legislative body concerned
provinces, cities, municipalities,
By
and barangays [Sec. 121, LGC]
15 days after Certification by the Two or more propositions may be submitted in
COMELEC that the proposition an initiative.
Effectivity
is approved by a majority of the
votes cast [Sec. 123, LGC] 3. Collection of signatures. Proponents shall have
1. Local initiative shall not be 90 days in case of provinces and cities, 60 days in
Limitations exercised more than once a case of municipalities, and 30 days in case of
on Power of year. barangays, from notice to collect the required
Initiative 2. Initiative shall extend only to number of signatures.
subjects or matters which are
Page 318 of 382

The petition shall be signed before the Election It shall be held under the direction of COMELEC
Registrar, or his designated representative, in the within 60 days in case of provinces and cities, 45 days
presence of a representative of the proponent in case of municipalities and 30 days in case of
and a representative of the local legislative body barangays [Sec. 126].
concerned in a public place in the LGU.
INITIATIVE v. REFERENDUM
4. Certification of COMELEC and setting of date Initative Referendum
of vote. The COMELEC shall certify that the Law-making
required number of signatures has been obtained body submits
and shall set a date for approval of the matter to the
proposition within 60 days from the date of How Initiated by the
registered
certification by the COMELEC in case of Initiated people directly.
voters of its
provinces and cities, 45 days in case of territorial
municipalities, and 30 days in case of barangays. jurisdiction.
5. Voting and Results. The results of the initiative To legislate,
shall be certified and proclaimed by the because the law-
COMELEC. To approve or
making body
reject any
fails or refuses
Initiative Covers Both Ordinances and Resolutions: ordinance or
to enact the
Sec. 124 of the LGC clearly does not limit the resolution
Objective ordinance or
application of local initiatives to ordinances, but to all which is duly
or Purpose resolution that
“subjects or matters which are within the legal enacted or
they desire or
powers of the Sanggunians to enact,” which approved by
because they
undoubtedly includes resolutions. This interpretation such lawmaking
want to amend
is supported by section 125 of the same Code [Garcia authority.
or modify one
v. COMELEC, G.R. No. 111230 (1994)]. already existing.
No role [except
Power of COMELEC to review the substance of for unfavorable Legislative. A
the initiative propositions: action on the referendum
The COMELEC in the exercise of its quasi-judicial petition consists merely
and administrative powers, may adjudicate and pass submitted to it]. of the
upon such proposals insofar as their form and Initiative is a electorate
language are concerned, and it may be added, even as process of law- approving or
to content, where the proposals or parts thereof are Role of making by the rejecting what
patently and clearly outside the “capacity of the local Legislature people has been drawn
legislative body to enact” [SBMA v. COMELEC, themselves up or enacted
G.R. No. 125416 (1996)]. without the by a legislative
participation body. [SBMA v.
Power of Courts to declare null and void any and against the COMELEC,
proposition: wishes of their G.R. No.
The power of the courts to nullify propositions for elected 125416 (1996)]
being ultra vires extends only to those already representatives.
approved, i.e. those which have been approved by a
majority of the votes cast in the initiative election
called for the purpose. In other words, the courts can Corporate Powers
review the terms only of an approved ordinance
[Marmeto v. COMELEC, G.R. No. 213953 (2017)]. Sec. 22, LGC. Corporate Powers. –
a. Every local government unit, as a
LOCAL REFERENDUM corporation, shall have the following powers:
Legal process whereby the registered voters of the 1. To have continuous succession in its
local government unit may approve, amend, or reject corporate name;
any ordinance enacted by the Sanggunian. 2. To sue and be sued;
3. To have and use a corporate seal;
Page 319 of 382

4. To acquire and convey real or personal

property; b. To Acquire and Sell Property
5. To enter into contracts; and
6. To exercise such other powers as are
(Real and Personal)
granted to corporations, subject to the
Nature and control
limitations provided in this Code and
If the property is owned by the municipality in its
other laws.
public and governmental capacity, the property is
b. Local government units may continue using,
public and Congress has absolute control over it. If
modify, or change their existing corporate
the property is owned in its private or proprietary
seals: Provided, That newly established local
capacity, then it is patrimonial and Congress has no
government units or those without corporate
absolute control. The municipality cannot be
seals may create their own corporate seals
deprived of it without due process and payment of
which shall be registered with the Department
just compensation [Province of Zamboanga del Norte v.
of the Interior and Local Government:
City of Zamboanga, G.R. No. L-24440 (1968)].
Provided, further, That any change of
corporate seal shall also be registered as
To be considered public property: It is enough that
provided hereon.
the property be held and devoted for governmental
c. Unless otherwise provided in this Code, no
purposes like local administration, public education
contract may be entered into by the local chief
and public health [Province of Zamboanga del Norte v. City
executive in behalf of the local government
of Zamboanga, G.R. No. L-24440 (1968)].
unit without prior authorization by the
sanggunian concerned. A legible copy of such
Property held in trust by the LGU for the
contract shall be posted at a conspicuous
National Government
place in the provincial capitol or the city,
Regardless of the source or classification of land in
municipal or barangay hall.
the possession of a municipality, excepting those
d. Local government units shall enjoy full
acquired with its own funds in its private or corporate
autonomy in the exercise of their proprietary
capacity, such property is held in trust for the State
functions and in the limitations provided in
for the benefit of its inhabitants, whether it be for
this Code and other applicable laws.
governmental or proprietary purposes. It holds such
lands subject to the paramount power of the
a. To Sue and Be Sued legislature to dispose of the same, for after all it owes
its creation to it as an agent for the performance of a
Under Sec. 22 of the LGC, all local government units part of its public work, the municipality being a
may be sued. Paragraph 2 is a Congressional grant of subdivision or instrumentality thereof for purposes
consent to be sued [GATMAYTAN]. of local administration [Rabuco v. Villegas, G.R. No. L-
24661 (1974)].
Suability v. Liability
The fact that they are suable does not necessarily c. To Enter into Contracts
mean that they are liable. Reference must be had to
the applicable law and established facts to determine Requisites
their liability [San Fernando, La Union v. Firme, G.R. 1. Entered into by the local chief executive in
No. 52179 (1991)]. behalf of the LGU;
2. Prior authorization by Sanggunian concerned;
The Congressional grant of the consent to be sued and
only means that the State gives up its immunity from 3. Legible copy of contract posted at a conspicuous
suit. This does not concede liability, but merely allows place in the provincial capitol or city, municipal
the plaintiff a chance to prove, if it can, that the State or barangay hall [Sec. 22, LGC]
or its officials are liable [USA v. Guinto, G.R. No.
76607 (1990)]. The authorization need not be in the form of an
ordinance: A careful perusal of Section 444(b)(1)(vi)
of the LGC shows that while the authorization of the
municipal mayor need not be in the form of an
ordinance, the obligation which the said local
Page 320 of 382

executive is authorized to enter into must be made

pursuant to a law or ordinance [Land Bank of the Types of Ultra Vires Acts [Land Bank of the
Philippines v. Cacayuran, G.R. No. 191667 (2013)]. Philippines v. Cacayuran, G.R. No. 191667 (2013)]
Ultra Vires Acts
Void Ultra Vires
Appropriation ordinance as prior authorization Subject to
Acts (Primary
Where the local government unit operates under an Ratification/Validation
Sense)
annual as opposed to a re-enacted budget, it should (Secondary Sense)
be acknowledged that the appropriation passed by Act is utterly beyond Act is attended only by an
the sanggunian may validly serve as the authorization the jurisdiction of a irregularity but remains
required under Sec. 22(c) of the LGC. After all, an municipal within municipality’s
appropriation is an authorization made by ordinance, corporation powers
directing the payment of goods and services from 1. Municipal 1. Municipal Contracts
local government funds under specified conditions or Contracts entered into by the
for specific purposes. The appropriation covers the entered into improper
expenditures which are to be made by the local beyond the department, board,
government unit, such as current operating express, implied, officer, or agent; and
expenditures and capital outlays. or inherent 2. Do not comply with
powers of the the formal
When Sanggunian authorization separate from LGU; and requirements of a
appropriation ordinance not required 2. Do not comply written contract (e.g.
No further authorization is required if the with substantive Statute of Frauds)
appropriation ordinance already contains in sufficient requirements of
detail the project and cost of a capital outlay such that law
all the local chief executive needs to do after (e.g. if it involves
undergoing the requisite public bidding is to execute expenditure of public
the contract. funds, there must be
an actual
When Sanggunian authorization separate from appropriation and
appropriation ordinance required certificate of
When the appropriation ordinance describes the availability of funds)
projects in generic terms such as "infrastructure
projects," "inter-municipal waterworks, drainage and Examples of void ultra vires municipal contracts:
sewerage, flood control, and irrigation systems • A public street is property for public use; hence,
projects," "reclamation projects" or "roads and outside the commerce of man. Being outside the
bridges," there is an obvious need for a covering commerce of man, it may not be the subject of
contract for every specific project that in turn lease or other contract. The city government,
requires approval by the sanggunian. contrary to law, has been leasing portions of the
streets. Such lease or license is null and void for
Specific sanggunian approval may also be required being contrary to law [Dacanay v. Asistio, G.R.
for the purchase of goods and services which are No. 93654 (1992)].
neither specified in the appropriation ordinance nor • Loan contract entered into by a municipality for
encompassed within the regular personal services and the purpose of funding the conversion of the
maintenance operating expenses [Quisumbing v. Garcia, Agoo Plaza into a commercial plaza, the former
G.R. No. 175527 (2008)]. being a property for public use, hence part of the
public dominion [Land Bank of the Philippines v.
Ultra Vires Contracts Cacayuran, G.R. No. 191667 (2013)].
Every local government unit only derives its
legislative authority from Congress. In no instance
can the local government unit rise above its source of
authority. As such, its ordinance cannot run against
or contravene existing laws, precisely because its
authority is only by virtue of the valid delegation from
Congress [Mosqueda v. Pilipino Banana Growers &
Exporters Association, Inc., G.R. No. 189185 (2016)].
Page 321 of 382

Liability of Local Liability under Art. 2189 based on control or

supervision
Government Units For liability to arise under Art. 2189 of the Civil Code,
ownership of the roads, streets, bridges, public
STATUTORY LIABILITY buildings and other public works, is not a controlling
Sec. 24, LGC. Liability for Damages. – Local factor, it being sufficient that a province, city or
government units and their officals are not exempt municipality has control or supervision thereof
from liability for death or injury to persons or [Municipality of San Juan v. CA, G.R. No. 121920
damage to property. (2005)].
Under pre-LGC case law and B.P. Blg. 337, an LGU Although the drainage hole which caused the
is not liable for the acts of its officers or agents in the accident was located in a national road, the City was
performance of its governmental functions. still liable because their City Engineer exercises
However, it is not clear if sec. 24 intended to broaden control and supervision over said national road
the liability of local governments and their officials, [Guilatco v. City of Dagupan, G.R. No. 61516 (1989)].
since the reference to immunity for official functions
was removed [GATMAYTAN]. Political/ Corporate/
Governmental Acts Proprietary Acts
Art. 34, Civil Code. When a member of a city or Liability
municipal police force refuses or fails to render aid LGU generally not
Can be held liable ex
or protection to any person in case of danger to liable unless a statute
contractu or ex delicto
life or property, such peace officer shall be provides otherwise
primarily liable for damages, and the city or Defense
municipality shall be subsidiarily responsible Defense of due
therefor. The civil action herein recognized shall diligence in the
No valid defense for
be independent of any criminal proceedings, and selection and
non-performance
a preponderance of evidence shall suffice to supervision of its
support such action. officers
Personal Liability or Officers
Art. 2180, Civil Code. The obligation imposed by Officers or agents acting Officers and agents are
article 2176 is demandable not only for one's own within official duties are like a) individuals; or
acts or omissions, but also for those of persons for not liable unless they b) the directors and
whom one is responsible… acted willfully and officers of a private
maliciously [Mendoza v. corporation (i.e. they
The State is responsible in like manner when it de Leon, G.R. No. 9596 are liable if they acted
acts through a special agent; but not when the (1916); but see Sec. 24, in bad faith or with
damage has been caused by the official to whom LGC] gross negligence.)
the task done properly pertains, in which case Application of Respondeat Superior
what is provided in article 2176 shall be Respondeat superior does Respondeat superior
applicable… not apply applies [Mendoza v. de
Leon, supra]
The responsibility treated of in this article shall
cease when the persons herein mentioned prove CONTRACTUAL LIABILITY
that they observed all the diligence of a good General Rule: The LGU is liable only for contracts that
father of a family to prevent damage. are validly entered into.
Exception: The Doctrine of Implied Municipal

Art. 2189, Civil Code. Provinces, cities and
Liability provides that an LGU may become
municipalities shall be liable for damages for the
obligated upon an implied contract to pay reasonable
death of, or injuries suffered by, any person by
value of the benefits accepted by it as to which it has
reason of the defective condition of roads, streets,
the general power to contract [Province of Cebu v. IAC,
bridges, public buildings, and other public works
G.R. No. 72841 (1987), on the hiring of a private
under their control or supervision.
Page 322 of 382

counsel by the governor which was not repudiated by

the provincial board].
Settlement of Boundary
Disputes
TORTS LIABILITY
Under jurisprudence, liability of the LGU would AMICABLE SETTLEMENT
depend on the nature of the act. Boundary disputes between and among local
government units shall, as much as possible, be
If in the performance of a governmental function: settled amicably [Sec. 118, LGC].
LGU is not liable [Palafox v. Province of Ilocos Norte,
G.R. No. L-10659 (1958), on an accident during the Boundary
construction of a provincial road]. Amicably
Dispute Where
Settled By
Between
If in the performance of a proprietary function: Sangguniang
LGU is liable, such as 2 or more Same city or Panlungsod or
• The improper grant of a ferry service franchise barangays municipality Sangguniang
[Mendoza v. de Leon, supra] Bayan
• Deaths caused by a collapsed stage in a town 2 or more Same Sangguniang
fiesta [Torio v. Fontanilla, supra] municipalities province Panlalawigan
Jointly referred
Liability for back pay of employees: LGUs may be Municipalities to sanggunians
Different
held liable for the back pay or wages of employees or or component of the
provinces
laborers illegally separated from the service, whether cities provinces
employed to perform: concerned
a. Proprietary functions, or Component city
b. Performing primarily governmental functions or municipality
Jointly referred
[Guillergan v. Ganzon, G.R. No. L-20818 (1966)]. v. highly
to respective
urbanized city n/a
sanggunians of
PERSONAL LIABILITY OF THE PUBLIC Between 2 or
the parties
OFFICIAL more highly
urbanized cities
The public official is personally liable for
damages Section 118 of the LGC applies to a situation in
a. In contracts and torts, if he acts: which a component city or a municipality seeks to
1. Beyond the scope of his powers; or settle a boundary dispute with a highly urbanized city,
2. With bad faith [Rivera v. Maclang, G.R. No. not with an independent component city [Municipality
L-15948 (1963)]; and of Kananga v. Madrona, G.R. No. 141375 (2003)].
b. For his refusal or neglect, without justifiable
cause, to perform his official duty. [Art. 27, Civil N.B. The power of provincial boards to settle
Code] boundary disputes is limited to implementing the law
c. Municipal Mayor and Vice Mayor were held creating a municipality. Thus, provincial boards do
liable for backwages for illegally dismissing a not have the authority to approve agreements which
Sanggunian Secretary [Campol v. Balao-as and in effect amend the boundary stated in the creating
Sianen, G.R. No. 197634, (2016)]. statute [Municipality of Jimenez v. Baz, G.R. No. 105746
(1996)].
Liability of public officials for ultra vires acts:
While a municipality cannot be bound by a contract FORMAL TRIAL
which is void for being ultra vires, “case law states Trial by Sanggunian: In the event the Sanggunian
that the [officers] who authorized the same can be fails to effect an amicable settlement within 60 days
held personally accountable for acts claimed to have from referral of the dispute,
been performed in connection with official duties a. It shall issue a certification to that effect; and
where they have acted ultra vires” [See Land Bank v. b. The dispute shall be formally tried by the
Cacayuran, G.R. No. 191667 (2013)]. Sanggunian concerned, which shall decide the
issue within 60 days from the date of the
Page 323 of 382

certification referred to above [Sec. 118(e), d. Dies;

LGC]. e. Is removed from office;
f. Voluntarily resigns; or
Trial by RTC: When the dispute between the LGUs g. Is otherwise permanently incapacitated from
do not fall under those enumerated in Sec. 118, LGC, discharging the functions of his office [par. 2,
the RTC shall exercise original jurisdiction over the Sec. 44, LGC].
settlement of the boundary dispute (e.g. between a
municipality and an independent component city) a. Permanent Vacancy in the Local
[Municipality of Kananga v. Madrona, G.R. No. 141375
(2003), applying Sec. 19(6), B.P. Blg. 129]. Chief Executive [Sec. 44, LGC]
APPEAL Vacant Positions Successor

Appeal of the Sanggunian Decision Governor Vice-Governor
When: Within the time and manner prescribed by the Mayor Vice-Mayor
Rules of Court Vice-Governor or Highest-ranking
Vice-Mayor Sanggunian member
Where: Proper Regional Trial Court having Highest-ranking
jurisdiction over the area in dispute [Sec. 119, LGC]. Sanggunian member to
become Governor/
Maintenance of the Status Quo Mayor; Second highest-
Pending final resolution of the dispute, the status of ranking Sanggunian
Governor and Vice-
the affected area prior to the dispute shall be member to become
Governor OR Mayor
maintained and continued for all purposes [Art. 18, Vice-Governor/ Vice-
and Vice-Mayor
LGC IRR]. Mayor
The conduct of a plebiscite on the creation of a Subsequent vacancies

barangay should be suspended or cancelled in view of filled according to their
a pending boundary dispute between two local rank.
governments involving an area covered by the Highest-ranking
proposed barangay. A requisite for the creation of a Punong Barangay Sangguniang Barangay
barangay is for its territorial jurisdiction to be Member
properly identified by metes and bounds or by more
or less permanent natural boundaries. Precisely Ranking in the sanggunian: Determined on the
because territorial jurisdiction is an issue raised in the basis of the proportion of votes obtained by each
pending boundary dispute, until and unless such issue winning candidate to the total number of registered
is resolved with finality, to define the territorial voters in each district in the immediately preceding
jurisdiction of the proposed barangay would only be local election [Sec. 44(d), LGC].
an exercise in futility [City of Pasig v. COMELEC, G.R.
No. 125646 (1999)]. The law does not mention anything about factoring
the number of voters who actually voted [Victoria v.
Succession of Elective COMELEC, G.R. No. 109005 (1994)].
Officials Resolution of ties: A tie between or among highest

ranking sangguninan members shall be resolved by
SUCCESSION IN PERMANENT the drawing of lots [Sec. 44(c), LGC].
VACANCIES
b. Permanent Vacancies in the
Permanent Vacancy occurs when an elective
local official:
Sanggunian
a. Fills a higher vacant office; [Fariñas v. Barba, G.R. No. 116763 (1996); Sec. 45,
b. Refuses to assume office; LGC]
c. Fails to qualify;
Page 324 of 382

If member who caused

Appointing If member who caused vacancy was
Position vacancy not a member
Authority member of a political party
of any political party
Nomination and Certification of the Recommendation of the
Sangguniang
political party of the member who Sangguniang
Panlalawigan
caused the vacancy issued by the highest Panlalawigan
President
official of the political party
Sangguniang through the
Panlungsod (of highly Executive
Rationale: To maintain party Recommendation of the
urbanized and Secretary
representation as willed by the people in Sangguniang Panlungsod
independent
the election. [Navarro v. CA, G.R. No.
component cities)
141307 (2001)]
Sangguniang Recommendation of
Nomination and Certification of the
Panlungsod (of Sangguniang
political party of the member who
component cities) Governor Panglungsod
caused the vacancy issued by the highest
Recommendation of
Sangguniang Bayan official of the political party
Sangguniang Bayan
N/A
There is no right given to a political party

City or Recommendation of
to nominate the person to fill the
Sangguniang Barangay Municipal Sangguniang Barangay
vacancy in the Sangguniang Barangay
Mayor
because the members of the
Sangguniang Barangay are not allowed to
have party affiliations.
Appointment without nomination and

certification Such is null and void ab initio and is a c. Resignation of Elective Officials
ground for administrative action against the
responsible official [Sec. 45(b), LGC]. General Rule: Deemed effective only upon acceptance
of the resignation by the following authorities: [Sec.
Power of appointment: The appointing authority is 82, LGC]
not bound to appoint anyone recommended to him
by the sanggunian concerned. The power of Resignation by: Approved by:
appointment is a discretionary power. On the other Governors and vice-
hand, neither is the appointing authority vested with governonrs; mayors
so large a discretion that he can disregard the President
and vice-mayors of
recommendation of the sanggunian concerned. Since HUCs and ICCs
the recommendation takes the place of nomination
Mayors and vice-
by political party, the recommendation must likewise
mayors of component Governors
be considered a condition sine qua non for the
cities and municipalities
validity of the appointment [Fariñas v. Barba, supra].
Sanggunian members Sanggunian concerned
Barangay officials City or municipal
Term of office of the appointee: The appointee
mayor
under Sec. 45 serves the unexpired term of the vacant
office [Sec. 44(d), LGC].
Exceptions: Resignation is deemed accepted when:
Vacancy in the barangay or youth representation a. Not acted upon: The resignation shall be deemed
in the Sanggunian: The vacancy is automatically accepted if not acted upon by the authority
filled by the official next in rank of the organization concerned within 15 working days from the
concerned [Sec. 45(d), LGC]. receipt thereof [Sec. 82, LGC].
b. Irrevocable resignations by sanggunian
members: Deemed accepted upon presentation
Page 325 of 382

before an open session of the sanggunian b. Traveling abroad; or

concerned and duly entered in its records [Sec. c. Suspension from office.
82, LGC].
Office where
Who temporarily
When law silent as to who approves resignation: temporary vacancy
succeeds in to office
Under established jurisprudence, resignations, in the occurs
absence of statutory provisions as to whom they Vice-Governor,
should be submitted, should be tendered to the Governor
automatically
appointing person or body [Sangguniang Bayan of San Vice-Mayor,
Andres v. CA, G.R. No. 118883 (1998)]. Mayor
automatically
Highest-ranking
Resignation not allowed in recall: The elective Punong Barangay Sanggunian Member,
local official sought to be recalled shall not be allowed automatically
to resign while the recall process is in progress [Sec. Local Chief Executive 1. The person
73, LGC]. is travelling within the designated in
country but is outside writing by the local
Abandonment his territorial chief executive; OR
Abandonment is “voluntary relinquishment of an jurisdiction for a period 2. Vice-Governor,
office by the holder, with the intention of terminating not exceeding three Vice-Mayor, or
his possession and control thereof” [Sangguniang consecutive days highest ranking
Bayan of San Andres v. CA, G.R. No. 118883 (1998)]. Sangguniang
Barangay Member,
Resignation v. Abandonment on the 4th day of
Although a resignation is not complete without an absence, if local
acceptance thereof by the proper authority, an office chief executive fails
may still be deemed relinquished through voluntary or refuses to
abandonment which needs no acceptance. designate a
successor
Abandonment of office is a species of resignation.
While resignation in general is a formal Extent of Duty Exercised by Temporary
relinquishment, abandonment is a voluntary Successor
relinquishment through nonuser. Nonuser refers to a
neglect to use a privilege or a right or to exercise an General Rule: The successor shall automatically
easement or an office. exercise the powers and perform the duties and
functions of the local chief executive.
Requisites for Essential Elements
Resignation of Abandonment Exception: The successor may exercise the power to
1. Intention to appoint/suspend/dismiss employees only if the
relinquish a part of 1. Intent to abandon; period of incapacity exceeds 30 working days [Sec.
the term; and 46(a), LGC].
2. Act of 2. Overt act by which
relinquishment; the intention is to Designation by Local Chief Executive
and be carried into
3. Acceptance by the effect General Rule: The local chief executive can only
proper authority authorize the vice-governor, city/municipal vice-
mayor, or highest ranking sangguniang barangay
SUCCESSION IN TEMPORARY member, as the case may be, to exercise
VACANCIES [Sec. 46, LGC] powers/duties/functions of his office [Sec. 46(e),
LGC].
Temporary vacancy occurs when the local chief
executive is temporarily incapacitated to perform his Exception: If the local chief executive is traveling
duties for physical or legal reasons such as, but not within the country but outside his territorial
limited to: jurisdiction for a period not exceeding 3 consecutive
a. Leave of absence;
Page 326 of 382

days, he may designate in writing the officer-in-

charge. Discipline of Local Officials
The creation of a temporary vacancy in the office of
the Governor creates a corresponding temporary a. Elective Officials
vacancy in the office of the Vice Governor whenever
the latter acts as Governor by virtue of such GROUNDS FOR DISCIPLINARY ACTION
temporary vacancy. This event constitutes an inability 1. Disloyalty to the Republic of the Philippines;
on the part of the presiding officer (Vice Governor) 2. Culpable violation of the Constitution;
to preside during the sanggunian sessions, which thus 3. Dishonesty, oppression, misconduct in office,
calls for the operation of the remedy set in sec. 49(b) gross negligence, or dereliction of duty;
of the LGC on the election of a temporary presiding 4. Commission of any offense involving moral
officer [Gamboa v. Aguirre, G.R. No. 134213 (1999)]. turpitude or an offense punishable by at least
prision mayor;
Termination of Temporary Incapacity 5. Abuse of authority;
When temporary incapacity terminated: Upon 6. Unauthorized absence for fifteen (15)
submission by the local chief executive to the consecutive working days
sanggunian of a written declaration that he has
reported back to office Except in the case of members of the local
legislative bodies.
If the temporary incapacity is due to legal causes, the
local chief executive must also submit the necessary 7. Application for, or acquisition of, foreign
documents showing that the legal causes no longer citizenship or residence or the status of an
exist [Sec. 46(b)]. immigrant of another country; and
8. Such other grounds as may be provided in the
Leaves of Absence LGC and other laws [Sec. 60(a), LGC].
Local Official LOA approved by
The President or his JURISDICTION
Governors and mayors
duly authorized
of HUCs or ICCs 1. Administrative Complaints under the LGC
representative
Vice-Governors, City/ The Local Chief [Sec. 61]
Municipal Vice-Mayors Executive
City/Municipal Mayors Elective Local
Complaint filed at:
of component cities The Governor Official of:
and municipalities Province, highly
Sanggunian urbanized city,
Panlalawigan, independent Office of the President
The Vice-Governor or component city, or
Panglungsod, and
Vice-Mayor component city
Bayan Members and
their employees Sangguniang
Municipality
The City/Municipal Panlalawigan
Punong Barangays Sangguniang
Mayor Barangay
Sanggunian Barangay Panglungsod or Bayan
The Punong Barangay
Members
No investigation may be held within 90 days
Application for LOA deemed approved: If the immediately prior to any local election [Sec. 62,
application for LOA is not acted upon within 5 LGC].
working days after receipt, the application is deemed
approved [Sec. 47 (b), LGC]. 2. Ombudsman Jurisdiction
Acts or omissions of a
Primary Jurisdiction
public officer or
[Sec. 15, R.A. No.
employee in cases
6770]
cognizable by
Page 327 of 382

the Sandiganbayan (i.e. the gravity of the offense, there is great probability
salary grade of 27 or that the continuance in office of the respondent
higher) could influence the witnesses or threaten the
Cases cognizable by safety/integrity of the records or evidence [Sec. 63(b),
Concurrent LGC].
regular courts and other
Jurisdiction [Sec. 61,
investigative agencies of
LGC] Not in the nature of a penalty: A preventive
the government
suspension is merely a preliminary step in an
In administrative cases involving the concurrent administrative investigation, and can be decreed on
jurisdiction of two or more disciplining authorities, an official under investigation after the charges are
the body in which the complaint is filed first, and brought and even before the charges are heard
which opts to take cognizance of the case, acquires [Castillo-Co v. Barbers, G.R. No. 129952 (1998)].
jurisdiction to the exclusion of other tribunals
exercising concurrent jurisdiction [Office of the Rules on Length of Preventive Suspension
Ombudsman v. Rodriguez, G.R. No. 172700 (2010)]. a. Any single preventive suspension cannot exceed
60 days;
Who are salary grade 27 and above? [Secs. 443- b. Cannot be imposed within 90 days immediately
486, LGC] prior to any local election; if imposed before said
period but extends to such, automatically lifted
Municipalities Municipal Mayor upon start of the 90-day period;
City Mayor; Vice- c. If there are several administrative cases against
Mayor; and an elective official, he cannot be preventively
Cities (for highly-urbanized suspended for more than 90 days within a single
cities) Sanggunian year on the same ground/s existing and known
Panglungsod members at the time of the first suspension;
Governor; Vice- d. Once lifted, official is deemed reinstated without
Governor; and prejudice to the continuance of the proceedings
Provinces against him [Sec. 62-63, LGC].
Sanggunian
Panlalawigan members.
Rights of Respondent Pending Preventive
The powers of the Ombudsman are not merely Suspension
recommendatory. Under R.A. No. 6770 and the 1987 a. No salary paid during period of suspension, but
Constitution, the Ombudsman has the constitutional if subsequently exonerated and reinstated, he
power to directly remove from government service shall be paid full salary that accrued during such
an erring public official other than members of suspension;
Congress and the Judiciary [COA, Regional Office No. b. Accorded full opportunity to appear and defend
13 v. Hinampas, G.R. No. 158672 (2007)]. himself in person or by counsel, to confront and
cross-examine witnesses, and require attendance
PREVENTIVE SUSPENSION of witnesses and production of evidence through
compulsory process of subpoena or subpoena
1. Under the LGC duces tecum [Sec. 64-65, LGC].
Elective Local Suspension imposed 2. Under the Ombudsman Act [Sec. 24, R.A.
Official of: by: No. 6770]
Province, highly
urbanized city, or Who may impose: Ombudsman or Deputy
President Ombudsman
independent
component city
Component city, or N.B. Sec. 63 of the LGC does not govern preventive
Governor suspensions imposed by the Ombudsman, which is a
municipality
constitutionally created office and independent from
Barangay Mayor
the Executive branch of government. The
Ombudsman’s power of preventive suspension is
When Imposed: Any time (1) the issues are joined, (2)
governed by R.A. 6770 (The Ombudsman Act of
when the evidence of the guilt is strong and (3) given
Page 328 of 382

1989) [Miranda v. Sandiganbayan, G.R. NO. 154098 Upon determination of validity, it is the court's
(2005)]. ministerial duty to issue an order of preventive
suspension [Segovia v. Sandiganbayan, G.R. No. 124067
Requisites for Preventive Suspension: (1998)].
a. The evidence of guilt is strong; and
b. Any of the following is present: The term “office” in Sec. 13, RA 3019 applies to any
i. The charge against such officer or employee office which the officer might currently be holding
involves dishonesty, oppression or grave and not necessarily the particular office in relation to
misconduct or neglect in the performance of which he is charged [Segovia v. Sandiganbayan, supra].
duty;
ii. The charges would warrant removal from Sandiganbayan Jurisdiction
the service; or Exclusive original jurisdiction over violations of RA
iii. The respondent's continued stay in office 3019, RA 1379 and Chapter II, Sec. 2, Title VII, Book
may prejudice the case filed against him. II of the RPC (Bribery) and other offenses or felonies
in relation to public office where one or more of the
Length of Preventive Suspension accused are officials occupying positions
corresponding to salary grade 27 or higher
General Rule: Until the case is terminated by the Office
of the Ombudsman but not more than six (6) months Where none of the accused are occupying positions
without pay corresponding to salary grade 27 or higher, exclusive
original jurisdiction shall be vested in the proper RTC
Exception: When the delay in the disposition of the or first level court as the case may be. The
case by the Ombudsman is due to the fault, Sandiganbayan in such case shall exercise exclusive
negligence or petition of the respondent, the period appellate jurisdiction over final judgments or orders
of such delay shall not be counted in computing the of RTCs in the exercise of their original or appellate
period of suspension jurisdiction [Sec. 4, PD 1606 as amended].
N.B. The shorter period of suspension under the REMOVAL AND OTHER SANCTIONS
LGC is intended to limit the period of suspension
that may be imposed by a mayor, governor or the 1. Suspension
President, who may be motivated by partisan political The penalty of suspension shall not exceed the
considerations. In contrast, the Ombudsman is not unexpired term of the respondent or a period of
likely to be similarly motivated because it is a 6 months for every administrative offense.
constitutional body [Garcia v. Mojica, G.R. No. 139043
(1999)]. It shall not be a bar to the candidacy of the
respondent so suspended [Sec. 66(b), LGC].
Preventive suspension pursuant to an
Information on charges under R.A. No. 3019 2. Removal
Any incumbent public officer against whom any An elective local official may be removed from
criminal prosecution under a valid information under office by order of the proper court [Sec. 60,
RA 3019 or under Title 7, Book II of the RPC or for LGC].
any offense involving fraud upon government or
public funds or property is pending in court shall be The penalty of removal from office as a result of
suspended from office [Sec. 13, R.A. No. 3019]. administrative investigation shall be considered a
bar to the candidacy of the respondent for any
The suspension pendente lite under Sec. 13, RA 3019 elective position [Sec. 66(c), LGC].
is mandatory upon the filing of a valid information
against the erring official. This is based on the A suspension for multiple offenses does not
presumption that unless the public officer is amount to a removal if each suspension
suspended, he may frustrate his prosecution or corresponding to each offense does not exceed
commit further acts of malfeasance or both. 6 months [Salalima v. Guingona, G.R. No. 117589
(1996)].
The suspension is not automatic, but requires the
determination of the presence of a valid information.
Page 329 of 382

Proper Court Order The decision is immediately executory but the

Local legislative bodies and/or the Office of the respondent may appeal to the Office of the President
President cannot validly impose the penalty of or the Sangguniang Panlalawigan, as the case may be
dismissal or removal from service on erring local [Don v. Lacsa, G.R. No. 170810 (2007)].
elective officials. It is clear from Sec. 60 of LGC that
an elective local official may be removed from office Sec. 6, Admin. Order No. 18 which authorizes the
on the grounds enumerated only by order of the President to stay the execution of the decision
proper court. pending appeal remains valid despite the enactment
of the LGC. The execution of decisions pending
Art. 124 (b), Rule XIX of the Rules and Regulations appeal is procedural and in the absence of a clear
Implementing the LGC, which states that “an legislative intent to remove from reviewing officials
elective local official may be removed from office by the authority to order a stay of execution, such
order of the proper court or the Disciplining authority can be provided in the rules and regulations
Authority whichever first acquires jurisdiction to the governing the appeals of elective officials in
exclusion of the other” is void for being repugnant to administrative cases [Berces, Sr. v. Guingona, Jr., G.R.
Sec. 60, LGC. No. 112099 (1995)].
But if the official concerned is an appointive official, The decisions of the Office of the President are final
the Office of the President may remove him [Pablico and executory. No motion for reconsideration is
v. Villapando, G.R. No. 147870 (2002)]. allowed by law but the parties may appeal the
decision to the Court of Appeals. The appeal,
ADMINISTRATIVE APPEAL however, does not stay the execution of the decision.
Thus, the DILG Secretary may validly move for its
Period for appeal under the LGC: 30 days from immediate execution [Calingin v. CA, G.R. No.
receipt of the decision 154616 (2004)].
To whom appelable Decisions of the Ombudsman
Decision of: Appeal to: General Rule: A decision of the Ombudsman is not
Sangguniang immediately executory.
Panglungsod of Sangguniang
component cities; and Panlalawigan Exception: The decision is final, immediately
Sangguniang Bayan executory, and unappealable in the following cases:
Sangguniang 1. Where the respondent is absolved of the charge;
Panglalawigan; 2. Where the penalty imposed is:
Sangguniang Office of the President a. Public censure;
Panglungsod of b. Reprimand;
HUCs/ICCs c. Suspension of not more than one month; or
Office of the N/A (decision is final d. Fine not equivalent to one month salary.
Presidence and executory)
In all other cases, the decision shall become final after
Decisions are immediately executory: Appeals the expiration of 10 days from receipt thereof by the
shall not prevent a decision from being final and respondent, unless a motion for reconsideration or
executory. an appeal is filed by him to the Court of Appeals [Sec.
7, Rule III, Rules of Procedure of the Ombudsman].
Respondent is considered to have been placed under
preventive suspension during the pendency of the DOCTRINE OF CONDONATION
appeal in the event he wins, and shall be paid his
salary that accrued during the pendency of the appeal A public official cannot be removed for
[Sec. 68, LGC]. administrative misconduct committed during a prior
term, since his re-election to office operates as a
The phrase “decision shall be final and executory” condonation of the officer's previous misconduct to
simply means that the administrative appeal shall not the extent of cutting off the right to remove him
prevent the enforcement of the Sanggunian decision. therefor [Aguinaldo v. Santos, G.R. No. 94115 (1992)].
Page 330 of 382

Not applicable where:

1. There is already a final determination of guilt.
Recall
Subsequent re-election cannot be deemed a
condonation if there was already a final Sec. 69, LGC. By Whom Exercised. – The
determination of his guilt before the re-election power of recall for loss of confidence shall be
[Reyes v. COMELEC, G.R. No. 120905 (1996)]. exercised by the registered voters of a local
2. Criminal cases. The doctrine finds no application government unit to which the local elective official
to criminal cases, as these are violations against subject to such belongs.
the state itself [Aguinaldo v. Santos, supra].
Ground for Loss of confidence [Sec. 69,
Overturned. This doctrine has been overturned in recall LGC]
Carpio-Morales v. CA, where the Court held that Registered voters of a LGU to
election is not a mode of condoning an adminsitrative Right given which the local elective official
offense. The Court found that the basis for to subject to recall belongs [Sec. 69,
condonation under case law relied on was never LGC’
accounted for. The doctrine cannot be sanctioned By a petition of a registered
under our present Constitution, which upholds the voter supported by:
concept that a public office is a public trust and the • 25% of registered voters if
corollary requirement of accountability to the people LGU has voting population
at all times [Carpio-Morales v. CA, G.R. No. 217126 of not more than 20,000.
(2015)]. • 20% of registered voters if
LGU has voting population
b. Appointive Officials of 20,000 to 75,000. In no
case shall petitioners be less
The power to discipline is specifically granted by the Initiation of than 5,000.
Administrative Code to heads of departments, recall process • 15% of registered voters if
agencies, and instrumentalities, provinces, and cities. LGU has voting population
The appointing authority is generally the disciplinary of 75,000 to 300,000. In no
authority. case shall petitioners be less
than 15,000.
DISCIPLINARY AUTHORITY • 10% of registered voters if
Except as otherwise provided, the local chief LGU has voting population
executive may impose: of more than 300,000. In no
1. Removal from service case shall petitioners be less
2. Demotion in rank than 45,000. [Sec. 70, LGC]
3. Suspension for not more than 1 year without pay Barangay, city, or municipal
a. If less than 30 days, unappealable officials: not later than 30 days
b. If 30 days or more, appealable to the CSC When recall from completion
4. Fine not exceeding 6 months’ pay election is
5. Reprimand; and held Provincial officials: not later
6. Otherwise discipline subordinate official and than 45 days from completion
employees under his jurisdiction [Sec. 87, LGC]. [Sec. 71, LGC]
Automatically considered as
PREVENTIVE SUSPENSION OF candidate and is entitled to be
APPOINTIVE OFFICIALS Effects to
voted upon [Sec. 71, LGC]
May be imposed by the local chief executive for a official
period not exceeding 60 days if sought to be
Not allowed to resign while
1. The charge against the official involves recalled
recall process is in progress [Sec.
dishonesty, oppression or grave misconduct or 73, LGC]
neglect in the performance of duty; OR Upon election and proclamation
2. If there is reason to believe that the respondent Effectivity of
of a successor or the candidate
is guilty of charges which would warrant his recall
receiving the highest number of
removal from service [Sec. 85, LGC].
Page 331 of 382

votes cast during the election on above procedure in barangays, cities, and
recall [Sec. 72, LGC] municipalities; or within 45 days in provinces.
Signature Requirement: The law states “upon Limitations

petition of at least 25% of registered voters” and not 1. Any local elective official may be the subject of
“signed by 25% of the registered voters.” The recall election only once during his term of office
petition must be filed not by one person but at least for loss of confidence [Sec. 74(a), LGC].
by 25% of the total number of registered voters. 2. No recall election shall take place within one (1)
While the initiatory recall petition may not yet contain year from the date of the official’s assumption to
the signatures of at least 25% of the total number of office or one (1) year immediately preceding a
registered voters, the petition must contain the names regular local election [Sec. 74(b), LGC].
of at least 25% of the total number of registered
voters in whose behalf only one person may sign the The phrase “regular local election” refers to an
petition in the meantime [Angobung vs COMELEC, election where the office held by the local
G.R. No. 126576 (1997)]. elective official sought to be recalled will be
contested and be filled by the electorate [Paras v.
Note: The Angobung decision is likely no longer good COMELEC, G.R. No. 123169 (1996)].
law as it was decided under the LGC’s original
provisions on recall. As amended by R.A. No. 9244, As used in Sec. 74(b), LGC, “recall” refers to the
Sec. 70 of the LGC seems to require that the petition election itself by means of which voters decide
already contains the required number of signatures whether they should retain their local official or
upon the filing thereof [GATMAYTAN]. elect his replacement. Hence, recall proceedings
may be initiated within 1 year from the official’s
a. Procedure assumption of office as long as the recall election
is set outside such period [Claudio v. COMELEC,
1. Petition. Filed by a registered voter in the LGU G.R. No. 140560 (2000)].
concerned to the COMELEC, supported by the
necessary number of registered voters. The phrase “immediately preceding a regular
2. COMELEC’s Certification of Sufficiency. local election” in Sec. 74(b), LGC refers to the
Within 15 days from filing of the petition, the day of the regular election, not the election
COMELEC must certify the sufficiency of the period which is normally at least 45 days
required number of signatures. Failure to obtain immediately preceding the day of the election
the required number shall result in the automatic [Claudio v. COMELEC, supra].
nullification of the petition.
3. Notice, Publication, and Posting. Within 3 days Term Limits
from certification of sufficiency, COMELEC
shall: a. Length of Term
a. Provide the official subject of recall with a
copy of the petition;
b. Cause the publication of the petition for 3 Sec. 8, Art. X, Constitution. The term of office
weeks in a national newspaper and a local of elective local officials, except barangay officials,
newspaper of general circulation; and which shall be determined by law, shall be three
c. Cause its posting for 10 to 20 days at years …
conspicuous places.
4. Verification and Authentication of Signatures. R.A. NO. 9164: SYNCHRONIZED
COMELEC verifies and authenticates the BARANGAY AND SANGGUNIANG
signatures. BARANGAY ELECTIONS (2002)
5. Filing of Candidacies. COMELEC announces
the acceptance of candidates for the recall Term of office of barangay and sangguniang kabataan
election, the official subject of the recall being officials: 3 years
automatically included in the list.
6. Setting of Election. COMELEC shall set the N.B. By virtue of R.A. 10952, the Barangay and
election within 30 days upon completion of the Sangguniang Kabataaan officials elected during the
May 2018 elections will only serve for 2 years. The
Page 332 of 382

next Barangay and SK elections are scheduled to be b. Limitation Of Consecutive

held on May 2020, then every 3 years thereafter [Sec.
1, R.A. 10952]. Terms
No barangay elective official shall serve for more Sec. 8, Art. X, Constitution. … No such official
than 3 consecutive terms in the same position shall serve for more than three consecutive terms.
1. Reckoned from the 1994 barangay elections Voluntary renunciation of the office for any length
2. Voluntary renunciation of office for any length of time shall not be considered as an interruption
of time shall not be considered as an interruption in the continuity of his service for the full term for
[Sec. 2] which he was elected.
A Sangguniang Kabataan official who, during his or What constitutes a term of office
her term of office, shall have passed the age of The term limit for elective officials must be taken to
twenty-four (24) years shall be allowed to serve the refer to the right to be elected as well as the right to
remaining portion of the term for which he or she serve in the same elective position. Consequently, it
was elected. [Sec. 11, R.A. 10742] is not enough that an individual has served three
consecutive terms in an elective local office, he must
R.A. NO. 9006: FAIR ELECTIONS ACT also have been elected to the same position for the
same number of times before the disqualification can
No “deemed resigned” rule for elective officials: An apply [Borja v. COMELEC, G.R. No. 133495 (1998)].
elective official running for any office other than the
one which he is holding in a permanent capacity, is The interruption of a term that would prevent the
no longer considered ipso facto resigned from his operation of the three-term rule involves “no less
office upon the filing of his certificate of candidacy than the involuntary loss of title to office [or the right
[Sec. 14]. to hold on to an office]” or “at least an effective break
from holding office” [Aldovino, Jr. v. COMELEC,
N.B. Sec. 14 of R.A. No. 9006 expressly repealed Sec. G.R. No. 184836 (2009)].
67 of B.P. Blg. 881 or the Omnibus Election Code
which states that “any elective official, whether Two conditions for the application of the
national or local, running for any office other than disqualification
the one which he is holding in a permanent capacity, 1. Elected for three consecutive times for the same
except for President and Vice-President, shall be position; and
considered ipso facto resigned from his office upon 2. Fully served three consecutive terms [Borja v.
the filing of his certificate of candidacy.” COMELEC, supra]
“Deemed resigned” rule retained for appointive Prevailing doctrines on issues affecting
officials. Sec. 14 of R.A. 9006 did not repeal Sec. 66 consecutiveness of terms and/or involuntary
of the Omnibus election Code, leaving intact Sec. 66 interruption [Abundo, Sr. v. COMELEC, G.R. No.
thereof which imposes a limitation to appointive 201716 (2013)]
officials and considers them ipso facto resigned from
office upon filing of their certificate of candidacy. 1. Assumption of Office by Operation of Law:
When a permanent vacancy occurs in an elective
The distinction is constitutional. (1) The classification position pursuant to the rules of succession
justifying Sec. 14 of RA 9006, i.e., elected under the LGC, supra:
officials vis-à-vis appointive officials, is anchored
upon material and significant distinctions (e.g. For the office assumed: The successor’s service
elective officials occupy their office by virtue of the for the unexpired portion of the term of the
mandate of the electorate, appointive officials are replaced official is not treated as one full term
prohibited from engaging in partisan political activity and is not counted in the application of any term
except to vote). (2) All the persons belonging under limit [Borja v. COMELEC, supra].
the same classification are similarly treated [Fariñas v.
Executive Secretary, G.R. No. 147387 (2003)]. For the office held before succession: The
successor’s assumption by operation of law to
the higher office (e.g. vice-mayor) is considered
Page 333 of 382

an involuntary severance or interruption of the 6. Effect of Winning in an Election Protest: The

office he previously held (e.g. councilor), i.e. it is period during which the winner of an election
not counted in the application of any term limit protest is unable to assume office as it was
[Montebon v. COMELEC, G.R. No. 180444 occupied by his opponent is considered to be an
(2008)]. involuntary interruption in the service of his
term and therefore bars the application of the
2. Recall Elections: An elective official, who has three-term limit rule [Abundo, Sr. v. COMELEC,
served for three consecutive terms and who did supra].
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 his
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 v.
COMELEC, G.R. No. 147927 (2002); Socrates v.
COMELEC, G.R. No. 154512 (2002)].
3. Conversion: The abolition of an elective local

office due to the conversion of a municipality to
a city does not, by itself, work to interrupt the
incumbent official’s continuity of service [Latasa
v. COMELEC, G.R. No. 154829 (2003)]
4. Preventive Suspension: 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 [Aldovino, Jr.
v. COMELEC, supra].
5. Losing in an Election Protest: When a candidate

is proclaimed a winner for an elective office and
assumes office, his term is interrupted when he
loses in an election protest and is ousted from
office, thus disenabling him from serving what
would otherwise be the unexpired portion of his
term of office had the protest been dismissed
[Lonzanida v. COMELEC, G.R. No. 135150
(1999) and Dizon v. COMELEC, G.R. No.
182088 (2009)].
However, when an official loses in an election

protest and said decision becomes final after said
official had served the full term for said office,
then his loss in the election contest does not
constitute an interruption since he managed to
serve the term from start to finish. His full
service should be counted in the application of
the term limits [Ong v. Alegre, G.R. No. 163295
(2006) and Rivera III v. COMELEC, G.R. No.
167591 (2007)].
Page 334 of 382

U.P. LAW BOC INTERNATIONAL LAW POLITICAL LAW
PUBLIC
INTERNATIONAL LAW
Political Law
Page 335 of 382

XVI. PUBLIC Obligations Obligations

INTERNATIONAL To
Erga Omnes
the
Inter Se
LAW To whom
owed
international
community as a
To
States
particular
whole
A. Concepts Violations may
Violations may be espoused only
Public International Law is a body of principles, Standing be espoused by by States
norms and processes which regulate the relations of any State specially affected
States and other international persons, and governs by the breach
their conduct affecting the interests of the
international community of States as a whole Examples [Institut de Droit International (“IDI”),
[MAGALLONA]. Resolution on Obligations erga omnes in International
Law (2005) (hereinafter “IDI Resolution”)]:
Private International Law is the body of rules of the • Prohibition of acts of aggression;
domestic law of a State that is applicable when a legal • Prohibition of genocide;
issue contains a foreign element, and it has to be • Obligations concerning the protection of basic
decided whether a domestic rule should apply foreign human rights [see also Barcelona Traction Case (ICJ,
law or relinquish jurisdiction to a foreign court 1970)];
[AUST]. • Obligations relating to self-determination [see also
East Timor Case (ICJ, 1995); Palestinian Wall
Private Advisory Opinion (ICJ, 2004)];
Public
International • Obligations relating to the environment of
International Law
Law common spaces.
National or
International in
Nature municipal in Standing to Bring Suit: Other States have standing
nature.
character to bring a claim to the International Court of Justice
1. Treaties and (ICJ) or other international judicial institution in
international relation to a dispute concerning compliance with that
Domestic
conventions obligation [Art. 4, IDI Resolution].
laws for legal
2. Customary
issues
Sources international law Types: Some authorities [e.g. IDI] classify erga omnes
containing
3. General obligations into either:
foreign
principles of law a. erga omnes omnium; or
elements
[Art. 38(1), ICJ b. erga omnes omnes partes [see Art. 1 IDI Resolution].
Statute]
1. States; Erga Omnes Erga Omnes
Individuals
2. International Omnium Partes
Subjects (private
organizations; General Multilateral
persons) Basis
3. Individuals international law treaty
All other States
To The international
1. Obligations Erga Omnes whom community, in
parties to the
same treaty, in
owed any given case
Definition: Obligations erga omnes are “obligations any given case
of a State towards the international community as a The common
The common
whole,” which are the “concern of all States” and for values of the
values of States
whose protection all States have a “legal interest” international
Interest parties and their
[Barcelona Traction Case (ICJ, 1970)]. community and
concern for
concern for
compliance
compliance
Who can State parties to
take All States the multilateral
action treaty.
Page 336 of 382

to decide a case when the parties to the dispute agree

The ICJ has not applied these distinctions in opinions thereto [Art. 38(2), ICJ Statute].
where it discussed erga omnes obligations. This should not be confused with the ability of the
2. Jus Cogens ICJ to apply equitable principles in a case.
Definition: A jus cogens norm is a “norm accepted and

recognized by the international community of States
as a whole as a norm from which no derogation is
permitted and which can be modified only by a
subsequent norm of general international law having
the same character” [Art. 53, Vienna Convention on
the Law of Treaties (hereinafter “VCLT”)].
This is also known as a peremptory norm of general

international law.
Examples
• The prohibition against the use of force under
the UN Charter [Nicaragua Case (ICJ, 1986)];
• Law on genocide;
• Prohibition against apartheid;
• Self-determination;
• Crimes against humanity;
• Prohibition against slavery and slave trade;
• Piracy [BROWNLIE; MAGALLONA].
There is no authoritative listing of jus cogens norms

and erga omnes obligations. Only the prohibition on the
use of force has been declared by the ICJ as a jus cogens
norm. Note that the decisions of the ICJ are not per
se rules of international law, but only a subsidiary
means of determining international law.
Treaties conflicting with jus cogens norms: “A

treaty is void if, at the time of its conclusion, it
conflicts with a peremptory norm of general
international law” (i.e. a jus cogens norm) [Art. 53,
VCLT].
Jus cogens Erga omnes

Pertains to the non-
derogability of a norm Pertains to the legal
and the validity of rules interest of a State in the
and acts that conflict violation of a norm.
with it
3. Concept of Ex Aequo Et
Bono
This means, literally, “what is equitable and good.” It
denotes that a court may decide a case on the basis of
justice and equity, and not be bound by technical legal
rules [PELLET]. The court may apply this standard
Page 337 of 382

B. International and State and not

to its nationals
in case
breach
of
National Law
Relationship
International Law v.
THEORIES
National (Municipal) Law
a. Monist View
International Domestic International and municipal legal systems are
Law Law fundamentally part of one legal order. This view
The conduct of considers international law to be superior, with
States and municipal law being a mere subset of
international international law.
organizations,
Applies to a
their relations International norms are thus applicable within
single country
with each other municipal systems even without some positive
or nation,
and, in certain act of the state.
Scope within a
circumstances,
determined
their relations b. Monist-Naturalist View
territory and
with persons, Public international law is superior to municipal
its inhabitants
natural or law, and both systems are but a part of a higher
juridical [ALI system of natural law.
Third
Restatement] c. Dualist View
Through International law and municipal law are separate
consent, Issued by a systems. Only those issues affecting international
adopted by political relations are within the scope of international
How made
States as a superior for law.
common rule observance
of action Before an international norm can have an effect
Regulates within a municipal legal system, that norm must
Regulates
relations of be transformed, or adopted into the municipal
relations of
individuals system through a positive act by a state organ.
Relations States and
among
Regulated other
Customary international law and general
themselves or
international
with their principles of international law, however, need not
persons
own States be transformed or adopted.
Derived
principally Consists d. Coordinationist View
from treaties, mainly of International law and municipal law operate in
international enactments different spheres. Hence, the laws themselves do
Sources custom and from the not conflict.
general lawmaking
principles of authority of However, there may be a conflict in obligations
law [Art. 38(1), each State imposed by either system. In such a case, the
ICJ Statute] result is not the invalidation of national law, but
By means of responsibility under international law on the part
By means of local of that State.
Settlement of
State-to-State administrative
Disputes ROLE OF INTERNATIONAL LAW WITHIN
transactions and judicial
processes THE NATIONAL LEGAL ORDER
Collective Norms or principles of international law may be
Generally incorporated or transformed into national law and
Responsibility responsibility
entails applied or enforced within the territorial jurisdiction
for Wrongful because it
individual of a state as part of “the law of the land”
Acts attaches
responsibility [MAGALLONA].
directly to the
Page 338 of 382

Doctrine of Incorporation: The Philippines adopts

C. Sources
the “generally accepted principles of international
law” (customary international law) as part of the law In general
of the land [Sec. 2, Art. II, Const.]. They are deemed
as national law whether or not they are enacted as PRIMARY SOURCES
statutory or legislative rules [MAGALLONA].
a. Conventional International Law: International
Doctrine of Transformation: Treaties or conventions, whether general or particular,
international agreements shall become valid and establishing rules expressly recognized by the
effective upon concurrence by at least two-thirds of contracting states (treaties);
all the Members of the Senate [Sec. 21, Art. VII, b. Customary International Law: International
Const]. These rules of international law are not part custom, as evidence of a general practice
of municipal law unless they are transformed via accepted as law;
legislation [MAGALLONA]. c. General Principles of Law: General principles
of law recognized by civilized nations [Art.
ROLE OF NATIONAL LAW IN 38(1)(a)-(c), ICJ Statute].
INTERNATIONAL LEGAL REGULATION
General Rule: A State cannot invoke its own national Although Art. 38 does not provide a hierarchy
law to resist an international claim or excuse itself between these three sources of law, it is recognized
from breach of duty under international law [Art. 6, that treaties and custom stand together above general
VCLT; Polish Nationals in Danzig Case (PCIJ, 1932); principles, except for jus cogens norms which cannot
Art. 32, Articles on State Responsibility (hereinafter be derogated by treaties.
“ASR”)].
Exception: A State may invoke the fact that its SUBSIDIARY SOURCES
consent to be bound by a treaty has been expressed in a. Judicial decisions and teachings of the most
violation of a provision of its internal law regarding highly qualified publicists of the various nations
competence to conclude treaties as invalidating its [Art. 38(1)(d), ICJ Statute].
consent if that violation was manifest and concerned b. Teachings of publicists may include the work of
a rule of its internal law of fundamental importance organizations, such as the International Law
[Art. 46, VCLT]. Commission (a UN body) and private
institutions.
While the primary sources create law, the subsidiary

sources constitute evidence of what the law is.
There is no stare decisis: Case law is considered

only a “subsidiary means.” Decisions of the ICJ do
not create binding precedent, since they bind only the
parties and in respect of the particular case [Art. 59,
ICJ Statute].
Treaties and Conventions

A treaty is an international agreement concluded
between states in written form and governed by
international law, whether embodied in a single
instrument or in two or more related instruments and
whatever its particular designation” [Art. 2(1)(a),
VCLT].
Treaty obligation is based on consent. No state may

be bound by a treaty obligation unless it has so
consented [Art. 34, VCLT].
Page 339 of 382

Under the principle of pacta sunt servanda, a state development of international custom [See Nicaragua
party to a treaty is bound to comply with the Case (ICJ, 1986)].
obligations it assumed under such treaty in good faith
[Art. 26, VCLT]. b. Opinio Juris Sive Necessitates
Customary International This refers to the belief on the part of states that a
particular practice is required by law, and not because
Law of courtesy or political expediency [North Sea
Continental Shelf Cases (ICJ, 1969)].
ELEMENTS
Before a norm may become customary international It is the existence of opinio juris that distinguishes
law binding on all States, there must be state practice binding custom from mere usage, from comity, and
and opinio juris sive necessitates. from courtesy or protocol.
Unlike treaties, customary norms are legally binding SCOPE
upon all States regardless of whether they gave Custom may be:
consent, subject to the persistent objector rule. a. General, which is binding upon all or most
states; or
No particular length of time is required for the b. Particular, which is binding only between two or
formation of customary norms so long as the among a few states.
existence of the two elements of custom is manifest
[North Sea Continental Shelf Cases (ICJ, 1969)]. The ICJ has recognized the possibility of regional
custom [Asylum Case (ICJ, 1950)] and of bilateral
The number of parties, the explicit acceptance of rules custom [Right of Passage over Indian Territory Case (ICJ,
of law, and, in some cases, the declaratory nature of 1960)].
the provisions produces a strong law-creating effect,
at least as great as the general practice considered Principle of Persistent Objector
sufficient to support a customary rule [BROWNLIE]. When a State has continuously objected to a new
customary norm at the time when it is yet in the
a. State Practice process of formation, by such persistent objection the
norm will not be applicable as against that state
The practice must be consistent and general. [Magallona].
Consistency requires substantial uniformity and not
necessarily complete uniformity in practice [Asylum For instance, the 10-mile rule (in the delimitation of
Case (ICJ, 1950)]. Generality does not require territorial waters across bays) would appear to be
universality. inapplicable against Norway, inasmuch as it has
always opposed any attempt to apply it to the
The absence of protest could be considered evidence Norwegian coast [Anglo-Norwegian Fisheries Case (ICJ,
of the binding nature of customary practice 1951)].
[Akehurst].
Some commentators argue, however, that there is no
The following acts may evidence state practice: state practice to support this principle [EVANS].
1. Diplomatic correspondence;
2. Policy statements; Duality of Norms
3. Press releases; It is possible for a norm of international law to exist
4. Opinions of official legal advisers; both as a customary norm and a conventional norm
5. Official manuals on legal decisions (executive [e.g. prohibition against the use of force]. Such norms
decisions and practices, and government are said to be of dual character.
comments on drafts by the ILC);
6. International and national judicial decisions; Norms of dual character come into being when:
7. Recitals in treaties and international instruments; a. a treaty provision simply restates a customary
8. Practice of international organs [Harris]. norm;
b. a treaty provision constitutes evidence of custom;
Generally, UN General Assembly resolutions are just or
recommendatory. However, such resolutions may be c. a treaty provision crystallizes into a customary
evidence of state practice that is relevant in the norm.
Page 340 of 382

For a treaty provision to crystallize into custom, the

General Principles of Law
provision must be norm-creating or law-making,
Definition: These refer to those general principles in
creating legal obligations which are not dissolved by
municipal law (particularly those of private law) that
their fulfillment [North Sea Continental Shelf Cases (ICJ,
may be appropriated to apply to the relations of states
1969)].
[Oppenheim].
The customary norm retains a separate identity even
Examples
if its content is identical with that of a treaty norm.
Thus, a State that cannot hold another State • Roman law principles: estoppel, res judicata, res
responsible for a breach of a treaty obligation can still inter alios acta, and prescription
hold the erring state responsible for the breach of the o e.g. With respect to estoppel, when Thailand
identical customary norm [Nicaragua Case (ICJ, 1986)]. did not object to, and has in fact benefited
from, the Treaty of 1904 for 50 years, it is
Philippine Practice deemed to have accepted said treaty. It is
The Supreme Court has identified the following thereby precluded from questioning Annex I
customary norms: thereof, which showed that the Temple of
a. Rules and principles of land warfare and of PreahVihear was within Cambodian territory
humanitarian law under the Hague Convention [Temple of Preah Vihear Case (ICJ, 1962)].
and the Geneva Convention [Kuroda v. Jalandoni, • Other substantive principles: duty to make
G.R. No. L-2662 (1949)]; reparations [Chorzow Factory Case (PCIJ,
b. Pacta sunt servanda [La Chemise Lacoste v. 1927)], principle of reciprocity, pacta sunt servanda,
Fernandez, G.R. No. L-63796-97 (1984)]; separate corporate personality [see Barcelona
c. Human rights as defined under the Universal Traction Case (ICJ, 1970)];
Declaration of Human Rights [Reyes v. Bagatsing, • Procedural rules: rules governing the use of
G.R. No. L-65366 (1983)]; circumstantial and hearsay evidence
d. The principle of restrictive sovereign immunity o e.g. Press reports can be used to corroborate
[Sanders v. Veridiano, G.R. No. L-46930 (1988)]; the existence of a fact. When they
e. The principle in diplomatic law that the receiving demonstrate matters of public knowledge,
state has the special duty to protect the premises which have received extensive press
of the diplomatic mission of the sending state coverage, they can be used to prove a fact to
[Reyes v. Bagatsing, G.R. No. L-65366 (1983)]; the satisfaction of the court [Nicaragua Case
f. The right of a citizen to return to his own country (ICJ, 1986)].
[Marcos v. Manglapus, G.R. No. 88211 (1989)]; o Circumstantial evidence is admitted as
g. The principle that “a foreign army allowed to indirect evidence in all systems of law and its
march through friendly country or to be use is recognized by international decisions.
stationed in it, by permission of its government Such circumstantial evidence, however, must
or sovereign, is exempt from criminal jurisdiction consist of a series of facts or events that lead
of the place” [Raquiza v. Bradford, G.R. No. L-44 to a single conclusion [Corfu Channel Case
(1945)]; (ICJ, 1949)].
h. The principle that judicial acts, not of a political • Jurisdictional principles: power of a tribunal to
complexion of a de facto government established determine the extent of its own jurisdiction
by the military occupant in an enemy territory, are (competence de la competence)
valid under international law [Montebon v. Director
of Prisons, G.R. No. L-1352 (1947)]; Judicial Decisions and
i. The principle that private property seized and
used by the enemy in times of war under Teachings of Highly
circumstances not constituting valid requisition
does not become enemy property and its private
Qualified Publicists
ownership is retained, the enemy having acquired
only its temporary use [Noceda v. Escobar, G.R. Evidence of the state of the law: Despite the
No. L-2939 (1950)]; inapplicability of stare decisis in the ICJ, decisions of
j. The principle that a State has the right to protect international tribunals exercise considerable influence
itself and its revenues, a right not limited to its as impartial and well-considered statements of the law
own territory but extending to the high seas by qualified jurists made in light of actual problems.
[Asaali v. Commissioner, G.R. No. L-24170 (1968)].
Page 341 of 382

Decisions of international tribunals constitute

evidence of the state of the law [Brownlie]. In the event of a dispute as to whether the Court has
jurisdiction, the matter shall be settled by the decision
Writings of highly qualified publicists likewise of the Court [Art. 36(6), ICJ Statute.].
constitute evidence the state of the law.
Caveat: Some publicists may be expressing not what

the law is (lex lata) but what they think the law should
be or will be (lex ferenda).
Non-Sources
The following are not sources of international law,
but may be used by the ICJ in particular to decide a
case.
a. Ex aequo et bono is a standard of “what is
equitable and good,” which the Court may apply
(in place of the sources of international law) to
decide a case when the parties to the dispute so
agree. [Art. 38(2), ICJ Statute]
b. Equity refers to the application of standards of
justice that are not contained in the letter of
existing law. It has often been applied in cases
involving territorial disputes and maritime
delimitations.
c. Unilateral declarations concerning legal or
factual situations, may have the effect of creating
legal obligations. Nothing in the nature of a quid
pro quo, nor any subsequent acceptance, nor
even any reaction from other states is required
for such unilateral declaration to take effect.
Verily, unilateral declarations bind the state that
makes them [Nuclear Test Cases (ICJ, 1974)].
Jurisdiction of the
International Court of Justice
The jurisdiction of the Court comprises all cases that
the parties refer to it and all matters specially provided
for in the Charter of the United Nations or in treaties
and conventions in force [Art. 36(1), ICJ Statute].
The states parties to the ICJ Statute may at any time

declare that they recognize as compulsory ipso facto
and without special agreement, in relation to any other
state accepting the same obligation, the jurisdiction of
the Court in all legal disputes concerning:
a. The interpretation of a treaty;
b. Any question of international law;
c. The existence of any fact which, if established,
would constitute a breach of an international
obligation; or
d. The nature or extent of the reparation to be made
for the breach of an international obligation [Art.
36(2), ICJ Statute].
Page 342 of 382

D. Subjects ELEMENTS OF STATEHOOD

The state as a person of international law should
1. States; possess the following qualifications [Art. 1,
2. International organizations; and Montevideo Convention on the Rights and Duties of
3. Natural or Juridical Persons [ALI THIRD States (1933)]:
Restatement].
a. PERMANENT POPULATION
SUBJECTS V. OBJECTS
Subjects of international law refer to entities: The population does not have to be
1. Capable of possessing international rights and homogeneous racially, ethnically, tribally,
duties; and religiously, linguistically, or otherwise. But it must
2. Having the capacity to maintain these rights by be a settled population, although the presence of
bringing international claims [Reparations for certain nomadic inhabitants does not matter
Injuries Advisory Opinion (ICJ, 1949)]. [Aust].
Objects of international law are persons or things b. DEFINED TERRITORY

in respect of which rights are held and obligations are
assumed by the subject. They are not directly State territory is that defined portion of the
governed by the rules of international law. Their surface of the globe, which is subjected to the
rights (e.g. human rights of individuals) may be sovereignty of the State [Oppenheim].
asserted and their responsibilities imposed indirectly,
through the instrumentality of an intermediate agency A state must exercise control over a certain area.
(e.g. state). It need not be exactly defined by metes and
bounds, so long as there exists a reasonable
This traditional distinction has been criticized as certainty of identifying it. No minimum land area
unhelpful, as non-state actors (e.g. individuals and is required.
civil society organizations) already have standing to
bring suits in the fields of international criminal law MODES OF ACQUIRING TERRITORY
and international human rights law. Thus, some call There are four modes of acquiring territory. The
the entities actors [Higgins]. first two are original modes while the last two are
derivative modes.
OBJECTIVE V. SPECIAL PERSONALITY
Objective (general) international personality 1. Occupation
exists wherever the rights and obligations of an entity Occupation refers not to mere discovery, but
are conferred by general international law (e.g. states). to effective exercise of sovereignty over a
territory that is terra nullius (i.e., not subject to
The United Nations has objective international the sovereignty of any other state).
personality [Reparations for Injuries Advisory Opinion
(ICJ, 1949)]. Occupation is different from conquest,
which is the taking of a territory of another
Special (particular) international personality sovereign by force of arms. Conquest is
exists where an entity is established by particular generally accepted to have been outlawed as
states for special purposes. aggression and violative of the prohibition
on the use of force and territorial integrity
[See Definition of Aggression, UN GA Res.
1. States 3314 (XXIX) (1974)].
Definition: There is no standard definition of what Effective occupation means continued
the State is in international law. The Montevideo display of authority. It involves (1) the
Convention (deemed international custom per the intention and will to act as sovereign or
Kosovo Advisory Opinion (ICJ, 2010)) merely enumerates animus occupandi; and (2) some actual
the elements by which one may say that a state exists. exercise or display of such authority [Eastern
Greenland Case (PCIJ, 1933)].
States remain the most important actors in
international law. They possess objective or erga omnes Animus occupandi must be demonstrated and
personality. evidenced by some administrative or political
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acts in relation to the territory in question

and such acts must be under titre de souverain c. GOVERNMENT
(title of sovereignty).
Government is the physical manifestation of a
To constitute effective occupation, exercise state. Government must be organized, exercising
of sovereignty must be peaceful, actual, control over and capable of maintaining law and
continuous and sufficient to confer valid title order within its territory.
to sovereignty.
Under the rules on succession of States, even
2. Prescription changes of entire governments do not affect the
identity and personality of the state. Once
Through prescription, title is acquired by statehood is established, neither invasion nor
continuous and undisturbed exercise of disorder alone can remove its character as a state
sovereignty over a period of time. [Brownlie].
Possession must be: Effective Government

• Exercised under titre de souverain; General Rule: There must be a central government
• Peaceful and uninterrupted; operating as a political body within the law of the
• Public; and land and in effective control of the territory
[Aust].
• Endure for a certain length of time
Exception: The requirement of effective
[Johnson].
government is not strictly applied when the State,
already long-existing, happens to undergo a
Occupation v. Prescription
period of civil strife or internal chaos due to
Occupation is the acquisition of territory
natural disaster or invasion.
that is terra nullius by any State which has the
intention to claim sovereignty and occupies
Failed State: One which has not had a
that territory by exercising effective and
government in control of most of the territory
continued control.
for several years [Aust]. A failed State does not
cease to be a State. (e.g. Somalia, which has not
In contrast, prescription is the acquisition of
had an effective government in years, but
territory that is not terra nullius, obtained by
continues to be recognized by the UN). Further,
means that may initially have been of
some States were deemed States even before their
doubtful legality but is uninterrupted and
governments were very well-organized (e.g.
uncontested for a long time. Timely protests
Poland, Burundi, and Rwanda).
by the ‘former’ sovereign will usually bar the
claim [Aust].
Governments de jure and de facto
1. Government de jure: Government from
3. Accession or Accretion
law, that is, one with a color of legitimacy.
Accession or accretion is the natural process
2. Government de facto: One that governs
of land formation resulting in the increase of
without a mandate of law. So long as it is in
territory.
place, it may command obedience from the
inhabitants of the occupied area. The de facto
4. Cession
ruler may suspend laws and enact new ones.
Cession means the transfer of territory from
one state to another by treaty (derivative). It • De facto Proper / Government by
is the only bilateral mode of acquiring Revolution: That which usurps, either
territorial sovereignty. by force or the will of the majority, the
legal government and maintains control
The validity of cession depends on the valid title against it;
of the ceding state. The cessionary state cannot • Government by Paramount Force /
have more rights than what the ceding state Government by Occupation: Results
possessed [Magallona]. from the occupation of a state or a part
thereof by invading forces in time of
war; and
• Government by Secession:
Government established as an
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independent government by inhabitants

of a country who rise in insurrection b. DECLARATION OF INDEPENDENCE
against the parent state [See Co Kim Cham
v. Valdez Tan Keh, G.R. No. L-5 (1945)]. General Rule: International law contains no
prohibition on declarations of independence.
Jus Postlimium: Acts (executive, legislative, Exception: If the declaration is connected with (a)
and judicial) done under the control of a de the unlawful use of force; or (b) other egregious
facto government, when they are not of a violations of jus cogens norms.
political complexion, remain good even
upon the restoration of the legitimate Hence, the Kosovo declaration of independence
government [See Co Kim Cham v. Valdez Tan did not violate general international law just
Keh, G.R. No. L-5 (1945)]. because it was unilateral [Kosovo Advisory Opinion
(ICJ, 2010)].
Conversely, the establishment of a de facto
government does not by itself abolish all c. RIGHT TO SELF-DETERMINATION
laws and structures established by the
deposed government. Only laws of political Internal self-determination v. External self-
nature affecting political relations are determination: Through internal self-
suspended ipso facto; laws that enforce public determination, the state recognizes a people’s
order and regulate social and commercial life pursuit of its political, economic, social and
remain in effect unless they are changed by cultural development within the framework of an
the de facto sovereign. existing state.
d. CAPACITY TO ENTER INTO A right to external self-determination (which, in

RELATIONS WITH OTHER STATES this case, potentially takes the form of the
assertion of a right to unilateral secession) arises
A state must be free from outside control in in only the most extreme of cases and, even then,
conducting foreign and internal affairs, i.e. under carefully defined circumstances [Akbayan
sovereign and independent. v. Aquino, G.R. No. 170516 (2008), citing In re
Secession of Quebec (Can., 1998)].
It is sufficient for a State to possess external
appearance of capacity to enter into international Secession: Secession is the effort of a group or
relations [Brownlie]. That a State may be acting section of a state to withdraw itself from the
under the direction of another State does not political and constitutional authority of that state,
affect this requirement [See Treaty of Friendship with a view to achieving statehood for a new
(India and Bhutan), where Bhutan agreed to be territorial unit on the international plane [In re
guided in its external relations by Indian advice; Secession of Quebec (Can., 1998)].
Aust].
The grounds for secession are:
CONCEPTS ON CREATION OF STATES 1. Colonization;
2. Alien subjugation, domination, or
a. EFFECTIVENESS exploitation outside the colonial context;
3. Remedial Secession: When a people is
The issue of possession of the status of a state blocked from the meaningful exercise of its
(statehood) under international law, traditionally right to self-determination internally, it is
defined as “effectiveness,” is closely linked to the entitled, as a last resort, to exercise it by
concept of sovereignty, although the latter is not secession [In re Secession of Quebec (Can.,
itself a criterion for statehood. Instead, it is the 1998)].
“totality of international rights and duties
recognized by international law” as embodied in This ground may take the form of massive
an independent territorial unit that is the state. In human rights violations or inadequate political
other words, an entity endowed with statehood representation.
has sovereignty, but sovereignty itself is not a
precondition but only an attribute, or “an However, it remains unclear whether this third
incident or consequence of statehood.” ground actually reflects an established
international law standard (or is merely lex ferenda)
[In re Secession of Quebec (Can., 1998)].
Page 345 of 382

accepted by the people [After US President

RECOGNITION Wilson, 1913 and Ecuadorian FM Tobar (1907)].
b. Stimson Doctrine: This is the doctrine of not
Definition: Recognition is an act by which a state recognizing any situation, treaty or agreement
acknowledges the existence of another state, brought about by non-legal means. It precludes
government or belligerent community and indicates recognition of any government established as a
willingness to deal with the entity as such under result of external aggression [After US Sec. of
international law. State Henry Stimson (1932)].
c. Estrada Doctrine: This holds for automatic
Not a legal duty: As a public act of state, recognition recognition of governments in all circumstances.
is an optional and political act and there is no legal It posits that dealing or not dealing with the
duty in this regard. government established through a political
upheaval is not a judgment on the legitimacy of
TWO VIEWS the said government [After Mexican Minister
a. Declaratory School: Recognition is a mere Genaro Estrada (1930)] [Shaw].
declaration or acknowledgement of an existing
state of law and fact, legal personality having been
previously conferred by operation of law. This is
2. International Organizations
the prevailing view.
General rule: International organizations have special
b. Constitutive School: The political act of
personality. The status and powers of an international
recognition is a precondition to the existence of
organization is determined by agreement and not by
legal rights of a state. In its logical extreme, this
general or customary international law. They are
is to say that the very personality of a state
considered subjects of international law “if their legal
depends on the political decision of other states.
personality is established by their constituent
This is the minority view [Brownlie].
instrument.”
LEGAL FUNCTIONS
Further, their constituent rights and duties, or
The typical act of recognition has two legal functions:
capacities and immunities, are limited to those set
a. Evidence of statehood: The determination of
forth in the treaty creating the international
statehood as a question of law which may have
organization. Thus, legal personality in this context is
evidential effect before a tribunal; and
a relative concept [Magallona].
b. Establishment of relations: A condition of the
establishment of formal, optional, and bilateral
Exception: The United Nations has objective
relations, including diplomatic relations and the
international personality. Its personality is binding on
conclusion of treaties [Brownlie].
the whole international community, including States
who are not UN members [Reparations for Injuries
Effects
Advisory Opinion (ICJ, 1949)].
a. Establishment of diplomatic relations;
b. Grant of right to sue in courts of recognizing
Preconditions for International Personality
state;
a. It must constitute a permanent association of
c. Grant of right to possession of properties of
states, with lawful objects, equipped with organs;
predecessor in the recognizing state; and
b. There must be a distinction, in terms of legal
d. Retroactive validity: All acts of the recognized
powers and purposes, between the organization
state or government are validated retroactively,
and its member states; and
preventing the recognizing state from passing
c. It must have legal powers that it may exercise on
upon their legality in its own court.
the international plane and not solely within the
national systems of one or more states
DOCTRINES ON RECOGNITION OF DE
[Brownlie].
FACTO GOVERNMENTS
a. Wilson/Tobar Doctrine (“Doctrine of
The United Nation’s capacity to bring claims for
Legitimacy” or “Policy of Democratic
reparations
Legitimacy”): This holds that governments which
As the “supreme type of international organization,”
came into power by extra-constitutional means
the UN must be deemed to have such powers, which,
[e.g. revolution, civil war, coup d’etat or other
though not expressly granted in its Charter, are
forms of internal violence] should not be
conferred upon it by necessary implication as being
recognized, at least until the change had been
essential to the performance of its duties.
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Thus, though the UN Charter did not expressly clothe

E. Diplomatic and Consular
the UN with the capacity to bring an international
claim for reparations, the UN nevertheless possessed
Law
functional personality [Reparations for Injuries Advisory
Opinion (ICJ, 1949)]. Diplomatic Intercourse
Definition: Diplomatic intercourse, also referred to
3. Natural or Juridical Persons as the right of legation, is the right of a state to send
and receive diplomatic missions, which enables states
Special personality: Individuals, whether natural or to carry on friendly intercourse.
juridical, may assume the status of subjects of
international law only on the basis of agreement by Diplomatic relations and diplomatic missions are
states and in specific context, not in accordance with separately established by mutual consent [See Art. 2,
general or customary international law. Vienna Convention on Diplomatic Relations
(hereinafter “VCDR”)].
Examples
• Art. 187(c)-(e), UNCLOS provide for jurisdiction A State may have diplomatic relations without a
of the Sea-Bed Disputes Chamber of the ITLOS diplomatic mission, e.g. through non-resident
over disputes between parties to contracts ambassadors [Magallona].
relating to the exploitation of marine resources.
Parties to such contracts may be natural or AGENTS OF DIPLOMATIC INTERCOURSE
juridical persons.
• The Claims Settlement Declaration of 1981 a. Head of State
between US and Iran provides for direct access The head of State represents the sovereignty of
to the Iran-US Claims Tribunal to individuals for the State and enjoys the right to special
the settlement of their claims involving more protection for his physical safety and the
than $250,000 either against Iran or the US. preservation of his honor and reputation.
• The Mixed Claims Tribunals established in the
Treaties of Peace concluded at the end of World Upon the principle of extraterritoriality, his
War I provided for locus standi of individuals in quarters, archives, property and means of
actions against states relating to contracts, debts, transportation are inviolate.
and property adversely affected by the war.
• The London Agreement of the International He is immune from criminal and civil
Military Tribunal at Nuremberg, relating to jurisdiction, except when he himself is the
crimes against peace, war crimes and crimes plaintiff, and is not subject to tax or exchange or
against humanity, imposed duties and liabilities currency restrictions.
upon individuals as well as upon states.
• Art. VI of the Convention on the Prevention and b. Foreign Office
Punishment of the Crime of Genocide defined This is the body entrusted with the conduct of
“parties charged with genocide” as including actual day-to-day foreign affairs.
individuals [Magallona].
It is headed by a secretary or a minister who, in
• The International Criminal Court has jurisdiction proper cases, may make binding declarations on
over individuals who commit genocide, crimes behalf of his government [Eastern Greenland Case
against humanity and war crimes, subject to (PCIJ, 1933)].
conditions under the ICC Statute [Art. 25(1), ICC
Statute, in relation to Art. 5]. c. Diplomatic Corps
This refers to the collectivity of all diplomatic
envoys accredited to a state composed of:
1. Head of mission, classified into:
• Ambassadors or nuncios accredited to the
heads of State, and other heads of
mission of equivalent rank;
• Envoys, ministers, and internuncios
accredited to the heads of State;
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• Charges d’affaires accredited to Ministers

of Foreign Affairs [Art. 14, VCDR]; a. Personal Inviolability
2. Diplomatic staff, engaged in diplomatic
activities and are accorded diplomatic rank Aspects
[Art. 1(d), VCDR]; 1. The duty of the receiving State to refrain
3. Administrative and technical staff, those from exercising its sovereign rights, in
employed in the administrative and technical particular, law enforcement rights, against
service of the mission [Art. 1(f), VCDR]; the diplomat;
4. Service staff, engaged in the domestic service
of the mission [Art. 1(g), VCDR] [Nachura]. General rule: The diplomatic representative
shall not be liable to any form of arrest or
In the Philippines, the President appoints, sends, and detention [Art. 29, VCDR].
instructs the diplomatic and consular representatives
[Sec. 16, Art. VII, Const.]. Exception: The diplomatic envoy may be
arrested temporarily in case of urgent danger,
FUNCTIONS AND DUTIES OF AGENTS such as when he commits an act of violence
a. Represent the sending State in the receiving State which makes it necessary to put him under
[Art. 3(1)(a), VCDR]; restraint for the purpose of preventing
b. Protect in the receiving State the interests of the similar acts [Diplomatic and Consular Staff in
sending State and its nationals, within the limits Tehran Case (ICJ, 1980)].
allowed by international law [Art. 3(1)(b),
VCDR]; 2. The duty to treat him with due respect and
c. Negotiate with the government of the receiving protect his person, freedom or dignity from
State [Art. 3(1)(c), VCDR]; physical interference by other persons [Art.
d. Ascertain, by all lawful means, the conditions and 22, VCDR].
developments in the receiving State and reporting 3. The receiving State shall treat him with due
the same to the sending State [Art. 3(1)(d), respect and take all steps to prevent any
VCDR]; attack on his person, freedom or dignity [Art.
e. Promote friendly relations between the sending 29, VCDR].
State and receiving State, and developing their
economic, cultural and scientific relations [Art. Scope
3(1)(e), VCDR]; The inviolability of a diplomatic agent covers:
f. If diplomatic relation is severed, entrust the 1. His private residence;
protection of its nationals to the diplomatic 2. Papers and correspondence; and
mission of a third state acceptable to the 3. Property, generally [Art. 30, VCDR].
receiving state [Art. 45, VCDR]; and
g. May protect the interest of a third State by b. Inviolability of Premises of the Mission and
agreement with the receiving State, if there are no Archives
diplomatic relations between the third state and
the receiving state [Art. 46, VCDR] [Magallona]. Elements
1. The duty of the receiving state to refrain
IMMUNITIES AND PRIVILEGES from entering the premises, except with the
consent of the head of the mission; and
Theoretical Bases 2. The special duty of the receiving state to
Diplomatic immunities and privileges have been protect the premises against any intrusion or
justified under the following theories: damage and to prevent any disturbance of
• Extraterritoriality theory: The premises of the the peace of the mission or impairment of its
diplomatic mission represent a sort of extension dignity [Art. 22, VCDR].
of the territory of the sending State.
• Representational theory: The diplomatic The principle of inviolability continues to apply
mission personifies the sending State. even if diplomatic relations are broken off, or if a
mission is permanently or temporarily recalled. In
• Functional necessity theory: The privileges
that case, the receiving state must respect and
and immunities are necessary to enable the
protect the premises of the mission, together
diplomatic mission to perform its functions. This
with its property and archives [Art. 45, VCDR].
theory was adopted by the ILC when it drafted
the draft articles of the VCDR [Magallona].
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The term “premises of the mission” means the diplomatic mission, as well as members
buildings or parts of the buildings and the land of their families forming part of their
ancillary thereto used for the purposes of the respective households, who are not
mission including the residence of the diplomatic nationals of or permanent residents in
agent [Art. 1(i), VCDR]. This is irrespective of the the receiving state;
ownership of the premises [Magallona, citing ILC
Yearbook]. As to civil and administrative jurisdiction,
immunity shall not extend to acts
The inviolability of the premises appears to be performed outside the course of their
absolute [Shaw]. The envoy must consent to duties [Art. 37, VCDR]; and
such entry. Such premises cannot be entered or
searched, and neither can the goods, records and 3. Service staff: Members of the service
archives be detained by local authorities even staff of the diplomatic mission, who are
under lawful process. Portions of the draft not nationals of or permanent residents
VCDR which provided an exception for in the receiving state, with respect to
emergencies were rejected. acts performed in the course of their
duties [Art. 37, VCDR].
Also, the service of writs, summons, orders or
processes within the premises of mission or Duration of Immunities and Privileges
residence of the envoy is prohibited. Even if a Immunities and privileges begin from the
criminal takes refuge within the premises, the moment the person enters the territory of
peace officers cannot break into such premises to the receiving state to take up his post or, if
apprehend the same. already in its territory, from the moment
when his appointment is notified to the
The fugitive should, however, be surrendered Ministry of Foreign Affairs.
upon demand by local authorities, except when
the right of asylum exists. They come to an end when he:
1. exits the country, or
c. Right to Official Communication 2. upon expiration of a reasonable period
in which to leave the country [Art. 39,
The envoy is entitled to fully and freely VCDR].
communicate with his government.
1. The receiving state shall permit and protect Waiver of Immunity from Jurisdiction
free communication on the part of the In proceedings, whether criminal, civil or
mission for all official purposes; administrative, the waiver must be:
2. The mission may employ all appropriate 1. made by the sending State itself; and
means to send and receive messages by any 2. express [Art. 32, VCDR].
of the usual modes of communication or by
diplomatic courier, which shall enjoy State practice indicates that the authority to
inviolability; exercise the waiver rests with the sovereign
3. The official correspondence of the mission organs, and not the diplomatic agent or
is inviolable; and official himself [Magallona].
4. The diplomatic bag shall not be opened or
detained [Art. 27, VCDR]. Criminal Jurisdiction
A diplomatic agent enjoys immunity from
d. Immunity from Local Jurisdiction criminal jurisdiction of the receiving State [Art.
31, VCDR].
Persons Entitled
1. Diplomatic agent and family: He may not be arrested, prosecuted, prosecuted
Diplomatic agent and members of the or punished for any offense he may commit,
family of the diplomatic agent forming unless his immunity is waived.
part of his household, who are not
nationals of the receiving state [Art. 31, This privilege, however, only exempts a
VCDR]; diplomatic agent from local jurisdiction. It does
2. Administrative and technical staff: not import immunity from legal liability, or from
As to criminal jurisdiction, members of the
administrative and technical staff of the
Page 349 of 382

the jurisdiction of the sending state [Art. 31(4),

VCDR]. Exceptions:
As to the sending state, exemption does not include
Civil and Administrative Jurisdiction dues or taxes which represent payment for
General rule: The diplomatic agent enjoys specific services rendered [Art. 23(1), VCDR].
immunity from the civil and administrative
jurisdiction of the receiving state, even with respect As to diplomatic agents, the following are not
to his private life [Art. 31(1), VCDR]. included:
1. Indirect taxes incorporated in the price of
Exceptions: goods purchased or services availed;
1. A real action relating to private immovable 2. Dues and taxes on private immovable
property situated in the territory of the property situated in the receiving state;
receiving state, unless he holds it in behalf of 3. Estate, succession or inheritance taxes levied
the sending state for the purposes of the by the receiving state;
mission; 4. Dues and taxes on private income sourced
2. An action relating to succession in which the within the receiving state;
diplomatic agent, involved as executor, 5. Capital taxes on investments in commercial
administrator, heir or legatee, as a private ventures in the receiving state;
person and not on behalf of the sending 6. Charges levied for specific services rendered;
state; 7. Registration, court or record fees, mortgage
3. An action relating to any professional or dues and stamp duty, with respect to
commercial activity exercised by the immovable property [Art. 34, VCDR].
diplomatic agent in the receiving state
outside his official functions [Art. 31(1), Persons Entitled to Tax Exemptions
VCDR]. 1. Diplomatic agent and household:
Members of the family of the diplomatic
His properties are not subject to garnishment, agent forming part of his household, who are
seizure for debt, execution and the like, except not nationals of the receiving state;
in these 3 cases [Art. 31(3), VCDR]. 2. Administrative and technical staff:
Members of the administrative and technical
The diplomatic agent also cannot be compelled staff of the diplomatic mission, as well as
to testify, not even by deposition, before any members of their families forming part of
judicial or administrative tribunal in the receiving their respective households, who are not
state without the consent of his government [Art. nationals of or permanent residents in the
31(2), VCDR]. receiving state;
3. Service staff: Members of the service staff
e. Exemption from Taxes and Customs Duties of the diplomatic mission, who are not
nationals of or permanent residents in the
General rule: As to the sending state, the exemption receiving state, with respect to emoluments
applies to the “premises of the mission” whether they receive by reason of their employment;
owned or leased, with respect to “all national, 4. Private servants: Private servants of
regional or municipal dues and taxes” [Art. 23, members of the mission if they are not
VCDR]. nationals or permanent residents of the
receiving state, with respect to emoluments
As to diplomatic agents, they are exempt from all they receive by reason of their employment
dues and taxes, whether personal or real, national, [Art. 37, VCDR].
regional or municipal [Art. 34, VCDR].
They are also exempt from all customs duties of Consular Relations
articles for the official use of the mission and
those for the personal use of the envoy or Definition: These are the relations which come into
members of the family forming part of their existence between two States by reason of the fact
household, including articles intended for their that consular functions are exercised by authorities of
establishment. one State in the territory of the other [Magallona].
Baggage and effects are entitled to free entry and

are usually exempt from inspection.
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f. Acting as notary, civil registrar and similar

ESTABLISHMENT AND SEVERANCE administrative capacities; and
Consular relations are established by mutual consent g. Exercising rights of supervision and inspection
[Art. 2, Vienna Convention on Consular Relations pertaining to the sending state as flag state and
(hereinafter “VCCR”)]. state of registry of aircraft [see Art. 5, VCCR].
The consent given to the establishment of diplomatic RIGHT TO CONSULAR ASSISTANCE

relations between two States implies consent to the Diplomatic protection: This refers to the right of a
establishment of consular relations, unless otherwise state to claim rights for its nationals abroad.
stated. [Id.]
States have a positive duty to accord consular
But the severance of diplomatic relations shall not ipso privileges to sending states whose nationals have run
facto involve the severance of consular relations. [Id.] into trouble in the jurisdiction of the receiving states
[Avena Case (ICJ, 2004) and LaGrand Case (ICJ, 2001)].
The above are rules of customary international law
[Magallona, citing ILC]. See Art. 36(1), VCCR, which gives consular officers
the right to communicate with nationals of the
CONSULS sending state and to have access to them, and give
Definition: Consuls are state agents residing abroad consular officers the right to visit a national of the
mainly for the following purposes: sending state who is in prison, custody or detention
a. In the interest of commerce and navigation; [LaGrand Case (ICJ, 2001)].
b. Issuance of visa (permit to visit his country); and
c. Such other functions as are designed to protect Hence, the duty of the (sending) state is to ensure that
nationals of the appointing state. other states treat their nationals abroad in a manner
that complies with human standards recognized
Ranks under the International Covenant on Civil and
• Consul general – heads several consular Political Rights, among others documents.
districts, or one exceptionally large consular
district; However, the VCCR violation does not automatically
• Consul – in charge of a small district or town or result in the partial or total annulment of conviction
port; or sentence [Avena Case (ICJ, 2004)].
• Vice Consul – assists the consul;
NECESSARY DOCUMENTS
• Consular agent – one entrusted with the
The following documents are necessary for the
performance of certain functions by the consul.
assumption of consular functions:
a. Letters patent (letter de provision): The letter
Consular Functions
of appointment or commission which is
Consular functions include the following:
transmitted by the sending state to the Secretary
a. Protecting the interests of the sending state in the
of Foreign Affairs of the country where the
territory of the receiving state;
consul is to serve; [Art. 11, VCCR]; and
b. Protecting and assisting the nationals of the
b. Exequatur: The authorization given to the
sending state;
consul by the sovereign of the receiving State,
c. Furthering the development of commercial,
allowing him to exercise his function within the
economic, cultural and scientific relations
territory [Art. 12(1), VCCR].
between the sending state and the receiving state
and promoting friendly relations between them;
The receiving State may refuse to give an exequatur
d. Ascertaining by all lawful means the conditions
and is not required to give its reasons for refusal [Art.
and developments in the commercial, economic,
12(2), VCCR].
and cultural and scientific life of the receiving
state, reporting thereon to the government of the
IMMUNITIES AND PRIVILEGES
sending state, and giving information to persons
interested;
a. Personal inviolability
e. Issuing passports and travel documents to
Personal inviolability of consular officials means
nationals of the sending state and visas and travel
that:
documents to persons wishing to travel to the
1. They are not liable to arrest or detention
sending state;
pending trial, except in case of a grave crime
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and pursuant to a decision of a competent not for other offense, except for
judicial authority; and minor infractions;
2. shall not be committed to prison nor be ii. Exemption from testifying on
subject to any other form of restriction to official communications or on
personal freedom, except in the case of grave matters pertaining to consular
crime pursuant to a decision of competent functions;
judicial authority, or in the execution of a iii. Exemption from taxes, customs
final judicial decision [Art. 41, VCCR]. duties, military or jury service;
iv. Personal inviolability of consular
b. Inviolability of consular premises officials.
Inviolability of the consular premises has the
following scope: c. Inviolability of archives
1. Authorities of the receiving state shall not The inviolability of archives is
enter that part of the consular premises unconditional. They shall be inviolable at
exclusively used for consular work, except all times and wherever they may be [Art. 33,
with the consent of the head of the consular VCCR].
post, his designee, or the head of the
diplomatic mission; but consent of the d. Freedom of communication
consular head may be assumed in case of fire 1. The receiving state shall permit and
or other disaster requiring prompt protective protect freedom of information on the
action. part of the consular post for all official
purposes;
This “assumed consent” is not available as to 2. In communicating with the government,
the inviolability of the premises of the the diplomatic missions and other
mission. consular posts of the sending state, the
consular post may employ all
2. The receiving state has the special duty to appropriate means, including diplomatic
take all appropriate steps to protect the or consular bags and messages in code
consular premises against intrusion or or cipher;
damage and to prevent any disturbance of 3. The official correspondence of the
peace of the consular post or impairment of consular post shall be inviolable;
its dignity. 4. The consular bag shall neither be
3. Consular premises, their furnishings, the opened nor detained.
property of the consular post and its means
of transport shall be immune from any form The receiving state may, however, request
of requisition for purposes of national that the consular bag be opened if the
defense or public utility. authorities have serious reasons to believe
4. In case consular premises, their furnishings, that the bag contains something other than
the property of the consular post and its correspondence, documents or articles
means of transport are expropriated for intended exclusively for official use.
national defense or public utility, all possible
steps shall be taken to avoid impeding the If the request is accepted, the bag may be opened
performance of consular functions, and in the presence of the authorized
prompt, adequate and effective representative of the sending state;
compensation shall be paid to the sending If the request is refused, the bag shall be returned
state [Art. 31, VCCR]. to its place of origin [Art. 35, VCCR].
The term “consular premises” refers to e. Immunity from local jurisdiction

“the buildings or parts of buildings and the General rule: Consular officers and employees
land ancillary thereto, irrespective of are entitled to immunity from the
ownership, used exclusively for the purposes jurisdiction of administrative and judicial
of consular post” [Art. 1(j), VCCR]. authorities in the receiving state.
Consular premises have:
i. Exemption from local jurisdiction Exceptions: This immunity shall not apply to
for offenses committed in the a civil action either:
discharge of official functions, but 1. Arising out of a contract by a consular
officer or employee, which he did not
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conclude expressly or impliedly as an

agent of the sending state; or
F. General Principles of
2. By a third party for damage arising from
an accident caused by vehicle, vessel or
Treaty Law
aircraft in the receiving state [Art. 43,
VCCR]. Concept
UNDER INTERNATIONAL LAW
A treaty is:
a. An international agreement;
b. concluded between states;
c. in written form;
d. governed by international law;
e. whether embodied in a single instrument or in
two or more related instruments; and
f. whatever its particular designation [Art. 2(1)(a),
VCLT].
Under the VCLT, the term “treaty” includes all

agreements between states, regardless of how they are
called. Thus, for purposes of international law,
treaties, executive agreements, exchanges of notes,
etc., are all treaties.
The definitions under the VCLT are “without

prejudice to the use of those terms or to the meanings
which may be given to them in the internal law of any
State” [Art. 2(2), VCLT].
PRINCIPLES OF PACTA SUNT SERVANDA

AND REBUS SIC STANTIBUS
Every treaty in force is binding upon the parties to it
and must be performed by them in good faith [Art.
26, VCLT]. The principle of good faith obliges parties
to a treaty to apply it in a reasonable way and in such
a manner that its purpose can be realized [Gabcikovo-
Nagymaros Project (ICJ, 1997)].
The doctrine of rebus sic stantibus is a principle in

customary international law providing that where
there has been a fundamental change of
circumstances since an agreement was concluded, a
party to that agreement may withdraw from or
terminate it. It is justiﬁed by the fact that some treaties
may remain in force for long periods of time, during
which fundamental changes might have occurred
[SHAW]. This principle has been codified in Art. 62,
VCLT [infra].
REQUISITES FOR VALIDITY OF TREATIES

a. Treaty making capacity, which is possessed by
all states as an attribute of sovereignty.
International organizations also possess treaty-
making capacity, although limited by the
organization’s purpose;
b. Competence of the representative/organ
making the treaty, which may be the head of state,
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who generally has full powers, or other persons our scheme of government than are the more formal
called plenipotentiaries, who must produce an instruments – treaties and conventions. They
instrument showing authority to sign a treaty sometimes take the form of exchange of notes, and at
binding their government; other times, that of more formal documents
c. Consent freely given by the parties. If consent denominated “agreements” or “protocols.”
was given erroneously, or was induced by fraud,
the treaty shall be voidable; Contrasted with treaties, an executive agreement:
d. Object and subject matter, which must be a. does not require legislative concurrence;
lawful; and b. is usually less formal; and
e. Ratification in accordance with the c. deals with a narrower range of subject matters.
constitutional process of the parties concerned.
Despite these differences, to be considered an
In addition to the constitutional requirement, executive agreement, the following three requisites
ratification is likewise necessary under international provided under the VCLT must nevertheless concur:
law when: a. The agreement must be between states;
1. The treaty provides for consent to be expressed b. It must be written; and
by means of ratification; c. It must be governed by international law [Bayan
2. It is otherwise established that the negotiating Muna v. Romulo, G.R. No. 159618 (2011)].
states agreed that ratification should be required;
3. The representative of the state has signed the Examples
treaty subject to ratification; or A loan agreement, coupled with an exchange of notes
4. The intention of the State to sign the treaty between two governments, constitutes an executive
subject to ratification appears from the full agreement. The exchange of notes indicates that the
powers of its representative, or was expressed two governments have reached an understanding
during the negotiation [Art. 14(1), VCLT]. concerning Japanese loans to be extended to the
Philippines and that these loans were aimed at
UNDER PHILIPPINE LAW promoting our country’s economic stabilization and
Philippine law makes a distinction between treaties development efforts [Abaya v. Ebdane, G.R. No.
and executive agreements. Both are equally binding, 167919 (2007), where the Court applied the definition
but treaties require the concurrence of the Senate to of “treaty” in the VCLT].
be effective.
In contrast, the contract between North Luzon
The power to ratify is vested in the President, subject Railways Corporation (Northrail) and China National
to the concurrence of the Senate. The role of the Machinery & Equipment Corporation (CNMEG, the
Senate is limited only to giving or withholding its Chinese contractor) was not held to be an executive
consent, or concurrence, to the ratification. Although agreement because (1) by the terms of the contract
the refusal of a state to ratify a treaty which has been agreement, both Northrail and CNMEG entered into
signed in its behalf is a serious step that should not be the contract agreement as entities with personalities
taken lightly, such decision is within the competence distinct and separate from the Philippine and Chinese
of the President alone, which cannot be encroached governments, respectively; and (2) the contract
by Supreme Court via a writ of mandamus [Pimentel v. agreement itself expressly stated that is to be governed
Executive Secretary, G.R. No. 158088 (2005)]. by Philippine law, while as defined in the VCLT, a
treaty or an executive agreement is governed by
Treaties have to be transformed in order to be international law [China National Machinery &
part of Philippine law. A treaty is “transformed” Equipment Corp. v. Sta. Maria, G.R. No. 185572
when it is ratified by the Senate [Sec. 211, Art. VII, (2012)].
Const.]. After ratification, a treaty shall be deemed as
if legislated by our legislature. Conflict Between Treaties and Municipal Law
The doctrine of incorporation is applied whenever
The Department of Foreign Affairs has the power to municipal tribunals (or local courts) are confronted
determine whether an international agreement is a with situations in which there appears to be a conflict
treaty or an executive agreement [Sec. 9, E.O. 459]. between a rule of international law and the provisions
of the constitution or statute of the local state. Efforts
Executive Agreements Under Philippine Law should first be exerted to harmonize them, so as
Definition: Agreements concluded by the President, to give effect to both since it is to be presumed that
which fall short of treaties, are commonly referred to municipal law was enacted with proper regard for the
as executive agreements and are no less common in generally accepted principles of international law in
Page 354 of 382

observance of the Incorporation Clause in the above- Treaty Executive

cited constitutional provision. In a situation, however, Agreement
where the conflict is irreconcilable and a choice has to effective [Sec. 21, Art.
be made between a rule of international law and VII, Constitution]
municipal law, jurisprudence dictates that municipal Effect on Municipal Law
law should be upheld by the municipal courts for Cannot amend or
the reason that such courts are organs of municipal Can repeal a statute and
repeal a prior law and
law and are accordingly bound by it in all can be repealed by a
cannot prevail over a
circumstances. The doctrine of incorporation decrees statute
subsequent law
that rules of international law are given equal standing
with, but are not superior to, national legislative
enactments. Accordingly, the principle lex Treaty-Making Process
posterior derogat priori takes effect [and] a treaty
may repeal a statute and a statute may repeal a Authorization. A person is considered as
treaty. In states where the constitution is the representing a State in the treaty-making
1
highest law of the land, such as the Republic of process if he produces appropriate full powers
the Philippines, both statutes and treaties may be [Art. 7 1(a), VLCT].
invalidated if they are in conflict with the Negotiation. The state representatives
constitution [Secretary of Justice v. Lantion, G.R. No. 2
discuss the terms and provisions of the treaty.
139465 (2000)].
Adoption. When the form and content have
Conflict Between Executive Agreements and been settled by the negotiating states, the
Municipal Law 3 treaty is adopted. This is only preparatory to
An executive agreement cannot amend or repeal a (1) the authentication of the text of the treaty,
prior law, but must comply with State policy and (2) the signing thereof [Art. 9, VCLT].
embodied in an existing municipal law. An executive Authentication. A definitive text of the treaty
agreement, which at the time of its execution, 4 is established as the correct and authentic one
complies with then existing law, is deemed amended [Art. 10, VCLT].
or repealed by a subsequent law inconsistent with
Expression of consent. The state parties
such executive agreement. Under no circumstance
express their consent to be bound by the
can a mere executive agreement prevail over a 5
terms of the treaty. The modes of such
prior or subsequent law inconsistent with such
expression are provided in the VCLT.
executive agreement [J. Carpio, Dissenting
Opinion, Bayan Muna v. Romulo, G.R. No. 159618 Registration. The treaty is then registered
(2011)]. with the Secretariat of the United Nations.
6 Otherwise, the treaty may not be invoked
Treaty v. Executive Agreement before any UN organ [Art. 102(2), UN
Treaty Executive Charter], including the ICJ.
Agreement
Subject Matter In the Philippines, the negotiation of treaties and their
a. Political issues; a. Transitory ratification are executive functions, subject to
b. Changes in national effectivity; concurrence of the Senate.
policy; b. Adjusts details to
c. Involves agreements carry out well- EXPRESSION OF CONSENT
of a permanent established Consent to be bound by the terms of a treaty may be
character national policies expressed through:
and traditions; a. Signature, when the negotiator is authorized to
c. Temporary; sign the treaty. This signature is sufficient to bind
d. Implements the state under the treaty if:
treaties, statutes, 1. The treaty provides that signature shall have
policies that effect;
Ratification 2. It is otherwise established that the
Requires ratification by Does not require negotiating states agreed that signature
two-thirds (2/3) of the Senate concurrence to should have that effect; or
Senate to be valid and be binding 3. The state can be shown to have had the
intention to be bound by the signature (e.g.
Page 355 of 382

based on the powers of its representative) 2. The State did not contribute by its own
[Art. 12(1), VCLT]. conduct to the error; and
b. Exchange of instruments constituting the 3. The circumstances were not such as to put
treaty [Art. 13, VCLT]; that State on notice of a possible error [Art.
c. Ratification, the formal consent to the treaty 48, VCLT].
given by the head of state, sometimes in d. If consent was obtained through fraudulent
conjunction with the legislature [Art. 14, VCLT]; conduct of another negotiating state [Art. 49,
d. Acceptance [Art. 14, VCLT]; VCLT];
e. Approval [Art. 14, VCLT]; e. If the representative of a state was corrupted to
f. Accession, the method by which a state, under consent by another negotiating state [Art. 50,
certain conditions, becomes a party to a treaty of VLCT];
which it is not a signatory and in the negotiation f. If the representative of a State was coerced
of which it did not take part [Art. 15, VCLT]; through acts or threats directed against him [Art.
g. By any other means agreed by the parties [Art. 51, VCLT];
11, VCLT]. g. If the conclusion of a treaty is procured by threat
or use of force [Art. 52, VCLT];
AMENDMENT OR MODIFICATION OF h. If it violates a jus cogens norm of international law
TREATY [Art. 53, VCLT].
General rule: Consent of all the parties is required.
Exception: If the treaty itself so allows, two states may Grounds for Termination
modify a provision only insofar as their relationship a. Termination of the treaty or withdrawal of a party
inter se. in accordance with the provisions of the treaty or
by consent of all the parties [Art. 54, VCLT];
RESERVATIONS b. Denunciation or desistance by a party in
Definition and general rule: A reservation is a accordance with the provisions of the treaty, or if
unilateral statement made by a state upon entering a the treaty does not so provide:
treaty and operates to exclude or modify the legal 1. The parties intended to admit the possibility
effect of certain provision/s of the treaty in their of denunciation or withdrawal; or
application to the reserving state [Art. 19, VCLT]. 2. A right of denunciation or withdrawal may
be implied from the nature of the treaty [Art.
Exceptions: A reservation shall not operate to modify 56, VCLT].
or exclude the provisions of a treaty: c. Conclusion of a subsequent inconsistent treaty
a. Where the treaty expressly prohibits [Art. 59, VCLT];
reservations in general; d. Material breach or violation of treaty [Art. 60,
b. Where the treaty expressly prohibits that VCLT];
specific reservation being made; or e. Supervening impossibility of performance [Art.
c. Where the reservation is incompatible with 61, VCLT];
the object and purpose of the treaty [Art. 19, f. Fundamental change in circumstance (similar to
VCLT; Reservation to the Genocide Conventions the customary norm of rebus sic stantibus)
Advisory Opinion (ICJ, 1951)]. such that the foundation upon which the consent
of a state to be bound initially rested has
Invalid Treaties disappeared [Art. 62, VCLT]. The requisites are:
A treaty is invalid: 1. The change is so substantial that the
a. If consent was given in violation of provisions of foundation of the treaty has altogether
internal law regarding competence to conclude disappeared;
treaties, provided that: 2. The change was unforeseen or unforeseeable
1. The violation is manifest; and at the time of the perfection of the treaty;
2. It concerned a rule of fundamental 3. The change was not caused by the party
importance [Art. 46, VCLT]. invoking the doctrine;
b. If the representative consented in violation of 4. The doctrine was invoked within a
specific restrictions on authority, provided the reasonable time;
restriction was notified to the other negotiating 5. The duration of the treaty is indefinite; and
states prior to the representative expressing such 6. The doctrine cannot operate retroactively (it
consent [Art. 47, VCLT]; must not adversely affect provisions which
c. Error of fact or situation, provided that: have already been complied with prior to the
1. Such formed an essential basis of a state’s vital change).
consent to be bound;
Page 356 of 382

g. Severance of diplomatic relations, if such

relationship is indispensable for the treaty’s
G.Nationality and
application [Art. 63, VCLT]; and
h. Jus cogens application, or the emergence of a new
Statelessness
peremptory norm of general international law
which renders void any existing, conflicting treaty Nationality
[Art. 64, VCLT];
i. Extinction of a party to the treaty, when the Definition: Nationality is the tie that binds an
treaty rights and obligations would not devolve individual to his state, from which he can claim
upon the successor-state; protection and whose laws he is obliged to obey. It is
j. Loss of subject matter; or membership in a political community with all its
k. Outbreak of war between the parties, unless the concomitant rights and obligations.
treaty relates to the conduct of war.
Nationality is important in international law because
an individual ordinarily can participate in international
relations only through the instrumentality of the state
to which he belongs, as when his government asserts
a claim on his behalf for injuries suffered by him in a
foreign jurisdiction. This remedy would not be
available to a stateless individual.
ACQUISITION OF NATIONALITY
a. Birth
1. Jus soli, where a person acquires the
nationality of the state where he is born;
2. Jus sanguinis, where a person acquires the
nationality of his parents.
b. Naturalization
Definition: Naturalization is a process by which
a person acquires, voluntarily or by operation of
law, the nationality of another state.
There are 2 types of naturalization:

1. Direct:
• By individual proceedings, usually
judicial, under general naturalization
laws;
• By special act of legislature;
• By collective change of nationality as a
result of cession or subrogation
(naturalization en masse);
• By adoption (in some cases);
2. Derivative, which is usually subject to
stringent restrictions and conditions:
• On the wife of the naturalized husband;
• On the minor children of the naturalized
parent;
• On the alien woman upon marriage to a
national.
MULTIPLE NATIONALITY
How acquired: Multiple nationality is acquired as the
result of the concurrent application to an individual
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of the conflicting municipal laws of two or more who loses his nationality without retaining or
states claiming him as their national. acquiring another [Cruz].
Illustrations Under the Convention Relating to the Status of

A child born in the United States of Filipino parents Stateless Persons (1960), a stateless person is entitled
would be an American national under jus soli and a to, among others, the right to religion and religious
Filipino national under jus sanguinis. instruction, access to courts, elementary education,
public relief and assistance and rationing of products
A woman marrying a foreigner may retain her own in short supply, as well as treatment no less favorable
nationality under the laws of her state while also than that accorded to aliens.
acquiring the nationality of her husband under the
laws of his state. Under the Universal Declaration of Human Rights:
a. Everyone has a right to the nationality.
Doctrine of Indelible Allegiance b. No one shall be arbitrarily deprived of his
An individual may be compelled to retain his original nationality nor denied the right to change his
nationality notwithstanding that he has already nationality.
renounced or forfeited it under the laws of a second
state whose nationality he has acquired [Nachura]. CITIZENSHIP OF FOUNDLINGS
Conflict of Nationality Laws Foundlings are citizens under international law. Art.
Under the Hague Convention of 1930, any question 24 of the International Covenant on Civil and Political
as to whether a person possesses the nationality of a Rights provides for the right of every child “to acquire
particular state shall be determined in accordance with a nationality.” The Philippines is obligated under
the law of that state. These laws shall be recognized various conventions, such as the ICCPR, to grant
by other states so long as they are consistent with nationality from birth and to ensure that no child is
international conventions, international customs and stateless. This grant of nationality must be at the time
the principles of law generally recognized with regard of birth, and it cannot be accomplished by the
to nationality. application of our present naturalization laws,
Commonwealth Act No. 473, as amended, and
Principle of Effective Nationality Republic Act No. 9139, both of which require the
Within a third state, a person having more than one applicant to be at least 18 years old [Poe-Llamanzares v.
nationality shall be treated as if he has only one. The COMELEC, G.R. No. 221697 (2016)].
third state shall recognize conclusively in its territory
either the nationality of the country in which he is In a case decided by the Supreme Court, the Chief
habitually and principally present or the nationality of Justice pointed out that in 166 out of 189 countries
the country with which he appears to be in fact most surveyed (87.83%), foundlings are recognized as
closely connected. citizens. These circumstances, including the practice
of jus sanguinis countries, show that it is a generally
The courts of third states resolve the conflict by accepted principle of international law to presume
having recourse to international criteria, and their foundlings as having been born of nationals of the
prevailing tendency is to prefer the real and effective country in which the foundling is found [Poe-
nationality [Nottebohm Case (ICJ, 1955)]. Llamanzares v. COMELEC, G.R. No. 221697 (2016)].
LOSS OF NATIONALITY
a. Voluntary
1. Renunciation (express or implied);
2. Request for release.
b. Involuntary
1. Forfeiture as a result of some disqualification
or prohibited act;
2. Substitution of one nationality for another.
Statelessness
Definition: Statelessness is the condition or status of
an individual who is born without any nationality or
Page 358 of 382

law, provided the person or entity is acting in that

H. State Responsibility capacity in the particular instance.
Doctrine of State A State is responsible for damage suffered by a

foreigner as the result of acts or omissions of
Responsibility autonomous institutions exercising public
functions of a legislative or administrative
Definition: It is a set of principles governing when character, if such acts or omissions contravene
and how states become responsible for breaches of the international obligations of the State [League
international obligations, and liability arising of Nations, Conference for the Codification of
therefrom. International Law, Bases of Discussion];
Every internationally wrongful act of a state entails c. Conduct of organs placed at the disposal of a
the international responsibility of that State [Art. 1, state by another state [Art. 6, ASR].
ASR]. Portions of the ASR codify customary The organ must be acting in the exercise of
international law on State responsibility. elements of the governmental authority of the
State at whose disposal it is placed.
Elements
There is an internationally wrongful act of a state A section of the health service or some other unit
when the conduct consisting of an action or omission: placed under the orders of another country to
a. Is attributable to the State under international assist in overcoming an epidemic or natural
law; and disaster, or judges appointed in particular cases to
b. Constitutes a breach of an international act as judicial organs of another State [Draft
obligation of a State [Art. 2, ASR]. articles on Responsibility of States for
Internationally Wrongful Acts, with
The characterization of an act of a state as commentaries (hereinafter “ASR Draft
internationally wrongful is governed by international Articles”)];
law. Such characterization is not affected by the
characterization of the same act as lawful by internal d. Conduct of an organ of a State or of a person
law [Art. 4, ASR]. or entity empowered to exercise elements of
the governmental authority, even if it exceeds
ATTRIBUTION its authority or contravenes instructions
Under the ASR, the following acts are attributable to (unauthorized or ultra vires acts) [Art. 7, ASR]
States, i.e. States may be held internationally Two Mexican military officers, having failed to
responsible for them: extort money from Caire, a French national,
killed the latter. Such acts were deemed
a. Conduct of organs of a state [Art. 4, ASR] attributable to Mexico [Caire Case (Franco-
An organ includes any person or entity which has Mexican Mixed Claims Commission, 1929)];
that status in accordance with the internal law of
the State. e. Conduct directed or controlled by a state [Art.
8, ASR]
French secret service agents conducted The United States was responsible for the
undercover operations which led to the sinking “planning, direction and support” given by the
of the Dutch-registered Greenpeace ship United States to Nicaraguan operatives [Nicaragua
Rainbow Warrior. France admitted responsibility Case (ICJ, 1986)];
[Rainbow Warrior Case, (France-New Zealand
Arbitration Tribunal, 1990)]; f. Conduct carried out in the absence or default
of the official authorities [Art. 9, ASR]
b. Conduct of persons or entities exercising The acts of the Revolutionary Guards or
elements of governmental authority [Art. 5, “Komitehs” in performing immigration, customs
ASR] and similar functions at Tehran airport
The conduct of a person or entity which is not an immediately after the revolution in the Islamic
organ of the State under Art. 4 but which is Republic of Iran was attributable to the Islamic
empowered by the law of that State to exercise Republic of Iran, on the basis that, if it was not
elements of the governmental authority shall be actually authorized by the Government, then the
considered an act of the State under international Guards at least exercised elements of
governmental authority in the absence of official
Page 359 of 382

authorities, in operations of which the new In the Application of the Convention on the Prevention and
Government must have had knowledge and to Punishment of the Crime of Genocide Case (ICJ, 2007), the
which it did not specifically object [Kenneth P. ICJ said the “over-all control test” was only relevant
Yeager v. The Islamic Republic of Iran (Iran-US in in so far as the question of characterization of the
Claims Tribunal, 1987)]; Yugoslav conflict as an international armed conflict,
or whether or not the conflict has been
g. Conduct of insurrectional or other internationalized; it is not relevant to the task of
movements [Art. 10, ASR] determining whether a state is responsible for the acts
The conduct of an insurrectional movement, of certain non-state organs involved in that same
which becomes the new Government of a State international armed conflict.
shall be considered an act of that State under
international law. Effective Control v. Overall Control
The conduct of a movement, insurrectional or Effective Control Over-All Control

other, which succeeds in establishing a new State Control must have been
in part of the territory of a pre-existing State or exercised in respect to Control must have
in a territory under its administration shall be each individual act or gone “beyond the mere
considered an act of the new State under omission which financing and
international law. constitutes the breach. equipping of such
forces” and must have
This is without prejudice to the attribution to a The private persons or involved “participation
State of any conduct which is considered an act groups must have been in the planning and
of that State by virtue of Arts. 4 to 9, ASR. mere agents of the state supervision of military
who were told what had operations.”
An American citizen, employed by an American to be done at all stages.
company in Iran, alleged that he was forcefully This provides a higher
expelled from Iran three days before the Islamic This presents lower
threshold for
Revolutionary Government took office and threshold for
attribution.
claimed damages for his loss of employment attribution.
A general situation of
benefits. The commission affirmed the principle dependence and support
that where a revolution leads to the establishment There need not be a
would thus be
of a new government, the state is held showing of actual or
insufficient to justify
responsible for the act of the overthrown direct control.
attribution.
government [Short v. Iran (Iran-US Claims This refers to the
Tribunal (1987)]; and matter of individual
criminal responsibility
h. Conduct acknowledged and adopted by a and the application of
state as its own [Art. 11, ASR] This refers to the matter the rules of
The policy announced by the Ayatollah of state responsibility. international
Khomeini of maintaining the occupation of the humanitarian law [e.g.
Embassy and the detention of its inmates as Prosecutor v. Tadic (ICTY
hostages for the purpose of exerting pressure on Appeals Chamber,
the US Government as complied with by other 1995)].
Iranian authorities and endorsed by them
repeatedly in statements made in various contexts
were attributable to the State. [United States Consequences of State
Diplomatic and Consular Staff in Tehran (ICJ, 1980)]. Responsibility
EFFECTIVE CONTROL a. DUTY TO CEASE THE ACT
Under the law on state responsibility, a State is The State responsible for the wrongful act is
responsible only for the acts of its organs and over under the obligation to:
non-state actors over which it exercised effective 1. Cease the act if it is still continuing; and
control [Nicaragua case (ICJ, 1986)]. This means that it 2. Offer appropriate assurances and guarantees
should have given instructions or provided the of non-repetition, if circumstances so require
direction pursuant to which the perpetrators of the [Art. 30, ASR].
wrongful act acted.
Page 360 of 382

Cessation is the negative aspect of future • Is not materially impossible;

performance, concerned with securing an end to • Does not involve a burden out of all
continuing wrongful conduct, whereas proportion to the benefit of the party
assurances and guarantees serve a preventive deriving from restitution instead of
function and may be described as a positive compensation [Art. 35, ASR].
reinforcement of future performance [ASR Draft Restitution consists only in re-establishing the
Articles]. status quo ante, i.e. the situation that existed
prior to the occurrence of the wrongful act, and
The word “act” covers both acts and omissions does not require a hypothetical inquiry into what
[Id.]. the situation would have been if the wrongful act
had not been committed. Restitution in this
b. MAKE REPARATIONS narrow sense may therefore have to be
The responsible State is under an obligation to completed by compensation to ensure full
make full reparation for the injury caused by the reparation for the damage caused [ASR Draft
internationally wrongful act. Articles].
Injury includes any damage, whether material or States have often insisted upon claiming
moral, caused by the internationally wrongful act restitution in preference to compensation.
of a State [Art. 31, ASR]. However, there are often situations where
restitution is not available or where its value to
“Full reparation” means that the responsible the injured State is so reduced that other forms
State must endeavor to wipe out all the of reparation take priority [Id.].
consequences of the illegal act and reestablish the
situation which would, in all probability, have 2. Compensation
existed if that act had not been committed The State responsible for an internationally
[Factory at Chorzów (PCIJ,]. This may be wrongful act is under an obligation to
achieved by one form of reparation only or by a compensate for the damage caused thereby,
combination of the different forms [ASR Draft insofar as such damage is not made good by
Articles]. restitution.
“Material” damage refers to damage to The compensation shall cover any financially
property or other interests of the State and its assessable damage including loss of profits
nationals which is assessable in financial terms. insofar as it is established [Art. 36, ASR].
“Moral” damage includes such items as Compensation corresponds to the financially
individual pain and suffering, loss of loved ones assessable damage suffered by the injured
or personal affront associated with an intrusion State or its nationals. It is not concerned to
on one’s home or private life [ASR Draft punish the responsible State, nor does
Articles]. compensation have an expressive or exemplary
character [ASR Draft Articles].
The responsible State may not rely on the
provisions of its internal law as justification for 3. Satisfaction
failure to comply with its obligations to make The State responsible for an internationally
reparations [Art. 32, ASR]. wrongful act is under an obligation to give
satisfaction for the injury caused by that act
Forms of Reparation insofar as it cannot be made good by restitution
The three forms of reparation are as follows [Art. 34, or compensation.
ASR]:
Satisfaction may consist in an acknowledgement
1. Restitution of the breach, an expression of regret, a formal
A State responsible for an internationally apology or another appropriate modality.
wrongful act is under an obligation to make
restitution, that is, to re-establish the situation Satisfaction shall not be out of proportion to the
which existed before the wrongful act was injury and may not take a form humiliating to the
committed, provided and to the extent that responsible State [Art. 37, ASR].
restitution:
Page 361 of 382

Satisfaction is of exceptional character. It is only

in cases where restitution or compensation have
I. Jurisdiction of States
not provided full reparation that satisfaction may
be required [ASR Draft Articles]. Definition: Jurisdiction means the power of a state
under international law to govern persons and
It is the remedy for injuries not financially property by its municipal law. This may be criminal or
assessable which amount to an affront of the civil, and may be exclusive or concurrent with other
State. These injuries are frequently of a symbolic states [Harris].
character, arising from the very fact of the breach
of the obligation, irrespective of its material Kinds of Jurisdiction
consequences for the State concerned [Id.].
Prescriptive Jurisdiction: This refers to the power
of a State to make its law applicable to the activities,
relations, or status of persons, or the interests of
persons in things, whether by legislation, by executive
act or order, by administrative rule or regulation, or
by determination by a court.
Adjudicative Jurisdiction: This refers to the State’s

jurisdiction to subject persons or things to the process
of its courts or administrative tribunals, whether in
civil or in criminal proceedings, whether or not the
state is a party to the proceedings.
Enforcement Jurisdiction: This refers to the State’s

jurisdiction to enforce or compel compliance or to
punish noncompliance with its laws or regulations,
whether through the courts or by use of executive,
administrative, police, or other nonjudicial action.
Principles of State
Jurisdiction
Territoriality Principle: Jurisdiction is determined
by reference to the place where the act occurred or
was committed. A State takes jurisdiction over
persons or events within its territory
[MAGALLONA].
Nationality Principle: A State may exercise

jurisdiction over an offender by virtue of his being its
national, without regard as to where he was at the time
the offense was committed and without respect to the
nature of the offense [MAGALLONA].
No rule in international law precludes the exercise of

jurisdiction on the territoriality principle as against a
claim to the jurisdiction on the nationality principle
[Id.].
Protective Principle: A State may exercise

jurisdiction over an offense committed outside its
territory by its national or non-national, by reason of
protecting its security or vital interests
[MAGALLONA].
Page 362 of 382

a. Absolute sovereign immunity, where a state

Universality Principle: A State may exercise cannot be sued in a foreign court no matter what
jurisdiction over crimes committed without respect to the act it is sued for; or
the nationality of the offender, on the ground that b. Restrictive sovereign immunity, where a state
such crimes are declared as international crimes by the is immune from suits involving governmental
international community as a whole and thus are actions (jure imperii), but not from those arising
prohibited by international law [MAGALLONA]. from commercial or non-governmental activity
(jure gestionis).
Jurisdiction is asserted with respect to acts considered
committed against the whole world [e.g. piracy, see Immunity as a customary norm
People v. Lol-lo and Saraw, G.R. No. 17958 (1922)]. The principle of sovereign immunity from suits is a
customary norm of international law that holds,
Passive Personality Principle: A court has unless waived by the state concerned.
jurisdiction if the offended party of the act is a
national of the forum state [S.S. Lotus Case (PCA, Such immunity applies even if the claim against the
1927)]. state is for violation of a jus cogens norm in
international law.
A State may exercise jurisdiction against foreign
nationals who commit acts to the injury of its Furthermore, State assets are also immune from
nationals within the territory of another State execution in connection with such claim [Jurisdictional
[MAGALLONA]. Immunities of the State Case (ICJ, 2012)].
Conflicts of Jurisdiction: A dispute can be brought Determination of immunity under philippine law
entirely or partly before two or more states. The Department of Foreign Affairs’ functions include
the determination of persons and institutions covered
Reserved Domain of by diplomatic immunities.
Domestic Jurisdiction When this determination is challenged, the DFA is

entitled to seek relief from the court so as not to
It is the domain of state activities where the seriously impair the conduct of the country’s foreign
jurisdiction of the state is not bound by relations. The DFA must be allowed to plead its case
international law. The extent of this domain whenever necessary or advisable to enable it to help
depends on international law and varies according to keep the credibility of the Philippine government
its development (i.e. when a norm crystallizes into before the international community.
custom).
This authority is exclusive to the DFA. A
The reservation of this domain is without prejudice to determination by the Office of the Solicitor General
the use of enforcement measures under UN Charter, (OSG), or by the Office of the Government
Ch. VII. Corporate Counsel (OGCC) for that matter, of state
immunity does not inspire the same degree of
confidence as a DFA certification.
State Immunity
But DFA determination is not conclusive. Even with
This refers to a principle by which a state, its agents, a DFA certification, the court is not precluded from
and property are immune from the jurisdiction of making an inquiry into the intrinsic correctness of
another state [Magallona]. such certification. [China National Machinery &
Equipment Corporation (Group) v. Santamaria, G.R. No.
This principle is premised on the juridical equality of 185572 (2012)].
states, according to which a state may not impose its
authority or extend its jurisdiction to another state
without the consent of the latter through a waiver of
immunity. Thus, domestic courts must decline to hear CRIMINAL JURISDICTION OVER
cases against foreign sovereigns out of deference to MERCHANT SHIPS AND GOVERNMENT
their role as sovereigns. SHIPS OPERATED FOR COMMERCIAL
PURPOSE
Immunity may be: General rule: The criminal jurisdiction of the coastal
State should not be exercised on board a foreign ship
Page 363 of 382

passing through the territorial sea to arrest any person

or to conduct any investigation in connection with Immunity of warships from execution
any crime committed on board the ship during its A state’s naval vessel may not be proceeded against to
passage. answer for said state’s financial liabilities to a third
Exceptions: party. In accordance with general international law, a
1. if the consequences of the crime extend to the warship enjoys immunity and any act which prevents
coastal State; by force a warship from discharging its mission and
2. if the crime is of a kind to disturb the peace of duties is a source of conflict that may endanger
the country or the good order of the territorial friendly relations among States [Argentina v. Ghana
sea; (ITLOS, 2012)].
3. if the assistance of the local authorities has been
requested by the master of the ship or by a
diplomatic agent or consular officer of the flag
Immunity of International
State; or Organizations and Their
4. if such measures are necessary for the
suppression of illicit traffic in narcotic drugs or
Officers
psychotropic substances [Art. 27, United Nations
Convention on the Law of the Sea (hereinafter The term "international organization" is generally
“UNCLOS”]. used to describe an organization set up by agreement
between two or more states. Under contemporary
Except as provided in Part XII (Protection and international law, such organizations are endowed
Preservation of the Marine Environment) or with with some degree of international legal
respect to violations of laws and regulations adopted personality such that they are capable of exercising
in accordance with Part V (Exclusive Economic specific rights, duties and powers. They are organized
Zone), the coastal State may not take any steps on mainly as a means for conducting general
board a foreign ship passing through the territorial sea international business in which the member states
to arrest any person or to conduct any investigation have an interest.
in connection with any crime committed before the
ship entered the territorial sea, if the ship, proceeding The rapid growth of international organizations under
from a foreign port, is only passing through the contemporary international law has paved the way for
territorial sea without entering internal waters [Art. the development of the concept of international
27, UNCLOS]. immunities.
Immunity cannot be invoked in commercial There are 3 propositions underlying the grant of
transactions of ships owned and operated by a international immunities to international
state organizations. These principles, contained in the ILO
A State which owns or operates a ship cannot invoke Memorandum are stated thus:
immunity from jurisdiction before a court of another a. International institutions should have a status
State in a proceeding which relates to the operation of which protects them against control or
that ship if, at the time the cause of action arose, the interference by any one government in the
ship was used for other than government non- performance of functions for the effective
commercial purposes [Art. 16, United Nations discharge of which they are responsible to
Convention on Jurisdictional Immunities of States democratically constituted international bodies in
and Their Property]. which all the nations concerned are represented;
b. No country should derive any national financial
advantage by levying fiscal charges on common
international funds; and
c. The international organization should, as a
collectivity of States members, be accorded the
facilities for the conduct of its official business
customarily extended to each other by its
individual member States.
The theory behind all three propositions is said to be

essentially institutional in character. It is not
concerned with the status, dignity or privileges of
individuals, but with the elements of functional
Page 364 of 382

independence necessary to free international

institutions from national control and to enable them
J. Treatment of Aliens
to discharge their responsibilities impartially on behalf
of all their members. The raison d'etre for these Standard of Treatment
immunities is the assurance of unimpeded
performance of their functions by the agencies Flowing from its right to existence and as an attribute
concerned [International Catholic Immigration of sovereignty, no state is under obligation to
Commission v. Calleja, G.R. No. 85750 (1990)]. admit aliens. The state can determine in what cases
and in under what conditions it may admit such.
Once it admits aliens, under the international standard

of justice, which calls for compliance with the
ordinary norms of official conduct observed in
civilized jurisdictions, aliens should be protected by
certain minimum standards of humane
protection, however harsh the municipal laws of a
state may be.
Territorial sovereignty involves the exclusive right to

display the activities of a State. This right has a
corollary, a duty: the obligation to protect within the
territory the rights of other States, in particular, their
right to integrity and inviolability in peace and in war,
together with the rights which each State may claim
for its nationals in foreign territory [Island of Las
Palmas Arb. (PCA, 1928)].
However, an alien cannot claim a preferred position
vis-à-vis the national of the state [see Calvo Clause,
infra].
State Responsibility
A state may be held responsible for:
a. An international delinquency;
b. Directly or indirectly imputable to it;
c. Which causes injury to the national of another
state.
Liability will attach to the state where its treatment of

the alien falls below the international standard of
justice or where it is remiss in according him the
protection or redress that is warranted by the
circumstances.
The propriety of governmental acts should be put to

the test of international standards. The treatment of
an alien, in order to constitute an international
delinquency, should amount to an outrage, to bad
faith, to willful neglect of duty, or to an insufficiency
of governmental action so far short of international
standards that every reasonable and impartial man
would readily recognize its insufficiency [Neer Case
(PCIJ, 1926)].
For the enforcement of this state responsibility, the

following must be complied with:
Page 365 of 382

a. Exhaustion of local administrative remedies; and a. Extradition is based on the consent of the state
b. Representation of the alien by his own state in the of refuge as expressed in a treaty or manifested as
international claim for damages. an act of good will.
b. Principle of specialty: A fugitive who is
Calvo Clause extradited may be tried only for the crime
specified in the request for extradition and
included in the list of offenses in the extradition
Definition: This refers to a stipulation which states
treaty [US v. Rauscher, 119 U.S. 407 (1886)].
that the foreign party must rely exclusively on local
c. Any person may be extradited, whether he be a
remedies and not seek any diplomatic protection.
national of the requesting state, of the state of
refuge, or of another state.
e.g. A stipulation may be made by virtue of which an
d. Political and religious offenders are generally not
alien waives or restricts his right to appeal to his own
subject to extradition. For the purpose of
state in connection with any claim arising from a
extradition, genocide and murder of the head of
contract with a foreign state and limits himself to the
state or any member of his family are not political
remedies available under the laws of that state.
offenses.
e. In the absence of special agreement, the offense
Rationale:
must have been committed within the territory or
a. Non-intervention; and
against the interests of the demanding state.
b. Aliens are entitled only to such rights as are
f. Rule of double criminality: The act for which
accorded nationals and thus had to seek redress
extradition is sought must be punishable in both
for grievances exclusively in the domestic arena
the requesting and requested states. The
[Shaw].
requested state comes under no obligation to
surrender the person if its laws do not regard the
Extradition conduct covered by the request for extradition as
criminal. [Government of Hongkong Special
Definition: Extradition is the surrender by one Administrative Region v. Muñoz, G.R. No. 207342
nation to another of an individual accused or (2016)]
convicted of an offense outside of its own territory, g. Aut dedere aut judicare (meaning “either
and within the territorial jurisdiction of the other, extradite or prosecute”) is a conventional
which, being competent to try and to punish him, obligation of States found in various treaties. A
demands the surrender. [Government of Hongkong Special state subject to this obligation is bound to
Administrative Region v. Muñoz, G.R. No. 207342 extradite if it does not prosecute, and to
(2016), citing Terlinden v. Ames, 184 U.S. 270, 289 prosecute if it does not extradite.
(1902)]
PROCEDURE
It also refers to the removal of an accused from the A request for extradition is presented through
Philippines with the object of placing him at the 1 diplomatic channels to the state of refuge with
disposal of foreign authorities to enable the the necessary papers for identification.
requesting state or government to hold him in
connection with any criminal investigation directed 2 The request is received by the state of refuge.
against him in connection with any criminal A judicial investigation is conducted by the
investigation directed against him or the execution of state of refuge to ascertain if the crime is
a penalty imposed on him under the penal or criminal 3 covered by the extradition treaty and if there
law of the requesting state or government [P.D. No. is a prima facie case against the fugitive
1086]. according to its own laws.
If there is a prima facie case, a warrant of
It is not part of customary international law, although 4 surrender will be drawn and the fugitive will
the duty to extradite exists only for some international be delivered to the state of origin.
crimes. Thus, a state must extradite only when obliged
by treaty to do so. [Government of Hongkong Special
Administrative Region v. Muñoz, G.R. No. 207342 The evaluation process partakes of the nature of a
(2016)] criminal investigation, having consequences which
will result in deprivation of liberty of the prospective
FUNDAMENTAL PRINCIPLES extraditee. A favorable action in an extradition request
exposes a person to eventual extradition to a foreign
Page 366 of 382

country, thus exhibiting the penal aspect of the

process.
K. International Human
The evaluation process itself is like a preliminary
Rights Law
investigation since both procedures may have the Definition: Human rights are those fundamental and
same result: the arrest and imprisonment of the inalienable rights which are essential for life as a
respondent. The basic rights of notice and hearing are human being. They pertain to the rights of an
applicable in criminal, civil, and administrative individual as a human being which are recognized by
proceedings. Non-observance of these rights will the international community as a whole through their
invalidate the proceedings. Individuals are entitled to protection and promotion under contemporary
be notified of any pending case affecting their international law.
interests, and upon notice, may claim the right to
appear therein and present their side [Secretary of Justice CLASSIFICATION
v. Lantion, G.R. No. 139465 (2000)]. 1. First generation rights consist of civil and
political rights;
Extradition v. Deportation 2. Second generation rights consist of economic,
Extradition Deportation social and cultural rights;
Effected at the request Unilateral act of the 3. Third generation rights consist of the rights to
of another state state development, to peace, and to environment
Based on offenses [Vasak].
Based on causes arising
committed in the state
in the local state
of origin First Generation Second Generation
An undersirable alien Obligatory Force
Calls for the return of
may be deported to a Relatively obligatory;
the fugitive to the Strictly (or
state other than his own states are required to
requesting state objectively)
or the state of origin progressively achieve
obligatory, whatever
the full realization of
the economic or othe
these rights “to the
conditions of the states
maximum of their
obligated
available resources
Derogation/Restriction
May be restricted for
the general welfare, with
or without an
May only be derogated
“emergency that
in a public emergency
threatens the
independence or
security of a state party”
Universal Declaration of
Human Rights
The Universal Declaration of Human Rights
[hereinafter “UDHR”] is the first comprehensive
catalogue of human rights proclaimed by an
international organization.
It is not a treaty. It has no obligatory character

because it was adopted by the UN General Assembly
as Resolution 217A (III). As a resolution, it is merely
recommendatory.
Despite this, the UDHR is considered a normative

instrument that creates binding obligations for all
states because of the consensus evidenced by the
Page 367 of 382

practice of states that the UDHR is now binding as j. The right to protection of a child as required by
part of international law [Carillo]. his status as a minor;
k. The right of persons below 18 years old not to be
The UDHR embodies both first and second sentenced to death for crimes;
generation rights. The civil and political rights l. The right against the carrying out of death
enumerated include: sentence on the part of a pregnant woman.
a. The right to life, liberty, privacy and security of
person; The following are obligations of state parties under the
b. Prohibition against slavery; ICCPR:
c. The right not to be subjected to arbitrary arrest, a. State parties undertake to respect and to ensure
detention or exile; to all individuals within their territory the rights
d. The right to fair trial and presumption of enumerated therein, without distinction of any
innocence; kind, such as race, color, sex, language, religion,
e. The right to a nationality; political or other opinion, national or social
f. The right to freedom of thought, conscience and origin, birth or other status.
religion; b. State parties are required to take the necessary
g. The right to freedom of opinion and expression; steps to adopt legislative or other measures that
h. The right to peaceful assembly and association; are necessary to give effect to the rights
i. The right to take part in the government of his recognized in the ICCPR.
country. c. State parties must ensure that any person whose
rights or freedoms are violated have an effective
The economic, social, and cultural rights enumerated remedy, notwithstanding that the violation has
include: been committed by persons action in an official
a. The right to social security; capacity.
b. The right to work and protection against d. State parties must ensure that any person
unemployment; claiming such remedy shall have his right thereto
c. The right to equal pay for equal work; determined by competent judicial, administrative
d. The right to form and join trade unions; or legislative authority, and that they shall enforce
e. The right to rest and leisure. the remedy when granted.
International Covenant on International Covenant on

Civil and Political Rights Economic, Social and
The International Covenant on Civil and Political
Cultural Rights
Rights [hereinafter “ICCPR”] is an international
The International Covenant on Economic, Social,
covenant and is binding on the respective state
and Cultural Rights [hereinafter “ICESCR”], like the
parties.
ICCPR, is an international covenant and is binding
on the respective State Parties.
It embodies the first generation of human rights,
although it lists more rights than the UDHR, namely:
It embodies the second generation of human rights,
a. The right to own property;
although it lists more rights than the UDHR, namely:
b. The right to seek in other countries asylum from
a. The right to health;
prosecution;
b. The right to strike;
c. The right of members of ethnic, religious or
c. The right to be free from hunger;
linguistic groups not to be denied to enjoy their
d. The right to enjoy the benefits of scientific
own culture, to profess and practice their own
progress;
religion, or to use their own language;
e. Freedom for scientific research and creativity.
d. The right to compensation in case of unlawful
arrest;
Under the ICESCR, state parties are required to
e. The right to legal assistance in criminal
undertake the necessary steps to the maximum of its
prosecution;
available resources, with a view to achieving
f. The right against self-incrimination;
progressively the full realization of the rights
g. Protection against double jeopardy;
enumerated in the covenant by all appropriate means.
h. The right to review by higher tribunal in case of
criminal conviction;
i. The right of every child to nationality;
Page 368 of 382

COMMON PROVISIONS IN THE ICCPR

AND ICESCR
L. International
The common provisions of the two covenants deal
with collective rights, namely:
Humanitarian Law
1. The right of self-determination of peoples;
2. The right of peoples to freely dispose of their General
natural wealth and resources; and
3. The right of peoples not to be deprived of their Definition: International Humanitarian Law
own means of subsistence. [hereinafter “IHL”] is the branch of public
international law which governs armed conflicts to
These rights were not covered by the UDHR. the end that the use of violence is limited and that
human suffering is mitigated or reduced by regulating
or limiting the means of military operations and by
protecting those who do not or no longer participate
in the hostilities.
Two Branches
a. Law of The Hague: This establishes the rights
and obligations of belligerents in the conduct of
military operations, and limits the means of
harming the enemy; and
b. Law of Geneva: This is designed to safeguard
military personnel who are no longer taking part
in the fighting and people not actively engaged in
hostilities (i.e. civilians) [International Committee
of the Red Cross (hereinafter “ICRC”)].
Armed Conflict
CATEGORIES
IHL distinguishes two types of armed conflicts,
namely:
a. International Armed Conflicts
Definition: An international armed conflict

occurs when one or more states have recourse to
armed force against another state [Prosecutor v.
Tadic (ICTY Appeals Chamber, 1995)], regardless
of the reasons or the intensity of the
confrontation.
Relevant rules of IHL may be applicable even in

the absence of open hostilities. Moreover, no
formal declaration of war or recognition of the
situation is required.
The existence of an international armed conflict,

and as a consequence, the possibility of applying
IHL to this situation, depends on what actually
happens on the ground. It is based on factual
conditions [ICRC].
b. Internal or Non-International Armed

Conflicts
Page 369 of 382

In any case, while Common Article 3 is

Definition: This refers conflicts to between recognized as a customary norm of international
governmental forces and non-governmental law and binding to all states, Additional Protocol
armed groups, or between such groups only. II is a treaty binding only to state parties. Its rules
may, however, develop onto customary norms
The main legal sources in this regard are the (ICRC).
Common Article 3, Geneva Conventions, and
Article 1, Additional Protocol II. A third type has been identified as an
internationalized non-international armed
Common Article 3 applies to “armed conflicts conflict, which is a civil war characterized by the
not of an international character occurring in the intervention of the armed forces of a foreign power
territory of one of the High Contracting Parties.” [Gasser].
These include armed conflicts in which one or
more non-governmental armed groups are WAR OF NATIONAL LIBERATION
involved.
An armed conflict may be of such nature in which
Article 1 develops Common Article 3. It applies peoples are fighting against colonial domination and
to: alien occupation and against racist regimes in the
1. All armed conflicts which take place in the exercise of their right to self-determination.
territory of a state party;
2. Between its armed forces and dissident This conflict is considered an international armed
armed forces or other organized groups; conflict under Pars. 3 and 4, Art. 1, Protocol 1.
3. Which, under responsible command,
exercise such control over a part of its Wars by peoples against racist, colonial and alien
territory; domination “for the implementation of their right to
4. As to enable to carry out sustained and self-determination and independence is legitimate and
concerted military operations and to in full accord with principles of international law,”
implement the Protocol. and any attempt to suppress such struggle is unlawful
[Resolution 3103 (XXVIII)].
IHL also establishes a distinction between non-
international armed conflicts in the meaning of When peoples subjected to alien domination resort to
Common Article 3, Geneva Conventions of forcible action in order to exercise their right to self-
1949, and non-international armed conflicts determination, they “are entitled to seek and to
falling within the definition provided in Article 1, receive support in accordance with the purposes and
Additional Protocol II. principles of the Charter” [UN GA Reso. 2625
(XXV)].
The definition under the Article 1 is narrower
than that under Common Article 3:
1. It introduces a requirement of territorial
Obligations of States
control, by providing that non-governmental
Common Article 1 of all four Geneva Conventions is
parties must exercise such territorial control
a key provision when it comes to a state’s
“as to enable them to carry out sustained and
responsibilities under IHL. It provides that states are
concerted military operations and to
responsible to “respect and ensure respect” for the
implement this Protocol.”
conventions in all circumstances.
2. Additional Protocol II expressly applies only
to armed conflicts between State armed
In general, IHL defines the following obligations:
forces and dissident armed forces or other
a. Parties to an armed conflict, together with their
organized armed groups.
armed forces, do not have unlimited choice of
methods or means of warfare. They are
However, Additional Protocol II “develops and
prohibited from employing weapons or means of
supplements” Common Article 3 “without
warfare that cause unnecessary damage or
modifying its existing conditions of application”
excessive suffering.
(Par. 1, Art. 1). This means that the restrictive
b. Parties to an armed conflict shall, at all times,
definition is relevant for the application of
distinguish between civilian population and the
Protocol II only, but does not extend to the law
combatants (principle of distinction). Civilians
of non-international armed conflict in general.
Page 370 of 382

shall be spared from military attacks which shall these cases, he abstains from any hostile act
be directed only against military objectives. and does not attempt to escape.
c. Persons hors de combat are those who have
been injured in the course of hostile battle action Persons hors de combat shall be protected and
and are no longer able to directly take part in treated humanely without any adverse
hostilities. They shall be protected and treated distinction. Their right to life and physical and
humanely without any adverse distinction. Their moral integrity shall be respected.
right to life and physical and moral integrity shall
be respected. c. Protected Persons
d. It is prohibited to kill or injure an enemy who is They are those who enjoy or are entitled to
hors de combat or who surrenders. protection under the Geneva Conventions.
e. The wounded and the sick shall be protected and Categories of protected persons include:
cared for by the party to the conflict which has 1. The wounded, the sick, and shipwrecked;
them in its power. Protection shall also apply to 2. Prisoners of war; and
medical personnel, establishments, transports 3. Civilians.
and material.
f. Combatants and civilians who are captured by d. Civilians
authority of the party to a dispute are entitled to For purposes of protection, civilians are further
respect for their right to life, dignity, conviction, classified as:
and other personal rights. They shall be protected 1. Civilians who are victims of conflict in
against acts of violence or reprisals [Legality of the countries involved;
Threat or Use of Nuclear Weapons Advisory Opinion 2. Civilians in territories of the enemy;
(ICJ, 1996)]. 3. Civilians in occupied territories; and
4. Civilians internees.
The ICCPR, particularly its protection on the right to
life, does not determine the legality of the use of e. Prisoners of War
nuclear weapons in an armed conflict. What applies is Under Art. 4, Geneva Convention (III), prisoners
the lex specialis, which is IHL. It determines whether of war are persons belonging to one of the
the taking of life in times of war has been arbitrary. following categories:
1. Members of the armed forces of a party to
Principles of IHL the conflict, including militias or volunteer
corps;
2. Militias or volunteer corps operating in or
a. Combatants
outside their own territory, even if such
These are members of the armed forces of a party
territory is occupied, provided:
to a conflict (Art. 3(2), Protocol 1). They have the
right to participate directly and indirectly in • They are being commanded by a person
hostilities (Art. 43(2), Protocol 1). Only responsible for his subordinates;
combatants are allowed to engage in hostilities. • Have a fixed distinctive sign
recognizable at a distance;
A combatant is allowed to use force, even to kill, • Carry arms openly; and
and will not be held personally responsible for his • Conduct their operations in accordance
acts, as he would be where he to the same as a with the laws and customs of war.
normal citizen [Gasser]. 3. Members of regular armed forces who
profess allegiance to a government or
b. Hors de Combat authority not recognized by the detaining
Under Art. 41(2), Protocol I, a person is hors de power;
combat if: 4. Civilians who accompany the armed forces,
1. He is in the power of an adverse party to the provided that they have received
conflict; authorization from the armed forces which
2. He clearly expresses an intention to they accompany;
surrender; or 5. Members of crews of merchant marine and
3. He has been rendered unconscious or is the crews of civil aircraft of the parties to the
otherwise incapacitated by wounds or conflict;
sickness and is therefore incapable of 6. Inhabitants of a non-occupied territory who
defending himself; provided that in any of on the approach of the enemy spontaneously
take up arms to resist the invading forces,
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without having had time to form themselves Neutrality is the legal status of a State in times of war,
into regular armed units, provided they carry by which it adopts impartiality in relation to the
arms openly and respect the laws and belligerents with their recognition.
customs of war; and
7. Persons belonging to the armed forces of the NEUTRAL POWER
occupied territory. The Hague Convention Respecting the Rights and
Duties of Neutral Powers (1907) governs the status of
f. Command Responsibility neutrality by the following rules:
Commanders and other superiors are criminally a. The territory of the neutral power is inviolable.
responsible for war crimes committed by their b. Belligerents are forbidden to move troops or
subordinates if they knew, or had reason to munitions of war and supplies across the territory
know, that the subordinates were about to of a neutral power.
commit or were committing such crimes and did c. A neutral power is forbidden to allow belligerents
not take all necessary and reasonable measures in to use its territory for moving troops, establishing
their power to prevent their commission, or if communication facilities, or forming corps of
such crimes had been committed, to punish the combatants.
persons responsible. d. Troops of belligerent armies received by a neutral
power in its territory shall be interned away from
Rights and Privileges the theatre of war.
1. They must be treated humanely, shall not be e. The neutral power may supply them with food,
subjected to physical or mental torture, shall be clothing or relief required by humanity.
allowed to communicate with their families, and f. If the neutral power receives escaped prisoners
may receive food, clothing, educational and of war, it shall leave them at liberty. It may assign
religious articles. them a place of residence if it allows them to
2. They may not be forced to reveal military data remain in its territory.
except their name, rank, serial number, army and g. The neutral power may authorize the passage into
regimental number and date of birth. They may its territory of the sick and wounded if the means
not be compelled to work for military services. of transport bringing them does not carry
3. All their personal belonging except their arms personnel or materials of war.
and military papers remain their property.
4. They must be interned in a healthful and hygienic The Geneva Convention (III) allows neutral powers
place. to cooperate with the parties to the armed conflict in
making arrangements for the accommodation in the
After the conclusion of peace, their speedy former’s territory of the sick and wounded prisoners
repatriation must be accomplished as soon as is of war.
practicable.
Interned persons among the civilian population, in
Martens Clause/Principle of Humanity particular, the children, the pregnant women, the
In cases not covered by other international mothers with infants and young children, wounded
agreements, civilians and combatants remain under and sick, may be accommodated in a neutral state in
the protection and authority of the principles of the course of hostilities, by agreement between the
international law derived from established custom, parties to the conflict.
from the principles of humanity and from the
dictates of public conscience.
Law on Neutrality
It is the law governing a country’s abstention from
participating in a conflict or aiding a participant of
such conflict, and the duty of participants to refrain
from violating the territory, seizing the possession, or
hampering the peaceful commerce of the neutral
countries [The Three Friends, 166 U.S. 1 (1587)].
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PROTECTING POWER unpunished and their effective prosecution must

A protecting power is a state or an organization: be ensured by taking measures at the national
a. Not taking part in the hostilities; level, in order to put an end to impunity for the
b. Which may be a neutral state; perpetrators of these crimes and thus contribute
c. Designated by one party to an armed conflict to the prevention of such crimes, it being the duty
with the consent of the other; of every State to exercise its criminal jurisdiction
d. To safeguard or protect its humanitarian interests over those responsible for international crimes;
in the conflict, the performance of which IHL f. The State shall guarantee persons suspected or
defines specific rights and duties. accused of having committed grave crimes under
international law all rights necessary to ensure
Jurisdiction of the that their trial will be fair and prompt in strict
accordance with national and international law
International Criminal Court and standards for fair trial, It shall also protect
victims, witnesses and their families, and provide
The jurisdiction of the ICC is limited to the most appropriate redress to victims and their families,
serious crimes of concern to the international It shall ensure that the legal systems in place
community as a whole. The Court has jurisdiction provide accessible and gender-sensitive avenues
with respect to the following crimes: of redress for victims of armed conflict; and
a. The crime of genocide; g. The State recognizes that the application of the
b. Crimes against humanity; provisions of this Act shall not affect the legal
c. War crimes; and status of the parties to a conflict, nor give an
d. The crime of aggression [Art. 5, Rome Statute]. implied recognition of the status of belligerency.
WAR CRIMES
R.A. No. 9851 In case of an international armed conflict:
a. Willful killing;
Republic Act No. 9851 (Philippine Act on Crimes b. Torture or inhuman treatment, including
Against International Humanitarian Law, Genocide, biological experiments;
and Other Crimes Against Humanity) was enacted on c. Willfully causing great suffering, or serious injury
December 11, 2009. It is the Philippine act on crimes to body or health;
against international humanitarian law, genocide, and d. Extensive destruction and appropriation of
other crimes against humanity. property not justified by military necessity and
carried out unlawfully and wantonly;
PRINCIPLES AND STATE POLICIES e. Willfully depriving a prisoner of war or other
a. The Philippines renounces war as an instrument protected person of the rights of fair and regular
of national policy, adopts the generally accepted trial;
principles of international law as part of the law f. Arbitrary deportation or forcible transfer of
of the land and adheres to a policy of peace, population or unlawful confinement;
equality, justice, freedom, cooperation and amity g. Taking of hostages;
with all nations; h. Compelling a prisoner of war or other protected
b. The state values the dignity of every human person to serve in the forces of a hostile power;
person and guarantees full respect for human and
rights, including the rights of indigenous cultural i. Unjustifiable delay in the repatriation of
communities and other vulnerable groups, such prisoners of war or other protected persons
as women and children; crimes [Sec. 4(a), RA9851].
c. It shall be the responsibility of the State and all
other sectors concerned to resolved armed In case of a non-international armed conflict,
conflict in order to promote the goal of "Children committed against persons taking no active part in the
as Zones of Peace"; hostilities, including member of the armed forces who
d. The state adopts the generally accepted principles have laid down their arms and those placed hors de
of international law, including the Hague combat by sickness, wounds, detention or any other
Conventions of 1907, the Geneva Conventions cause:
on the protection of victims of war and a. Violence to life and person, in particular, willful
international humanitarian law, as part of the law killings, mutilation, cruel treatment and torture;
our nation; b. Committing outrages upon personal dignity, in
e. The most serious crimes of concern to the particular, humiliating and degrading treatment;
international community as a whole must not go c. Taking of hostages; and
Page 373 of 382

d. The passing of sentences and the carrying out of its medium to maximum period and a fine ranging
executions without previous judgment from PHP 100,000 to PHP 500,000.
pronounced by a regularly constituted court,
affording all judicial guarantees which are When justified by the extreme gravity of the crime,
generally recognized as indispensable crimes [Sec. especially where the commission of any of the crimes
4(b), RA9851]. specified herein results in death or serious physical
injury, or constitutes rape, and considering the
Other serious violations of the laws and customs individual circumstances of the accused, the penalty
applicable in armed conflict, within the established of reclusion perpetua and a fine ranging from PHP
framework of international law are likewise 500,000 to PHP 1,000,000.
considered as war crimes [Sec. 4(c), RA9851].
Any person found guilty of inciting others to commit
GENOCIDE genocide under Sec. 5(b) shall suffer the penalty of
a. Killing members of the group; prision mayor in its minimum period and a fine
b. Causing serious bodily or mental harm to ranging from PHP 10,000 to PHP 20,000.
members of the group;
c. Deliberately inflicting on the group conditions of In addition, the court shall order the forfeiture of
life calculated to bring about its physical proceeds, property and assets derived, directly or
destruction in whole or in part; indirectly, from that crime, without prejudice to the
d. Imposing measures intended to prevent births rights of bona fide third parties. The court shall also
within the group; and impose the corresponding accessory penalties under
e. Forcibly transferring children of the group to the Revised Penal Code, especially where the offender
another group [Sec. 5, RA 9851]. is a public officer.
OTHER CRIMES AGAINST HUMANITY

a. Willful killing;
b. Extermination;
c. Enslavement;
d. Arbitrary deportation or forcible transfer of
population;
e. Imprisonment or other severe deprivation of
physical liberty in violation of fundamental rules
of international law;
f. Torture;
g. Rape, sexual slavery, enforced prostitution,
forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable
gravity;
h. Persecution against any identifiable group or
collectivity on political, racial, national, ethnic,
cultural, religious, gender, sexual orientation or
other grounds that are universally recognized as
impermissible under international law, in
connection with any act referred to in this
paragraph or any crime defined in this Act;
i. Enforced or involuntary disappearance of
persons;
j. Apartheid; and
k. Other inhumane acts of a similar character
intentionally causing great suffering, or serious
injury to body or to mental or physical health
[Sec. 6, RA 9851].
PENAL PROVISIONS
Any person found guilty of committing any of these
acts shall suffer the penalty of reclusion temporal in
Page 374 of 382

The archipelagic state provisions apply only to mid-

M. Law of the Sea ocean archipelagos composed of islands, and not to a
partly continental state.
Definition: The United Nations Convention on Law
of the Sea (UNCLOS) is the body of treaty rules and STRAIGHT ARCHIPELAGIC BASELINES
customary norms governing the use of the sea, the Straight baselines join the outermost points of the
exploitation of its resources, and the exercise of outermost islands and drying reefs of an archipelago,
jurisdiction over maritime regimes [Magallona]. provided that within such baselines are included the
It is the branch of public international law which main islands and an area in which the ratio of the
regulates the relations of states with respect to the use water to the area of the land, including atolls, is
of the oceans. between 1 to 1 and 9 to 1.
Baselines The breadth of the territorial sea, the contiguous

zone, and the exclusive economic zone, are measured
Definition: A baseline is the line from which a from the straight archipelagic baselines.
breadth of the territorial sea and other maritime
zones, such as the contiguous zone and the exclusive Island v. Rocks
economic zone, is measured. Its purpose is to An island is a naturally formed area of land,
determine the starting point to begin measuring surrounded by water, which is above water at high
maritime zones boundary of the coastal state. tide.
Rocks which cannot sustain human habitation or
KINDS OF BASELINES economic life of their own shall have no exclusive
a. Normal baseline, where the territorial sea is the economic zone or continental shelf [Art. 121,
low-water line along the coast as marked on UNCLOS].
large-scale charts officially recognized by the
coastal state [Art. 5, UNCLOS]. Archipelagic Waters
b. Straight baseline, where the coastline is deeply These are the waters enclosed by the straight
indented or cut into, or if there is a fringe of archipelagic baselines, regardless of their depth or
islands along the coast in its immediate vicinity, distance from the coast [Art 49(1), UNCLOS].
the method of straight lines joining the They are subject to the sovereignty of the archipelagic
appropriate points may be employed in drawing state, but subject to the right of innocent passage for
the baseline from which the breadth of the the ships of all states.
territorial sea is measured [Art. 7, UNCLOS].
Archipelagic Sea Lanes Passage
It is the right of foreign ships and aircraft to have
Archipelagic states continuous, expeditious and unobstructed passage
in sea lanes and air routes through or over the
Definition: It is a state made up of wholly one or archipelagic waters and the adjacent territorial sea
more archipelagos. It may include other islands [Art. of the archipelagic state, “in transit between one
46, UNCLOS]. part of the high seas or an exclusive economic zone.”
All ships and aircraft are entitled to the right of
An archipelago is a group of islands, including parts archipelagic sea lanes passage [Magallona; Art. 53(1)
of islands, interconnecting waters and other natural in relation to Art. 53(3) UNCLOS].
features which are so closely related that such islands,
waters and natural features form an intrinsic The archipelagic state designates the sea lanes as
geographical, economic and political entity, or which proposals to the “competent international
historically have been regarded as such. organization.” It is the International Marine
Organization (IMO) which adopts them through Art.
KINDS OF ARCHIPELAGOS 53(9), UNCLOS, which states that “the Organization
a. Coastal: situated close to a mainland and may be may adopt only sea lanes and traffic separation
considered part thereof (e.g. Norway); schemes as may be agreed with the archipelagic state,
b. Mid-Ocean: situated in the ocean at such after which such state may designate, prescribe or
distance from the coasts of firm land (e.g. substitute them.”
Indonesia).
Page 375 of 382

Other rights relating to archipelagic waters Innocent passage refers to navigation through the
a. Rights under existing agreement on the part of territorial sea without entering internal waters, going
third states should be respected by the to internal waters, or coming from internal waters and
archipelagic state. making for the high seas. It must:
b. Within its archipelagic waters, the archipelagic a. Involve only acts that are required by navigation
state shall recognize traditional fishing rights and or by distress, and
other legitimate activities of immediately adjacent b. Not prejudice the peace, security, or good order
neighboring states. of the coastal state.
c. The archipelagic state shall respect existing
submarine cables laid by other states and Transit passage refers to the right to exercise
“passing through its waters without making a freedom of navigation and over flight solely for the
landfall.” purpose of continuous and expeditious transit
through the straights used for international
Under Art. 1 of the 1987 Constitution, the navigation. The right cannot be unilaterally suspended
archipelagic waters of the Philippines are by the coastal state.
characterized as forming part of “the internal waters
of the Philippines.” However, under the UNCLOS, Innocent Passage Transit Passage
archipelagic waters consist mainly of the “waters Pertains to navigation of Includes the right of
around, between, and connecting the islands of the ships only over flight
archipelago, regardless of breadth or dimension.” Requires submarines
Submarines are
and other underwater
Moreover, under Art. 47, UNCLOS, it is not allowed to navigate in
vehicles to navigate on
mandatory upon concerned states to declare “normal mode” (i.e.
the surface and show
themselves as archipelagic states. The Philippines did submerged)
their flag
so under its new baselines law, R.A. No. 9522, which Can be suspended, but
was upheld as constitutional [Magallona v. Executive under the condition that
Secretary, G.R. No. 187167 (2011)]. it does not discriminate
among foreign ships,
Internal waters and such suspension is
essential for the
Cannot be suspended
These are waters of lakes, rivers, and bays landward protection of its security,
of the baseline of the territorial sea. Waters on the and suspension is
landward side of the baseline of the territorial sea effective only after
also form part of the internal waters of the coastal having been duly
state. However, in case of archipelagic states, waters published (Art. 25,
landward of the baseline other than those rivers, bays UNCLOS)
and lakes, are archipelagic waters [Article 8(1), Designation of sea
UNCLOS]. In the designation of sea lanes and traffic
lanes and traffic separation schemes is
Internal waters are treated as part of a state’s land separation schemes, the subject to adoption by
territory, and are subject to the full exercise of coastal state shall only competent
sovereignty. Thus, the coastal state may designate take into account the international
which waters to open and which to close to foreign recommendations of the organization upon the
shipping. competent international proposal and
organization agreement of states
bordering the straits
Territorial Sea
These waters stretch up to 12 miles from the baseline Contiguous Zone
on the seaward direction. They are subject to the
jurisdiction of the coastal state, which jurisdiction Definition: The contiguous zone is that which is
almost approximates that which is exercised over land contiguous to its territorial sea. It may not extend
territory, except that the coastal state must respect the beyond 24 nautical miles from the baselines from
rights to: which the breadth of the territorial sea is measured.
a. Innocent passage; and
b. In the case of certain straits, to transit passage.
Page 376 of 382

Jurisdiction over Contiguous Zone

In a contiguous zone, the coastal State may exercise A coastal state whose economy is overwhelmingly
the control necessary to: dependent on the exploitation of its EEZ, however,
a. Prevent infringement of its customs, fiscal, is not required to share its resources.
immigration or sanitary laws and regulations
within its territory or territorial sea; and Within its EEZ, a coastal state may also:
b. Punish infringement of the above laws and a. Establish and use of artificial islands, installations
regulations committed within its territory or and structures;
territorial sea. b. Conduct scientific research;
c. Preserve and protect its marine environment.
Exclusive Economic Zone However, under Art. 58, UNCLOS, all States enjoy
the freedom of navigation, over flight, and laying of
Definition: The exclusive economic zone (EEZ) is
submarine cables and pipelines in the EEZ of coastal
the stretch of area up to 200 miles from the baselines.
states.
Within this zone, a State may regulate non-living and
living resources, other economic resources, artificial
The coastal state has the right to enforce all laws and
installations, scientific research, and pollution control.
regulations enacted to conserve and manage the living
resources in its EEZ. It may board and inspect a ship,
Jurisdiction over EEZ
arrest a ship and its crew, and institute judicial
The UNCLOS gives the coastal State sovereign
proceedings against them. In detention of foreign
rights over all economic resources of the sea,
vessels, the coastal state has the duty to promptly
seabed, and subsoil in an area extending not more
notify the flag state of the action taken.
than 200 nautical miles beyond the baseline from
which the territorial sea is measured [Arts. 55 and
Conflicts regarding the attribution of rights and
57, UNCLOS].
jurisdiction in the EEZ must be resolved on the basis
of equity and in the light of all relevant circumstances,
Under the UNCLOS, States have the sovereign right
taking into account the respective importance of the
to exploit the resources of this zone, but shall share
interests involved to the parties as well as to the
that part of the catch that is beyond its capacity to
international community as a whole [Art. 59,
harvest.
UNCLOS)].
The resources covered include living and non-living
resources in the waters of the seabed and its subsoil.
Continental Shelf
Coastal States have the primary responsibility to
utilize, manage and conserve the living resources EXTENDED CONTINENTAL SHELF
within their EEZ (i.e. ensuring that living resources It is the seabed and subsoil of the submarine areas
are not endangered by overexploitation), and the duty extending beyond the territorial sea of the coastal
to promote optimum utilization of living resources by state throughout the natural prolongation of its land
determining allowable catch. territory up to:
a. The outer edge of the continental margin; or
If, after determining the maximum allowable catch, b. A distance of 200 nautical miles from the
the coastal state does not have the capacity to harvest baselines of the territorial sea where the outer
the entire catch, it shall give other States access to the edge of the continental margin does not extend
surplus by means of arrangements allowable under up to that distance.
the UNCLOS. The UNLCOS, however, does not
specify the method for determining “allowable Continental margin refers to the submerged
catch.” prolongation of the land mass of the continental state,
consisting of the continental shelf proper, the
Geographically disadvantaged states (i.e. those continental slope, and the continental rise
who have no EEZ of their own or those coastal states
whose geographical situations make them dependent Limits of the continental shelf
on the exploitation of the living resources of the EEZ The juridical or legal continental shelf covers the area
of other states) and land-locked states have the right until 200 nautical miles from baselines.
to participate, on equitable basis, in the exploitation
of the surplus of the living resources in the EEZ of The extended continental shelf covers the area from
coastal states of the same sub region or region. the 200-mile mark to 350 nautical miles from the
Page 377 of 382

baselines depending on geomorphologic or geological Definition: This means the seabed and ocean floor
data and information. and subsoil thereof, beyond the limits of national
jurisdiction.
When the continental shelf extends beyond 200
nautical miles, the coastal state shall establish its outer Legal status of the area and its resources
limits. No State shall claim or exercise sovereignty or
sovereign rights over any part of the Area or its
At any rate, the continental shelf shall not extend resources, nor shall any State or natural or juridical
beyond 350 nautical miles from the baseline of the person appropriate any part thereof. [Art. 137,
territorial sea, or 100 nautical miles from the 2,500- UNCLOS]
meter isobath (i.e. the point where the waters are
2,500 meters deep). The Area and its resources are the common heritage
of mankind [Art. 136, UNCLOS]. Activities in the
Rights of The Coastal State Area shall be carried out for the benefit of mankind
The continental shelf does not form part of the as a whole [Art. 140, UNCLOS].
territory of the coastal state.
The Area shall be open to use exclusively for peaceful
It only has sovereign rights with respect to the purposes by all States [Art. 141, UNCLOS].
exploration and exploitation of its natural resources,
including the mineral and other non-living resources International Seabed Authority
of the seabed and subsoil together with living It is the organization established by UNCLOS which
organisms belonging to the sedentary species. acts on behalf of mankind in governing the regime of
resources in the Area. It organizes, carries out, and
The coastal state has the exclusive right to authorize controls the activities of the Area on behalf of
and regulate oil-drilling on its continental shelf. mankind as a whole.
These rights are exclusive in the sense that when the The following form the Authority:
coastal state does not explore its continental shelf or a. The Assembly: all state parties to the UNCLOS
exploit its resources, no one may undertake these b. The Council: the executive organ whose 36
activities without the coastal state’s consent. members are elected by the Assembly
c. The Enterprise: the organ directly engaged in
Exclusive Economic the exploration and exploitation of the resources
Continental Shelf
Zone of the Area, including the transporting,
Duty to Manage and Conserve Living processing and marketing of minerals
Resources
Coastal state is obliged Activities in The Area
to manage and conserve The Enterprise carries out mining activities on behalf
No duty living resources in the of the Authority:
EEZ a. Directly; or
b. By joint ventures with:
Rights of the Coastal State to Natural 1. State parties;
Resources 2. State enterprises; or
Have to do with natural 3. Natural or juridical persons sponsored by
Relate to mineral and state parties.
resources of both
other non-living
waters super adjacent to
resources of the seabed Applicants for license in deep seabed mining are
the seabed and those of
and the subsoil limited to those controlled by States parties to the
the seabed and subsoil
Rights of the Coastal State to Living UNCLOS or by their nationals.
Resources
Apply only to sedentary
Do not pertain to International Tribunal for
species of such living
resources
sedentary species the Law of the Sea (ITLOS)
Definition: The ITLOS is an independent judicial
The Area body established by the Third United Nations
Convention on the Law of the Sea to adjudicate
disputes arising out of the interpretation and
Page 378 of 382

application of the convention. It was established after

Ambassador Arvido Pardo Malta addressed the
N. International
General Assembly of the United Nations and called
for “an effective international regime over the seabed
Environmental Law
and ocean floor beyond a clearly defined national Definition: It is the branch of public international
jurisdiction.” law comprising those substantive, procedural, and
institutional rules which have as their primary
It is composed of 21 independent members elected objective the protection of the environment, the term
from among persons enjoying the highest reputation environment being understood as encompassing
for fairness and integrity and of recognized “both the features and the products of the natural
competence in the field of the law of the sea. world and those of human civilization” [SANDS].
Jurisdiction of the ITLOS BASIC PRINCIPLES
Its jurisdiction covers all disputes submitted to it in
accordance with the UNCLOS. It also includes 1. Common but Differentiated Responsibilities
matters submitted to it under any other agreement. States shall cooperate in a spirit of global
partnership to conserve, protect and restore the
Peaceful Settlement of Disputes health and integrity of the earth’s ecosystem. In
Under Par. 3, Art. 2, UN Charter, States have the duty view of the different contributions to global
to settle disputes by peaceful means. This obligation environmental degradation, States have common
extends to State parties of the UNCLOS, but differentiated responsibilities. The developed
underscoring the right of the parties to resort to countries acknowledge the responsibility that
peaceful means of their own choice on which they can they bear in the international pursuit to
agree any time. sustainable development in view of the pressures
their societies place on the global environment
Compulsory Settlement of Disputes and of the technologies and financial resources
Where no successful settlement can be achieved, or if they command [Principle 7, Rio Declaration].
the parties are unable to agree on the means of
settlement of a dispute concerning the application of 2. Precautionary Principle
UNCLOS, such dispute may be governed by the In order to protect the environment, the
principle of compulsory settlement, where procedures precautionary approach shall be widely applied by
entail binding decisions. States according to their capabilities. Where there
The parties may choose, through a written revocable are threats of serious or irreversible damage, lack
and replaceable declaration, to submit the dispute to of full scientific certainty shall not be used as a
the following: reason for postponing cost-effective measures to
a. ITLOS; prevent environmental degradation [Principle 15,
b. ICJ; Rio Declaration].
c. Arbitral tribunal; or
d. Special arbitral tribunal. 3. Sustainable Development
It is development that meets the needs of the
The court or tribunal has jurisdiction over: present without compromising the ability of
a. Any dispute submitted to it concerning the future generations to meet their own needs
application or interpretation of UNCLOS; or [Gabcikovo-Nagymaros Project (ICJ, 1997)].
b. Any dispute concerning the interpretation or
application of an international agreement: No state has the right to use or permit the use of
1. Related to the purposes of the UNCLOS; or its territory in such a manner as to cause injury by
2. When such dispute is submitted to it in fumes in or to the territory of another or the
accordance with that agreement. properties or persons therein, when the case is of
serious consequence and the injury is established
Applicable Laws by clear and convincing evidence [Trail Smelter
The court or tribunal shall apply the UNCLOS and Arbitration Case (1938)].
other rules of international law not incompatible with
the UNCLOS [Art. 293, UNCLOS]. It may also
decide a case ex aequo et bono (what is equitable and
just) if the parties so agree.
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4. Sic Utere Tuo Ut Alienum Non Laedas or the

O. Madrid Protocol and
No-Harm Principle
States have, in accordance with the Charter of the
Paris Convention
United Nations and the principles of Note: This is not included in the 2018 Political Law
international law, the sovereign right to exploit Bar Syllabus.
their own resources pursuant to their own
environmental policies, and the responsibility to
ensure that activities within their jurisdiction or Madrid Protocol
control do not cause damage to the environment
of other States or of areas beyond the limits of The Protocol Relating to the Madrid Agreement
national jurisdiction [Principle 21, Stockholm Concerning the International Registration of Marks,
Declaration]. or the Madrid Protocol, is one of two treaties
comprising the Madrid System for international
registration of trademarks. It deals more with the
procedure for filing than with substantive rights.
Its purpose is to provide a cost-effective and efficient

way for trademark holders – individuals and
businesses – to ensure protection for their marks in
multiple countries through the filing of one
application with a single office, in one language, with
one set of fees, in one currency.
While an International Registration may be issued, it

remains the right of each country or contracting party
designated for protection to determine whether or not
protection for a mark may be granted. Once the
trademark office in a designated country grants
protection, the mark is protected in that country just
as if that office had registered it.
The Madrid Protocol also simplifies the subsequent

management of the mark, since a simple, single
procedural step serves to record subsequent changes
in ownership or in the name or address of the holder
with World Intellectual Property Organization’s
International Bureau. The International Bureau
administers the Madrid System and coordinates the
transmittal of requests for protection, renewals and
other relevant documentation to all members.
Paris Convention
The Paris Convention for the Protection of Industrial
Property was signed in 1883. It is one of the first
treaties dealing with intellectual property and its
protection.
Among its substantive provisions are:

a. It requires that each member state grant the same
quality and quantity of protection to eligible
foreigners as it grants to its own nationals in
respect to the intellectual property enumerated in
the convention.
Page 380 of 382

b. It provides that an applicant eligible for

convention benefits who files a first regular
P. International Economic
patent or trademark application in any of the
countries of the union, can then file subsequent
Law
applications in other countries of the union for a Note: This is not included in the 2018 Political Law
defined period of time which subsequent Bar Syllabus.
applications will have an effective filing date as of
the first filed application. Definition: International economic law regulates the
international economic order or economic relations
among nations. However, the term “international
economic law” encompasses a large number of areas.
It is often defined broadly to include a vast array of
topics ranging from public international law of trade
to private international law of trade to certain aspects
of international commercial law and the law of
international finance and investment.
It is a field of international law that encompasses both
the conduct of sovereign states in international
economic relations, and the conduct of private parties
involved in cross-border economic and business
transactions.
International economic law covers, among others, the

following:
a. International trade law, including both the
international law of the World Trade
Organization (WTO), General Agreement on
Tariffs and Trade (GATT), and domestic trade
laws;
b. International economic integration law, including
the law of the European Union (EU), North
American Free Trade Agreement (NAFTA), and
Mercosur;
c. Private international law, including international
choice of law, choice of forum, enforcement of
judgments and the law of international
commerce;
d. International business regulation, including
antitrust or competition law, environmental
regulation and product safety regulation;
e. International financial law, including private
transactional law, regulatory law, the law of
foreign direct investment and international
monetary law, including the law of the
International Monetary Fund (IMF) and World
Bank;
f. The role of law in development;
g. International tax law; and
h. International intellectual property law [Wenger].
International economic law is based on the traditional

principles of international law such as:
a. Pacta sunt servanda;
b. Freedom;
c. Sovereign equality;
d. Reciprocity; and
Page 381 of 382

e. Economic sovereignty.
It is also based on modern and evolving principles

such as:
a. Duty to cooperate;
b. Permanent sovereignty over natural resources;
and
c. Preferential treatment for developing countries in
general and the least-developed countries in
particular.
Page 382 of 382

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POLITICAL LAW

TABLE OF CONTENTS The President Under Martial Law or in

Administrative Supervision Over Lower B. Commission on Human Rights ................ 107

Distinguished from Other Officers . 216 Definition ............................................. 238

Registration .......................................... 267 Taxing Power ....................................... 312

I. THE PHILIPPINE fundamental powers of the government are

According to Schwartz, "a constitution is seen as an

Constitutional Law b. Enacted (Conventional) v.

may be changed in the same manner and through the

Types of Judicial Review

Summary of Two Stages of Amendatory/Revision Process

TABLE OF CASES RE: CONSTITUTIONAL AMENDMENTS AND CHANGES IN GOVERNMENT

Title Facts Held and Ratio

Title Facts Held and Ratio

Title Facts Held and Ratio

implementation, nor may its exercise be limited,

Exception: Statements of general principles, such as those in

Exception to the Exception: The (1) right to a

N.B. Other “exceptions” to the exception, e.g. (1)

Non-Self Executing: Provisions which merely

The legislative’s failure to pursue policies does not

N.B. A provision may be self-executing in one part,

The presidential power of control over the Executive

or associations at least 70% of

II. GENERAL c. Treaty of 12 January 1930 between the United

Treaty limits of the Philippine archipelago

Express Consent 3. Liability under the Local Government

Type Function Rule Exceptions to Prior Consent

it is only giving the plaintiff the chance to prove that it is liable.

This only refers to wars of aggression, not defensive

Transformation: This requires that an international

Incorporation: This occurs when, by mere

f. Role of the armed forces [Sec. 3, a. Independent foreign policy

b. Freedom from nuclear weapons e. Personal dignity and human

The question of when life begins is a scientific and

r. Community-based, sectoral See discussion, vis-à-vis the Right to information

s. Role of communication and

t. Autonomy of local governments

u. Equal access for public service

The state policy against political dynasties is not self-

v. Honesty and integrity in public

w. Policy of full public disclosure

that it shall promote national healing and

investigating, or monitoring the

1. The Pork Barrel system is unconstitutional,

not “law-making” power, but rule-making power,

public agency to apply it. It indicates the

“Government” is that institution or aggregate of

Even if the petitioner can prove that he did not

III. LEGISLATIVE INITIATIVE

The President Under Martial B. Houses of Congress

House of 3. Each legislative district shall comprise, as far as

i. A party that participates in the legislative Qualified Sectors:

Percentage of votes = seats

Step 1: Compute total number of seats allocated for

Step 2: Rank all party-list candidates from highest to

Step 3: Compute for each party-list candidate’s

Step 4: Round 1 – Allocate one (1) seat each for party-

Step 5: Round 2 – Assign additional seats from the

Step 6: Apply the 3-Seat Cap, if necessary [See

In ARARO v. COMELEC, GR No. 192803, December

Number of votes of party list

The formula to determine the additional seats to be