POLITICAL LAW REVIEW
CRAMMER’S GUIDE (FINALS)
CONSTITUTIONAL LAW
ART. III: BILL OF RIGHTS
Q: What is the test of a valid ordinance?
1. Must not contravene the constitution or a statute
2. Must not be unfair or oppressive
3. Must not be partial or discriminatory
4. Must not prohibit but may regulate trade
5. Must be general and consistent with public policy
6. It must not be unreasonable.
Q: The Chief of the Philippine National Police issued a circular revoking
all permits to carry firearms outside of residence. The holder of such a
permit claimed that the circular is unconstitutional, because his permit
is a vested right protected by the due process clause. Is he right?
No. The license is merely a statutory privilege. It does not create a right. It may
be revoked at any time. The circular is reasonable. Its basis is the need for
peace and order in society. (Chavez vs. Romulo, 431 SCRA 534)
Q: A lawyer contended that the Anti Plunder Law is unconstitutional
because it is vague for failure to define the terms “Combinations”,
“Series” and “Patterns” and for being overbroad. Is his contention
tenable?
No. Due process does not require that every word in a law be defined. The
failure of Congress to define the words used in the law will not necessarily result
in its ambiguity so long as the legislative will is clear or can be gathered from
the whole law. The word shall be interpreted according to their natural
meaning. A law is vague when men of common intelligence must guess its
meaning and differ in its application.
The over breadth doctrine refers to a law which sweeps unnecessarily, broadly
and thereby invades a protected freedom because of its possible chilling effect.
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It does not apply to penal statutes. (Estrada vs. Sandiganbayan, 377 SCRA
538)
Q: What is the guarantee of Equal Protection of the Laws?
The equality that it guarantees is legal equality or the equality of all persons
before the law. It does not demand absolute equality. It merely requires that
all persons shall be treated alike, under like circumstances and conditions both
as to privileges conferred and liabilities enforced.
Requisites for valid classification for purposes of the equal protection clause
The classification must:
1. Rest on SUBSTANTIAL DISTINCTIONS
2. Be GERMANE to the purposes of the law
3. NOT LIMITED TO EXISTING CONDITIONS only
4. APPLY EQUALLY to all members of the SAME CLASS.
Q: What applies when alienage becomes a basis for classification?
The constitution, as a general rule, places the civil rights of aliens on an equal
footing with those as citizens. But their political rights do not enjoy the same
protection.
Q: A law repealed the provision in the Omnibus Election Code that an
elective official who runs for another elective office forfeits his office. It
was claimed that this violates equal protection because an appointive
official is deemed resigned upon the filing of his certificate of
candidacy. Is the contention right?
No. There are substantive distinctions between elective officials and appointive
officials. The former are elected to an office for a definite term, while the latter
hold their office by virtue of their appointment. The former are allowed to take
part in partisan political activity while the latter are prohibited from engaging in
partisan political activity except to vote. (Fariñas vs. Executive Secretary, 417
SCRA 503)
Q: What is the right guaranteed by Sec. 2 of the Bill of Rights?
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Sec. 2. The right of the people to be secure in their persons, houses, papers,
and effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined personally by the
judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched
and the person or things to be seized.
General Rule: Search and seizures are unreasonable UNLESS authorized by a
validly issued search warrant or warrant of arrest
Q: What are the requisites for a valid warrant:
1. It must be issued upon PROBABLE CAUSE.
2. The existence of probable cause is determined personally by the
JUDGE.
3. The judge must EXAMINE UNDER OATH the complainant and the
witnesses he may produce.
4. The warrant must PARTICULARLY DESCRIBE the place to be searched
and person or things to be seized.
5. It must be in connection with One specific offense.
Q: What is “PROBABLE CAUSE”
For the issuance of a warrant of arrest:
Probable cause refers to such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been
committed by the person sought to be arrested.
For the issuance of a search warrant:
Probable cause would mean such facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been
committed and that the objects sought in connection with the offense are in the
place to be searched.
NOTE: Probable cause for the issuance of a search warrant does NOT require
that the probable guilt of a specific offender be established, unlike in the case of
a warrant of arrest.
Q: What is meant by “DETERMINED PERSONALLY BY THE JUDGE”?
The judge is NOT required to personally examine the complainant and his
witnesses. What the Constitution underscores is the exclusive and personal
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responsibility of the issuing judge to satisfy himself of the existence of probable
cause (Soliven v. Makasiar, 167 SCRA 394).
To be sure, the Judge must go beyond the prosecutor’s certification and
investigation report whenever necessary (Lim v. Felix, 187 SCRA 292).
Q: What is the procedure in issuing search warrant?
The judge personally evaluates the report and supporting documents submitted
by the prosecutor regarding the existence of probable cause and, on the basis
thereof, issue a warrant of arrest or
If on the basis thereof, the judge finds no probable cause, he may disregard the
prosecutor’s report and require the submission of supporting affidavits of
witnesses to aid him in arriving at the conclusion as to the existence of probable
cause.
Q: What is meant by examination “UNDER OATH OR AFFIRMATION OF
THE COMPLAINANT AND WITNESSES”?
The oath required must refer to the truth of the facts within the personal
knowledge of the complainant or his witnesses because the purpose is to
convince the judge of the existence of probable cause (Alvarez v. CFI, 64 Phil.
33).
The true test of sufficiency of an affidavit to warrant the issuance of a search
warrant is whether it has been drawn in such a manner that perjury could be
charged thereon and affiant could be held liable for the damages caused
(Alvarez v. CFI).
Q: When is a search warrant particular?
1. A search warrant may be said to particularly describe the things to be
seized when the description therein is as specific as the circumstances
will ordinarily allow or
2. When the description expresses a conclusion of fact – not of law – by
which the warrant officer may be guided in making the search and
seizure or
3. When the things described are limited to those which bear a direct
relation to the offense for which the warrant is being issued (Bache and
Co. v. Ruiz, 37 SCRA 823).
Q: Are JOHN DOE WARRANTS LEGAL?
Yes. A “John Doe” warrant can satisfy the requirement of particularity of
description if it contains a descriptio personae such as will enable the officer to
identify the accused (People v. Veloso, 48 Phil. 159)
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 3. Seizure of goods concealed to avoid Customs duties/authorized under
Q: What is a GENERAL WARRANT? the Tariffs and Customs Code
A general warrant is one that does not allege any specific acts or omissions a. The Tariffs and Customs Code authorizes persons having police
constituting the offense charged in the application for the issuance of the authority under the Code to effect search and seizures without
warrant. It contravenes the explicit demand of the Bill of Rights that the things a search warrant to enforce customs laws.
to be seized be particularly described. b. Exception: A search warrant is required for the search of a
dwelling house.
Q: The bag of a departing passenger at an airport was searched c. Searches under this exception include searches at borders and
because the metal detector sounded. It turned out that the bag ports of entry. Searches in these areas do not require the
contained marijuana. The marijuana was seized, and the passenger was existence of probable cause
charged with illegal possession of marijuana. The passenger argued
that the warrantless seizure of the marijuana and his arrest were 4. Seizure of evidence in Plain vie.
illegal. Decide. a. There was a prior valid intrusion;
The contention is not valid. Republic Act No. 6235 authorizes the search of b. The evidence was inadvertently discovered;
prohibited materials at airports. This is valid for the purpose of airport security. c. The evidence is immediately apparent;
The arrest of the passenger is valid because he was caught in flagrante delicto. d. Plain view is justified seizure without further search. (People v.
(People vs. Suzuki, 414 SCRA 43) Valdez, 341 SCRA 25)

Q: When are WARRANTLESS SEARCHES valid? 5. Waiver of right

1. Search made as an Incident to lawful arrest a. Requisites of a valid waiver:
a. An officer making an arrest may take from the person 1. The right exists.
arrested: ii. The person had actual or constructive knowledge of the
i. Any money or property found upon his person which was existence of such right.
used in the commission of the offense or iii. There is an actual intention to relinquish such right
ii. Was the fruit thereof or b. The right against unreasonable searches and seizures is a
iii. Which might furnish the prisoner with the means of personal right. Thus, only the person being searched can waive
committing violence or escaping or the same.
iv. Which may be used in evidence in the trial of the case c. Waiver requires a positive act from the person. Mere absence
b. The search must be made simultaneously with the arrest and it of opposition is not a waiver.
may only be made in the area within the immediate control of d. The search made pursuant to the waiver must be made within
the person arrested the scope of the waiver.

2. Search of Moving vehicles 6. Conduct of "Areal Target Zone" and "Saturation Drives" in the exercise
a. This exception is based on exigency. Thus, if there is time to of military powers of the President (Guazon vs. De Villa, 181 SCRA 623)
obtain a warrant in order to search the vehicle, a warrant must 7. Checkpoints (Valmonte vs. De Villa, 178 SCRA 211)
first be obtained. REQUISITES
b. The search of a moving vehicle must be based on probable a. Abnormal times
cause. b. Limited to visual search
c. Vehicle not searched
d. Passengers not subjected to body search

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As long as the vehicle is neither searched nor its occupants subjected to a body
search and the inspection of the vehicle is limited to a visual search = valid
search (Valmonte V. De Villa)
8. Stop and Frisk
Even before an arrest, when an officer is justified in believing that the individual
whose suspicious behavior he is investigating at close range is presently
dangerous, he may conduct a limited protective search.
The purpose of this limited search is not to discover evidence of a crime but to
allow the officer to pursue his investigation without risk of violence.
9. Exigent and emergency circumstances best illustrated in People v. De
Gracia (233 SCRA 716), where a warrantless search was allowed where
there was a prevailing general chaos and disorder because of an
ongoing coup.
NOTE:
Carrol doctrine: warrantless search of a vehicle that can be quickly moved out
of the locality or jurisdiction is valid
Q: What are the INSTANCES WHEN WARRANTLESS ARRESTS ARE
VALID?
1. When the person to be arrested has committed, is actually
committing, or is about to commit an offense in the presence of the
arresting officer.
2. When an offense has in fact just been committed and the arresting
officer has probable cause to believe based on personal knowledge of
facts and circumstances indicating that the person to be arrested has
committed it.
3. When the person to be arrested is a prisoner who has escaped from a
penal establishment or place where he is serving final judgment or
temporarily confined while his case is pending, or has escaped while
being transferred from one confinement to another.
Q: What is Waiver of an invalid arrest?
When a person who is detained applies for bail, he is deemed to have waived
any irregularity which may have occurred in relation to his arrest. However,
when a person who is detained applies for bail, before he enters a plea, he is
not barred from later questioning the legality of his arrest.
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Q: What is Hot pursuit?
A. The pursuit of the offender by the arresting officer must be continuous from
the time of the commission of the offense to the time of the arrest.
B. There must be no supervening event which breaks the continuity of the
chase.
Q: What is Stop and frisk?
When a policeman observes suspicious activity which leads him to believe that a
crime is about to be committed, he can investigate the suspicious looking
person and may frisk him for weapons as a measure of self-protection. Should
he find, however, a weapon on the suspect which is unlicensed, he can arrest
such person then and there for having committed an offense in the officer’s
presence.
NOTE: Probable cause is the minimal requirement for the validity of either a
warrantless arrest or a warrantless search.
Q: What is the Exclusionary rule:
Any evidence obtained shall be inadmissible for any purpose in any proceeding.
However, in the absence of governmental interference, the protection against
unreasonable search and seizure cannot be extended to acts committed by
private individuals. (People v. Marti, 193 SCRA 57)
Q: What is protected under the freedom of expression?
Sec. 4 of the Constitution provides that “No law shall be passed abridging the
freedom of speech, of expression, or of the press, or of the right of the people
peaceably to assemble and petition the government for redress of grievances.”
Q: What are the prohibitions under Section 4?
1. Prohibition against PRIOR RESTRAINT
2. Prohibition against SUBSEQUENT PUNISHMENT
Q: What is the Prohibition against prior restraint?
Prior restraint means official governmental restrictions on the press or other
forms of expression in advance of actual publication or dissemination.
Ex. movie censorship, judicial prior restraint = injunction against publication,
license taxes based on gross receipts for the privilege of engaging in the,
business of advertising in any newspaper, flat license fees for the privilege of
selling religious books.
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Q: When is a Government control-based regulation justified?
1. It is within the constitutional power of the government;
2. It furthers an important or substantial government interest;
3. The governmental interest is unrelated to the suppression of free
expression; and
4. The incidental restriction is no greater than is essential to the
furtherance of the interest.
Q: Can the prohibition of the publication of election surveys shortly
before elections be justified on the ground that there is a need to
prevent pressure on voters, the bandwagon mentality, misinformation,
and junking of weak candidates?
No. A Government control-based regulation is justified: (1) if it is within the
constitutional power of the government; (2) if it furthers an important or
substantial government interest; (3) if the governmental interest is unrelated to
the suppression of free expression; and (4) if the incidental restriction is no
greater than is essential to the furtherance of the interest.
This restriction does not meet the last two tests. The causal connection of
expression to the asserted government interest makes such interest related to
the suppression of free expression. The regulation can be more narrowly
pursued by punishing unlawful acts rather than prohibiting speech.
The COMELEC can confiscate false survey results by virtue of its power under
the Administrative Code of 1987 to stop false election propaganda. (Social
Weather Station vs. COMELEC, 357 SCRA 496).
Q: Can the trial of Former President Estrada be covered by television on
the basis of the right of the people to be informed of the court
proceeding?
No. The right of the accused to a fair trial must prevail over freedom of the
press and the right to information. Television can work profound changes in the
behavior of the people it focuses on. Live television coverage can have
mischievous potentialities for intruding upon the detached atmosphere that
should surround the judicial process. (Perez vs. Estrada, AM. No. 01-4-03-SC,
Sept. 13, 2001).
Q: What are unprotected speeches?
1. Libel
These are statements of OPINION, not of fact, and are not considered
actionable, even if the words used are neither mild nor temperate.
What is important is that the opinion is the true and honest opinion of
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the person. The statements are not used to attack personalities but to
give one’s opinion on decisions and actions.
2. Obscenity
Tests:
a. Whether the average person, applying contemporary
community standards would find that the work, taken as a
whole, appeals to the prurient interest.
b. Whether the work depicts or describes, in a patently
offensive way, sexual conduct, specifically defined by law.
c. Whether the work, taken as a whole, lacks serious literary,
artistic, political or scientific value.
Q: What is the rule with respect to public personalities?
With respect to public personalities (politicians, actors, anyone with a
connection to a newsworthy event), opinions can be aired regarding their public
actuations. Comment on their private lives, if not germane to their public
personae, are not protected.
Q: A petitioner questioned the constitutionality of the Public Assembly
Law on the ground that it violated section 3 of the Bill of Rights, since it
is not content-neutral and is overbroad. Decide.
The contention is not valid. The law does not absolutely ban public assemblies
but merely regulates their time, place and manner. It is not content-based,
because it refers to all kinds of public assemblies. The reference in the law to
public assemblies for prosecuting a lawful cause does not make it content-
based, because assemblies have to be for lawful causes. The law is not
overbroad. It regulates the right to peaceable assembly only to the extent
needed to avoid a clear and present danger of the substantive evils the State
has the right to prevent. (Bayan vs. Ermita, 488 SCRA 226)
Q: What is the policy of maximum tolerance in the Public Assembly
Law?
It means the highest degree of restraint that the military, police and other
peace-keeping authorities shall observe during a public assembly in its
dispersal. (Section 3(c), BP 880).
Q: What is the non-establishment clause?
No law shall be made respecting an establishment of religion or prohibiting the
free exercise thereof.
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Q: What are the exceptions to this rule?
1. exemption from taxation of properties actually, directly and
exclusively used for religious purposes (Sec. 28, Art. VI of the
Constitution)
2. Citizenship requirement of education institutions, except those
established by religious groups, and mission boards.
3. optional religious instruction in public elementary and high schools: at
the option expressed in writing by the parents or guardians, religious
instruction taught within regular class hours by instructors designated
or approved by the religious authorities of the religion to which the
child or ward belongs.
4. appropriation allowed where the minister or ecclesiastic is employed
in the armed forces, in a penal institution or in a government owned
orphanage or leprosarium.
Q: When is government aid that might redound to the benefit of
religion be allowed?
1. when it has a secular legislative purpose
2. when it has a primary effect that neither advancer nor inhibits religion
3. when it does not require excessive entanglement with recipient
institutions.
Q: What are examples of valid government aid?
1. expropriation of birthplace of Felix Manalo, founder of Iglesia for it
was proven that the purpose was preserving it as a historical
landmark (Manosca v. CA)
2. Issuance of religious commemorative stamps (Aglipay v. Ruiz).
3. Purchasing of the image of a saint in connection with the celebration
of the barrio fiesta which is a socio-religious affair (Garces v. Estenzo)
What are the aspects of freedom of religious profession and worship?
1. the right to believe
2. compelling state interest
a. whether the right to religious freedom has been burdened?
b. whether the person is sincere in his/her religious belief.
Q: Does imposition of taxes on religious materials and income of
ecclesiastics violative of religious freedom?
No. The free exercise clause does not prohibit imposition of generally applicable
sales and use of tax on sale of religious materials by a religious organization.
The resulting burden on the exercise of religious freedom is so incidental as to
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make it difficult to differentiate it from any other economic imposition that
might make the right to disseminate religious doctrines costly. (Tolentino v.
Sec. Of Finance).
Q: What is the rule on the exercise of eminent domain?
Private property shall not be taken for public use without just compensation.
Q: Who can exercise the power of eminent domain:
1. The national government
2. Congress
3. Executive, pursuant to legislation enacted by Congress
4. Local government units, pursuant to an ordinance enacted by their
respective legislative bodies (under LGC)
5. Public utilities, as may be delegated by law.
Q: What are the elements of the power of eminent domain
1. There is a TAKING of private property
2. Taking is for PUBLIC USE
3. Payment of JUST COMPENSATION
Q: What are the elements of taking?
1. The expropriator enters the property
2. The entrance must not be for a momentary period, i.e., it must be
permanent
3. Entry is made under warrant or color of legal authority
4. Property is devoted to Public use
5. Utilization of the property must be in such a way as to oust the owner and
deprive him of the beneficial enjoyment of his property.
Q: What is meant by public use?
Public use, for purposes of expropriation, is synonymous with public welfare as
the latter term is used in the concept of police power.
Examples of public use include land reform and socialized housing.
Q: When does a law impairs obligations and contracts?
1. If it changes the terms and conditions of a legal contract either as to
the time or mode of performance
2. If it imposes new conditions or dispenses with those expressed
3. 3 If it authorizes for its satisfaction something different from that
provided in its terms.
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A mere change in PROCEDURAL REMEDIES which does not change the
substance of the contract, and which still leaves an efficacious remedy for
enforcement does NOT impair the obligation of contracts.
A valid exercise of police power is superior to obligation of contracts.
Q: When does Custodial Investigation Commence?
CUSTODIAL INVESTIGATION commences when a person is taken into custody
and singled out as a suspect in the commission of a crime under investigation.
Rights during custodial investigation apply only against testimonial compulsion
and not when the body of the accused is proposed to be examined (i.e. urine
sample; photographs; measurements; garments; shoes).
Q: What are the rights under Section 12?
1. Right to remain silent
2. Right to have competent and independent counsel, preferably of his
own choice
3. Right to be provided with the services of counsel if he cannot afford
the services of one.
4. Right to be informed of these rights.
Q: When are Section 12 rights available?
When rights are available:
1. AFTER a person has been taken into custody or
2. When a person is otherwise deprived of his freedom of action in any
significant way
3. When a person is merely “invited” for questioning (R.A. No. 7438)
4. When the investigation is being conducted by the government (police,
DOJ, NBI) with respect to a criminal offense.
5. Signing of arrest reports and booking sheets.
Q: When are Section 12 rights not available?
1. During a police line-up.
Exception: Once there is a move among the investigators to elicit
admissions or confessions from the suspect.
2. During administrative investigations.
3. Confessions made by an accused at the time he voluntarily
surrendered to the police or outside the context of a formal
investigation.
4. Statements made to a private person.
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Q: What are the requisites for the admissibility of an extrajudicial
confession?
The following are the requisites: (1) the confession must be voluntary; (2) it
must be made with assistance of competent and independent counsel; (3) it
must be express; and (4) it must be in writing. (People v. Gallardo, GR 113684,
Jan. 25, 2000)
Q: Who are persons not entitled to bail?
1. Persons charged with offenses PUNISHABLE by RECLUSION PERPETUA
or DEATH, when evidence of guilt is strong
2. Persons CONVICTED by the trial court. Bail is only discretionary
pending appeal.
3. Persons who are members of the AFP facing a court martial.
Q: What is the exclusionary rule?
Any confession or admission obtained in violation of this section shall be
inadmissible in evidence against him (the accused). Therefore, any evidence
obtained by virtue of an illegally obtained confession is also inadmissible, being
the fruit of a poisonous tree.
Q: Who are not independent counsels?
1. Special Counsel, public or private prosecutor, counsel of the police, or
a municipal attorney whose interest is adverse to that of the accused.
2. a mayor
3. a barangay captain
4. any other whose interest may be adverse to that of the accused
Q: When is there waiver of the right to bail:
1. if appellant escapes from prison or confinement
2. if appellant jumps bail
3. if appellant flees to another country during the pendency of the
appeal
Q: The accused was charged with estafa for issuing a check without
funds. The prosecution failed to prove fraud. The prosecution asked
that the accused be convicted instead of violation of BP 22. Is the
request valid?
No. Violation of BP 22 is not included in estafa. They have different elements.
Estafa is a malum in se. Violation of BP 22 is a malum prohibitum. Conviction
for the latter offense will violate the right of the accused to be informed of the
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nature and cause of accusation. (People vs. Cuyugan, GR 146641, Nov. 18,
2002).
Q: When is the right to confrontation not available?
1. The admissibility of “dying declarations”
2. Trial in absentia under Section 14(2)
3. With respect to child testimony
Q: What is the right against self-incrimination?
1. What is PROHIBITED is the use of physical or moral compulsion to
extort communication from the witness or to otherwise elicit
evidence, which would not exist, were it not for the actions compelled
from the witness.
2. The right does NOT PROHIBIT the examination of the body of the
accused or the use of findings with respect to his body as physical
evidence. Hence, the fingerprinting of an accused would not violate
the right against self-incrimination. However, obtaining a sample of
the handwriting of the accused would violate this right if he is charged
for falsification.
3. The accused cannot be compelled to produce a private document in
his possession, which might tend to incriminate him. However, a
third person in custody of the document may be compelled to produce
it.
Q: When cannot this right apply?
This right cannot be invoked where the document sought to be produced is one
required by the state to be kept pursuant to its taxing or police power (ex. Tax
code requires books of account to be kept)
Q: When the right can be invoked?
1. In criminal cases
2. In all other government proceedings, including civil actions and
administrative or legislative investigations.
Q: Who can invoke the right?
Only natural persons. Judicial persons are subject to the visitorial powers of the
state in order to determine compliance with the conditions of the charter
granted to them.
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Q: The accused, who was charged with rape, was subjected to a DNA
test. The semen recovered from the victim was identical to that of the
accused. He argued that the test violated his right against self-
incrimination. Is he right?
No. There is no testimonial compulsion involved. The accused was merely
subjected to a physical examination of his body. (People vs. Yotar, 429 SCRA
504)
Q: What is the prohibition against double jeopardy?
No person shall be twice put in jeopardy 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 for the same act.
Q: What are the types of double jeopardy?
1. First Sentence of Sec. 21: No person shall be twice put in jeopardy of
punishment for the same offense.
2. Second Sentence: When an act is punished by a law and an ordinance,
conviction or acquittal under either shall constitute a bar to another
prosecution for the same act.
Under the first kind of jeopardy, conviction, acquittal, or dismissal of the case
without the express consent of the accused will bar a subsequent prosecution.
Under the second kind of jeopardy, only conviction or acquittal – not dismissal
without the express consent of the accused – will bar a subsequent prosecution.
Q: What are the requisites for a valid defense of double jeopardy?
1. First jeopardy must have attached prior to the second.
2. The first jeopardy must have terminated.
3. The second jeopardy must be for the same offense, one that includes or
is necessarily included in the first offense, or is an attempt or
frustration of the first, or is an element thereof.
Q: When does jeopardy ATTACH: (1st requisite)
1. A person is charged
2. Under a complaint or information sufficient in form and substance to
sustain a conviction
3. Before a court of competent jurisdiction
4. After the person is arraigned
5. Such person enters a valid plea.
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Q: When does jeopardy NOT attach?
1. If information does not charge any offense
2. If, upon pleading guilty, the accused presents evidence of complete
self-defense, and the court thereafter acquits him without entering a
new plea of not guilty for accused. There is no valid plea here.
3. If the information for an offense cognizable by the RTC is filed with the
MTC.
4. If a complaint filed for preliminary investigation is dismissed.
Q: When does first jeopardy TERMINATE: (2ND REQUISITE)
1. Acquittal
2. Conviction
3. Dismissal W/O the EXPRESS consent of the accused
4. Dismissal on the merits.
Q: When can the PROSECUTION appeal from an order of dismissal?
1. If dismissal is on motion of the accused.
Exception: If motion is based on violation of the right to a speedy
trial or on a demurrer to evidence.
2. If dismissal does NOT amount to an acquittal or dismissal on the
merits.
3. If the question to be passed upon is purely legal.
4. If the dismissal violates the right of due process of the prosecution.
5. If the dismissal was made with grave abuse of discretion.
Q: What are considered to be the “SAME OFFENSE”: (under the 1 st
sentence of Sec. 21)
1. Exact identity between the offenses charged in the first and second
cases.
2. One offense is an attempt to commit or a frustration of the other
offense.
3. One offense is necessarily included or necessary includes the other.
NOTE: Where a single act results in the violation of different laws or different
provisions of the same law, the prosecution for one will not bar the other so
long as none of the exceptions apply.
Q: What are supervening facts?
Under the Rules of Court, a conviction for an offense will not bar a prosecution
for an offense which necessarily includes the offense charged in the former
information where:
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1. The graver offense developed due to a supervening fact arising from
the same act or omission constituting the former charge.
2. The facts constituting the graver offense became known or were
discovered only after the filing of the former information.
3. The plea of guilty to the lesser offense was made without the consent
of the prosecutor and the offended party.
4. Under (1)(b), if the facts could have been discovered by the
prosecution but were not discovered because of the prosecution’s
incompetence, it would not be considered a supervening event.
Q: What is the effect of appeal by the accused?
If the accused appeals his conviction, he WAIVES his right to plead double
jeopardy. The whole case will be open to review by the appellate court. Such
court may even increase the penalties imposed on the accused by the trial
court.
Q: For failure of the witnesses for the prosecution to appear at the
arraignment of the accused and the pre-trial, will the revival of the case
place the accused in double jeopardy?
No. The absence of the witnesses is not a valid ground for the dismissal of the
case. The dismissal of the case is void. It denied the prosecution due process
because it deprived the prosecution the right to prove its case. (People vs. Tac-
an, 398 SCRA 373)
Q: An accused was acquitted by the trial court. The prosecution
questioned the acquittal by filing a petition for certiorari on the ground
that the appreciation of the evidence by the trial court was erroneous.
Should the petition be entertained?
No. It will violate the prohibition against double jeopardy. (Martin vs. Sultan,
366 SCRA 316)
Q: The law provided that the surviving spouse of a pensioner of the
Government Service Insurance System has no right to receive the
survivorship pension if they got married within three years before the
retirement of the petitioner. Is the law valid?
No. Since membership in the pension plan is mandatory, the pensioner has a
vested right to its benefits, which is protected by due process. Denying the
spouse the right to the survivorship pension without allowing the spouse to
prove the marriage was not contracted for financial reason. Besides, the law
violates equal protection. Even if the pensioner died more than three years after
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they contracted marriage, the spouse will still not receive the pension.
(Government Service Insurance System vs. Montesclaros, 434 SCRA 491)
ART. IV: CITIZENSHIP
Q: Who are citizens of the Philippines?
1. Those who are citizens of the Philippines at the time of the adoption of
the 1987 Constitution
2. Those whose fathers or mothers are citizens of the Philippines.
3. Those born before January 17, 1973 of Filipino mothers, who elect
Philippine citizenship upon reaching the age of majority.
4. Those who are naturalized in accordance with law.
Q: Distinguish dual citizenship from dual allegiance?
Dual citizenship arises when, as a result of the concurrent application of the
laws of two or more states, a person is simultaneously considered a citizen of
those states. Dual allegiance refers to the situation in which a person
simultaneously owes, by some positive act, loyalty to two or more states. Dual
nationality is involuntary and legal, while dual allegiance is voluntary and illegal.
(Mercado vs. Manzano, 307 SCRA 630)
Q: Is the illegitimate child of a Filipino father and an alien mother a
natural-born Filipino citizen and qualified to run for President?
Yes. When the Constitution provided that those whose fathers are citizens of the
Philippines are citizens of the Philippines, it makes no distinction between
legitimate and illegitimate children. It will violate equal protection to make a
distinction between the citizenship of the legitimate child of a Filipino father and
the citizenship of the illegitimate child of a Filipino father. Legitimacy or
illegitimacy has no relevance to elective public office. (Tecson vs. Commission
on Elections, 424 SCRA 277)
Q: Is it constitutional to allow a Filipino citizen who is a permanent
resident of a foreign country to register as an absentee voter if he
executes an affidavit declaring that he will resume actual physical
permanent residence in the Philippines within three years?
Yes. The residency requirement is not applicable to Filipinos abroad. The
affidavit serves as an expression of the Filipino abroad that he has not lost his
domicile in the Philippines. (Macalintal v. Commission on Elections, GR
157013, July 10, 2003).
Vena V. Verga
Q: Does an alien marrying a Filipino automatically become a Filipino?
No. The Supreme Court held that an alien woman marrying a Filipino citizen
does not by that fact alone become a Filipino. She has yet to prove that she has
all the qualifications and none of the disqualifications enumerated in Sections 2
and 4 of the Naturalization Law before she may be deemed a Filipino citizen
(Chan v. Galang).
ART. X: LOCAL GOVERNMENT
Q: A provision in the General Appropriations Act provided a portion of
the internal revenue allotment for local government units will be
released subject to the guidelines to be prescribed by the Oversight
Committee on Devolution. The guidelines required projects to be funded
to be approved by the Oversight Committee on Devolution. Is this
valid?
No. The guidelines make the release of the internal revenue allotment not
automatic. Under section 6, Article X of the Constitution, the internal revenue
allotment shall be automatically released. Besides, the provision amends the
Local Government Code. Congress cannot include matters that should be more
properly enacted in a separate legislation. (Province of Balayan vs. Romulo, 429
SCRA 81)
Q: Can a city be created by merging two municipalities?
Yes, Section 10, Article X of the Constitution allows the merger of local
government units to create a city. (Cawiling vs. COMELEC, 368 SCRA 453)
ART. XI: ACCOUNTABILITY OF PUBLIC OFFICERS
Q: Can former President Estrada be prosecuted even if he was not
convicted in the impeachment trial?
Yes. Section 3 (7), Article XI of the Constitution merely states the limited reach
of impeachment and the consequence of the judgment. It cannot extend further
than removal from office and disqualification to hold any other office, and the
party convicted shall be liable for prosecution. Conviction in the impeachment
proceedings is not a condition sine qua non to his prosecution. (Estrada vs.
Desierto, GR No. 146710, April 3, 2001)
Q: What are the grounds for impeachment?
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The grounds for impeachment are culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, and betrayal of public
trust.
Q: A complaint for impeachment was filed on June 2, 2003. It was
referred to the Committee on Justice on April 5, 2003. On Oct. 23, 2003,
a second complaint for impeachment was filed against the same public
officer. Can it be entertained?
No. Under sec. 3 (5), Article XI of the Constitution, no impeachment proceeding
shall be initiated against the same official more than once within a period of one
year. The intention of the framers of the Constitution was that the proceeding is
initiated when a verified complaint is filed and referred to the Committee on
Justice for action within a period of one year. (Francisco vs. House of
Representatives, 415 SCRA 44)
Q: What is an officer de jure?
An officer de jure is one who has the lawful right to the office in all respects, but
who has either been ousted by it, or who has never actually taken possession of
it.
Q: What is a usurper or intruder?
A usurper is one who has intruded upon the office and assumes to exercise its
functions without either lawful title or color of right to it. His acts therefore are
entirely void. He may however grow into an officer de facto if his assumption of
the office is acquiesced in.
Q: What is an officer de facto?
1. Without a known appointment or election, but under such
circumstances of reputation or acquiescence as were calculated to
induce people, without inquiry, to submit or invoke his action,
supposing him to be the officer he assumed to be, or when by general
reputation one is accepted as a public officer.
2. Under color of a known or valid appointment or election, but where the
officer failed to conform to some precedent, requirement or condition,
like the taking of an oath or the posting of a bond.
3. Under color of appointment or election but void, because the officer is
ineligible or the electing or appointing authority has no authority to
elect or appoint.
4. Under color of appointment or election pursuant to an unconstitutional
law before the same is adjudged as such.
Vena V. Verga
Q: What re the requisites of a de facto officer?
1. a validly created office
2. color of title or general recognition or reputation
3. physical possession
Q: What are the effects of the acts of a de facto officer?
Acts of a de facto officer are just as valid for all purposes as those of a de jure
officer as far as the public or third persons are concerned. But the acts done
must be such as might be lawfully done by an officer de jure or else such acts
will be void in all cases.
Q: What is the reason behind the doctrine of de facto public officers?
Public policy. It is meant to protect the interest of the public who can not in all
cases inquire into nor compel the officers to show title to the office.
Q: Is a de facto officer entitled to compensation?
Yes. In cases where there is no de jure officer, a de facto officer who in good
faith has had possession of the office and performed the duties pertaining
thereto is legally entitled to the compensation of the office and may in a proper
action recover the same. This is based on the grounds of equity where the one
who rendered service is actually compensated.
Q: What are the limitations on Congress in creating public offices?
1. Congress cannot prescribe additional qualifications to those which are
provided under the Constitution. (Supreme Court: The Civil Service
Commission cannot add to qualifications provided by law.)
2. The qualifications should not be detailed.
3. The qualifications should be germane to the office.
Q: What are the two modes of commencing official relations?
1. by appointment
2. by election
Q: What are the steps in the appointment of public officers?
If the appointment requires the confirmation of the Commission on
Appointments, the steps are as follows:
1. nomination
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 2. appointment
3. confirmation
4. acceptance
If the appointment requires no confirmation, the steps are as follows:
1. nomination
2. appointment
3. acceptance
Jack says that until the process of appointment is completed, the appointment
can still be withdrawn. In Binamira v. Garrucho, the Supreme Court held that it
is the President and not the Secretary of Tourism who has the authority to
appoint the General Manager of the Philippine Tourism Authority.
Q: X, 40 years old and a high school dropout was given a professional
appointment as policeman. He was suspended because of the filing of a
criminal case against him for infidelity in the custody of a prisoner.
Upon his acquittal, he sued for the payment of backwages
corresponding to the time of his suspension and reinstatement. May he
get paid and be reinstated?
No. He lacks the prescribed qualifications, being a high school dropout. He
cannot be reinstated. At best, he is a de facto officer who is merely entitled to
emoluments for actual services rendered. (Castillo v. Arrieta, 61 SCRA 55)
Q: X was elected Congressman. His opponent Y filed an electoral
protest. Y prevailed. Y now wants to recover X’s salary while X was in
office. Is Y correct?
No. X was a de facto officer who is entitled to emoluments for services
actually rendered. (Rodriguez v. Tan)
Q: Mayor X ran for Congressman. He changed his mind and decided to
be mayor again. Should he get paid for the time he ran for
congressman?
No. The Rodriguez case does not apply because when mayor X ran for
congress, he in effect had resigned form office. He did not even have a color of
title to make him a de facto officer. (Monroy case)
Q: The former judge issued an order granting a motion for
reconsideration. After the issuance of the order, the President
accepted his resignation. The order was promulgated by the clerk of
Vena V. Verga
court after the acceptance of the resignation of the judge. The judge
received a notice of the acceptance of his resignation after the
promulgation of the order. Respondent questioned the validity of the
order. Is he correct?
No. Acceptance is necessary for resignation of a public officer to be operative
and to be informed of the acceptance, the public officer should be notified. The
acts of the judge prior to the notification of acceptance are valid. The former
judge was at least a de facto officer. (Gamboa v. CA, 108 SCRA 1)
Q: A mayor was charged with violation of the Anti-Graft and Corrupt
Practices Act. He was suspended. As a result of his death, his case was
dismissed. His heirs tried to collect his salaries during his suspension.
Can the salaries be collected?
No. If a public officer is suspended because of a case filed against him and he
is acquitted or proven innocent, he is entitled to backwages. Dismissal of a
case because of death is not equivalent to an acquittal. (Malanyaon v. Lising,
106 SCRA 237)
ART. XII: NATIONAL ECONOMY AND PATRIMONY
Q: Is it valid to allow a foreign corporation to enter into a financial and
technical assistances agreement with the government involving the
management and operation of a mining enterprise?
Yes. Section 2, Article 12 of the Constitution allows other forms of assistance or
activities having to do all technical or financial assistance because it will not
prohibit the involvement of foreign corporations in the management of mining
ventures. Foreign corporations who will invest in mining will require that they be
given a say in the management to ensure its success. The Constitutional
Commission understood technical or financial agreements as interchangeable
with service contracts. (La Bugal-B’laan Tribal Association, Inc. vs. Ramos, 445
SCRA 1)
Q: Can the President take over privately-owned public utility or a
business affected with public interest as a result of a declaration of a
state of national emergency?
No. This requires a delegation from Congress. Since Section 17, Article XII and
Section 18, Article XII of the Constitution all relate to national emergencies,
they must be read together. The President has no authority to exercise the
powers under Section 17, Article XII without an Emergency Powers Act passed
by Congress. (David v. Arroyo, 489 SCRA 160)
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ART. XIV: EDUCATION, SCIENCE & TECHNOLOGY, ARTS, CULTURE AND
SPORTS
Q: Can a faculty member in a state university be charged with violation
of anti-graft and corrupt practices by giving students passing grades
without requiring them of regular classes and giving them reading
materials for self-study and holding tutorial meetings?
No. The academic freedom of the faculty member includes the right to
determine how he will teach. (Camacho vs. Gercio 387 SCRA 628)
ART. XVI: GENERAL PROVISIONS
Q: Mr. X filed an action for replevin against officers of the Department
of Environment and Natural resources because they seized the truck he
owned on the claim that he illegally cut lumber. Can the action be
entertained?
No. In the enforcement of the forestry code, the officers were performing their
duties as officers of the DENR within the limits of their authority. The suit
against them is a suit against the state without its consent. (Calub vs. CA, 331
SCRA 55)
Q: Can the Constitution be revised through initiative?
No. While the Constitution authorizes Congress and the Constitutional
Committee to amend or revise the Constitution, it only allows the people to
propose amendments through initiative. (Section 2, Article XVII of the
Constitution, Santiago vs. COMELEC, GR 127325, March 19, 1997)
LAW ON PUBLIC CORPORATIONS
Q: What is the two-fold character of a municipal corporation?
GOVERNMENTAL: it serves as an agent of the state in carrying on the functions
of government which the state cannot conveniently exercise, e.g. enforcement
of police regulations, suppression of crime, collection of taxes, eminent domain.
PROPRIETARY: it acts just like any private business corporation, e.g. operation
of waterworks, slaughterhouses, public markets, wharves, cemeteries.
Q: What is the importance of this distinction?
Vena V. Verga
Prior to the enactment of the Local Government Code, a municipal corporation
is not usually held liable for damages in the exercise of its governmental
functions. However, in the exercise of proprietary function, a municipal
government may be held liable. BUT in the light of Sec. 24 of the Local
Government Code which provides: Local government units and their officials are
not exempt from liability for death or injury to persons or damage to property,
this distinction is already immaterial. The municipal corporation and its officers
may be held liable in the exercise of its governmental and proprietary functions.
Q: Section 68 of the Revised Administrative Code authorized the
President to create, divide, or merge a municipality. Is this
constitutional?
NO. First, no standard for the delegation of the power was laid down. The
standard “public welfare” was for the transfer of capital. Second, the Code
provides that it is the Provincial Board (Sangguniang Panlalawigan) which
should create barrios, a unit smaller than a municipality. If the President is
devoid of any power to create a barrio, the more reason why he cannot create a
larger unit like a municipality.
Q: What are the requisites for the existence of a de facto municipal
corporation?
1. VALID LAW authorizing incorporation
2. ATTEMPT IN GOOD FAITH to organize under it
3. COLORABLE COMPLIANCE with the law
4. ASSUMPTION OF CORPORATE POWERS
Q: Is the municipality created by the President under Section 68 of the
revised Administrative Code a de facto municipal corporation?
No. There is no valid law authorizing its incorporation.
Q: Camarines Sur wants to expropriate a parcel of land to be used as a
housing project for government employees and as a pilot farm. Court
of Appeals denied petition of the province holding that it must first
obtain approval from the Dar because this involves conversion of land
for non-agricultural purposes. Is the Court of Appeals correct?
NO. The Supreme Court reversed the Court of Appeals decision. Both the LGC
and the CARL do not require prior approval of the DAR. To uphold CA’s decision
would put the power of eminent domain in the hands of the DAR and not the
LGU.
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Q: There were 14 members of the provincial board, one of them was
abroad. 7 members attended a session. As the vice-governor was
absent, one of the members presided. 6 members approved a proposal
to enter into contract. The member who was presiding also voted,
temporarily relinquishing the chair to another member for that purpose.
After voting, he resumed the chair. Was the proposal validly approved?
No. Since section 53 of the Local Government Code provides that a majority of
all the members of the provincial board constitute a quorum, the entire
membership must be considered in computing the quorum. The quorum should
be eight. A presiding officer cannot vote except to break a tie. The temporary
officer cannot have greater power than the regular presiding officer. (Zamora
vs. Caballero, 419 SCRA 384)
Q: Can a mayor require a company which sells eyeglasses not to put up
an optical clinic and not to employ optometrists?
No. In effect, the mayor is regulating the practice of optometrists. Such function
is within the exclusive domain of the PRC Board of Examiners in Optometry.
(Acebedo Optical Company v. CA, 329 SCRA 314)
Q: When an LGU sues or is sued, can it hire a private lawyer?
No. The LGU must be represented by its provincial/city/municipal attorney.
The implementing rules provide that if for some reason there is no
provincial/city/municipal attorney, the Provincial or City Prosecutor may
represent the LGU.
Q: Mayor was sued for damages for the unauthorized practice of law
while in public office. The Fiscal represented him. Can the Fiscal do
so?
Yes. In this case, the Mayor is sued in an action involving the performance of
his duties. Fiscal may represent him.
Q: The Mayor suspended an employee. He was sued by the employee.
The mayor hired a private lawyer. Can he do so?
Yes. The mayor acted illegally. He can hire a private lawyer.
Q: The province sued the Aboitiz Corporation for real estate taxes.
Baranggay intervened, claiming that under the law it is supposed to
have a share in the real estate taxes. The baranggay captain hired a
lawyer. The lawyer collected his fees. The baranggay says that the
Vena V. Verga
lawyer was illegally hired since it was without the baranggay council’s
authority. Is the council correct?
No. Although there is a need for a baranggay resolution, the council is deemed
to have acquiesced to the hiring of the poor private lawyer.
Q: Can an administrative case against a local elective official proceed if
he was re-elected?
No. The people by reelecting him are considered to have condoned his misdeed.
The fact that the misdeed was not made an issue during the election is of no
moment, because the people voted for him with knowledge of his character.
(Garcia vs. Mojica, 314 SCRA 207)
Q: A person who was elected mayor for two consecutive terms lost in
his bid for elections for a third term but won in the recall election
against the incumbent mayor. Can he run again for mayor immediately
upon the expiration of his term?
Yes. For the three term limit to apply, two conditions must concur: (1) the
officer concerned has been elected for three consecutive terms; and (2) he has
fully served the three consecutive terms. The victory in recall election should
not be counted in the computation of the term limitation so he did not fully
serve for three years. (Adormeo vs. COMELEC, 376 SCRA 40).
Q: Can a city require that tricycles be registered by it and that tricycle
drivers obtain a licenses from the city?
No. The Local Government Code did not delegate to local government unit the
functions of the Land Transportation Office regarding the registration of motor
vehicles and the issuance of driver’s licenses for tricycles. (Land Transportation
Office vs. City of Butuan, 322 SCRA 809).
Q: May an LGU close or open roads?
Yes. Pursuant to an ordinance, an LGU may permanently or temporarily close
or open a local road, alley, park or square falling within its jurisdiction. If it is a
permanent closure, the ordinance must be approved by at least 2/3 of the local
legislature, and when necessary, an adequate substitute for the public facility
that is subject to closure is to be provided. (Section 21, LGC)
Q: Does the City Mayor have the power to order the closure of a
business establishment?
Yes. The power to close emanates from the power to issue licenses or permits.
However, the mayor must observe due process before ordering the closure of a
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business establishment. He must give the applicant or licensee notice and
opportunity to be heard. (Lim vs. CA, GR 111397, August 12, 2002)
Q: What are the prohibited interests for local officials and employees?
It shall be unlawful for any local government official or employee, directly or
indirectly to:
1. Engage in any business transaction with the local government unit in
which he is an official or employee or over which he has the power of
supervision, or with any of its authorized boards, officials, agents, or
attorneys, whereby money is to be paid, or property or any other thing
of value is to be transferred, directly or indirectly, out of the resources
of the local government unit to such person or firm;
2. Hold such interests in any cockpit or other games licensed by a local
government unit.
3. Purchase any real estate or other property forfeited in favor of such
local government unit for unpaid taxes or assessment, or by virtue of a
legal process at the instance of the said local government unit.
4. Be a surety for any person contracting or doing business with the local
government unit for which a surety is required; and
5. Possess or use any public property of the local government unit for
private purposes.
All other prohibitions governing the conduct of national public officers
relating to prohibited business and pecuniary interest so provided for under
Republic Act Numbered Sixty-seven thirteen (R. A. No. 6713) otherwise
known as the "Code of Conduct and Ethical Standards for Public Officials
and Employees" and other laws shall also be applicable to local government
officials and employees. (Art 89, LGC)
Q: Can a governor, city, or municipal mayor practice their profession?
No. They are absolutely prohibited from practicing their profession and from
engaging in any occupation other than the exercise of the functions as local
chief executive.
Q: Can a sanggunian member practice his profession?
Yes, he may practice his profession, engage in any occupation, or teach in
schools, EXCEPT during session hours.
Q: How about sanggunian members who are members of the bar?
Vena V. Verga
They shall not:
1. appear as counsel before any CIVIL case where a LUG or any office or
agency or instrumentality of the government is an adverse party.
2. appear as counsel in any CRIMINAL case wherein an officer or
employee of the National Government or LGU is accused of an offense
committed in relation to his office.
3. collect any fee for their appearance in an administrative proceeding
involving the LGU of which he is an official; and
4. use property and personnel of the government EXCEPT where the
sanggunian member concerned is defending the interest of the
government.
Q: Can local elective officials who are doctors practice their profession?
Yes, they may practice their profession even during official hours of work only
on occasions of emergency PROVIDED they do not derive monetary
consideration therefrom.
Validity of Contracts Entered into by a Local Government Unit
Q: What are the requisites for the validity of contracts entered into by
a local government unit?
1. it must be within the power of the local legislature to execute
2. it must be signed by the local chief executive
3. it must have prior authorization by the local legislature
4. it must comply with substantial requirements prescribed by law *
5. it must conform with the formal requisites of contracts **
* e.g. in a contract entered into for the construction of public works, the
contract must be accompanied by a certification of the availability of funds; in a
contract to purchase entered into by the LGU, the Supreme Court held that a
CONTRACT to SELL is the minimum requirement for compliance
** only the LGU can invoke the lack of consent of the local chief executive
Civil Liability of Local Government Units
Q: Under what circumstances can an LGU be held civilly liable?
1. under Article 2189 of the Civil Code, provinces, cities and municipalities
hall be liable for damages for DEATH or INJURIES suffered by any
person due to defective roads, streets, bridges, public buildings, and
other public works UNDER THEIR CONTROL OR SUPERVISION *
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 2. under Article 34 of the Civil Code, when a member of a city or
municipal police force refuses or fails to render aid or protection to any
person in case of danger to life or property, such peace officer shall be
primarily liable for damages, and the city or municipality shall be
SUBSIDIARILY LIABLE.
* Article 2189 has been amended by Article 24 of the LGC where an LGU may
be held liable for DEATH or INJURY to persons or DAMAGE to property.
Q: Can an agent or official of the LGU be liable for damages pursuant to
acts which are legal on its face?
No. A suit for damages will not proper against the officers who acted pursuant
to orders which are patently legal and regular on its face. Public Officers may be
held liable for damages for violation of the constitutional rights of private
individuals or when they acted with malice or bad faith or where their acts were
ultra vires, otherwise, they are not liable for damages.
Q: If a private party sued an LGU, can the LGU’s properties be levied
upon?
The private person can only levy those properties by the LGU which are
patrimonial in character.
Q: What if the LGU has no patrimonial property?
The proper remedy is mandamus to compel the LGU to make an appropriation
of its budget to pay the liability.
Q: A city approved an ordinance which granted a company a franchise
to operate a cable television and which required the approval of the
Sangguniang Panglungsod for any change in the rates to be charged
the public. Is it valid?
No. Under Executive Order No. 205, the National Telecommunications
Commission has exclusive authority to grant certificates of authority to cable
television operators. Under Executive Order No. 436, the National
Telecommunications Commission has exclusive power to regulate cable
television operators. This includes the fixing of rates. (Batangas CATV, Inc. vs.
Court of Appeals, 439 SCRA 326).
ADMINISTRATIVE LAW
Vena V. Verga
Q: The distressed financial condition of a rural bank was used as a
subject of a case study in a seminar of employees of the Bangko Sentral
ng Pilipinas. The bank filed an administrative case against the Head of
the Supervision and Examination Department and the Director of the
Department of Rural Bank for violation of the law prohibiting disclosure
of the information about the conditions. Will the case prosper?
No. They were not the ones who conducted the seminar. They cannot be held
liable under the principle of command responsibility. Their immunity from
liability for the misfeasance of their subordinates rests upon considerations of
public policy, the necessities of public service, and the embarrassments of a
contrary doctrine. (Reyes v. Rural Bank of San Miguel, 429 SCRA 135)
Q: X questioned in court the validity of a regulation issued by the
Philippine Coconut Authority on the ground that it is contrary to law.
The Philippine Coconut authority moved to dismiss the case for the
failure of X to exhaust administrative remedies. Decide.
The rule on exhaustion of administrative remedies has no application to the
exercise of the rule making power of an administrative agency. Only the
exercise of its quasi-judicial function is subject to the doctrine. (Associations of
the Philippines Coconut Dessicators v. Philippine Coconut Authority, 285 SCRA
109)
Q: X, a police officer, was charged criminally and administratively for
shooting someone, He was acquitted in the criminal case. He claimed
that the administrative case should be dismissed. Is he right?
No. the administrative case is different from the criminal case. Since the
quantum of proof in an administrative case is different, the decision in it need
not be the same as in the criminal case. (Millares v. Go, 349 SCRA 596)
Q: Distinguish a regulation which is in the nature of subordinate
legislative power and interpretative regulation.
A delegation in the nature of subordinate legislation is designed to implement
law by providing its details. It must be published. An interpretative regulation is
designed to provide guidelines to the law, which the administrative agency is in
charge of enforcing. It need not be published. (Commission of Internal Revenue
v. Michel Lhuiller Pawnshop Inc., 453 SCRA 1043)
Q: What is the doctrine of exhaustion of administrative remedies and
what are the exceptions.
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The doctrine of exhaustion of administrative remedies requires that where the
remedy before an administrative agency is provided and can still be resorted to
by giving the said agency every opportunity to decide a matter that comes
within its jurisdiction, relief must be first sought by exhausting this remedy
before bringing an action or resorting to the courts of justice.
Exceptions:
1. private land
2. purely questions of law
3. quo warranto
4. denial of due process
5. patently illegal action
6. irreparable injury
7. estoppel
8. futility of resort to administrative remedies
9. decision of Department Secretaries (alter ego)
10. recovery of possession of public lands
11. unreasonable delay
12. poverty
13. public interest
14. requirement by law of immediate resort to judicial review
Q: Enumerate the exceptions to the rule that a regulation should be
published.
The following are the exceptions:
1. it is interpretative
2. it is merely for the internal administration of agency
3. it was issued by a superior to prescribe guidelines to be observed by his
subordinates in the performance of his duties.
Q: What is the doctrine of Primary Jurisdiction?
According to the doctrine of primary jurisdiction, even if a court had jurisdiction
over a case, if its determination requires the special knowledge of an
administrative body technical matters are involved, relief must first be obtained
in the administrative proceeding. (Industrial Enterprise Inc vs. CA, 184 SCRA
126).
Q: Are compensation and permanence required for public office?
No. Salary is not an element of public office. Continuity is not indispensable for
public office. (Laurel vs. Desierto, April 12, 2002)
Vena V. Verga
Q: A manager was unseated by the appeal board when someone
contested his appointment. Consequently, he was demoted. Later on,
the Court of Appeals reversed the decision of the Appeal Board and
ordered the reinstatement of the manager. Is he entitled to recover full
backwages from the person who contested his appointment?
No. Since the manager received compensation attached to the lower position,
only the salary differentials can be recovered from the person who contested his
appointment.(General Manager vs. Monserate, 381 SCRA 200)
Q: A public officer who was charged administratively was placed under
preventive suspension and was found guilty. He was ordered dismissed
and the decision was executed pending appeal. He was acquitted on
appeal. Is he entitled to backwages?
He is not entitled to backwages for the period of preventive suspension. The
Provision for payment of salaries during preventive suspension in case of
acquittal was deleted form the present law. Preventive suspension is authorized
by the Civil Service Law. However, he is entitled to backwages during the
enforcement of the decision of dismissal pending appeal because such is
punitive and considered illegal since the public officer was acquitted. (Gloria vs.
CA, 306 SCRA 287).
Q: Is a government employee who was dropped from service for
absence without leave entitled to retirement benefit?
Yes. Dropping him from the service is not disciplinary in nature. (Gonzales v.
Civil Service Commission, GR 105752, Sept. 2, 1993)
Q: Can a government employee who was dropped from the service, for
absence without leave apply for re-appointment?
Yes. Dropping him from the service is not disciplinary in nature. (Gonzales v.
Civil Service Commission, GR 105752, Sept. 2, 1993)
ELECTION LAW
Q: A person who was born in the United States of Filipino parents used
an American passport. He wanted to run for public office. His opponent
claims he is disqualified since he is not a Filipino citizen. Is his
opponent right?
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No. Since the candidate possesses dual citizenship, his use of the passport is
merely an assertion of his American Nationality. (Mercado vs. Manzano, 307
SCRA 630)
Q: A losing candidate for mayor filed an election protest. He died
during the pendency of the case. Can he be substituted?
Yes. He should be substituted by the vice mayor, the public officer who would
have succeeded him. (De Castro v. COMELEC, 267 SCRA 806). He cannot be
substituted by his heirs, since public office cannot be inherited. (Abeja v.
Tanada, 236 SCRA 60)
Q: Three losing candidates for councilor filed an election protest. The
revision of the ballots showed the two other losing candidates who
were not parties to the case were the ones who got the most votes. Can
they be proclaimed as winners?
Yes, since their votes surpassed those of the protestants, they should be
proclaimed elected even if they were not parties to the case. (Idulza v.
COMELEC, 427 SCRA 701)
Q: What is absentee voting?
It refers to the process by which qualified citizens of the Philippines abroad
exercise the right to vote. (Section 3(a) RA 9181)
Q: What are the requirements for a Filipino who is an immigrant to
register for absentee voting?
He must submit the following:
1. valid Philippine passport or certification by Department of Foreign
Affairs that he submitted documents for issuance of a passport or is a
holder of valid passport but cannot produce it for a valid reason
2. accomplished registration forms
3. affidavit declaring his intention to resume physical permanent residence
in the Philippines within 3 years of his registration (Section 8, RA
9189).
Q: What conditions are required for the declaration of failure of
elections?
Vena V. Verga
Two conditions must be established:
1. no voting took place on the date fixed by law or the election resulted in
failure to elect;
2. the votes cast will affect the result of the election. In turn, there are
three instances of failure of election:
a. the election was not held on the date fixed by law
b. the election was suspended
c. during the preparation and transmission of the election return
or in their custody or canvass, the election results in the failure
to elect. (Macabago vs. COMELEC, 392 SCRA 178)
Q: What circumstances may be considered as granting execution
pending appeal in case a prostestor wins an election contest?
A combination of any two or more of the following reasons suffice:
1. public interest or the will of the electorate
2. the shortness of the remaining term of the contested office; and
3. the length of time the election contest has been pending. (Santos
vs. COMELEC, 399 SCRA 611)
Q: Can tampering and falsification of the election returns be raised as
an issue in a pre-proclamation controversy?
No. In a pre-proclamation controversy, the Board of Canvassers cannot go
behind the election returns if they are regular on their face. Pre-proclamation
controversies are supposed to be disposed summarily without need to present
evidence. (Belac v. Commission on Elections, 356 SCRA 394)
Q: Can the Commission on Elections annul a proclamation because of an
error in the computation of votes in the statement of votes?
Yes, because of the error proclamation is void. (Torres v. Commission on
Elections, 270 SCRA 583)
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 ELECTION PROTEST QUO WARRANTO PRE-PROCLAMATION ANNULMENT OF ELECTION OFFENSE
CONTROVERSY PROCLAMATION
GROUNDS Fraud and irregularities in 1. Disloyalty to the Illegal composition and Proclamation based on Violation of Election Code
casting, counting of Republic proceedings of the Board irregular and illegal
votes, and election 2. Ineligibility of Canvassers canvass whether in the Commission of prohibited
incidents election returns, acts
Irregularities in certificate of canvass,
preparation, proceedings and
transmission, receipt, composition of board of
custody, and appreciation canvassers
of election returns and
certificates of canvass
VENUE President and VP: President and VP: Re: Board of Canvassers: Comelec Comelec Law Dept. for
Presidential Electoral Presidential Electoral with Board or with preliminary investigation,
Tribunal Tribunal Comelec then Courts for
prosecution
Senators: Senate Senators: Senate Re: Election Returns:
Electoral Tribunal Electoral Tribunal with Board of Canvassers

Representatives: House Representatives: House

of Rep. Electoral Tribunal of Rep. Electoral Tribunal

Regional/Provincial/City: Regional/Provincial/City:
Comelec Comelec

Municipal: RTC Municipal: RTC

EFFECT IF CASE Incumbent-protestee Incumbent-respondent Election return set aside Proclamation annulled Respondent penalized
PROSPERS removed from office dislodged Recount with fine, imprisonment,
Suspension of Filing suspends the disqualification to hold
If protestant gains Petitioner does not Proclamation running of the period public office or
highest number, he/she assume the petition. within which to file deprivation of right to
is proclaimed election protest or quo vote
Follow the rules on warranto
succession of officers or
conduct special elections
PETITIONER Any candidate for the Any voter Any candidate or political Any candidate or political Any voter
position party party
PERIOD Within 10 days from Within 10 days from Upon convening of Board Within 10 days from Within 5 years from
proclamation proclamation When election return proclamation commission
presented
Vena V. Verga - 19 -
Vena V. Verga - 20 -