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Public International Law Secretary, UP College of Law
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evolution, not inaugurated at any specific time reduces or deletes without altering the basic
but changing by accretion rather than by any principles involved. It affects only the specific
systematic method. [Cruz, ibid, p.5]. provision being amended. (Lambino v. Comelec. G.R.
No.174153. October 25, 2006). 12
3. Rigid v. flexible - A constitution is classified as
rigid when it may not be amended except Revision – broadly implies a change that alters a
through a special process distinct from and more basic principle in the constitution, like altering the
involved than the method of changing ordinary principle of separation of powers or the system of
laws. It is supposed that by such a special checks-and-balances. There is also revision if the
procedure, the constitution is rendered difficult change alters the substantial entirety of the
to change and thereby acquires a greater degree constitution, as when the change affects substantial
of stability. A constitution is classified as provisions of the constitution (Lambino v. Comelec.
flexible when it may be changed in the same G.R. No.174153. October 25, 2006).
manner and through the same body that enacts
ordinary legislation. The British Constitution is Difference between amendment and revision
flexible. Courts have long recognized the distinction between
an amendment and a revision of a constitution. xxx
Note: A constitution's stability depends upon other Revision broadly implies a change that alters a basic
factors than the mere rigidity or flexibility of the principle in the constitution, like altering the
amending process, such as (1) the general principle of separation of powers or the system of
temperament of the people and their leaders and (2) checks-and-balances. There is also revision if the
the degree of a nation's political maturity and social change alters the substantial entirety of the
homogenity. [Sinco 68-70] constitution, as when the change affects substantial
provisions of the constitution. On the other hand,
The Philippine Constitution is written, enacted and amendment broadly refers to a change that adds,
rigid. reduces, or deletes without altering the basic
principle involved. Revision generally affects several
The 1987 Constitution took effect on February 2, provisions of the constitution, while amendment
1987, the date of its ratification in the plebiscite generally affects only the specific provision being
held on the same date, and not on the date its amended [Lambino v. Comelec. G.R. No.174153.
ratification was proclaimed [De Leon v. Esguerra, October 25, 2006]. This distinction is significant
No.L-78059, August 31, 1987] because the 1987 Constitution allows people‘s
initiative only for the purpose of amending, not
State – a community of persons, more or less revising, the Constitution. (See tables below)
numerous, permanently occupying a definite portion
of territory, independent of external control, and Legal Test: The Court in Lambino considered the
possessing a government to which a great body of two-part test: the quantitative test and the
the inhabitants render habitual obedience; a qualitative test.
politically organized sovereign community
independent of outside control bound by ties of (1) The quantitative test asks whether the
nationhood, legally supreme within its territory, proposed change is ―so extensive in its
acting through a government functioning under a provisions as to change directly the ‗substantial
regime of law. [Collector of Internal Revenue v. entirety‘ of the constitution by the deletion or
Campos Rueda, No.L-13250, October 29, 1971] alteration of numerous existing provisions.‖ The
court examines only the number of provisions
II. Parts affected and does not consider the degree of
the change.
Parts of the Constitution (2) The qualitative test inquires into the qualitative
(1) Constitution of Government – establishes the effects of the proposed change in the
structure of government, its branches and their constitution. The main inquiry is whether the
operation. change will ―accomplish such far reaching
(2) Constitution of Sovereignty — provides how the changes in the nature of our basic governmental
Constitution may be changed.
plan as to amount to a revision.‖ Whether there
(3) Constitution of Liberty — states the fundamental
is an alteration in the structure of government is
rights of the people.
a proper subject of inquiry. Thus, ―a change in
[Lambino v. Comelec. G.R. No.174153. October 25, the nature of [the] basic governmental plan‖
2006] includes ―change in its fundamental framework
or the fundamental powers of its Branches.‖ A
III. Amendments and Revisions change in the nature of the basic governmental
plan also includes changes that ―jeopardize the
Article XVII – Amendments or Revisions traditional form of government and the system
of check and balances.‖ [See Lambino Case]
Amendment – refers to an addition or change within
the lines of the original constitution as will effect an
improvement, or better carry out the purpose for Steps in the Amendatory Process
which it was framed. It refers to a change that adds,
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
Amendments or Revisions
(Three Stages)
Proposal Submission Ratification
Both amendments and revisions
a. Congress, upon a vote of ¾ of all its members
b. Constitutional Convention The people, through a majority
1. Congress may, by a vote of 2/3 of all its Members, of the votes cast in a plebiscite
call a ConCon (Prevailing view) held not earlier than 60 days
2. By a majority vote of all its Members, submit to the Congress, through nor later than 90 days after the
electorate the question of calling such a a law calling for approval of such amendment or
convention (Sec.3) plebiscite revision
Amendments only
c. People, The people, through a majority
1.through initiative of the votes cast in a plebiscite
2.upon a petition of at least 12% of the total number held not earlier than 60 days
of registered voters, of which every legislative nor later than 90 days after the
district must be represented by at least three per certification by the COMELEC of
centum of the registered voters therein (Sec.2) the sufficiency of the petition.
Constitutional Basis:
―The State may not be sued without its consent.‖
*Image taken from: (Sec 3, Art XVI).
http://media.photobucket.com/image/philippine%20map%20image
%20international%20law/jibrael_2007/Jibrael%202008/map1_rpterri
tory.jpg International Law Basis:
“Par in parem non habet imperium”
Archipelagic Doctrine - The basic concept of an
archipelago is that body of water studded with Jurisprudential Basis:
islands, or the islands surrounded with water, is
viewed as a unity of islands and waters together (1) Positivist Theory - There can be no legal right
forming one unit. as against the authority that makes the laws on
which the right depends. Also called the
The archipelagic doctrine is the principle that it is doctrine of Royal Prerogative of Dishonesty.
an integrated unit; everything within it comprises [Kawananakoa v. Polyblank (1907)]
the archipelago.
(2) Sociological Theory - If the State is amenable
The Constitutional provisions embodying this to suits, all its time would be spent defending
doctrine are : itself from suits and this would prevent it from
performing it other functions. [Republic vs.
(1) "archipelago, with all the island and waters Villasor (1973)]
embraced therein"
A suit is against the State regardless of who is named
An archipelago is a body of water, studded with the defendant if:
islands. (1) It produces adverse consequences to the public
treasury in terms of disbursement of public
(2) "the waters around, between, and connecting funds and loss of government property.
the islands of the archipelago, regardless of the (2) Cannot prosper unless the State has given its
breadth and dimensions, form part of internal consent.
water"
In the following instances, it was held that the suit is
Treaty Limits of the Philippine Archipelago not against the State:
a. When the purpose of the suit is to compel an
(1) Treaty of Paris of 10 December 1898. officer charged with the duty of making
payments pursuant to an appropriation
Article 3 defines the metes and bounds of the made by law in favor of the plaintiff to
archipelago by longitude and latitude, degrees and make such payment, since the suit is
seconds. Technical descriptions are made of the intended to compel performance of a
scope of the archipelago as this may be found on the ministerial duty. [Begoso v. PVA (1970)]
surface of the earth. b. When from the allegations in the complaint, it
is clear that the respondent is a public
(2) Treaty of Washington of 7 November 1900 officer sued in a private capacity;
between the United States and Spain. c. When the action is not in personam with the
government as the named defendant, but
Ceding Cagayan, Sibuto and Sulu. an action in rem that does not name the
government in particular.
(3) Treaty of 2 January 1930 between the United
States and Great Britain. How the State’s consent to be sued is given
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
Sec. 2. A person desiring to avail himself of the Special Agent - One who receives a definite
privilege herein conferred must show that he has and fixed order or commission, foreign to
presented his claim to the Commission on Audit and the exercise of the duties of his office if he
that the latter did not decide the same within two is a special official. [Merritt v. Govt of the
months from the date of its presentation. Philippine Islands, (1916)]
(Civil Aeronautics Administration v. does not first consent to be sued. Liability is not
Court of Appeals, 167 SCRA 29). State conceded by the mere fact that the state has
may only be liable for proprietary acts allowed itself to be sued. When the state does
(jure gestionis) and not for sovereign waive its sovereign immunity, it is only giving the 19
acts (jure imperii). pltff the chance to prove, it can, that the def. is
liable. (US v. Ceballos, 182 SCRA 644)
Synthesis of the Rules
Incorporated Regardless of If the Charter III. Principles and Policies
whether it allows it to be
performs sued CAN be
governmental sued Art. II – Declaration of Principles and State Policies
or proprietary
functions Principles: (Sections 1- 6)
UNincorporated Governmental CANNOT be Binding rules which must be observed in the conduct
functions sued unless of government (Bernas)
consent is (1) The Philippines is a democratic and republican
given state (Section 1)
Proprietary CAN be sued
a. The Philippines under the new
functions
Constitution is not just a representative
government but also shares some
Suit against Public Officers – The doctrine of state
aspects of direct democracy such, for
immunity also applies to complaints filed against
instance, as the ―initiative and
officials of the State for acts perfomed by them in
referendum‖ under Article VI, Section
the discharge of their duties within the scope of
32 (Bernas)
their authority.
(2) Renunciation of war (Section 2)
Unauthorized acts of government officials or
a. Only refers to wars of aggression, not
officers are not acts of the State, and an
defensive war
action against the officials or officers by
one whose rights have been invaded or
(3) Adoption of the principle of international law
violated by such acts, for the protection of
(Section 2)
his rights, is not a suit against the State.
(4) Adherence to a policy of peace, freedom, and
The doctrine of immunity from suit will not amity with all nations (Section 2)
apply and may not be invoked where the
public official is being sued in his private (5) Civilian supremacy (Section 3)
and personal capacity as an ordinary a. Civilian authority (Section 3, Article II)
citizen, for acts without authority or in is not defeated in a joint task force
excess of the powers vested in him. between the PNP and Marines for the
[Lansang vs CA (2000)] enforcement of law and order in Metro
Manila as long as control is left to the
Caselaw provides that the following are well- PNP. [IBP v. Zamora (2000)]
recognized exceptions when a public officer MAY be
sued without the prior consent of the state: (6) Role of the armed forces (Section 3)
(1) To compel him to do an act required by a. Protector of the people and the State
law; b. Secure the sovereignty of the State and
(2) To restrain him from enforcing an act the integrity of the national territory
claimed to be unconstitutional;
(3) To compel the payment of damages from an (7) Compulsory military and civil service (Section 4)
already appropriated assurance fund or to a. Under conditions provided by law
refund tax over-payments from a fund
already available for the purpose; (8) Maintenance of peace and order, promotion of
(4) To secure a judgment that the officer general welfare (Section 5)
impleaded may satisfy by himself without
the State having to do a positive act to (9) Recognition of a hierarchy of rights [Bernas]
assist him; and a. Life
(5) Where the government itself has violated its b. Liberty
own laws. [Sanders v. Veridiano, 162 SCRA c. Property
88]. (10) Separation of Church and State (Section 6)
Scope of Consent: Suability v. Liability. There Policies: (Sections 7 – 28)
seems to be a failure to distinguish bet. suability and Guidelines for the orientation of the state [Bernas]
liability. Suability depends on the consent of the (1) Independent foreign policy (Section 7)
state to be sued, liability on the applicable law and (2) Freedom from nuclear weapons (Section 8)
the established facts. The circumstance that a state (3) Promote a just and dynamic social order
is suable does not necessarily mean that it is liable; (Section 9)
on the other hand, it can never be held liable if it
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
(4) Promote social justice in all phases of national the Republic of the Philippines).
development (Section 10)
(5) Personal dignity and human rights (Section 11) Checks and Balances
(6) Family as basic social institution (Section 12) 20
(7) Vital role of youth in nation-building (Section It does not follow from the fact that the three
13) powers are to be kept separate and distinct that the
(8) Role of women in nation-building (Section 14) Constitution intended them to be absolutely
(9) Fundamental equality before the law of women unrestrained and independent of each other. The
and men (Section 14) Constitution has provided for an elaborate system of
(10) Right to health (Section 15) checks and balances to secure coordination in the
(11) Right to a balanced and healthful ecology workings of the various departments of the
(Section 16) government. For example, the Chief Executive under
(12) Priority to education, science and technology, our Constitution is so far made a check on the
arts, culture, and sports (Section 17) legislative power that this assent is required in the
(13) Labor as a primary social economic force enactment of laws. This, however, is subject to the
(Section 18) further check that a bill may become a law
(14) Self-reliant and independent national economy notwithstanding the refusal of the President to
(Section 19) approve it, by a vote of two-thirds or three-fourths,
(15) Role of private sector (Section 20) as the case may be, of the National Assembly. The
(16) Comprehensive rural development and agrarian President has also the right to convene the Assembly
reform (Section 21) in special session whenever he chooses. On the other
(17) Recognition and promotion of rights of hand, the National Assembly operates as a check on
indigenous cultural communities (Section 22) the Executive in the sense that its consent through
(18) Community-based, sectoral organizations its Commission on Appointments is necessary in the
(Section 23) appointments of certain officers; and the
(19) Role of communication and information in concurrence of a majority of all its members is
nation-building (Section 24) essential to the conclusion of treaties. Furthermore,
(20) Autonomy of local governments (Section 25) in its power to determine what courts other than the
(21) Equal access for public service and prohibition Supreme Court shall be established, to define their
of political dynasties (Section 26) jurisdiction and to appropriate funds for their
(22) Honesty and integrity in public service (Section support, the National Assembly controls the judicial
27) department to a certain extent. The Assembly also
(23) Policy of full public disclosure (Section 28) exercises the judicial power of trying impeachments.
And the judiciary in turn, with the Supreme Court as
IV. Separation of Powers the final arbiter, effectively checks the other
departments in the exercise of its power to
determine the law, and hence to declare executive
The separation of powers is a fundamental principle and legislative acts void if violative of the
in our system of government. It obtains not through Constitution. [Angara v. Electoral Commission, G.R.
express provision but by actual division in our No. L-45081. July 15, 1936].
Constitution. Each department of the government
has exclusive cognizance of matters within its Delegation of Powers
jurisdiction, and is supreme within its own sphere.
But it does not follow from the fact that the three
GENERAL RULE on delegation of powers:
powers are to be kept separate and distinct that the Delegata potestas non potest delegari – what has
Constitution intended them to be absolutely been delegated can no longer be delegated. Since
unrestrained and independent of each other. The the powers of the government have been delegated
Constitution has provided for an elaborate system of to them by the people, who possess original
checks and balances to secure coordination in the sovereignty, these powers cannot be further
workings of the various departments of the delegated by the different government departments
government (Angara v. Electoral Commission, G.R. to some other branch or instrumentality of the
No. L-45081. July 15, 1936). government. The principle of non-delegation of
The government established by the Constitution powers is usually applied to legislative power. Since
follows fundamentally the theory of separation the legislative power of Congress is already a
of power into the legislative, the executive and delegated power given to them by the people (thru
the judicial (Anagara v. Electoral Commission, Article 1, Section VI of the Constitution), Congress
G.R. No. L-45081. July 15, 1936). cannot pass laws delegating such power to some
Separation of powers is not expressly provided other department, branch, or instrumentality of the
for in the Constitution. But it obtains from government.
actual division found in Section 1 of Articles VI,
VII, VIII, where the three great powers of the EXCEPTIONS:
government are canalized. (1) Subordinate legislation made by administrative
Separation of powers is founded on the belief agencies – Under the theory of Administrative
that, by establishing equilibrium among the Law, what is delegated is in fact not ―law-
three power holders, harmony will result, power making‖ power, but ―law-executing power.‖
will not be concentrated and thus tyranny will Hence, administrative agencies have the power
be avoided (Bernas, The 1987 Constitution of to ―fill up the details‖ of a statute passed by
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
preserve and defend the 1987 Constitution. Indeed, Republic of the Philippines)
she has stressed that she is discharging the powers of
the presidency under the authority of the 1987 RA 6735 – ―An Act Providing for a System of Initiative
Constitution. and Referendum and Appropriating Funds Therefore‖ 22
In fine, the legal distinction between EDSA People II. Houses of Congress
Power I EDSA People Power II is clear. EDSA I
involves the exercise of the people power of
Composition, Qualifications and Term of Office
revolution which overthrew the whole government.
EDSA II is an exercise of people power of freedom of Senate House of
speech and freedom of assembly to petition the (Art. VI secs. 2-4) Representatives
government for redress of grievances which only (Art. VI secs. 5-8)
affected the office of the President. EDSA I is extra- Compo- 24 senators Not more than 250
constitutional and the legitimacy of the new sition elected at large members, unless
government that resulted from it cannot be the otherwise
subject of judicial review, but EDSA II is intra- provided by law,
constitutional and the resignation of the sitting consisting of:
President that it caused and the succession of the i. District Repre-
Vice President as President are subject to judicial sentatives
review. EDSA I presented a political question; EDSA II ii. Party-List
involves legal questions. xxx Representa-
tives
Even if the petitioner can prove that he did not iii. Sectoral
resign, still, he cannot successfully claim that he is a Representa-
President on leave on the ground that he is merely tives
unable to govern temporarily. That claim has been Qualifi- Natural-born Natural-born
laid to rest by Congress and the decision that cations citizen citizens
respondent Arroyo is the de jure, president made by At least 35 At least 25 years
a co-equal branch of government cannot be years old on old on the day of
reviewed by this Court. [Estrada v Desierto/ Estrada the day of the the election
v GMA, (2001)] election Able to read and
Able to read write
and write Registered voter
C. Legislative Department A registered in the district he
I. Who May Exercise Legislative Power voter seeks to
II. Houses of Congress Resident of represent
III. Legislative Privileges, Inhibitions and the A resident of the
Disqualifications Philippines for said district for
IV. Quorum and Voting Majorities at least 2 at least 1 year
V. Discipline of Members years immediately
VI. Electoral Tribunals and the Commission on immediately preceding the
Appointments preceding the day of the
VII. Powers of Congress day of the election
election
I. Who May Exercise Legislative Power Term of 6 years 3 years
Office
Legislative power is the authority to make laws and Term 2 consecutive 3 consecutive
to alter and repeal them. It is vested in: Limits terms. terms.
(1) The Congress of the Philippines, which consists
of a Senate and a House of Representatives Senate
(2) The people to themselves, by the system of (Art. VI Secs. 2-4)
initiative and referendum (Art. VI, Sec. 1)
Composition: 24 senators elected at large
Grant of legislative power to Congress is plenary.
Congress may legislate on any subject matter Qualifications:
provided that the limitations are observed. 1) Natural-born citizen
2) At least 35 years old on the day of the
Initiative and Referendum election
The power of initiative and referendum is the power 3) Able to read and write
of the people directly to ―propose and enact laws or 4) A registered voter
approve or reject any act or law or part thereof 5) Resident of the Philippines for at least 2 years
passed by the Congress or local legislative body.‖ immediately preceding the day of the election
(Article VI, Section 32)
o The operationalization of initiative and Term of Office: 6 years, commencing at noon on
referendum has been left by the the 30th day of June next following their election
Constitution to Congress (Article VI, Section
32; Bernas, The 1987 Constitution of the Term Limits: only up to 2 consecutive terms.
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
Although a member of Congress shall not be The "intervention" was an afterthought to enable him
held liable in any other place for any to appear actively in the proceedings in some other
speech or debate in the Congress or in any capacity. [Puyat v De Guzman, (1982)]
committee thereof, such immunity, 25
although absolute in its protection of the Duty to disclose
member of Congress against suits for libel,
does not shield the member against the (1) A public officer or employee shall, upon
disciplinary authority of the Congress. assumption of office and as often as may be
[Osmena v. Pendatun, (1960)] required by law, submit a declaration under
Disqualifications oath of his assets, liabilities, and net worth.
(1) May not hold any other office or employment in (2) Cases wherein declaration shall be disclosed to
the government during his term without the public in the manner provided by law:
forfeiting his seat. (Art VI Sec 13) a. President
The provision refers to an Incompatible b. Vice-President
Office. Forfeiture of the seat in c. the Members of the Cabinet
Congress shall be automatic upon the d. the Congress
member‘s assumption of such office e. the Supreme Court
deemed incompatible. [Adaza v. f. the Constitutional Commissions and
Pacana, 135 SCRA 431]. other constitutional offices
g. officers of the armed forces with
(2) May not be appointed to any office created or general or flag rank (Art XI Sec 17)
the emoluments thereof were increased during
the term for which he was elected. (Art VI Sec (3) All Members of the Senate and the House of
13) Representatives shall, upon assumption of
The provision refers to a Forbidden office, make a full disclosure of their financial
Office. He cannot validly take the office and business interests.
even of he is willing to give up his seat.
They shall notify the House concerned of a
(3) Cannot personally appear as counsel before any potential conflict of interest that may arise from
court, electoral tribunal, quasi-judicial and the filing of a proposed legislation of which they
administrative bodies during his term of office. are authors. (Art VI Sec 12)
(Art VI Sec 14)
(4) The records and books of accounts of the
(4) Shall not be financially interested, directly or Congress shall be preserved and be open to the
indirectly, in any contract with, or franchise or public in accordance with law, such books shall
special privilege granted by the government be audited by the Commission on Audit which
during his term of office. (Art VI Sec 14) shall publish annually an itemized list of
amounts paid to and expenses incurred for each
(5) Shall not intervene in any matter before any Member. (Art VI Sec 20)
office of the government when it is for his
pecuniary benefit or where he may be called IV. Quorum and Voting Majorities
upon to act on account of his office. (Art VI Sec
14)
Quorum
Appearance as counsel: Certain salient
circumstances militate against the intervention of Majority of each House shall constitute a
Assemblyman Fernandez in the SEC Case. He had quorum.
acquired a mere P200.00 worth of stock in IPI, A smaller number may adjourn from day to day
representing ten shares out of 262,843 outstanding and may compel the attendance of absent
shares. He acquired them after the contested members.
election of Directors, after the quo warranto suit In computing a quorum, members who are
had been filed before SEC, and one day before the outside the country, thus outside of each
scheduled hearing of the case before the SEC. House‘s coercive jurisdiction, are not included.
Before he moved to intervene, he had signified his ―Majority‖ refers to the number of members within
intention to appear as counsel for respondent, but the “jurisdiction” of the Congress (those it can
which was objected to by petitioners. Realizing, order arrested for the purpose of questioning). In
perhaps, the validity of the objection, he decided, this case, one Senator was out of the Philippines
instead, to "intervene" on the ground of legal which is not within the ―jurisdiction‖ of the Senate,
interest in the matter under litigation. so that the working majority was 23 Senators.
Under those facts and circumstances that there has There is a difference between a majority of "all
been an indirect "appearance as counsel before ... members of the House" and a majority of "the
an administrative body" and that is a circumvention House", the latter requiring less number than the
of the Constitutional prohibition. first. Therefore, an absolute majority (12) of all
members of the Senate less one (23) constitutes
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
constitutional majority of the Senate for the purpose (Sec.17, Article VI)
of the quorum. [Avelino v. Cuenco, (1949)]
Composition
Voting Majorities 26
(1) 3 Supreme Court Justices to be designated
Doctrine of Shifting Majority – For each House of by the Chief Justice (The senior Justice in
Congress to pass a bill, only the votes of the the Electoral Tribunal shall be its
majority of those present in the session, there being Chairman).
a quorum, is required.
(2) 6 Members of the Senate or House, as the
―Majority of all Members of Congress‖ – case may be, chosen on the basis of
majority of the entire composition of proportional representation from the
Congress, regardless of the number of political parties and party-list organizations.
Members present or absent (e.g. [24 +
250/2] +1) (3) The ET shall be constituted within 30 days
after the Senate and the House shall have
―Majority of each House‖ – majority of all been organized with the election of the
Members actually present during the President and the Speaker.
session, provided there is a quorum
(4) Members chosen enjoy security of tenure
When should Congress: and cannot be removed by mere change of
Vote Separately: Vote Jointly: party affiliation. [Bondoc v. Pineda, 201
Choosing the President Revoking or extending SCRA 793].
(Article VII, Sec.4) the suspension of the
Determine President‘s privilege of writ of Valid grounds/Just cause for termination of
disability (Article VII, habeas corpus (Article membership to the tribunal:
Sec.11) VII, Sec.18) (1) Expiration of Congressional term of office;
Confirm the nomination of (2) Death or permanent disability;
the VP (Article VII, Sec.9) (3) Resignation form political party which one
Declaring State of War, in Revoking or extending represents in the tribunal;
joint session (Article VI, declaration of Martial (4) Removal from office for other valid reasons.
Sec.23 (1)) Law (Article VII, Sec.18)
Proposing Constitutional Note: Disloyalty to party and breach of party
Amendments (Article XVII, discipline, are not valid grounds for the expulsion of
Sec.1) – [subject to a member of the tribunal. [Bondoc v. Pineda, 201
debate] SCRA 793].
Each house may punish its members for Jurisdiction: be the sole judge of all CONTESTS
disorderly behavior, and with the concurrence of relating to the election, returns, and qualifications
2/3 of ALL its members: of their respective members.
(1) Suspension (shall not exceed 60 days) When does it acquire jurisdiction: ET has
(2) Expulsion jurisdiction only when there is an election contest.
VI. Electoral Tribunals and the Supreme Court has jurisdiction over the Electoral
Commission and the subject matter of the present
Commission on Appointments controversy for the purpose of determining the
character, scope and extent of the constitutional
grant to the Electoral Commission as "the sole judge
Electoral Tribunals of all contests relating to the election, returns and
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
qualifications of the members of the National (2) with grave abuse of discretion tantamount
Assembly." [Angara vs Electoral Commission (1936)] to denial of due process.
Note: Constitution mandates that the HRET ―shall be To question the jurisdiction of the lower court or the 27
the sole judge of all contests relating to the agency exercising judicial or quasi-judicial functions,
election, returns and qualifications‖ of its members. the remedy is a special civil action for certiorari
By employing the word ―sole,‖ the Constitution is under Rule 65 of the Rules of Court. The petitioner
emphatic that the jurisdiction of the HRET in the in such cases must clearly show that the public
adjudication of election contests involving its respondent acted without jurisdiction or with grave
members is exclusive and exhaustive. Its exercise of abuse of discretion amounting to lack or excess of
power is intended to be its own — full, complete and jurisdiction. Grave abuse of discretion defies exact
unimpaired. [Duenas Jr. v. HRET G.R. No. 185401, definition, but generally refers to "capricious or
2009] whimsical exercise of judgment as is equivalent to
lack of jurisdiction. The abuse of discretion must be
Independence of the Electoral Tribunals patent and gross as to amount to an evasion of
positive duty or a virtual refusal to perform a duty
Since the ET‘s are independent constitutional enjoined by law, or to act at all in contemplation of
bodies, independent even of the respective law, as where the power is exercised in an arbitrary
House, neither Congress nor the Courts may and despotic manner by reason of passion and
interfere with procedural matters relating to hostility. [Garcia vs HRET (1999)]
the functions of the ET‘s. [Co vs HRET, (1991)]
Commission on Appointments
The HRET was created to function as a (Sec 18, Art VI)
nonpartisan court although two-thirds of its
members are politicians. It is a non-political Composition
body in a sea of politicians.
(1) Senate President as ex-officio chairman
To be able to exercise exclusive jurisdiction, the (shall not vote except in case of a tie.)
House Electoral Tribunal must be independent. (2) 12 Senators
Its jurisdiction to hear and decide congressional (3) 12 Members of the House
election contests is not to be shared by it with
the Legislature nor with the Courts. "The The Commission on Appointments shall
Electoral Commission is a body separate from be constituted within 30 days after the
and independent of the legislature and though Senate and the House of
not a power in the tripartite scheme of Representative shall have been
government, it is to all intents and purposes, organized with the election of the
when acting within the limits of its authority, an President and the Speaker.
independent organ; while composed of a
majority of members of the legislature it is a The Commission on Appointments shall
body separate from and independent of the act on all appointments within 30
legislature. [Bondoc v. Pineda, (1991)] session days from their submission to
Congress.
not include the temporary alliances or session (ad-interim appointments) shall only be
factional divisions not involving severance effective:
of political loyalties or formal (1) Until disapproval by the Commission on
disaffiliation and permanent shifts of Appointments; OR 28
allegiance from one political party to (2) Until the next adjournment of Congress.
another. [Daza vs SIngson (1989)]
VII. Powers of Congress
The provision of Section 18 on
proportional representation is mandatory
in character and does not leave any a. Legislative
discretion to the majority party in the
Senate to disobey or disregard the rule on General (Sec Art VI)
proportional representation
(1) Legislative Powers: (Scope: vested in Congress
RATIONALE: The party with a majority by the Constitution except to the extent
representation in the Senate or the house reserved to the people by the provision on
of Representatives can by sheer force of initiative and referendum).
numbers impose its will on the hapless powers of appropriation,
minority. taxation
expropriation
By requiring a proportional authority to make, frame and enact
representation in the Commission on laws
Appointments, Section 18 in effect works
as a check on the majority party in the (2) Non-legislative Powers: (Scope)
Senate and helps to maintain the balance power to canvass the presidential
of power. No party can claim more than elections;
what it is entitled to under such rule. declare the existence of war;
[Guingona, Jr. vs Gonzales, (1993)] give concurrence to treaties and
amnesties;
Meetings propose constitutional amendments;
impeach;
(1) Commission on Appointments shall meet derivative and delegated power;
only while Congress is in session. implied powers such as the power to
(2) Meetings are held either at the call of the punish contempt in legislative
Chairman or by a majority of all its investigations.
members.
Specific Powers
Since the Commission on Appointments is (1) Constituent power
also an independent constitutional body, (2) Legislative Inquiries
its rules of procedure are also outside the (3) Appropriation
scope of congressional powers as well as (4) Taxation
that of the judiciary. (5) Concurrence in treaties and international
agreements
Jurisdiction (6) War powers and delegations powers
(2) Congress cannot by law require that the Legislative Inquiries and the Oversight Functions
appointment of a person to an office created by (Sec 21, Art VI)
such law shall be subject to confirmation by the
Commission on Appointments. Requisites:
(1) Must be in aid of legislation
Appointments extended by the President to the (2) In accordance with duly published rules of
above-mentioned positions while Congress is not in procedure
(3) Right of persons appearing in or affected by
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
such inquiries shall be respected period of time, only if Congress does not
affirmatively disapprove of the regulation in the
Note: The mere filing of a criminal or an meantime. Less frequently, the statute provides that
administrative complaint before a court or quasi- a proposed regulation will become law if Congress 29
judicial body should not automatically bar the affirmatively approves it.
conduct of legislative inquiry. [Standard Chartered
Bank v. Senate Committee on Banks, G.R. No. Note: Legislative supervision is NOT allowed under
167173, December 27, 2007] the Constitution. [Abakada Guro v. Purisima, G.R.
No. 166715, August 14, 2008]
Additional limitation: Executive Privilege
(Refer to Chap 4, III) (2) Bicameral Conference Committee
Categories of congressional oversight functions A bill can be passed jointly (when it is a joint
session, supra), or separately. In the latter case, it
The acts done by Congress purportedly in the can be passed simultaneously (when a bill is taken
exercise of its oversight powers may be divided into up by both houses separately but at the same time,
three categories, namely: scrutiny, investigation and or sequentially (when a bill originates form one
supervision. house and goes to the other house). There is no
problem if the bill is passed jointly. But if it is
(1) Scrutiny passed separately, the bill approved by one house
goes to the other house, which can amend such bill.
Congressional scrutiny implies a lesser intensity and Once the other house approves the bill, this is called
continuity of attention to administrative operations. the other house's version of the bill.
Its primary purpose is to determine economy and
efficiency of the operation of government activities. A Conference Committee is then organized,
In the exercise of legislative scrutiny, Congress may composed of equal number of members from the
request information and report from the other Senate and the House, to make recommendations to
branches of government. It can give the respective chambers on how to reconcile the two
recommendations or pass resolutions for versions of the bill. The respective members are
consideration of the agency involved. usually granted blanket authority to negotiate and
reconcile the bills. At the end of the process, the
(2) Congressional investigation committee comes up with a "Conference Committee
Report", which is then submitted to the respective
While congressional scrutiny is regarded as a passive chambers for approval.
process of looking at the facts that are readily
available, congressional investigation involves a (3) Limitations on Legislative Power
more intense digging of facts. The power of Congress
to conduct investigation is recognized by the 1987 Formal or Procedural Limitations (Prescribes the
Constitution under section 21, Article VI. manner of passing bills in the form they should
take)
(3) Legislative supervision (Legislative Veto)
(1) Every bill passed by the Congress shall embrace
The third and most encompassing form by which only one subject which shall be expressed in the
Congress exercises its oversight power is thru title. [Sec. 26(1), Art. VI]
legislative supervision. "Supervision" connotes a The title is not required to be an index
continuing and informed awareness on the part of a of the contents of the bill. It is
congressional committee regarding executive sufficient compliance if the title
operations in a given administrative area. While both expresses: (1) the general subject and
congressional scrutiny and investigation involve (2) all the provisions of the statute are
inquiry into past executive branch actions in order to germane to that subject. [Tio v.
influence future executive branch performance, Videogram Regulatory Commission,
congressional supervision allows Congress to 151 SCRA 208]
scrutinize the exercise of delegated law-making
authority, and permits Congress to retain part of (2) No bill passed by either house shall become law
that delegated authority. unless it has passed 3 readings on separate days.
[Sec. 26(2), Art. VI]
Congress exercises supervision over the executive
agencies through its veto power. It typically utilizes (3) Printed copies in its final form have been
veto provisions when granting the President or an distributed to its members 3 days before the
executive agency the power to promulgate passage of the bill. [Sec. 26(2), Art. VI].
regulations with the force of law. These provisions
require the President or an agency to present the Exception: President certifies to the necessity
proposed regulations to Congress, which retains a of its immediate enactment to meet a public
"right" to approve or disapprove any regulation calamity or emergency
before it takes effect. Such legislative veto
provisions usually provide that a proposed regulation It was held that the presidential certification
will become a law after the expiration of a certain dispensed with the requirement not only of
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
printing but also that of reading the bill on (4) Procedure in approving appropriations FOR THE
separate days. [Tolentino v. Secretary of CONGRESS shall strictly follow the procedure for
Finance] approving appropriations for other departments
and agencies. 30
Substantive Limitations (Circumscribe both the (5) No law shall be passed authorizing any transfer
exercise of the power itself and the allowable of appropriations. However, the following may,
subject of legislation) BY LAW, be authorized to AUGMENT any item in
the general appropriations law for their
Express limitations: respective offices from savings in other items of
(1) On general powers - Bill of Rights [Art. III] their respective appropriations:
(2) On taxation [Secs. 28 and 29(3), Art. VII] (a) President
(3) On appropriation [Secs. 25 and 29(1) and (2), (b) Senate President
Art VI] (c) Speaker of the House
(4) On appellate jurisdiction of the SC [Sec. 30, Art. (d) Chief Justice of the Supreme Court
VI]
(e) Heads of the Constitutional
(5) No law granting title of royalty or nobility shall
Commissions
be passed [Sec. 31, Art. VI]
Guidelines for disbursement of DISCRETIONARY
Implied Limitations:
FUNDS appropriated FOR PARTICULAR OFFICIALS:
(1) No power to pass irrepealable law
(1) For public purposes
(2) Non-encroachment on powers of other
(2) To be supported by appropriate vouchers
departments
(3) Subject to such guidelines as may be prescribed
(3) Non-delegability of powers
by law
(a) Limitations on Revenue,
If Congress fails to pass the general appropriations
Appropriations and Tariff Measures
bill by the end of any fiscal year:
(1) The general appropriations bill for the previous
Appropriations
year is deemed reenacted
(2) It shall remain in force and effect until the
General Limitations:
general appropriations bill is passed by
(1) Appropriations must be for a PUBLIC PURPOSE.
Congress.
(2) Cannot appropriate public funds or property,
directly or indirectly, in favor of
1. Any sect, church, denomination, or
For Special Appropriations Bill
sectarian institution or system of religion or
(1) Shall specify the purpose for which it is intended
2. Any priest, preacher, minister, or
(2) Shall be supported by funds actually available as
other religious teacher or dignitary as such.
certified by the National Treasurer or to be
raised by corresponding revenue proposal
EXCEPTION: if the priest, etc is assigned to:
therein
1. the Armed Forces;
2. any penal institution;
Limitation on Use of Public Funds (Sec 29, Art VI):
3. government orphanage;
(1) No money shall be paid out of the National
4. leprosarium
Treasury EXCEPT in pursuance of an
appropriation made by law.
(3) Government is not prohibited from
(2) However, this rule does not prohibit continuing
appropriating money for a valid secular purpose,
appropriations, e.g. for debt servicing, for the
even if it incidentally benefits a religion, e.g.
reason that this rule does not require yearly or
appropriations for a national police force is valid
annual appropriation.
even if the police also protects the safety of
clergymen.
Four phases of Government’s budgeting process:
(1) Budget preparation
(4) Also, the temporary use of public property for
(2) Legislative authorization
religious purposes is valid, as long as the
(3) Budget execution
property is available for all religions.
(4) Budget accountability
Specific Limitations
Taxation (Sec 28, Art VI)
For General Appropriations Bills
(1) Congress may not increase the appropriations
Nature
recommended by the President for the
operation of the Government as specified in the
Sec 28 is an enumeration of the limits on the
budget.
inherent and otherwise unlimited power
(2) Form, content and manner of preparation of the
budget shall be prescribed by law.
Purposes
(3) No provision or enactment shall be embraced in
the general appropriations bill unless it relates
(1) Pay debts and provide for the common defense
specifically to some particular appropriation
and general warfare;
therein.
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
item which in itself is a specific appropriation of Senate of the Philippines, G.R. No. 163556, June 8,
money, not some general provision of law, which 2004].
happens to be put into an appropriation bill.'"
Even after Congress has adjourned its regular 32
The president cannot veto unavoidable obligations session, it may continue to perform this
such as the payment of pensions which has already constitutional duty of canvassing the presidential
been vested by the law. and vice-presidential election results without need
of any call for a special session by the President. The
b. Non-Legislative joint public session of both Houses of Congress
(1) Informing Function convened by express directive of the Constitution to
canvass the votes for and to proclaim the newly-
elected President and Vice-President has not, and
D. Executive Department cannot, adjourn sine die until it has accomplished its
constitutionally mandated task. Only when a board
I. Privileges, Inhibitions and Disqualifications of canvassers has completed its functions is it
II. Powers rendered functus officio. [Aquilino Pimentel Jr. v.
Joint Committee of Congress to Canvass the votes
The President cast for President and Vice-President, G.R. No.
163783, June 22, 2004].
Qualifications:
(1) Natural-born citizen of the Philippines; If the COMELEC is proscribed from conducting an
(2) A registered voter; official canvass of the votes cast for the President
(3) Able to read and write; and Vice-President, it is, with more reason,
(4) At least forty years of age on the day of the prohibited from making an ―unofficial‖ canvass of
election; and said votes. [Brillantes v. COMELEC, G.R. No. 163193,
(5) A resident of the Philippines for at least ten June 15, 2004]
years immediately preceding such election.
[Sec. 2, Art. VII] The Supreme Court as Presidential Electoral
Tribunal: The Supreme Court, sitting in banc, shall
Election: be the sole judge of all contests relating to the
(1) Regular Election – Second Monday of Monday election, returns and qualifications of the President
(2) Congress as canvassing board – Returns of every or Vice-President, and may promulgate its rules for
election for President and Vice President, duly the purpose.
certified by the board of canvassers of each
province or city, shall be transmitted to Term of Office: 6 years which shall begin at noon on
Congress, directed to the Senate President the 30th day of June next following the day of the
who, upon receipt of the certificates of election and shall end at noon of the same day 6
canvass, shall, not later than 30 days after the years thereafter. [Sec. 4, Art. VII]
day of the election, open all the certificates in
the presence of the Senate and the House of NOT eligible for re-election: President.
Representatives in joint public session, and the Note: No person who has succeeded as President and
Congress, upon determination of the has served for more than 4 years shall be qualified
authenticity and due execution thereof in the for election to the same office for any length of
manner provided by law, canvass the votes. time. [Sec. 4, Art. VII]
Congress shall promulgate its rules for the
canvassing of the certificates. In case two or
more candidates shall have an equal and I. Privileges, Inhibitions and
highest number of votes, one of them shall be Disqualifications
chosen by a majority vote of all the memers of
Congress. [Art. VII, Sec. 4] President
Jurisprudence on Canvassing: Privileges
(1) Official residence
Congress may validly delegate the initial
determination of the authenticity and due execution (2) Salary. Determined by law; shall not be
of the certificates of canvass to a Joint decreased during tenure. No increase shall
Congressional Committee, composed of members of take effect until after the expiration of the
the House of Representatives and of the Senate. The term of the incumbent during which such
creation of the Joint Committee does not constitute increase was approved.
grave abuse and cannot be said to have deprived
petitioner and the other members of Congress of (3) Immunity from Suit.
their congressional prerogatives, because under the
very Rules under attack, the decisions and final (4) Executive Privilege. It is the right of the
report of the said Committee shall be subject to the President and high-level executive branch
approval of the joint session of both Houses of officials to withhold information from
Congress, voting separately. [Ruy Elias Lopez v. Congress, the courts, and ultimately, the
public.
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
prohibition but are properly an imposition of The President can assume ex officio
additional duties and function on said officials. [Civil positions. E.g. The President is the
Liberties Union v Executive Secretary, (1991)] Chairman of NEDA. (Sec. 9, Art XII)
34
C. Prohibitions against other officials (2) Vice-President
(1) No Senator or Member of the House of ―xxx The Vice-President may be appointed
Representatives, during his term, may: as member of the Cabinet. Such
Hold any other office or appointment requires no confirmation‖ [Sec
employment in the Government, or 3, Art VII]
any of its subdivisions, agencies, or
instrumentalities including GOCCs or (3) Cabinet
their subsidiaries; OR The Secretary of Justice shall be an
Be appointed to any office which ex-officio member of the Judicial
may have been created or the and Bar Council. [Sec. 8(1), Art VIII]
emoluments thereof increased
during the term for which he was Unless otherwise allowed by law or
elected. [Sec. 13, Art VI]. by the primary functions of his
position, appointive officials shall
(2) No member of the Constitutional not hold any other office or
Commission during his term, shall: employment in the Government or
any subdivision, agency or
Hold any other office or instrumentality thereof, including
employment; government- owned or controlled
Engage in the practice of any corporations or their subsidiaries.
profession or in the active [Sec. 7, Art IX-B]
management or control of any
business which in any way may be Art. VII, Sec. 13 talks of "unless
affected by the functions of his otherwise provided by the
office; OR Constitution." In the case of
Be financially interested, directly or Cabinet members, this refers to Art.
indirectly, in any contract with, or IX, B, 7, par. 2.
in any franchise or privilege granted
by the Government, any of its Thus, the Constitution allows a
subdivisions, agencies, or Cabinet member to hold another
instrumentalities, including office provided either:
government-owned or controlled i. such is necessitated by the primary
corporations or their subsidiaries. functions of his position (e.g.
[Sec. 2, Art IX-A]. Secretary of Trade and Industry as
(3) No elective official during his tenure shall Chairman of NDC and Secretary of
be eligible for appointment or designation Agrarian Reform as Chairman of the
in any capacity to any public office or Land Bank)
position. [Sec. 7. Art IX B] ii. such is allowed by law
Makasiar (1988)]
Synthesis of Jurisprudential doctrines
Petitioners theorize that the present petition for (1) For the privilege to apply there must be a
prohibition is improper because the same attacks an formal claim of the privilege. Only the 35
act of the President, in violation of the doctrine of President or the Executive Authority (by
presidential immunity from suit. Petitioners‘ authority of the President) can invoke the
contention is untenable for the simple reason that privilege.
the petition is directed against petitioners and not
against the President. The questioned acts are those (2) A formal and proper claim of executive privilege
of petitioners and not of the President. requires a specific designation and description
Furthermore, presidential decisions may be of the documents within its scope as well as
questioned before the courts where there is grave precise and certain reasons for preserving their
abuse of discretion or that the President acted confidentiality. Without this specificity, it is
without or in excess of jurisdiction. [Gloria v. impossible for a court to analyze the claim
Court of Appeals, G.R. No. 119903, August 15, 2000] short of disclosure of the very thing sought to
be protected. [Senate v. Ermita, supra]
Immunity co-extensive with tenure. After tenure,
the Chief Executive cannot invoke immunity from (3) Once properly invoked, a presumption arises
suit for civil damages arising out of acts done by him that it is privileged. If what is involved is the
while he was President which were not performed in presumptive privilege of presidential
the exercise of official duties. [Estrada v. Desierto, communications when invoked by the President
G.R. Nos. 146710-15, March 2, 2001] on a matter clearly within the domain of the
Executive, the said presumption dictates that
the same be recognized and be given
b. Presidential Privilege preference or priority, in the absence of proof
of a compelling or critical need for disclosure
Definition: The power of the Government to by the one assailing such presumption. [Neri v.
withhold information from the public, the courts, Senate Committees, G.R. No. 180843, March
and the Congress. [Schwart] It as "the right of the 25, 2008]
President and high-level executive branch officers to
withhold information from Congress, the courts, and (4) Three elements needed to be complied with in
ultimately the public." [Rozell] order for the claim to executive privilege to be
valid. These are:
Varieties of Executive Privilege:
(1) State secrets privilege - invoked by U.S. (a) the protected communication must
Presidents, beginning with Washington, on the relate to a quintessential and non-
ground that the information is of such nature delegable presidential power (may
that its disclosure would subvert crucial military be validly claimed by the executive
or diplomatic objectives. department only in cases where the
power subject of the legislative
(2) Informer’s privilege - the privilege of the inquiry is expressly granted by the
Government not to disclose the identity of Constitution to the President i.e. the
persons who furnish information of violations of commander-in-chief, appointing,
law to officers charged with the enforcement of pardoning, and diplomatic powers);
that law.
(b) it must be authored, solicited, and
(3) Generic privilege for internal deliberations - received by a close advisor of the
has been said to attach to intragovernmental President or the President himself.
documents reflecting advisory opinions, The judicial test is that an advisor
recommendations and deliberations comprising must be in ―operational proximity‖
part of a process by which governmental with the President (the availability of
decisions and policies are formulated. [Senate v. executive privilege only to officials
Ermita, G.R. No. 163783, June 22, 2004] who stand proximate to the
President, not only by reason of their
Scope: This jurisdiction recognizes the common law function, but also by reason of their
holding that there is a "governmental privilege positions in the Executive‘s
against public disclosure with respect to state organizational structure); and,
secrets regarding military, diplomatic and other
national security matters." The same case held that (c) it may be overcome by a showing of
closed-door Cabinet meetings are also a recognized adequate need, such that the
limitation on the right to information. information sought ―likely contains
important evidence,‖ and by the
Note: Executive privilege, is properly invoked in unavailability of the information
relation to specific categories of information and not elsewhere by an appropriate
to categories of persons. Only the President (and the investigating authority. [Neri v.
Executive Secretary, by order of the President) can Senate, supra]
invoke the privilege. [Senate v. Ermita, supra]
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
The President shall have control of all the executive (2) Commission – written evidence of the
departments, bureaus, and offices. He shall ensure appointment.
that the laws be faithfully executed [Sec 17, Art VII].
Classification of Power of Appointment:
The Court held that as administrative head of There are 4 groups of officers whom the Pres may
the government, the President is vested appoint:
with the power to execute, administer and (1) Heads of the Executive Department,
carry out laws into practical operation. ambassadors, other public ministers and
[National Electrification Commission vs. CA consuls, officers of the armed forces from
(1997)] the rank of colonel or naval captain and
other officers whose appointments are
The powers of the President cannot be said to be vested in him;
limited only to the specific power enumerated in the
Constitution. In other words, executive power is (2) All other officers of the government whose
more than the sum of specific powers so appointments are not otherwise provided by
enumerated. law;
The framers did not intend that by enumerating the (3) Those whom the President may be
powers of the Pres, he shall exercise those powers authorized to appoint;
and no other.
(4) Officers lower in rank whose appointments
These unstated residual powers are implied from the Congress may by law vest in the President
grant of executive power and which are necessary alone.
for the Pres to comply with his duties under the
Constitution. [Marcos vs Manglapus (1989)] Note: Heads of bureaus were deliberately removed
from the provision of appointments requiring
The President has the authority to carry out a confirmation and were included in the 4th group and
reorganization of the Department of Health under hence, their appointments no longer need
the Constitution and statues. This authority is an confirmation. [Sarmiento vs Mison, (1987)]
adjunct of the President‘s power of control under
art. VII, secs 1 and 17, and it is also an exercise of Steps in the appointing process:
his ―residual powers‖. However, the President must (1) Nomination by the President
exercise good faith in carrying out the reorganization (2) Confirmation by the Commission on
of any branch or agency of the executive Appointments
department. [Malaria Employees and Workers (3) Issuance of the Commission
Association of the Philippines, Inc. v. Romulo, G.R. (4) Acceptance by the appointee
No. 160093, July 31, 2007]
Note: In the case of ad interim appointments, steps
b. Power of Appointment 1, 3 and 4 precedes step 2.
vested according to his best lights, the only confirmed. The SC dismissed this view however,
condition being that the appointee, if issued a saying that the inclusion of the word "alone" was an
permanent appointment, should possess the oversight. Thus, the Constitution should read "The
minimum qualification requirements, including the Congress may, by law, vest the appointment of other 37
Civil Service eligibility prescribed by law for the officers lower in rank in the President."
position. This discretion also includes the
determination of the nature or character of the Limitations on appointing power of the President
appointment. (1) The spouse and relatives by consanguinity or
affinity within the 4th civil degree of the
Confirmation is not required when the President President shall not, during his "tenure", be
appoints other government officers whose appointed as (sec 13, Art VII):
appointments are not otherwise provided for by law a. members of the Constitutional
or those officers whom he may be authorized by law Commissions,
to appoint (like the Chairman and Members of the b. member of the Office of
Commission on Human Rights). Also, as observed in Ombudsman,
Sarmiento v. Mison, when Congress: c. Secretaries,
d. Undersecretaries,
(1) creates inferior offices but omits to provide for e. Chairmen or heads of bureaus or
appointment thereto, or provides in an offices, including government-owned or
unconstitutional manner for such controlled corporations and their
appointments; or subsidiaries.
(2) the officers are considered as among those (2) The President shall have the power to make
whose appointments are not otherwise appointments during the recess of the
provided for by law. Congress, whether voluntary or compulsory,
but such appointments shall be effective
Upon Recommendation of the Judicial and Bar only until disapproval by the Commission on
Council Appointments or until the next adjournment
(1) Members of the Supreme Court and all other of the Congress. [Sec 16(2), Art VII]
courts. (Sec 9, Art VIII)
Appointments need no confirmation. (3) Appointments extended by an acting
For lower courts, appointment shall be issued President shall remain effective unless
within 90 days from submission of the list revoked by the elected President within 90
days from his assumption of office [Sec. 14,
(2) Ombudsman and his 5 deputies (for Luzon, Art. VII] This is limited to presidential
Visayas, Mindanao, general and military) Sec 9 appointments. There is no law that
Art XI. prohibits local executive officials from
Such appointments shall require no making appointments during the last days of
confirmation. their tenure. [De Rama v. Court of Appeals,
All vacancies shall be filled within three G.R. No. 131136, February 28, 2001]
months after they occur.
Interim or recess appointments
Appointment of Vice-President as Member of the
Cabinet (Sec 3, Art.VII) a. Regular and recess (ad-interim)
Appointment requires NO confirmation appointments
Appointments solely by the President (Sec. 16, Art Appointments requiring confirmation are of two
VII) kinds
(1) Those vested by the Constitution on the (1) regular, if the CA, that is, Congress, is in
President alone (e.g. appointment of Vice- session;
President to the Cabinet) [Art. VII, Sec. 3(2)]
(2) Those whose appointments are not otherwise (2) during the recess of Congress (because the
provided by law. Commission shall meet only while Congress
(3) Those whom he may be authorized by law to is in session [Art. VI, Sec. 19].
appoint.
(4) Those other officers lower in rank whose Regular appointment - one made by the President
appointment is vested by law in the President while Congress is in session, takes effect only after
(alone). The phraseology is muddled: confirmation by the Commission on Appointments,
and once approved, continues until the end of the
Sarmiento v Mison (1987): term of the appointee.
In arguing that even bureau chiefs needed
confirmation even if they are of inferior rank, the Ad-interim appointment - one made by the
basis was the phrase, "the Congress may, by law, President while Congress is not in session, takes
vest in the appointment of other officers lower in effect immediately, but ceases to be valid if
rank in the President alone". This meant that until a disapproved by the Commission on Appointments or
law is passed giving such appointing power to the upon the next adjournment of Congress. (Art. VII,
President alone, then such appointment has to be Sec. 16, par. 2)
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
case, the President prohibited a general from contemplated by Section 23 (2), Article VI. [Sanlakas
attending a hearing at the Senate. However, the v Executive Secretary (2004)]
ability of the President to require a military official
to secure prior consent before appearing before Assailed is PP1017 (Declaration of State of 40
Congress pertains to a wholly different and National Emergency). It is different from the
independent specie of presidential authority—the law in Sanlakas as this proclamation was woven
commander-in-chief powers of the President. By out of the ―calling out‖ and ―take care‖ powers
tradition and jurisprudence, the commander-in-chief of the President joined with the ―temporary
powers of the President are not encumbered by the takeover‖ provision under Art. XII, section 17.
same degree of restriction as that which may attach
to executive privilege or executive control. The PP1017 purports to grant the President, without
commander-in-chief provision in the Constitution is authority or delegation from Congress, to take over
denominated as Section 18, Article VII, which begins or direct the operation of any privately-owned public
with the simple declaration that ―the President shall utility or business affected with public interest.
be the Commander-in-Chief of all armed forces of
the Philippines x x x‖ Outside explicit constitutional The SC held that while the President could validly
limitations, such as those found in Section 5, Article declare the existence of a state of national
XVI, the commander-in-chief clause vests on the emergency even in the absence of a Congressional
President, as commander-in-chief, absolute enactment, the exercise of the emergency powers,
authority over the persons and actions of the such as the taking over of privately-owned public
members of the armed forces. Such authority utility or business affected with public interest,
includes the ability of the President to restrict the requires a delegation from Congress which is the
travel, movement and speech of military officers, repository of emergency powers.
activities which may otherwise be sanctioned under
civilian law. [Gudani v. Senga, G.R. No. 170165, PP1017 did not authorize said temporary take over
August 15, 2006]. without authority from Congress. [David v. Arroyo
Graduated Powers - Sec. 18, Art VII, grants the (2006)]
President, as Commander-in-Chief, a ―sequence‖ of
―graduated power[s].‖ From the most to the least a.Suspend the privilege of the writ of
benign, these are: the calling out power, the power habeas corpus
to suspend the privilege of the writ of habeas
corpus, and the power to declare martial law. In the "Writ of habeas corpus" is an order from the court
exercise of the latter two powers, the Constitution commanding a detaining officer to inform the court
requires the concurrence of two conditions, namely, (1) if he has the person in custody, and
an actual invasion or rebellion, and that public (2) his basis in detaining that person.
safety requires the exercise of such power.
However, as we observed in Integrated Bar of the "Privilege of the writ" is that portion of the writ
Philippines v. Zamora, ―[t]hese conditions are not requiring the detaining officer to show cause why he
required in the exercise of the calling out power. should not be tested. Note that it is the privilege
The only criterion is that ‗whenever it becomes that is suspended, not the writ itself.
necessary,‘ the President may call the armed forces
‗to prevent or suppress lawless violence, invasion or Requisites:
rebellion.‘ [Sanlakas v. Executive Secretary, 2004] (1) There must be an invasion or rebellion, and
(2) The public safety requires the suspension.
Call out the AFP to prevent lawless
violence Duration: Not to exceed 60 days unless extended by
Congress.
This is merely a police measure meant to quell
disorder. As such, the Constitution does not regulate Effects of the suspension of the privilege:
its exercise radically. (1) The suspension of the privilege of the writ
applies only to persons "judicially charged"
It is not disputed that the President has full for rebellion or offenses inherent in or
discretionary power to call out the armed forces and directly connected with invasion [Sec. 18(5),
to determine the necessity for the exercise of such Art. VII].
power. While the Court may examine whether the Such persons suspected of the above
power was exercised within constitutional limits or crimes can be arrested and detained
in a manner constituting grave abuse of discretion, without a warrant of arrest.
none of the petitioners here have, by way of proof, The suspension of the privilege does
supported their assertion that the President acted not make the arrest without warrant
without factual basis. The President, in declaring a legal. But the military is, in effect,
state of rebellion and in calling out the armed enabled to make the arrest, anyway
forces, was merely exercising a wedding of her Chief since, with the suspension of the
Executive and Commander-in-Chief powers. These privilege, there is no remedy available
are purely executive powers, vested on the against such unlawful arrest (arbitrary
President by Sections 1 and 18, Article VII, as detention).
opposed to the delegated legislative powers The arrest without warrant is justified
by the emergency situation and the
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
difficulty in applying for a warrant the writ of habeas corpus before the lapse
considering the time and the number of of 60 days from the date of suspension or
persons to be arrested. proclamation.
The crime for which he is arrested must 41
be one related to rebellion or invasion. (2) Upon such proclamation or suspension,
As to other crimes, the suspension of Congress shall convene at once. If it is not
the privilege does not apply. in session, it shall convene in accordance
with its rules without need of a call within
(2) During the suspension of the privilege of the 24 hours following the proclamation or
writ, any person thus arrested or detained suspension.
shall be judicially charged within 3 days, or
otherwise he shall be released. [Sec. (3) Within 48 hours from the proclamation or
18(6),Art. VII] the suspension, the President shall submit a
The effect of the suspension of the report, in person or in writing, to the
privilege, therefore, is only to extend Congress (meeting in joint session of the
the periods during which he can be action he has taken).
detained without a warrant. When the
privilege is suspended, the period is (4) The Congress shall then vote jointly, by an
extended to 72 hours. absolute majority. It has two options:
What happens if he is not judicially
charged nor released after 72 hours? (a) To revoke such proclamation or
The public officer becomes liable under suspension. When it so
Art. 125 for "delay in the delivery of revoked, the President cannot set
detained persons." aside (or veto) the revocation as he
normally would do in the case of
(3) The right to bail shall not be impaired even bills.
when the privilege of the writ of habeas (b) To extend it beyond the 60-day
corpus is suspended. [Sec. 13,Art. III] period of its validity. Congress
can only so extend the proclamation
b. Proclaim Martial Law or suspension upon the initiative of
the President.
Requisites:
(1) There must be an invasion or rebellion, and The period need not be 60 days; it
(2) Public safety requires the proclamation of could be more, as Congress would
martial law all over the Philippines or any determine, based on the persistence of
part thereof. the emergency.
The following cannot be done [Sec. 18 (4), Art. VII] Note: If Congress fails to act before the measure
(1) Suspend the operation of the Constitution. expires, it can no longer extend it until the
(2) Supplant the functioning of the civil courts President again re-declares the measure.
and the legislative assemblies.
(3) Confer jurisdiction upon military courts and Congress cannot "validate" the
agencies over civilians, where civil courts proclamation or suspension, because it
are able to function. is already valid.
"open court" doctrine If Congress extends the measure, but
holds that civilians cannot be tried before the period of extension lapses
by military courts if the civil courts the requirements for the proclamation
are open and functioning. or suspension no longer exist, Congress
if the civil courts are not can lift the extension, since the power
functioning, then civilians can be to confer implies the power to take
tried by the military courts. back.
Martial law usually contemplates a If Congress does not review or lift the
case where the courts are already order, this can be reviewed by the
closed and the civil institutions Supreme Court pursuant to the next
have already crumbled, that is a section.
"theater of war." If the courts are
still open, the President can just The Role of the Supreme Court [Art. VII, Sec. 18,
suspend the privilege and achieve par. 3]
the same effect. (1) The Supreme Court may review, in an
(4) Automatically suspend the privilege of the appropriate proceeding filed by any citizen, the
writ of habeas corpus. sufficiency of the factual basis of:
The President must suspend the (a) the proclamation of martial law or
privilege expressly. the suspension of the privilege of
the writ, or
The Role of Congress [Art. VII, Sec. 18, pars. 1-2] (b) the extension thereof. It must
(1) Congress may revoke the proclamation of promulgate its decision thereon
martial law or suspension of the privilege of within 30 days from its filing. [Sec
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
(2) The jurisdiction of the SC may be invoked in a The assertion of military authority over
proper case. civilians cannot rest on the President's 42
power as Commander in Chief or on any
(3) Petition for habeas corpus theory of martial law. As long as civil
(a) When a person is arrested without a courts remain open and are regularly
warrant for complicity in the functioning, military tribunals cannot try
rebellion or invasion, he or someone and exercise jurisdiction over civilians for
else in his behalf has the standing to offenses committed by them and which
question the validity of the are properly cognizable by civil courts.
proclamation or suspension. To hold otherwise is a violation of the
(b) Before the SC can decide on the right to due process. [Olaguer vs Military
legality of his detention, it must Commission No. 34 (1987)]
first pass upon the validity of the
proclamation or suspension. (5) Pardoning Power
external relations and is the country‘s sole the Senate. From the point of view of
representative with foreign nations. As the chief international law, there is no difference
architect of foreign policy, the President acts as the between treaties and executive agreements
country‘s mouthpiece with respect to international in their binding effect upon states 44
affairs. Hence, the President is vested with the concerned as long as the negotiating
authority: functionaries have remained within their
(1) to deal with foreign states and powers. The distinction between an
governments; executive agreement and a treaty is purely
(2) extend or withhold recognition; a constitutional one and has no
(3) maintain diplomatic relations; international legal significance. [USAFFE
(4) enter into treaties; and Veterans Assn. vs Treasurer (1959)]
(5) transact the business of foreign relations.
[Pimentel v. Executive Secretary, G. R. No. Two Classes of Executive Agreements
158088, July 6, 2005] (1) Agreements made purely as executive acts
affecting external relations and independent
(a) Treaty-making power of or without legislative authorization,
No treaty or international agreement shall be valid which may be termed as presidential
and effective unless concurred in by at least two- agreements; and
thirds of all the members of the Senate. [Sec 21, Art (2) Agreements entered into in pursuance of
VII] acts of Congress, or Congressional-Executive
Agreements.
Treaty - as defined by the Vienna Convention on the
Law of Treaties, is ―an international instrument Although the President may, under the American
concluded between States in written form and constitutional system enter into executive
governed by international law, whether embodied in agreements without previous legislative authority,
a single instrument or in two or more related he may not, by executive agreement, enter into a
instruments, and whatever its particular transaction which is prohibited by statutes enacted
designation.‖ [Bayan v. Executive Secretary, G.R. prior thereto. Under the Constitution, the main
No. 138570, October 10, 2000]. function of the Executive is to enforce laws enacted
by Congress. The former may not interfere in the
Other terms for a treaty: act, protocol, agreement, performance of the legislative powers of the latter,
compromis d’ arbitrage, concordat, convention, except in the exercise of his veto power. He may not
declaration, exchange of notes, pact, statute, defeat legislative enactments that have acquired the
charter and modus vivendi. status of law, by indirectly repealing the same
through an executive agreement providing for the
Note: It is the President who RATIFIES a treaty (not performance of the very act prohibited by said laws.
the Senate), the Senate merely CONCURES. [Bayan [Gonzales v Hechanova (1963)]
v. Executive Secretary]
The issue in this case is the constitutionality of the
Executive Agreements VFA. The SC held that once the Senate performs the
Entered into by the President power to concur with treaties or exercise its
Needs no concurrence. prerogative within the boundaries prescribed by the
International agreements involving political Constitution, the concurrence cannot be viewed as
issues or changes in national policy and an abuse of power, much less a grave abuse of
those involving international agreements of discretion. The President, in ratifying the VFA and
permanent character usually take the form submitting the same for concurrence of the Senate,
of TREATIES. But the international acted within the confines and limits of the power
agreements involving adjustments in detail vested in him by the Constitution. The President
carrying out well-established national merely performed a constitutional task and
policies and traditions and those involving a exercised a prerogative that chiefly pertains to the
more or less temporary character usually functions of his office. [Bayan vs Executive Secretary
take the form of EXECUTIVE AGREEMENTS. [ (2000)]
Commissioner of Customs vs. Eastern Sea
Trading (1961)] (b) Deportation of undesirable aliens
The agreement is not a "treaty" as the term is
used in the Constitution. The agreement The President may deport only according to grounds
was never submitted to the Senate for enumerated by law since it would be unreasonable
concurrence. It must be noted that a treaty and undemocratic to hold that an alien be deported
is not the only form that an international upon an unstated or undefined ground depending
agreement may assume. For the grant of merely on the use of an unlimited discretion by the
treaty making power to the Executive and President. [Qua Chee Gan vs Deportation Board
the Senate does not exhaust the power of (1963]
the government over international rela-
tions. 2 ways of deporting an undesirable alien:
Consequently, executive agreements may be (1) by order of the President after due
entered into with other states and are investigation, pursuant to section 69 of the
effective even without the concurrence of Revised Administrative Code
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
RULES ON SUCCESSION
47
President
Death or permanent disability Vice-President-elect shall
of the President-elect become President
President-elect fails to qualify Vice-President-elect shal act as
President until the President-
elect shall have qualifiedl
President shall not have been Vice-President-elect shall act as
chosen President until a President shall
Vacancy have been chosen and
at the qualified.
Beginning No President and Vice-President President of the Senate or In the event of inability of the
of the chosen nor shall have qualified, incase of his inability, officials mentioned, Congress
term or both shall have died or Speaker of the House of shall, by law, provide for the
become permanently disabled Representatives, shall act as manner in which one who is to
President until a President or a act as President shall be
Vice-President shall have been selected until a President or
chosen and qualified. Vice-President shall have
qualified.
Death, permanent disability, Vice-President-elect shall
removal from office, or become President
resignation of the President
Death, permanent disability, Senate President or, in case of
removal from office, or his inability, the Speaker of the
resignation of President and House of Representatives, shall
Vacancy Vice-President act as President until a
during Presidnet or Vice-President
the term shall be elected and qualified.
Congress, by law, shall provide
for the manner in which one is
to act as President in the event
of inability of the officials
mentioned above.
When President transmits to Such powers and duties shall be
the Senate President and the discharged by the Vice-
Speaker of the House his President as Acting President,
written declaration that he is until the President transmits to
unable to discharge the powers them a written declaration to
and duties of his office the contrary
When a Majority of all the the Vice-President shall
members of the Cabinet immediately assume the powers
transmit to the Senate Presdent and duties of the office as
and the Speaker their writted Acting President until the
declaration that the President President transmits to the
is unable to discharge the Senate President and Speaker
powers and duties of his office his written declaration that no
Temporary inability exists.
disability If after the President transmits Congress determines by a 2/3 Congress shall convene, if not
his declaration of his ability to vote of both houses, voting in session, within 48 hours. And
discharge his office, and a separately, that the President if within 10 days from receipt
majority of members of the is unable to discharge the of the last written declaration
Cabinet transmit within 5 days powers and dutes of his office, or, if not in session, within 12
to the Senate President and the Vice-President shall act as days after it is required to
Speaker their written President; otherwise, the assemble.
declaration that the President President shall continue
is unable to discharge the exercising the powers and
powers and duties of his office, duties of his office
Congress shall decide the issue.
JUDICIAL POWER JUDICIAL
REVIEW
enforceable, and conformity with
Constitutional duty of Congress in case of vacancy to determine the Constitution
in the offices of President and Vice-President whether or not [Angara v.
there has been a Electoral
At 10 o‘clock in the morning of the 3rd day after the grave abuse of Commission
vacancy occurs, Congress shall convene without need discretion (1936)]
of a call, and within 7 days enact a law calling for a amounting to lack
special election to elect a President and a Vice- or excess of
President to be held not earlier than 45 nor more jurisdiction on the
than 60 days from the time of such call. The bill part of any branch
shall be deemed certified and shall become law upon or instrumentality
its approval on third reading by Congress. xxx the of the Government
Convening of Congress cannot be suspended nor the [Art. VIII, Sec. 1,
special election postponed. xxx No special election Par. 2]
shall be called if the vacancy occurs within 18 Requisites Jurisdiction – 1.Appropriate
months before the date of the next presidential for power to decide case: actual
election. exercise and hear a case case or
and execute a controversy
Vice-President decision thereof 2.Standing:
Sec. 9 Art. VII The President shall nominate a Vice- personal and
President from among the members of the Senate substantial
and the House of Representatives who shall assume interest
office upon confirmation by a majority vote of all 3.Question raised
the members of both houses of Congress voting at the earliest
separately. opportunity
4.Lis mota of the
case
D. Judicial Department
When the judiciary mediates to allocate
I. Concepts
constitutional boundaries, it does not assert any
II. Judicial Indepdence Safeguards
superiority over the other departments; it does not
III. Judicial Restraint
in reality nullify or invalidate an act of the
IV. Appointments to the Judiciary
legislature, but only asserts the solemn and sacred
V. Supreme Court
obligation assigned to it by the Constitution to
determine conflicting claims of authority under the
I. Concepts Constitution and to establish for the parties in an
actual controversy the rights which that instrument
a. Judicial Power (Section 1, Article VIII) secures and guarantees to them. This is in truth all
that is involved in what is termed "judicial
Judicial power includes the duty of the courts of upremacy" which properly is the power of judicial
justice to: review under the Constitution. (Angara v. Electoral
(a) settle actual controversies involving rights which Commission, 1936)
are legally demandable and enforceable, and
(b) to determine whether or not there has been a Functions of Judicial Review
grave abuse of discretion amounting to lack or i. Checking
excess of jurisdiction on the part of any branch ii. Legitimating
or instrumentality of the Government. iii. Symbolic
Vested in: Supreme Court and in such lower courts This means that there must be a genuine conflict of
as may be established by law. legal rights and interests which can be resolved
through judicial determination. (John Hay vs. Lim,
b. Judicial Review 2003)
JUDICIAL POWER JUDICIAL
REVIEW This precludes the courts from entertaining the
Where Supreme Court Supreme Court following:
vested Lower courts Lower courts
Definition Duty to settle Power of the i. Request for an advisory opinion [Guingona vs.
actual courts to test the CA, (1998)]
controversies validity of
involving rights executive and ii. Cases that are or have become moot and
which are legally legislative acts in academic, UNLESS ---
demandable and light of their a. there is a grave violation of the Constitution;
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
b. the exceptional character of the situation and unconstitutional laws cannot be the basis of any
the paramount public interest is involved; legal right or duty, it is not sufficiently realistic in
c. when constitutional issue raised requires admitting that prior to the declaration of nullity,
formulation of controlling principles to such challenged act must have been in force and had 49
guide the bench, the bar, and the public; to be complied with. Refusing to recognize what had
d. fourth, the case is capable of repetition yet transpired prior to such adjudication will deprive the
evading review.[capable of repetition yet law of its quality of fairness and justice.
evading review [Alunan III v. Mirasol,
(1997); Sanlakas v. Executive Secretary, The actual existence of a stature, prior to such a
(2004)]; or determination of unconstitutionality, is an operative
e. when the court feels called upon to exercise fact and may have consequences which cannot be
its symbolic function and provide future justly ignored. [De Agbayani v. PNB (1971)]
guidance [Salonga v. Paño, (1985)]
Effect of a Declaration of Unconstitutionality
b. Standing: NOT the same as “real party in a. Orthodox view
interest” An unconstitutional act is not a law; it confers no
rights; it imposes no duties; it affords no protection;
A proper party is one who has sustained or is in it creates no office; it is inoperative, as if it had not
imminent danger of sustaining a direct injury as a been passed at all.
result of the act complained of (IBP v. Zamora,
2000). The alleged injury must also be capable of b. Modern view
being redressed by a favorable judgment [Tolentino Pelaez v. Auditor General, (1965)
v. Comelec, 2004]. Certain legal effects of the statute prior to
its declaration of unconstitutionality may
i. Requires partial consideration of the merits of be recognized. [NACHURA]
the case in view of its constitutional and public
policy underpinnings [Kilosbayan vs Morato, (2) Moot Questions
(1995)] One requirement for the exercise of judicial power is
ii. May be brushed aside by the court as a mere the ripeness of the controversy.
procedural technicality in view of This means it must be raised not too early that
transcendental importance of the issues it is conjectural or anticipatory, nor too late
involved [Kilosbayan vs Guingona, 1994]; [Tatad that it becomes moot. HOWEVER, there are
vs DOE, (1995)}. exceptions to the mootness doctrine: When the
iii. Who are proper parties? issue is capable of repetition yet evading
Taxpayers, when public funds are involved review.
(Tolentino vs Comelec, 2004)
Government of the Philippines, when (3) Political Question Doctrine
questioning the validity of its own laws
(People vs Vera, 1937) The term ―political question‖ refers to: (1)
Legislators, when the powers of Congress are matters to be exercised by the people in their
being impaired (Philconsa vs Enriquez, primary political capacity; or (2) those
1994). specifically delegated to some other
Citizens, when the enforcement of a public department or particular office of the
right is involved Tañada vs Tuvera, (1985). government, with discretionary power to act.
It is concerned with issues dependent upon the
c. Constitutional question must be raised at the wisdom, not legality, of a particular measure.
earliest possible opportunity, except: [Tañada v. Cuenco, (1957)]
i. in criminal cases, at the discretion of the court In recent years, the Court has set aside this
ii. in civil cases, if necessary for the determination doctrine and assumed jurisdiction whenever it
of the case itself found constitutionally-imposed limits on the
iii. when the jurisdiction of the court is involved exercise of powers conferred upon the
Legislative and Executive branches [BERNAS].
d. Decision on the constitutional question must be
determinative of the case itself. POLITICAL QUESTION JUSTICIABLE
The reason for this is the doctrine of separation of CONTROVERSY
powers which requires that due respect be given to Alejandrino v. Quezon, Avelino v. Cuenco,
the co-equal branches, and because of the grave (1924): The legislature‘s (1949): election of
consequences of a declaration of unconstitutionality. exercise of disciplinary Senate President was
(De la Llana v. Alba, 1982) power over its member done without the
is not to be interfered required quorum
(1) Operative Fact Doctrine with by the Court.
Vera v. Avelino, (1946): Tañada v. Cuenco,
Even if a law was stricken off as unconstitutional, inherent right of the (1957): The selection of
courts shall still give recognition to its operative legislature to determine the members of the
effects that inhered when it still took effect. who shall be admitted to Senate Electoral Tribunal
its membership is subject to
Although the orthodox view holds that
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
POLITICAL QUESTION JUSTICIABLE (2) The members of the judiciary are not subject
CONTROVERSY to confirmation by the CA.
constitutional
limitations. (3) The members of the SC may not be removed 50
Mabanag v. Lopez-Vito, Cunanan v. Tan, Jr., except by impeachment. (Art. IX, Sec. 2.)
(1947): Proposal to (1962): The Commission
amend the Constitution on Appointments is a (4) The SC may not be deprived of its minimum
is a highly political constitutional creation original and appellate jurisdiction as
function performed by and does not derive its prescribed in Art. X, Sec. 5 of the Consti.
Congress in its sovereign power from Congress. (Art. VIII, Sec. 2.)
capacity.
Osmeña v. Pendatun, Gonzales v. Comelec, (5) The appellate jurisdiction of the SC may not
(1960): disciplinary (1967); Tolentino v. be increased by law w/o its advice and
power of the legislature Comelec, (1971): concurrence. (Art. VI, Sec. 30.)
abandoned Mabanag v.
Lopez-Vito (6) The SC now has administrative supervision
Severino v. Governor- Lansang v. Garcia, over all lower courts and their personnel.
General, (1910): (1971): Suspension of the (Art. VIII, Sec. 6.)
Mandamus and privilege of the writ of
injunction could not lie habeas corpus is not a (7) The SC has exclusive power to discipline
to enforce or restrain a political question. judges of lower courts. (Art. VIII, Sec. 11.)
duty which is
discretionary (calling a (8) The members of the SC and all lower courts
special local election). have security of tenure, w/c cannot be
Montenegro v. Javellana v. Executive undermined by a law reorganizing the
Castañeda, (1952): Secretary, (1973): WON judiciary. (Id.)
Authority to decide the 1973 Constitution
whether the exigency had been ratified in (9) They shall not be designated to any agency
has arisen requiring the accordance with the performing quasi-judicial or administrative
suspension of the 1935 Constitution is functions. (Art. VIII, Sec. 12.)
privilege of the writ of justiciable.
habeas corpus belongs to (10) The salaries of judges may not be reduced
the President. during their continuance in office. (Art. VIII,
Manalang v. Quitoriano, Sec. 10.)
(1954): President‘s
appointing power is not (11) The judiciary shall enjoy fiscal autonomy.
to be interfered with by (Art. VIII, Sec. 3.)
the Court.
Javellana v. Executive Fiscal autonomy means freedom from
Secretary, (1973): The outside control. As the Court explained
people may be deemed in Bengzon v. Drilon: As envisioned in
to have cast their the Constitution, the fiscal autonomy
favorable votes in the enjoyed by the Judiciary, the Civil
belief that in doing so Service Commission and the
they did the part Commission on Audit, the Commission
required of them by on Elections, and the Office of the
Article XV, hence, it may Ombudsman contemplates a guarantee
be said that in its of full flexibility to allocate and utilize
political aspect, which is their resources with the wisdom and
what counts most, after dispatch that their needs require. It
all, said Article has been recognizes the power and authority to
substantially complied levy, assess and collect fees, fix rates
with, and, in effect, the of compensation not exceeding the
1973 Constitution has highest rates authorized by law for
been constitutionally compensation and pay plans of the
ratified. government and allocate and disburse
such sums as may be provided by law or
prescribed by them in the course of the
II. Constitutional Safeguards of the discharge of their functions. (In re:
Supreme Court Clarifying and Strengthening the
Organizational Structure and Set-up of
(1) The SC is a constitutional body. It cannot be the Philippine Judicial Academy, A.M.
abolished nor may its membership or the No. 01-1-04-SC).
manner of its meetings be changed by mere
legislation. [Art. VIII, Sec. 4 (1)] (12) The SC alone may initiate rules of court. [Art.
VIII, Sec. 5 (5).]
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
(13) Only the SC may order the temporary detail of or its officers, to compel the performance
judges. [Art. VIII, Sec. 5 (3)] of duties purely legislative in their
character which therefore pertain to their
(14) The SC can appoint all officials and employees legislative functions over which they have 51
of the judiciary. [Art. VIII, Sec. 5 (6)] exclusive control.
knowledge, training and experience. [Cayetano v. But the term of those initially appointed shall
Monsod, (1991)] be staggered in the following way so as to
create continuity in the council:
Subtopic 1. Constitutional Requirements 52
(cannot be reduced by law) IBP representative - 4 years
Law professor - 3 years
Supreme Court Justice: Retired justice - 2 years
(1) Natural born citizens Private sector - 1 year
(2) At least 40 years of age
(3) Enagaged in the practice of law or a judge Primary function: Recommend appointees to the
of of 15 years or more judiciary, May exercise such other functions and
(4) Must be of proven competence, integrity, duties as the SC may assign to it. [Art. VIII, Sec. 8(5)]
probity and independence.
Subtopic 3. Procedure of Appointment
Lower Collegiate Courts
(1) Natural born citizens (1) The JBC shall submit a list of three nominees
(2) Member of the Philippine Bar for every vacancy to the President. [Art. VIII,
(3) Must be of proven competence, integrity, Sec. 9]
probity and independence (2) Any vacancy in the Supreme Court shall be
(4) Such additional requirements provided by filed within ninety (90) days from the
law. occurrence thereof. [Art. VIII, Sec. 4(1)]
(3) For lower courts, the President shall issue the
Lower Courts appointment within ninety (90) days from the
(1) Natural born citizens submission by the JBC of such list. [Art. VIII,
(2) Member of the Philippine Bar Sec. 9].
(3) Must be of proven competence, integrity, Relate this to the constitutional
probity and independence. prohibition against midnight
(4) Such additional requirements provided by appointments. The Court in the case of
law. De Castro v. JBC, [G. R. No. 191002,
March 17, 2010] ruled that the
Note: In the case of judges of the lower courts, the prohibition against midnight
Congress may prescribe other qualifications. (Art appointment applies only to positions in
VIII, Sec. 7(3). the executive department. Thus, the
appointment of Chief Justice Corona
Subtopic 2. Judicial and Bar Council was held valid. This ruling effectively
overruled In re: Mateo Valenzuela [A.M.
Composition: No. 98-5-01-SC, November 9, 1998]
Ex-officio members [Art. VIII, Sec. 8(1)] which extended the prohibition for
midnight appointments to the
(1) Chief Justice as ex-officio Chairman judiciary.
(2) Secretary of Justice
(3) Representative of Congress Subtopic 4. Disqualification from Other
Positions or Offices
Regular members [Art. VIII, Sec. 8(1)] Art. VIII, Sec. 12. The Members of the Supreme
Court and of other courts established by law shall
(4) Representative of the Integrated Bar not be designated to any agency performing quasi-
(5) Professor of Law judicial or administrative functions.
(6) Retired member of the SC
(7) Representative of private sector It was held that the SC and its members should
not and cannot be required to exercise any
Secretary ex-officio [Art. VIII, Sec. 8(3)]- Clerk power or to perform any trust or to assume any
of the SC, who shall keep a record of its proceedings duty not pertaining to or connected w/ the
administering of judicial functions. [Meralco vs
Appointment, Tenure, Salary of JBC Members Pasay Transportation Co., (1932)]
(1) Ex-officio members - For obvious reasons this A judge in the CFI shall not be detailed with the
does not apply since the position in the Department of Justice to perform administrative
Council is good only while the person is the functions as this contravenes the doctrine of
occupant of the office. separation of powers. [Garcia vs Macaraig,
(1972)]
(2) Regular members [Art. VIII, Sec. 8(2)] - The
regular members shall be appointed by the
Subtopic 5. Composition of the Supreme
President with the consent of the Commission
on Appointments. The term of the regular Court
members is 4 years.
(1) Chief Justice and 14 Associate Justices
(2) May sit en banc or in divisions of three, five,
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
(2) Engage in the practice of any profession. Composition: A Chairman and 2 Commissioners
COMELEC may exercise such power muto proprio purchase of print space and radio and television
or upon a verified petition, and the hearing of time that the resources of the financially
the case shall be summary in nature. The SC affluent candidates are likely to make a crucial
held that there are only 3 instances where a difference. The purpose is to ensure "equal 56
failure of elections may be declared: (a) the opportunity, time, and space, and the right to
election in any polling place has not been held reply," as well as uniform and reasonable rates
on the date fixed on account of force majeure, of charges for the use of such media facilities,
violence, terrorism, fraud, or other analogous in connection with "public information
causes; (b) the election in any poling place had campaigns and forums among candidates."
been suspended before the hour fixed by law for [National Press Club vs Comelec, (1992)]
the closing of the voting on account of force
majeure, violence, fraud, or other analogous Note: The SC held that this power may be
causes; and (c) after the voting and during the exercised only over the media, not over
preparation and transmission of the election practitioners of media. Thus, the SC invalidated
returns or in the custody or canvass thereof a COMELEC resolution prohibiting radio and TV
such election results in a failure to elect on commentators and newspaper columnists from
account of force majeure, violence, terrorism, commenting on the issues involved in the
fraud or other analogous causes. [Sison v. forthcoming plebiscite for the ratification of the
COMELEC, G.R. No. 134096, March 3, 1999] organic law establishing the CAR. [Sanidad v.
COMELEC, 181 SCRA 529]
(4) Decide administrative questions pertaining to
election except the right to vote. (12) Decide election cases
(5) File petitions in court for inclusion or exclusion Art. IX-C, Sec. 3. The Commission on Elections
of voters. may sit en banc or in two divisions, and shall
promulgate its rules of procedure in order to
(6) Investigate and prosecute cases of violations of expedite disposition of election cases, including
election laws. pre- proclamation controversies. All such
election cases shall be heard and decided in
The COMELEC has exclusive jurisdiction to division, provided that motions for
investigate and prosecute cases for violations of reconsideration of decisions shall be decided
election laws. [De Jesus v. People, 120 SCRA by the Commission en banc.
760]
Cases which must be heard by division
Thus, the trial court was in error when it All election cases, including pre-proclamation
dismissed an information filed by the Election contests originally cognizable by the
Supervisor because the latter failed to comply Commission in the exercise of its powers
with the order of the Court to secure the under Sec. 2(2), Art IX-C.
concurrence of the Prosecutor. [People v. Inting, Jurisdiction over a petition to cancel a
187 SCRA 788]. However, the COMELEC may certificate of candidacy.
validly delegate this power to the Provincial Even cases appealed from the RTC or MTC
Fiscal. [People v. Judge Basilia 179 SCRA 87] have to be heard and decided in Division
before they may be heard en banc.
(7) Recommend pardon, amnesty, parole or
suspension of sentence of election law violators. Note:
If the COMELEC exercises its quasi-judicial
(8) Deputize law enforcement agencies and functions then the case must be heard through a
instrumentalities of the Government for the division.
exclusive purpose of ensuring free, orderly,
honest, peaceful, and credible elections. If the COMELEC exercises its administrative
functions then it must act en banc. [Buatista v.
(9) Recommend to the President the removal of any COMELEC, 414 SCRA 299 (2003)].
officer or employee it has deputized for
violation or disregard of, or disobedience to its Composition: A Chairman and 6 Commissioners.
directive.
Qualifications:
(10) Registration of political parties, organizations (1) Must be natural-born citizens;
and coalitions and accreditation of citizens‘ (2) At least 35 years of age;
arms. (3) Holders of a college degree;
(4) Have not been candidates in the
(11) Regulation of public utilities and media of immediately preceding election;
information. The law limits the right of free (5) Majority, including the Chairman, must be
speech and of access to mass media of the members of the Philippine Bar who have
candidates themselves. The limitation been engaged in the practice of law for at
however, bears a clear and reasonable least 10 years. [Sec. 1, Art. IX-C].
connection with the objective set out in the Commission on Audit
Constitution. For it is precisely in the unlimited
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
ARTICLE IV, Section 1 (3), 1987 Constitution is also Philippine citizenship on or before May 14,
applicable to those who are born to Filipino mothers 1935.
and elected Philippine citizenship before February 2, (5) Persons who became naturalized citizens of
1987. the Philippines in accordance of 58
naturalization law since its enactment on
This is to correct the anomalous situation where one March 26, 1920.
born of a Filipino father and an alien mother was
automatically granted the status of a natural-born
citizen, while one born of a Filipino mother and an 1. Natural-Born Citizens and Public
alien father would still have to elect Philippine
citizenship. [Co v. Electoral Tribunal of the House of Office
Representatives (1991)]
Natural-born
Who were the citizens of the Philippines at the time (1) citizens of the Philippines from birth without
of the adoption of the 1987 Constitution? having to perform any act to acquire or perfect
their Philippine citizenship; and
To answer this question, we have to go back to 1973 (2) those who elect Philippine citizenship in
Constitution. accordance with ARTICLE IV, Section 1 (3)
Citizens under the 1973 Constitution The term "natural-born citizens," is defined to
(1) Those who are citizens of the Philippines at include "those who are citizens of the
the time of the adoption of this Philippines from birth without having to
Constitution; perform any act to acquire or perfect their
(2) Those whose fathers or mothers are citizens Philippine citizenship." [Tecson vs COMELEC
of the Philippines; (2004)]
(3) Those who elect Philippine citizenship
pursuant to the provisions of the Only two, i.e., jus soli and jus sanguinis, could
Constitution of 1935; and qualify a person to being a "natural-born" citizen of
(4) Those who are naturalized in accordance the Philippines. Jus soli, per Roa vs. Collector of
with law. [Sec.1(1), Art. III] Customs (1912), did not last long. With the adoption
of the 1935 Constitution and the reversal of Roa in
Citizens under the 1935 Constitution Tan Chong vs. Secretary of Labor (1947), jus
(1) Those who are citizens at the time of the sanguinis or blood relationship would now become
adoption of this Constitution; the primary basis of citizenship by birth.
(2) Those born in the Philippine Islands of
foreign parents who, before the adoption of Who must be Natural-Born?
this Constitution, had been elected to (1) President (Sec. 2, Art VII)
public office in the Philippine Islands; (2) Vice-President (Sec. 3, Art VII)
(3) Those whose mothers are citizens of the (3) Members of Congress (Secs. 3 and 6, Art VI)
Philippines and, upon reaching the age of (4) Justices of SC and lower collegiate courts (Sec.
majority, elect Philippine citizenship; 7 (1), Art VIII)
(4) Those who are naturalized in accordance (5) Ombudsman and his deputies (Sec. 8, Art XI)
with law. [Sec. 1, Art. IV] (6) Members of Constitutional Commissions
(7) CSC (Sec. 1 (1), Art IX B)
The following persons were citizens of the (8) COMELEC (Sec. 1 (1) Art IX C)
Philippines on May 14, 1935 – the date of the (9) COA (Sec. 1 (1), Art IX D)
adoption of the 1935 Constitution: (10) Members of the Central Monetary Authority
(1) Persons born in the Philippine Islands who (Sec. 20, Art XII)
resided therein on April 11, 1899 and were (11) Members of the Commission on Human Rights
Spanish subjects on that date, unless they (Sec. 17 (2), Art XIII)
had lost their Philippine citizenship on or
before May 14, 1935. 2. Naturalization and
(2) Natives of the Spanish Peninsula who
resided in the Philippines on April 11, 1899,
Denaturalization
and who did not declare their intention of
preserving their Spanish nationality How may citizenship be reacquired?
between that date and October 11, 1900, (1) Naturalization (CA No. 63 and CA No. 473)
unless they had lost their Philippine (a) now an abbreviated process, no need to
citizenship on or before May 14, 1935. wait for 3 years (1 year for declaration of
(3) Naturalized citizens of Spain who resided in intent, and 2 years for the judgment to
the Philippines on April 11, 1899, and did become executory)
not declare their intention to preserve their (b) requirements:
Spanish nationality within the prescribed be 21 years of age
period (up to October 11, 1900). be a resident for 6 months
(4) Children born of (1), (2) and (3) subsequent have good moral character
to April 11, 1899, unless they lost their have no disqualification
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
Naturalization is never final and may be revoked acquire Philippine citizenship upon effectivity of this
if one commits acts of moral turpitude. Act shall be deemed citizens of the Philippines.
[Republic vs Guy (1982)]
Sec. 5. Civil and Political Rights and Liabilities. — 59
(2) Repatriation Those who retain or re-acquire Philippine citizenship
NOTE: Please see subsection 4 for further discussion under this Act shall enjoy full civil and political
rights and be subject to all attendant liabilities and
(3) Legislative Act responsibilities under existing laws of the Philippines
Both a mode of acquiring and reacquiring and the following conditions:
citizenship (1) Those intending to exercise their right of
suffrage must meet the requirements under Sec.
Dual Allegiance 1, Art. V of the Constitution, RA 9189, otherwise
(1) aliens who are naturalized as Filipinos but known as "The Overseas Absentee Voting Act of
remain loyal to their country of origin (cite 2003" and other existing laws;
source) (2) Those seeking elective public office in the
(2) public officers who, while serving the Philippines shall meet the qualifications for
government, seek citizenship in another country holding such public office as required by the
Constitution and existing laws and, at the time
disqualified from running for any elective local of the filing of the certificate of candidacy,
position. (Sec 40d, Local Government Code) make a personal and sworn renunciation of any
Once a candidate files his candidacy, he is and all foreign citizenship before any public
deemed to have renounced his foreign officer authorized to administer an oath;
citizenship in case of dual citizenship. [Mercado (3) Those appointed to any public office shall
vs Manzano (1999)] subscribe and swear to an oath of allegiance to
the Republic of the Philippines and its duly
(1) Clearly, in including §5 in Article IV on constituted authorities prior to their assumption
citizenship, the concern of the Constitutional of office: provided, that they renounce their
Commission was not with dual citizens per se oath of allegiance to the country where they
but with naturalized citizens who maintain their took that oath;
allegiance to their countries of origin even after (4) Those intending to practice their profession in
their naturalization. Hence, the phrase “dual the Philippines shall apply with the proper
citizenship” in R.A. No. 7160, §40(d) and in R.A. authority for a license or permit to engage in
No. 7854, §20 must be understood as referring such practice; and
to “dual allegiance.” (5) That right to vote or be elected or appointed to
(2) Consequently, persons with mere dual any public office in the Philippines cannot be
citizenship do not fall under this exercised by, or extended to, those who:
disqualification. Unlike those with dual a) are candidates for or are occupying any public
allegiance, who must, therefore, be subject to office in the country of which they are
strict process with respect to the termination of naturalized citizens; and/or
their status, for candidates with dual b) are in active service as commissioned or non-
citizenship, it should suffice if, upon the filing commissioned officers in the armed forces
of their certificates of candidacy, they elect of the country which they are naturalized
Philippine citizenship to terminate their status citizens.
as persons with dual citizenship considering that
their condition is the unavoidable consequence 3. Loss of Citizenship
of conflicting laws of different states.
Cf: RA 9225 (Citizenship Retention and Re- Grounds for Loss of Citizenship
acquisition Act of 2003) (1) Naturalization in a foreign country [Sec.1 (1),
CA 63];
Sec. 3. Retention of Philippine Citizenship. — Any
(2) Express renunciation or expatriation [Sec.1 (2),
provision of law to the contrary notwithstanding,
CA 63];
natural-born citizens of the Philippines who have lost
(3) Taking an oath of allegiance to another country
their Philippine citizenship by reason of their
upon reaching the age of majority;
naturalization as citizens of a foreign country are
(4) Accepting a commission and serving in the
hereby deemed to have re-acquired Philippine
armed forces of another country, unless there is
citizenship upon taking the following oath of
an offensive/ defensive pact with the country,
allegiance to the Republic: xxx
or it maintains armed forces in RP with RP‘s
consent;
Natural-born citizens of the Philippines who, after
(5) Denaturalization;
the effectivity of this Act, become citizens of a
(6) Being found by final judgment to be a deserter
foreign country shall retain their Philippine
of the AFP;
citizenship upon taking the aforesaid oath.
(7) Marriage by a Filipino woman to an alien, if by
the laws of her husband‘s country, she becomes
Sec. 4. Derivative Citizenship. — The unmarried
a citizen thereof.
child, whether legitimate, illegitimate or adopted,
below eighteen (18) years of age, of those who re-
Expatriation is a constitutional right. No one can be
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
―association‖ pursuant to Sec. 11, Art. XII; thus Art. XII, Sec. 2, par. 4. The President may enter
a joint venture which would engage in the into agreements with foreign-owned corporations
business of operating a public utility must involving either technical or financial assistance
comply with the 60%-40% Filipino-foreign for large-scale exploration, development, and
61
capitalization requirement. [JG Summit utilization of minerals, petroleum, and other mineral
Holdings v. CA, (2000)] oils according to the general terms and conditions
provided by law, based on real contributions to the
Filipino First economic growth and general welfare of the
Art. XII, Sec. 10. In the grant of rights, privileges, country. In such agreements, the State shall promote
and concessions covering the national economy and the development and use of local scientific and
patrimony, the State shall give preference to technical resources.
qualified Filipinos.
The State, being the owner of the natural resources,
The State shall regulate and exercise authority over is accorded the primary power and responsibility in
foreign investments within its national jurisdiction the exploration, development and utilization
and in accordance with its national goals and thereof. As such it may undertake these activities
priorities. through four modes:
(1) The State may directly undertake such
The term ―patrimony‖ pertains to heritage, activities;
and given the history of the Manila Hotel, it has (2) The State may enter into co-production,
become a part of our national economy and joint venture or production-sharing
patrimony. Thus, the Filipino First policy agreements with Filipino citizens or
provision of the Constitution is applicable. Such qualified corporations;
provision is per se enforceable, and requires (3) Congress may, by law, allow small-scale
no further guidelines or implementing rules or utilization of natural resources by Filipino
laws for its operation. [Manila Prince Hotel v. citizens; or
GSIS, (1997)] (4) For the large-scale exploration,
development and utilization of minerals,
Art. XII, Sec. 12. The State shall promote the petroleum and other mineral oils, the
preferential use of Filipino labor, domestic materials President may enter into agreements with
and locally produced goods, and adopt measures foreign-owned corporations involving
that help make them competitive. technical or financial assistance. [La
Bugal-B’Laan Tribal Assn. v. Ramos,
Natural Resources (Jan,2004)]
5. Acquisition, Ownership and Query: Can a former owner file an action to recover
the property?
Transfer of Public and Private Lands
YES. The Court in Philippine Banking Corp. v. Lui 63
Lands of the Public Domain are classified into: She, (21 SCRA 52) abandoned the application of the
(1) Agricultural Lands principle of in pari delicto. Thus, the action will lie.
(2) Forest or Timber Lands
(3) Mineral Lands HOWEVER, land sold to an alien which was later
(4) National Park [Sec. 3, Art. XII] transferred to a Filipino citizen OR when the alien
later becomes a Filipino citizen can no longer be
Note: The classification of public lands is a function recovered by the vendor, because there is no longer
of the executive branch, specifically the Director of any public policy involved. [Republic v. IAC, 175
the Land Management Bureau (formerly Director of SCRA 398]
Lands). The decision of the Director, when approved
by the Secretary of the DENR, as to questions of 6. Practice of Professions
fact, is conclusive upon the courts. [Republic v.
Imperial, G.R. No. 130906, February 11, 1999].
The practice of ALL profession in the Philippines
Alienable lands of the public domain shall be shall be limited to Filipino citizens, save in the case
limited to agricultural lands. [Sec. 3, Art. prescribed by law. [Sec. 12, Art. XII]
XII]
To prove that the land subject of an 7. Organization and Regulation of
application for registration is alienable, an Corporations, Private and Public
applicant must conclusively establish the
existence of a positive act of the
Stewardship Concept
government such as a presidential
proclamation or an executive order or a Art. XII, Sec. 6. The use of property bears a social
legislative act or statute. [Republic v. function, and all economic agents shall contribute to
Candymaker, Inc. G.R. No. 163766, June 22, the common good.
2006]
Foreshore land is that part of the land which Individuals and private groups, including
is between the high and low water, and left corporations, cooperatives, and similar collective
dry by the flux and reflux of the tides. It is organizations, shall have the right to own, establish,
part of the alienable land of the public and operate economic enterprises, subject to the
domain and may be disposed of only by duty of the State to promote distributive justice and
lease and not otherwise. [Republic v. to intervene when the common good so demands.
Imperial, G.R. No. 130906, February 11,
1999] Art. XIII, Sec. 6. The State shall apply the principles
Private corporations or associations may not of agrarian reform or stewardship, whenever
hold such alienable lands of public domain applicable in accordance with law,
except by lease, for a period not exceeding
25 years, and not to exceed 1000 hectares in the disposition or utilization of other natural
in area. resources, including lands of the public domain
Citizens of the Philippines may lease not more under lease or concession suitable to agriculture,
than 500 has, or acquire not more than 12
hectares thereof by purchase, homestead, subject to prior rights, homestead rights of small
or grant. [Sec. 3, Art. XII] settlers, and the rights of indigenous communities to
their ancestral lands.
Private Lands
8. Monopolies, Restraint of Trade and
GENERAL RULE
No private lands shall be transferred or conveyed Unfair Competition
except to individuals, corporations, or associations
qualified to acquire or hold lands of the public Monopolies
domain. [Sec. 7, Art. XII] Art. XIII, Sec. 19. The State shall regulate or
prohibit monopolies when the public interest so
EXCEPTIONS requires. No combinations in restraint of trade or
(1) Hereditary succession [Sec. 7, Art. XII] unfair competition shall be allowed.
(2) A natural-born citizen of the Philippines who has
lost his Philippine citizenship may be a Although the Constitution enshrines free
transferee of private lands, subject to enterprise as a policy, it nevertheless reserves
limitations provided by law. [Sec. 8, Art. XII] to the Government the power to intervene
whenever necessary for the promotion of the
Consequence of sale to non-citizens: Any sale or general welfare. [Philippine Coconut Dessicators
transfer in violation of the prohibition is null and v. PCA, (1998)]
void. [Ong Ching Po. V. CA]
Monopolies are not per se prohibited by the
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
Constitution but may be permitted to exist to Social justice is "neither communism, nor despotism,
aid the government in carrying on an enterprise nor atomism, nor anarchy," but the humanization of
or to aid in the performance of various services laws and the equalization of social and economic
and functions in the interest of the public. forces by the State so that justice in its rational and 64
Nonetheless, a determination must first be objectively secular conception may at least be
made as to whether public interest requires a approximated. Social justice means the promotion of
monopoly. As monopolies are subject to abuses the welfare of all the people, the adoption by the
that can inflict severe prejudice to the public, Government of measures calculated to insure
they are subject to a higher level of State economic stability of all the competent elements of
regulation than an ordinary business society, through the maintenance of a proper
undertaking. [Agan, Jr. v. PIATCO, (2003)] economic and social equilibrium in the interrelations
of the members of the community, constitutionally,
Central Monetary Authority [Art. XII, Sec. 20] through the adoption of measures legally justifiable,
or extra-constitutionally, through the exercise of
Functions: powers underlying the existence of all governments
(1) Provide policy directions in the areas of money, on the time-honored principle of salus populi est
banking, and credit; suprema lex. Social justice, therefore, must be
(2) Supervise the operations of banks; founded on the recognition of the necessity of
(3) Exercise such regulatory powers as may be interdependence among divers and diverse units of a
provided by law over the operations of finance society and of the protection that should be equally
companies and other institutions performing and evenly extended to all groups as a combined
similar functions force in our social and economic life, consistent with
the fundamental and paramount objective of the
Qualifications of the Governors: state of promoting the health, comfort, and quiet of
(1) Natural-born Filipino; all persons, and of bringing about "the greatest good
(2) Known probity, integrity and patriotism; to the greatest number."
(3) Majority shall come from the private sector
2. Commission on Human Rights
Subject to such other qualifications and
disabilities as may be provided by law
1987 Phil. Constitution
Until the Congress otherwise provides, the Central Article 13, Section 17.
Bank of the Philippines operating under existing (1) There is hereby created an independent office
laws, shall function as the central monetary called the Commission on Human Rights.
authority. (2) The Commission shall be composed of a
Chairman and four Members who must be
natural-born citizens of the Philippines and a
majority of whom shall be members of the Bar.
I. Social Justice & Human Rights The term of office and other qualifications and
1. Concepts of Social Justice disabilities of the Members of the Commission
2. Commission on Human Rights shall be provided by law.
(3) Until this Commission is constituted, the existing
1. Concept of Social Justice Presidential Committee on Human Rights shall
continue to exercise its present functions and
powers.
1987 Phil. Constitution (4) The approved annual appropriations of the
Article 2, Section 10. The State shall promote social Commission shall be automatically and regularly
justice in all phases of national development. released.
Article 13, Section 1. The Congress shall give Article 13, Section 18. The Commission on Human
highest priority to the enactment of measures that Rights shall have the following powers and functions:
protect and enhance the right of all the people to (1) Investigate, on its own or on complaint by any
human dignity, reduce social, economic, and party, all forms of human rights violations
political inequalities, and remove cultural inequities involving civil and political rights;
by equitably diffusing wealth and political power for (2) Adopt its operational guidelines and rules of
the common good. procedure, and cite for contempt for violations
thereof in accordance with the Rules of Court;
To this end, the State shall regulate the acquisition, (3) Provide appropriate legal measures for the
ownership, use, and disposition of property and its protection of human rights of all persons within
increments. the Philippines, as well as Filipinos residing
abroad, and provide for preventive measures
Article 13, Section 2. The promotion of social and legal aid services to the under-privileged
justice shall include the commitment to create whose human rights have been violated or need
economic opportunities based on freedom of protection;
initiative and self-reliance. (4) Exercise visitorial powers over jails, prisons, or
detention facilities;
Calalang vs. Williams (GR 47800, 2 December 1940):
CONSTITUTIONAL LAW 1 POLITICAL LAW REVIEWER
(5) Establish a continuing program of research, It cannot be gainsaid that "the school has an interest
education, and information to enhance respect in teaching the student discipline, a necessary, if not
for the primacy of human rights; indispensable, value in any field of learning. By
(6) Recommend to Congress effective measures to instilling discipline, the school teaches discipline. 65
promote human rights and to provide for Accordingly, the right to discipline the student
compensation to victims of violations of human likewise finds basis in the freedom "what to
rights, or their families; teach." Indeed, while it is categorically stated under
(7) Monitor the Philippine Government's compliance the Education Act of 1982 that students have a right
with international treaty obligations on human "to freely choose their field of study, subject to
rights; existing curricula and to continue their course
(8) Grant immunity from prosecution to any person therein up to graduation," such right is subject to
whose testimony or whose possession of the established academic and disciplinary standards
documents or other evidence is necessary or laid down by the academic institution.
convenient to determine the truth in any
investigation conducted by it or under its
authority;
(9) Request the assistance of any department,
bureau, office, or agency in the performance of
its functions;
(10) Appoint its officers and employees in
accordance with law; and
(11) Perform such other duties and functions as may
be provided by law.
1. Academic Freedom
OPERATIONS HEADS
Charles Icasiano • Katrina Rivera |Hotel Operations
Marijo Alcala • Marian Salanguit |Day-Operations
Jauhari Azis |Night-Operations
Vivienne Villanueva • Charlaine Latorre |Food
Kris Francisco Rimban • Elvin Salindo |Transpo
Paula Plaza |Linkages
attainment of the object sought and not unduly vehicles to install specific early warning devices to
oppressive upon individuals. [Lucena Grand Central reduce road accidents. Agustin already installed
Terminal v. JAC Liner (2005)] warning devices in his car but they were not the
same ones specified in the LOI. He argued that the 68
The SC Upheld the validity of Administrative Orders said LOI violated the police power of the state for
which converted existing mine leases and other being oppressive, arbitrary and unconscionable.
mining agreements into production-sharing
agreements within one year from effectivity. The Police power, public safety: The Court identified
subject sought to be governed by the AOs are police power as a dynamic agency, suitably vague
germane to the object and purpose of E.O. 279 and and far from precisely defined, rooted in the
that mining leases or agreements granted by the conception that men in organizing the state and
State are subject to alterations through a reasonable imposing upon its government limitations to
exercise of police power of the State. [Miners safeguard constitutional rights did not intend to
Association of the Philippines v. Factoran, 240 SCRA enable an individual citizen or a group of citizens to
100] obstruct unreasonably the enactment of such
salutary measures calculated to communal peace,
c. Illustrations on the Exercise of Police Power safety, good order, and welfare. According to the
Court, a heavy burden lies in the hands of the
General Welfare petitioner who questions the state‘s police power if
it was clearly intended to promote public safety.
RA 9257, the Expanded Senior Citizens Act of 2003, [Agustin vs. Edu, (1979)]
is a legitimate exercise of police power.
Administrative Order No. 177 issued by the Public Morals
Department of Health, providing that the 20%
discount privilege of senior citizens shall not be Ermita Malate Hotel and Motel Operations Assoc.
limited to the purchase of unbranded generic assails the constitutionality of Ordinance No. 4760.
medicine but shall extend to both prescription and
non-prescription medicine, whether branded or The grounds adduced were: (1) unreasonable and
generic, is valid. When conditions so demand, as violative of due process insofar as it would impose
determined by the legislature, property rights must different fees for different classes of hotels/motels
bow to the primacy of police power because and prohibit 18 year-olds from being accepted in
property rights, though sheltered by the due process such hotels, unless accompanied by parents or a
clause, must yield to the general welfare. [Carlos lawful guardian and making it unlawful for the
Superdrug Corporation v. DSWC et al. G.R. No. owner, manager, keeper or duly authorized
166494, June 29, 2007] representative of such establishments to lease any
room or portion more than twice every 24 hours, and
National Security (2) invasion of the right to privacy and the guaranty
against self-incrimination because it requires clients
SC upheld the constitutionality of RA 1180 (An Act to to fill up the prescribed form in a lobby open to
Regulate the Retail Business) which sought to public view at all times and in his presence, wherein
nationalize the retail trade business by prohibiting personal information are mandated to be divulged.
aliens in general from engaging directly or indirectly
in the retail trade. Aliens did not question the Police power, public morals: The mantle of
exercise of police power; they claim, however, that protection associated with the due process guaranty
there was a violation of the due process and equal does not cover petitioners. This particular
protection clauses. [Ichong vs. Hernandez (1957)] manifestation of a police power measure being
specifically aimed to safeguard public morals is
Scope of the police power: Since the Courts cannot immune from such imputation of nullity resting
foresee the needs and demands of public interest purely on conjecture and unsupported by anything of
and welfare, they cannot delimit beforehand the substance. Police power is "that inherent and
extent or scope of the police power by which and plenary power in the State which enables it to
through which the state seeks to attain or achieve prohibit all that is hurtful to the comfort, safety,
public interest and welfare. and welfare of society xxx There is no question but
that the challenged ordinance was precisely enacted
Police power and national security: ―The disputed to minimize certain practices hurtful to public
law was enacted to remedy a real actual threat and morals. [Ermita-Malate Motel and Motel Operators
danger to national economy posed by alien Assn. vs. City Mayor of Manila (1967)]
dominance and control of the retail business; the
enactment clearly falls within the scope of the The case of White Light vs. City of Manila was
police power of the State, thru which and by which termed by Justice Tinga as a ―middle case‖. It was
it protects its own personality and insures its meant to identify its case within a spectrum of cases
security and future.‖ decided by the Supreme Court which dealt with
ordinances which has for its view the regulation of
Public Safety public morals.
Agustin questions President Marcos‘ Letter of It is called a ―middle case‖ because unlike its
Instruction No. 229 compelling owners of motor predecessors where the issue is either a wholesale
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
This case churned out three standards for judicial It is the enforced proportional contributions from
review: the STRICT SCRUTINY TEST for laws dealing persons and property, levied by the State by virtue
with freedom of the mind and curtailment of of its sovereignty, for the support of the government
political process and the RATIONAL BASIS STANDARD and for all public needs.
OF REVIEW for economic legislation. A third standard
was created known as the IMMEDIATE SCRUTINY for It is as broad as the purpose for which it is given.
evaluating standards based on gender and
legitimacy. Purpose:
(1) To raise revenue
The Supreme Court justified the application of the (2) Tool for regulation
strict scrutiny test to this particular ordinance (3) Protection/power to keep alive
despite its lack of political significance by saying
that it is not gravitas alone which is sheltered by the Tax for special purpose [Sec. 29 (3), Art. VI]:
Bill of Rights. It is precisely these reflexive exercises Treated as a special fund and paid out for such
of fundamental acts which best reflect the degree of purpose only; when purpose is fulfilled, the balance,
liberty enjoyed. if any shall be transferred to the general funds of
the Government. See: Osmena v. Orbos, 220 SCRA
Sexual behavior is one of these fundamental acts 703
covered by the penumbra of rights. While the reality
of illicit activity is judicially recognized, it cannot be Scope and Limitation
denied that sexual behavior between consenting
adults is constitutionally protected. General Limitations
(1) Power to tax exists for the general welfare;
Apart from the right to privacy, the ordinance also should be exercised only for a public
proscribes other legitimate activities most of which purpose
are grounded on the convenience of having a place (2) might be justified as for public purpose
to stay during the short intervals between travels. even if the immediate beneficiaries are
private individuals
The Ordinance was struck down as an arbitrary (3) Tax should not be confiscatory: If a tax
intrusion to private rights. It made no distinction measure is so unconscionable as to amount
between lodgings and placed every establishment as to confiscation of property, the Court will
susceptible to illicit patronage. [Cf. White Light invalidate it. But invalidating a tax measure
Corporation, et al vs. City of Manila (2009)] must be exercised with utmost caution,
otherwise, the State‘s power to legislate for
Eminent Domain the public welfare might be seriously
curtailed
a. Definition and Scope (4) Taxes should be uniform and equitable [Sec.
28(1), Art. VI]
The power of eminent domain is the inherent right
of the State to condemn private property to public The legislature has discretion to determine the
use upon payment of just compensation. It also nature, object, extent, coverage, and situs of
known as the power of expropriation. taxation. But where a tax measure becomes so
unconscionable and unjust as to amount to
It is well settled that eminent domain is an inherent confiscation of property, courts will not hesitate to
power of the state that need not be granted even by strike it down, for despite all its plenitude, the
the fundamental law. Sec. 9, Art. III merely imposes power to tax cannot override constitutional
a limit on the government‘s exercise of this power. prescriptions. [Tan v. del Rosario, 237 SCRA 324]
[Republic v. Tagle, G.R. No. 129079, Dec. 2, 1998].
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
All revenues and assets of non-stock, non-profit a. Requisites for a valid taking [Republic v.
educational institutions used actually, directly and Castelvi, 58 SCRA 336]:
exclusively for educational purposes shall be exempt (1) The expropriator must enter a private
from taxes and duties. xxx Proprietary educational property
institutions, including those co-operatively owned,
may likewise be entitled to such exemptions subject All private property capable of ownership
to the limitations provided by law including may be expropriated, except money and
restrictions on dividends and provisions for choses in action. [Republic v. PLDT, 26
reinvestment. [Sec. 4(3), Art. XIV] SCRA 620]
Subject to conditions prescribed by law, all grants, (2) Entry must be for more than a momentary
endowments, donations, or contributions used period
actually, directly and exclusively for educational (3) Entry must be under warrant or color of
purposes shall be exempt from tax. legal authority
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
(4) Property must be devoted to public use or Delegated tax legislation: Congress may delegate
otherwise informally appropriated or law-making authority when the constitution itself
injuriously affected specifically authorizes it.
71
Utilization of the property must be in such a way as 3. Similarities and Differences
to oust the owner and deprive him of beneficial
enjoyment of the property
Similarities (Nachura)
When is there taking in the constitutional case? (1) Inherent in the State (Exercised even
When the owner is deprived of his proprietary rights without need of express constitutional
there is taking of private property. Examples: grant)
(1) The imposition of a right-of-way easement (2) Necessary and indispensable (State cannot
was held to be taking. The exercise of the be effective without them)
power of eminent domain does not always (3) Method by which state interferes with
private property
result in the taking or appropriation of title
(4) Presuppose equivalent compensation
to the expropriated property; it may also
(5) Exercised primarily by the legislature
result in the imposition of a burden upon
the owner of the condemned property,
without loss of title or possession. [NPC v. Differences
Gutierrez, 193 SCRA 1] Police Eminent Taxation
(2) May include trespass without actual eviction Power Domain
of the owner, material impairment of the Compensat None Just None
value of the property or prevention of the ion (The compensat (The
ordinary uses for which the property was altruistic ion protection
intended. [Ayala de Roxas v. City of Manila, feeling (Full and given and
9 Phil 215] that one fair public
(3) A municipal ordinance prohibiting a building has equivalent improveme
which would impair the view of the plaza contribute of the nts
from the highway was likewise considered d to the property instituted
taking. [People v. Fajardo, 104 Phil. 44] public taken) by the
good required. State
b. Adequacy of compensation [NACHURA because of
The full and fair equivalent of the property taken; it ]) these taxes
is the fair market value of the property. [NACHURA]
)
Fair market value – is the sum of money which a Use of Not Appropriat Use taxing
person, desirous but not compelled to buy, and an Property appropria ed for power as
owner, willing but not compelled to sell, would ted for public use an
agree on as a price to be given and received public use implement
therefore. for the
attainment
However, where only a PORTION of the property is of a
taken, the owner is entitled only to the market value legitimate
of the portion actually taken and the consequential police
damage to the remaining part. objective—
to regulate
Note: Just compensation means not only the correct a business
amount to be paid but also payment within or trade
reasonable time from its taking. [Esteban v. De Objective To Property Earn
Onorio, G.R. No. 146062, June 28, 2001] destroy taken for revenue
noxious public use; for the
property it is not governmen
Taxation or to necessarily t
restrain noxious
Equal protection clause: taxes should be uniform the
(persons or things belonging to the same class shall noxious
be taxed at the same rate) and equitable (taxes use of
should be apportioned among the people according property
to their ability to pay) Coverage Liberty Property Property
and rights only rights only
Progressive system of taxation: The rate increases Property
as the tax base increases, with basis as social justice
Taxation as an instrument for a more Police power is the power of the State to promote
equitable distribution of wealth public welfare by restraining and regulating the use
of liberty and property. The power of eminent
domain is the inherent right of the state to condemn
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
health and bawdy houses to protect the Note: NOTICE is an essential element of due
public morals. [Ynot vs. IAC (1987)] process, otherwise the Court will not acquire
jurisdiction and its judgment will not bind the
In such instances, previous judicial hearing may be defendant. 75
omitted without violation of due process in view of:
1) the nature of the property involved; or 2) the To be meaningful, it must be both as to time and
urgency of the need to protect the general welfare place.
from a clear and present danger.
Service of summons is not only required to give the
court jurisdiction over the person of the defendant
1. Relativity of Due Process but also to afford the latter the opportunity to be
heard on the claim made against him. Thus,
compliance with the rules regarding the service of
2. Procedural and Substantive Due summons is as much an issue of due process as of
Process jurisdiction. [Sarmiento v. Raon, G.R. No. 131482,
July 3, 2002]
a. Scope
(3) The defendant must be given an
Procedural Due Process opportunity to be heard
Concerns with government action on established The Supreme Court reiterated that the right to
process when it makes intrusion into the private appeal is not a natural right nor part of due process;
sphere it is merely a statutory privilege, and may be
exercised only in the manner and in accordance with
the provisions of law. [Alba v. Nitorreda, 254 SCRA
Substantive Due Process
753]
Substantive due process, asks whether the
(4) Judgment must be rendered upon lawful
government has an adequate reason for taking away
hearing and must clearly explain its factual
a person’s life, liberty, or property. [City of Manila
and legal bases... [Sec. 14, Art. VIII; Banco
vs. Laguio (2005)]
Español-Filipino vs. Palanca (1918)]
In other words, substantive due process looks to
Note: The allowance or denial of motions for
whether there is a sufficient justification for the
extension rests principally on the sound discretion of
government‘s action.
the court to which it is addressed, but such
discretion must be exercised wisely and prudently,
Substantive due process is an aspect of due process
with a view to substantial justice. Poverty is
which serves as a restriction on the law-making and
recognized as a sufficient ground for extending
rule-making power of the government.
existing period for filing. The right to appeal is part
of due process of law. [Reyes vs. CA (1977)]
The law itself, not merely the procedures by which
the law would be enforced, should be fair,
In Administrative Agencies
reasonable, and just.
The Ang Tibay Rules:
(1) Right to a hearing to present own case and
It guarantees against the arbitrary power even when
submit evidence in support thereof.
exercised according to proper forms and procedure.
(2) Tribunal must consider the evidence
presented.
b. Requisites (3) Decision rendered must have support.
(4) Evidence which supports the finding or
Procedural Due Process conclusion is substantial (such relevant
evidence as a reasonable mind accept as
In Civil Proceedings adequate to support a conclusion).
Requisites (5) The decision must be rendered on the
(1) An impartial court of tribunal clothed with evidence presented at the hearing, or at
judicial power to hear and determine the least contained in the record and disclosed
matter before it. to the parties affected.
(2) Jurisdiction must be lawfully acquired over (6) The tribunal or any of its judges, must act
the person of the defendant and over the on its or his own independent consideration
property subject matter of the proceeding of the law and facts of the controversy, and
[Banco Español vs. Palanca (1918)] not simply accept the views of a
subordinate in arriving at a decision.
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
(7) The tribunal should, in all controversial unjustly terminated without just cause after notice
questions, render its decision in such a and hearing. [Agabon v. NLRC (2004)]
manner that the parties to the proceeding
can know the various issues involved, and The Labor Code requires twin requirements of notice 76
the reasons for the decision rendered. [Ang and hearing for a valid dismissal. However, the Court
Tibay vs. CIR (1940)] in Serrano v. NLRC clarified that this ―procedural
due process‖ requirement is not constitutional but
In Criminal Proceedings merely statutory, thus a violation of such
See Rights of the Accused, Topic 1 Criminal Due requirement does not render the dismissal void.
Process
There are three reasons why violation by the
In Academic Disciplinary Proceedings employer of the notice requirement cannot be
Requisites considered a denial of due process resulting in the
(1) The students must be informed in writing of nullity of the employee's dismissal or layoff. xxx The
the nature and cause of any accusation first is that the Due Process Clause of the
against them; Constitution is a limitation on governmental powers.
(2) They shall have the right to answer the It does not apply to the exercise of private power,
charges against them, with the assistance of such as the termination of employment under the
counsel, if desired; Labor Code. x x x The second reason is that notice
(3) They shall be informed of the evidence and hearing are required under the Due Process
against them; Clause before the power of organized society are
(4) They shall have the right to adduce brought to bear upon the individual. This is obviously
evidence in their own behalf; not the case of termination of employment under
(5) The evidence must be duly considered by Art. 283. x x x The third reason why the notice
the investigating committee or official requirement under Art. 283 cannot be considered a
designated by the school authorities to hear requirement of the Due Process Clause is that the
and decide the case [Non vs. Judge Dames employer cannot really be expected to be entirely
(1990)] an impartial judge of his own cause. [Serrano v.
NLRC (2000)]
Substantive Due Process
4. Hierarchy of Rights
Laws which interfere with life, liberty or property
satisfy substantive due process when there is:
When the Bill of Rights also protects property rights,
the primacy of human rights over property rights is
(1) Lawful object i.e. the interests of the
recognized. Because these freedoms are ―delicate
public in general (as distinguished from
and vulnerable, as well as supremely precious in our
those of a particular class) require the
society‖ and the ―threat of sanctions may deter
intervention of the State, and
their exercise almost as potently as the actual
(2) Lawful means i.e. means employed are
application of sanctions,‖ they ―need breathing
reasonably necessary for the
space to survive,‖ permitting government regulation
accomplishment of the purpose and not
only ―with narrow specificity.‖ [Philippine Blooming
unduly oppressive on individuals. [US vs.
Mills Employees Organization v. Philippine Blooming
Toribio (1910)]
Mills Co., Inc (1973)]
Publication of laws is part of substantive due
If the liberty involved were freedom of the mind or
process. [Tañada vs. Tuvera (1986)]
the person, the standard for the validity of
governmental acts is much more rigorous and
3. Constitutional and Statutory Due exacting, but where the liberty curtailed affects at
Process the most rights of property, the permissible scope of
regulatory measure is wider. [Ermita-Malate Hotel
and Motel Operators Association, Inc. v. City Mayor
Due process under the Labor Code, like
of Manila (1967)]
constitutional due process, has two aspects:
substantive (i.e. the valid and authorized causes of
Under the present provision, understood in the light
employment termination), and procedural (i.e. the
of established jurisprudence on the position of
manner of dismissal). . . Breaches of these due
property in the hierarchy of constitutional values,
process requirements violate the Labor Code, not
property stands a good chance of serving and
the Constitution. Therefore, statutory due process
enhancing the life and liberty of all. Running through
should be differentiated from failure to comply with
various provisions of the Constitution are various
constitutional due process.
provisions to protect property—but always with the
explicit or implicit reminder that property has a
Constitutional due process protects the individual
social dimension and that the right to property is
from the government and assures him of his rights in
weighted with a social obligation. [Bernas]
criminal, civil or administrative proceedings; while
statutory due process found in the Labor Code and
Implementing Rules protects employees from being
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
5. Judicial Standards of Review necessarily guess at its meaning and differ as to its
application." It is subject to the same principles
governing overbreadth doctrine. For one, it is also an
a. ―Rational Basis Test‖ analytical tool for testing "on their faces" statutes in 77
free speech cases. Like overbreadth, it is said that a
The classification should bear a reasonable relation litigant may challenge a statute on its face only if it
to government's purpose, and the legislative is vague in all its possible applications.
classification is presumed valid.
A facial review of PP 1017 on the ground of
Notes: vagueness is unwarranted. Petitioners did not even
Important when there is no plausible attempt to show that PP 1017 is vague in all its
difference between the disadvantaged class application. They also failed to establish that men of
and those not disadvantaged. common intelligence cannot understand the meaning
Also important when the government attaches and application of PP 1017. [David vs. Arroyo (2006)]
a morally irrelevant and negative
significance to a difference between the VOID FOR VAGUENESS DOCTRINE: An accused is
advantaged and the disadvantaged. denied the right to be informed of the charge
against him and to DUE PROCESS where the statute
b. ―Strict Scrutiny Test‖ itself is couched in such INDEFINITE LANGUAGE that
it‘s not possible for men of ordinary intelligence to
This test is triggered when a fundamental determine therefrom what acts/omissions are
constitutional right is limited by a law. This requires punished. [People vs. Nazario (1988)]
the government to show an overriding or compelling
government interest so great that it justifies the D. Equal Protection
limitation of fundamental constitutional rights (the
courts make the decision of WON the purpose of the 1. Concept
law makes the classification necessary). 2. Requisites for Valid Classification
What constitutes a reasonable or unreasonable (3) After personal examination under oath or
search and seizure in any particular case is purely a affirmation of the complainant and the
judicial question, determinable from a consideration witnesses he may produce.
of the circumstances involved. [Valmonte v. De
Villa, 178 SCRA 211] How it is done: In the form of searching
questions and answers, in writing and under
Objections to the warrant of arrest must be made oath (Rule 126, Sec. 6, ROC)
before the accused enters his plea. [People v.
Codilla, 224 SCRA 104; People v. Robles, G.R. No. Mere affidavits of the complainant and his
101335, June 8, 2000] witnesses are thus not sufficient.
The examining Judge has to take depositions
in writing of the complainant and the
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
witnesses he may produce and attach them conducted surveillance and test-buy ops before
to the record. obtaining the SW and subsequently implementing it.
Such written deposition is necessary in order They had personal knowledge of the identity of the
that the Judge may be able to properly persons and the place to be searched, although they 80
determine the existence or non-existence of did not specifically know the names of the accused.
the probable cause, to hold liable for [People vs. Tiu Won Chua (2003)]
perjury the person giving it if it will be
found later that his declarations are false GENERAL WARRANT: One that (1) does not describe
It is axiomatic that the examination must be with particularity the things subject of the search
probing and exhaustive, not merely and seizure; and (2) where probable cause has not
routinary or pro-forma, if the claimed been properly established. It is a void warrant.
probable cause is to be established. [Nolasco vs. Paño (1985)]
The examining magistrate must not simply
rehash the contents of the affidavit but EXCEPTION TO GENERAL WARRANTS: General
must make his own inquiry on the intent descriptions will not invalidate the entire warrant if
and justification of the application. [Roan other items have been particularly described. [Uy
vs. Gonzales (1984)] vs. BIR (2000)]
(4) On the basis of their personal knowledge of the Conduct of the Search (Sec. 7, Rule 126, ROC)
facts they are testifying to. In the presence of a lawful occupant thereof
or any member of his family, OR
(5) The warrant must describe particularly the If occupant or members of the family are
place to be searched and the persons or things absent, in the presence of 2 witnesses of
to be seized. - sufficient age
- discretion
Requirement is primarily meant to enable the law - residing in the same locality
enforcers serving the warrant to (1) readily identify Force may be used in entering a dwelling if
the properties to be seized and thus prevent them justified by Rule 126 ROC.
from seizing the wrong items; and (2) leave said
peace officers with no discretion regarding the Failure to comply with Sec. 7 Rule 126 invalidates
articles to be seized and thus prevent unreasonable the search. [People vs. Gesmundo (1993)]
searches and seizures. [People v. Tee, G.R. Nos.
140546-47, January 20, 2003] FORCIBLE ENTRY JUSTIFIED:
Occupants of the house refused to open the door
PLACE TO BE SEARCHED despite the fact that the searching party knocked
The search warrant issued to search petitioner‘s several times, and the agents saw suspicious
compound for unlicensed firearms was held invalid movements of the people inside the house. [People
for failing to describe the place with particularity, vs. Salanguit (2001)]
considering that the compound was made up of 200
buildings, 15 plants, 84 staff houses, 1 airstrip etc UNLAWFUL SEARCH:
spread out over 155 hectares. [PICOP vs. Asuncion Police officers arrived at appellant‘s residence and
(1999)] ―side-swiped‖ (sinagi) appellant‘s car (which was
parked outside) to gain entry into the house.
DESCRIPTION OF PLACE/THINGS Appellant‘s son, who is the only one present in the
The description of the property to be seized need house, opened the door and was immediately
not be technically accurate or precise. Its nature will handcuffed to a chair after being informed that they
vary according to whether the identity of the are policemen with a warrant to search the
property is a matter of concern. The description is premises. [People vs. Benny Go (2003)]
required to be specific only in so far as the
circumstances will allow. [Kho vs. Judge Makalintal 3. Warrantless Searches
(1999)]
DESCRIPTION OF PERSONS SEARCHED Evidence obtained in violation of Sec. 2 Art. III shall
Search warrant is valid despite the mistake in the be inadmissible for any purpose and in any
name of the persons to be searched. The authorities proceeding. [Stonehill vs, Diokno (1967)]
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
Once the primary source is shown to have been Aguilar-Roque and Nolasco, allegedly connected w/
unlawfully obtained, any secondary or derivative the CPP-NPA and accused of rebellion and
evidence is also inadmissible. [Nardone vs. US subversion, assert that the search warrant in this 81
(1939)] case is void because (1) it doesn‘t sufficiently
describe things subject of the search & seizure and
It was alleged that Parliamentary Club was a (2) probable cause hasn‘t been established for lack
gambling house; search warrant was obtained. of searching questions propounded to applicant‘s
Veloso read the warrant and said that he was not witness. Court ruled that the search warrant is void.
―John Doe‖. The Court ruled that the John Doe However, the Court also ruled that the search in
search warrant was valid and held that there is question did not need a search warrant. Under the
nothing to prevent issue and service of warrant Rules of Court, a person charged w/ an offense may
against a party whose name is unknown. Besides, the be searched for dangerous weapons or anything w/c
officers had the right to arrest the persons engaged may be used as proof of the commission of the
in prohibited game. An officer making an arrest may offense. As an incident of an arrest, the premises
take from the person arrested any money / property where the arrest was made can also be searched w/o
found upon his person, w/c was used in commission search warrant. [Nolasco vs Cruz Paño (1985)]
of crime, or was the fruit of the crime, or w/c may
furnish the person w/ means of committing violence In this Motion for Partial Reconsideration of the 1985
or escaping, or w/c may be used as evidence on decision, the petitioners submit that a warrantless
trial, but not otherwise. [People vs. Veloso (1925)] search can be justified only if it‘s an incident to a
lawful arrest and that since Aguilar wasn‘t lawfully
Other specific situations: arrested, a search w/o warrant couldn‘t be made.
Quick Look: The SolGen offered no objection to declaration that
a. Search is an Incident to a Lawful Arrest. the search was illegal and to the return of the seized
b. Search of Moving Vehicles items. The Motion for Partial Reconsideration is
c. Plain View Doctrine granted. [Nolasco vs. Paño on M.R. (1987)]
d. Stop and Frisk Searches
e. Valid Express Waiver b. Search of Moving Vehicles
f. Customs search
g. Visual Search at Checkpoints Securing a search warrant is not practicable since
h. Conduct of ―Aerial Target Zoning‖ and the vehicle can be quickly moved out of the locality
―saturation drive‖ or jurisdiction in which the warrant must be sought
i. Exigent and Emergency Circumstances [Papa vs. Mago (1968)]
a. Search is an incident to a lawful arrest. c. Plain View Doctrine: Things seized are
within plain view of a searching party
Sec. 12, Rule 126, Rules of Court. Search incident
to lawful arrest. - A person lawfully arrested may Requisites
be searched for dangerous weapons or anything (1) Prior valid intrusion into a place;
which may be used as proof of the commission of an (2) Evidence:
offense, without a search warrant. inadvertently discovered
by police who had the right to be
where they were;
The provision is declaratory in the sense that
(3) Evidence must be immediately apparent
it is confined to the search, without a
and
search warrant, of a person who had been
(4) Noticed without further search [People vs.
arrested.
Musa; People vs. Sarap (2003)]
It is also a general rule that, as an incident of
an arrest, the place or premises where the
An object is in ―plain view‖ if the object itself is
arrest was made can also be searched
plainly exposed to sight. Where the seized object is
without a search warrant. In this case, the
inside a closed package, the object is not in plain
extent and reasonableness of the search
view and, therefore, cannot be seized without a
must be decided on its own facts and
warrant. However, if the package proclaims its
circumstances.
contents, whether by its distinctive configuration, its
What must be considered is the balancing of
transparency, or if its contents are obvious to an
the individual‘s right to privacy and the
observer, then the content are in plain view, and
public‘s interest in the prevention of crime
may be seized. [Caballes v. Court of Appeals, G.R.
and the apprehension of criminals. [Nolasco
No. 136282, January 15, 2002]
vs. Pano (1985)]
If the package is such that it contains prohibited
articles, then the article is deemed in plain view.
[People v. Nuevasm G.R. No. 170233, February 22,
Test for validity
2007]
Item to be searched was within the arrester‘s
custody;
Search was contemporaneous with the arrest d. Stop and Frisk Searches
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
It is the State that has the burden of proving, by Arresting officer may take from the arrested
clear and convincing evidence, that the necessary individual any money or property found upon the
consent was obtained and that it was voluntarily and latter‘s person --- that which was used in the
freely given. [Caballes v. Court of Appeals, G.R. No. commission of the crime or was the fruit of the
136292, January 15, 2002] crime, or which may provide the person arrested
with the means of committing violence or escaping,
When accused checked in his luggage as passenger of or which may be used in evidence in the trial of the
a plane, he agreed to the inspection of his luggage in case. The search, must, however, be
accordance with customs laws and regulations, and contemporaneous to the arrest and made within a
thus waived any objection to a warrantless search. permissible area of search. [People v. Estella, G.R.
[People v. Gatward, 267 SCRA 785] Nos. 138539-40, January 21, 2003]
Searches of vessel and aircraft for violation of GENERAL RULE: Only the articles particularly
immigration and smuggling laws [Papa vs. Mago described in the warrant may be seized.
(1968)]
Property subject of an offense
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
Stolen or embezzled property and other Following established doctrine and procedure, he
proceeds or fruits of an offense shall:
Used or intended to be used as a means of (1) Personally evaluate the report and the
committing an offense (Sec. 2 Rule 126, supporting documents submitted by the 83
ROC) fiscal regarding the existence of probable
cause and, on the basis thereof, issue a
Where the warrant authorized only the seizure of warrant of arrest; or
shabu, and not marijuana, the seizure of the latter (2) If he finds no probable cause, he may
was held unlawful. [People vs. Salanguit, supra] disregard the fiscal's report and require the
submission of supporting affidavits of
It is not necessary that the property to be searched witnesses to aid him in arriving at a
or seized should be owned by the person against conclusion as to the existence of probable
whom the warrant is issued; it is sufficient that the cause. [Beltran vs. Makasiar (1988)]
property is within his control or possession. [Burgos
vs. Chief of Staff (1984)] Existence of probable cause: Such facts and
circumstances which would lead a reasonably
discreet and prudent mean to believe that an
Comparison of Procedures in Obtaining Search offense has been committed by the person sought to
Warrants and Arrest Warrants be arrested. [Webb vs. De Leon (1995)]
R112, Sec. 6. When warrant of arrest may issue. –
(a) By the Regional Trial Court. – Within ten (10) Determination of probable cause personally by the
days from the filing of the complaint or information, judge as to warrant of arrest:
the judge shall personally evaluate the resolution of (1) On the basis of the witnesses‘ personal
the prosecutor and its supporting evidence. He may knowledge of the facts they are testifying
immediately dismiss the case if the evidence on to.
record clearly fails to establish probable cause. If he (2) The arrest warrant must describe
finds probable cause, he shall issue a warrant of particularly the person to be seized.
arrest, or a commitment order if the accused has By stating the name of the person to be
already been arrested pursuant to a warrant issued arrested.
by the judge who conducted the preliminary If not known, then a ―John Doe
investigation or when the complaint or information warrant‖ may be issued, with some
was filed pursuant to section 7 of this Rule. In case descriptio persona that will enable the
of doubt on the existence of probable cause, the officer to identify the accused.
judge may order the prosecutor to present
additional evidence [NOTE: THIS IS NOT FOUND IN JOHN DOE WARRANT: Warrants issued against 50
THE PROCEDURE FOR A SEARCH WARRANT] within John Does, none of whom the witnesses could
five (5) days from notice and the issue must be identify, were considered as ―general warrants‖ and
resolved by the court within thirty (30) days from thus void. [Pangandaman vs. Casar (1988)]
the filing of the complaint of information.
Requisites of a Valid Warrantless Arrest
Rule 126, Sec. 4. Requisites for issuing search (Rule 113, Sec. 5, Rules on Criminal Procedure)
warrant. – A search warrant shall not issue except
upon probable cause in connection with one specific
1. When, in his presence, the person to be
offense to be determined personally by the judge
arrested has committed, is actually committing, or
after examination under oath or affirmation of the
is attempting to commit an offense; (in flagrante
complainant and the witness he may produce, and
delicto)
particularly describing the place to be searched and
the things to be seized which may be anywhere in
the Philippines Rebellion is a continuing offense. Therefore a rebel
may be arrested w/o a warrant at any time of the
day or the night as he is deemed to be in the act of
4. Warrantless Arrests committing rebellion. [Umil vs. Ramos (1991)]
Requisites for Issuance of a Valid Arrest Though kidnapping w/ serious illegal detention is
Warrant deemed a continuing crime, it can be considered as
such only when the deprivation of liberty is
What the Constitution underscores is the exclusive persistent and continuing from one place to another.
and personal responsibility of the issuing judge to [Parulan vs. Dir of Prisons (1968)]
satisfy himself of the existence of probable cause.
HOT PURSUIT: The arrest of the accused inside his
In satisfying himself of the existence of probable house following hot pursuit of the person who
cause for the issuance of a warrant of arrest, the committed the offense in flagrante was held valid.
judge is NOT required to personally examine the [People vs. De Lara (1994)]
complainant and his witnesses.
BUY-BUST: A buy-bust operation is a valid in
flagrante arrest. The subsequent search of the
person arrested and the premises within his
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
immediate control is valid as an incident to a lawful extrajudicial confession made by Burgos. However,
arrest. [People vs. Hindoy (2001)] Burgos claimed that he had been mauled and hit
repeatedly until he would admit and sign an
EXCEPTION TO BUY-BUST: Instead of arresting the extrajudicial confession. 84
suspect after the sale in a buy-bust op, the officer
returned to the police headquarters and filed his Exceptions to warrant of arrest: Art. IV, Sec. 3 of
report. It was only in the evening that he, without the Constitution safeguards against wanton and
warrant, arrested the suspect at his house where unreasonable invasion of the privacy and liberty of a
dried marijuana leaves were found and seized. This citizen as to his person, papers, and effects. Rule
is unlawful arrest. [People vs. Rodrigueza] 113, Sec. 6 of the Rules of Court provides the
exceptions to the warrant requirement.
2. When an offense has just been committed and
he has probable cause to believe based on However, the instant case does not fall under any of
personal knowledge of facts or circumstances that the exceptions in Rule 113, Sec. 6. First, it requires
the person to be arrested has committed it; that the officer arresting a person who has
committed, is committing, or is about to commit an
offense must have personal knowledge of that fact.
Requisites: The offense must be committed in his presence or
(1) Offense had JUST been committed; within his view. In the instant case:
(2) Person making the arrest has probable The knowledge as to the offense was furnished
cause to believe based on PERSONAL by Masamlok.
KNOWLEDGE. The location of the firearm was given by the
Burgos‘ wife.
Note: There must be a large measure of immediacy At the time of the arrest, Burgos was not in
between the time the offense is committed and the actual possession of any firearm or subversive
time of the arrest. If there was an appreciable lapse document.
of time between arrest and commission of crime, Neither was he committing any act which could
warrant of arrest must be secured. (NACHURA) be described as subversive. He was in fact
plowing his field at the time of his arrest.
Warrantless arrest of accused for selling marijuana 2
days after he escaped is invalid. [People vs Kimura It is clear that the arresting officers had no personal
(2004)] knowledge of the commission of the offense because
such information was only supplied to them by an
The police saw the victim dead at the hospital and informant.
when they inspected the crime scene, they found
the instruments of death. The eyewitnesses reported Neither has Burgos committed any offense in their
the happening and pointed to Gerente as one of the presence as he was merely plowing his field at the
killers. Here the warrantless arrest only 3 hrs after time of arrest. On the other hand, Sec. 6 (b) of Rule
the killing was held valid since personal knowledge 113 requires that a crime must in fact or actually
was established as to the fact of death and facts have been committed first. It is not enough that
indicating that Gerente killed the victim. [People vs there is reasonable ground to believe that the person
Gerente (1993)] to be arrested has committed a crime. That a crime
has actually been committed is an essential
PERSONAL KNOWLEDGE: Experience of an officer precondition. In the instant case, it was not even
which gives the idea that there is probable cause established that indeed a crime has been
that the person caught is responsible. It has been committed. The information that a crime was
ruled that ―personal knowledge of facts‖ in arrests probably committed was supplied by Masamlok who
without a warrant must be based on probable cause, did not even give his testimony under oath.
which means an actual belief or reasonable grounds
of suspicion. [Cadua v. Court of Appeals, G.R. No. Finally, the Court finds no compelling reason for the
123123, Aug. 19, 1999] haste of the arresting officers to arrest Burgos if
indeed he committed a crime. There is no showing
Burgos was convicted for the crime of Illegal that there was real apprehension that Burgos was on
Possession of Firearms in Furtherance of Subversion. the verge of flight or escape and that his
Masamlok claimed that he had been forcibly whereabouts are unknown. [People vs. Burgos
recruited by Burgos to the NPA, threatening him with (1986)]
the use of firearm against his life and family.
Masamlok was also allegedly threatened to attend an 3. When the person to be arrested is a prisoner
NPA seminar. The next day the authorities went to who has escaped from a penal establishment or
arrest Burgos without a warrant. They found him in place where he is serving final judgment or is
his residence plowing his field. Burgos denied the temporarily confined while his case is pending, or
accusation, but his wife pointed to a place below has escaped while being transferred from one
their house where a gun was buried in the ground. confinement to another.
After the firearm was recovered, Burgos allegedly
pointed to a stock pile of cogon where he had hidden ADDITIONAL EXCEPTIONS (NOT IN THE RULES):
subversive documents. The prosecution presented an (1) When the right is voluntarily waived
(estoppel).
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
(1) Any system of prior restraints of expression (d) Incitements to acts of violence and the
comes to the Court bearing a heavy overthrow by force of orderly
presumption against its constitutionality, government
giving the government a heavy burden to 87
show justification for the imposition of such Subsequent Punishment
restraint. (New York vs. United States 1971)
(2) There need not be total suppression. Even Concept: Freedom of speech includes freedom after
restriction of circulation constitutes speech. Without this assurance, the citizen would
censorship [Grosjean vs. American Press hesitate to speak for fear he might be provoking the
Co., 297 US 233] vengeance of the officials he has criticized (chilling
effect).
Examples of Unconstitutional Prior Restraint
(1) COMELEC prohibition against radio If criticism is not to be conditioned on the
commentators or newspaper columnists government’s consent, then neither should it be
from commenting on the issues involved in subject to the government‘s subsequent
a scheduled plebiscite [Sanidad vs. chastisement.
COMELEC (1990)]
(2) Arbitrary closure of a radio station (Eastern Examples of Valid Subsequent Restraints:
Broadcasting vs. Dans (1985)) (1) Libel. Every defamatory imputation is presumed
(3) COMELEC resolution prohibiting the posting to be malicious. [Alonzo vs. CA (1995)]
of decals and stickers in mobile units like Exceptions to this presumption are found in Art.
cars and other moving vehicles [Adiong vs. 354 of the RPC.
COMELEC (1992)]
(4) Search, padlocking and sealing of the (2) Obscenity. The determination of what is
offices of newspaper publishers (We Forum) obscene is a judicial function. [Pita vs. CA
by military authorities [Burgos vs. Chief of (1989)]
Staff, supra]
(5) An announcement of a public figure to Accused was convicted for exhibiting nude
prohibit the media to issue a specific kind painting and pictures, notwithstanding his claim
of statement amounts to prior restraint, that he had done so in the interest of art. Court
which is violative of the right to free press. said that the purpose was commercial, not
[Chavez vs. Gonzales (2006)] merely artistic, because he charged admission
fees to the exhibition. [U.S. vs. Kottinger
Examples of Constitutional Prior Restraint: (1923)]
(1) Law which prohibits, except during the
prescribed election period, the making of (3) Contempt for criticism/publications tending to
speeches, announcements or commentaries impede, obstruct, embarrass or influence the
for or against the election of any candidate courts in administering justice in a pending suit
for office [Gonzales vs. COMELEC (1969)] or proceeding (sub judice) [People vs. Alarcon
(2) Prohibition on any person making use of the (1939)]
media to sell or to give free of charge print
space or air time for campaign or other (4) Being a public figure does not automatically
political purposes except to the COMELEC. destroy in toto a person's right to privacy. The
Ratio: police power of State to regulate limits of freedom of expression are reached
media for purpose of ensuring equal when it touches upon matters of private concern
opportunity, time and space for political [Lagunzad vs. Gonzales (1979)]
campaigns. [National Press Club vs.
COMELEC, G.R. NO. 1026653, March 5, (5) Right of students to free speech in school
1992; Osmena vs. COMELEC] premises must not infringe on the school‘s right
(3) Movie censorship: the power of the MTCRB to discipline its students [Miriam College
can be exercised only for purposes of Foundation vs. CA (2000)]
reasonable classification, not censorship.
[NACHURA citing Gonzalez vs. Katigbak EXCEPTIONS
(1985) and Ayer vs. Judge Capulong] (1) Fair comment on matters of public interest.
(4) Near vs. Minnesota, (1931): Fair comment is that which is true or, if
(a) When a nation is at war, many things false, expresses the real opinion of the
that might be said in time of peace are author based upon reasonable degree of
such a hindrance to its effort that their care and on reasonable grounds.
utterance will not be endured so long (2) Criticism of official conduct is given the
as men fight and that no court could widest latitude. [US vs. Bustos (1918)]
regard them as protected by any
constitutional right 2. Content-Based and Content-Neutral
(b) Actual obstruction to the government‘s
recruiting service or the publication of Regulations
the sailing dates of transports or the
number and location of troops Content-Based Restrictions
(c) Obscene publications
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
Courts must be viewpoint-neutral when it comes to through a letter addressed to the Presidential
religious matters if only to affirm the neutrality Complaints and Actions Commission (PCAC). A
principle of free speech rights under modern contempt charge was brought against him for
jurisprudence where "all ideas are treated equal in sending that letter which tended to degrade the 89
the eyes of the First Amendment - even those ideas lower court in the eyes of the President and of the
that are universally condemned and run counter to people. SC reversed the ruling which cited him in
constitutional principles." contempt.
Under the right to free speech, "there is no such Freedom of Expression and the Administration of
thing as a false idea. However pernicious an opinion Justice: For his act (of sending his letter to the
may seem, we depend for its correction not on the President and not to the Sec of Justice or SC) to be
conscience of judges and juries but on the contemptuous, the danger must cause a serious
competition of other ideas." imminent threat to the administration of justice. We
cannot infer that such act has "a dangerous
Denying certiorari and affirming the appellate court tendency" to belittle the court or undermine the
decision would surely create a chilling effect on the administration of justice for the writer merely
constitutional guarantees of freedom of speech, of exercised his constitutional right to petition the
expression, and of the press. [MVRS v. Islamic government for redress of a legitimate grievance.
Da’Wah Council of the Phil (2003)] [Cabansag vs. Fernandez (1957)]
Freedom Parks. B.P. 880 provides that every city or group of persons organized for the purpose of
and municipality must set aside a freedom park engaging in terrorism, or which, although not
within six months from the law‘s effectivity in 1985, organized for that purpose, actually uses the acts to
or 20 years ago. Section 15 of the law provides for terrorize mentioned in this Act or to sow and create 90
an alternative forum through the creation of a condition of widespread and extraordinary fear
freedom parks where no prior permit is needed for and panic among the populace in order to coerce the
peaceful assembly and petition at any time. government to give in to an unlawful demand shall,
According to the SolGen (Nachura), however, he is upon application of the Department of Justice
aware of only ONE declared freedom park - Fuente before a competent Regional Trial Court, with due
Osmena in Cebu City. Without such alternative notice and opportunity to be heard given to the
forum, to deny the permit would in effect be to organization, association, or group of persons
deny the right. concerned, be declared as a terrorist and outlawed
organization, association, or group of persons by the
Hence, local governments are given a deadline of 30 said Regional Trial Court.
days within which to designate specific freedom
parks as provided under B.P. No. 880. If, after that The right to associate is not absolute. [People vs.
period, no such parks are so identified in accordance Ferrer (1972)]
with Section 15 of the law, all public parks and
plazas of the municipality or city concerned shall in
effect be deemed freedom parks; no prior permit of Sec. 2 (5), Art 9-B. 1987 Constitution. The right to
whatever kind shall be required to hold an assembly self-organization shall not be denied to government
therein. The only requirement will be written employees.
notices to the police and the office of the mayor to
allow proper coordination and orderly activities.
Sec. 8, Art. 3, 1987 Constitution. The right of the
Permit Application. There is need to address the people, including those employed in the public and
private sectors, to form unions, associations, or
situation adverted to by petitioners where mayors do
not act on applications for a permit and when the societies for purposes not contrary to law shall not
police demand a permit and the rallyists could not be abridged.
produce one, the rally is immediately dispersed.
Par. 2, Sec. 3(2), Art. 13, 1987 Constitution. It
In such a situation, as a necessary consequence and shall guarantee the rights of all workers to self-
part of maximum tolerance, rallyists who can show organization, collective bargaining and negotiations,
the police an application duly filed on a given date and peaceful concerted activities, including the right
can, after two days from said date, rally in to strike in accordance with law. They shall be
accordance with their application without the need entitled to security of tenure, humane conditions of
to show a permit, the grant of the permit being then work, and a living wage. They shall also participate
presumed under the law, and it will be the burden of in policy and decision-making processes affecting
the authorities to show that there has been a denial their rights and benefits as may be provided by law.
of the application, in which case the rally may be
peacefully dispersed following the procedure of 3. Facial Challenges and the
maximum tolerance prescribed by the law.
Overbreadth Doctrine
Conclusion. For this reason, the so-called calibrated
pre-emptive response policy has no place in our legal Overbreadth Doctrine: A governmental purpose may
firmament and must be struck down as a darkness not be achieved by means which sweep
that shrouds freedom. It merely confuses our people unnecessarily broadly and thereby invade the area of
and is used by some police agents to justify abuses. protected freedoms.
On the other hand, B.P. No. 880 cannot be
condemned as unconstitutional; it does not curtail or (1) Claims of facial overbreadth are
unduly restrict freedoms; it merely regulates the use entertained in cases involving statutes
of public places as to the time, place and manner of which by their terms seek to regulate only
assemblies. spoken words. Such claims have been
curtailed when invoked against ordinary
Far from being insidious, ―maximum tolerance‖ is for criminal laws that are sought to be applied
the benefit of rallyists, not the government. The to protected conduct.
delegation to the mayors of the power to issue rally (2) A facial challenge using the overbreadth
permits is valid because it is subject to the doctrine will require the Court to examine
constitutionally-sound clear and present danger PP 1017 and pinpoint its flaws and defects,
standard. [Bayan vs. Ermita (2006)] not on the basis of its actual operation to
petitioners, but on the assumption or
Freedom of Association and Self-Organization prediction that its very existence may cause
others not before the Court to refrain from
SEC. 17. Human Security Act constitutionally protected speech or
Proscription of Terrorist Organizations, Association, expression.
or Group of Persons. – Any organization, association,
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
(3) Also, the challenger must establish that Lovely as being involved in the series of bombings in
there can be no instance when the assailed Metro Manila.
law may be valid.
(4) Used on freedom of expression, when on Direct Incitement Test: In the case before us, there
91
the face of a regulation, it appears is no teaching of the moral propriety of a resort to
sweeping. violence, much less an advocacy of force or a
conspiracy to organize the use of force against the
A plain reading of PP 1017 shows that it is not duly constituted authorities.
primarily directed to speech / speech-related
conduct. It is actually a call upon the AFP to prevent The alleged remark about the likelihood of violent
or suppress all forms of lawless violence. Petitioners struggle unless reforms are instituted is not a threat
did not show WON there‘s an instance when PP1017 against the government. Nor is it even the
may be valid. [David vs. Arroyo (2006)] uninhibited, robust, caustic, or unpleasantly sharp
attack which is protected by the guarantee of free
4. Tests speech.
In this case, the Petitioner was charged with Art. XVI Section 11. (1) The ownership and
violation of the Revised Anti-Subversion Act after management of mass media shall be limited to
being apparently implicated by a certain Victor citizens of the Philippines, or to corporations,
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
Only Filipino citizens or corporations or associations According to Iglesia ni Cristo vs. CA: The law gives
at least seventy per centum of the capital of which the Board the power to screen, review and examine
is owned by such citizens shall be allowed to engage ALL ―television programs‖ whether religious, public
in the advertising industry. affairs, news documentary, etc. (Ubi lex non
distinguit nec distinguere debemos-when the law
The participation of foreign investors in the does not make any exception, courts may not except
governing body of entities in such industry shall be something therefrom, unless there is compelling
limited to their proportionate share in the capital reason apparent in the law to justify it).
thereof, and all the executive and managing officers
of such entities must be citizens of the Philippines. Also, the fact that freedom of religion has been
accorded a preferred status, still the Court did not
The Court pronounced that the freedom of broadcast exempt Iglesia ni Cristo‘s program from MTRCB‘s
media is lesser in scope than the press because of power to review. Freedom of expression and of the
their pervasive presence in the lives of people and press has not been declared of preferred status.
because of their accessibility to children. [MTRCB vs. ABS-CBN (2005)]
Movie Censorship The Supreme Court could not compel TV stations and
radio stations, being indispensable parties, to give
Gonzales was the producer of the movie Kapit sa UNIDO free air time as they were not impleaded in
Patalim w/c the Board of Review for Motion Pictures this case. UNIDO must seek a contract with these TV
and Televisions classified as fit ―For Adults Only.‖ stations and radio stations at its own expense.
[UNIDO vs COMELEC (1981)]
Here the Court held that the power of the Board is
limited to the classification of films. For freedom of The television camera is a powerful weapon which
expression is the rule and restrictions the exception. intentionally or inadvertently can destroy an accused
Censorship is allowable only under the clearest and his case in the eyes of the public.
proof of a clear and present danger of a
substantive evil to public safety, morals, health or Considering the prejudice it poses to the defendant‘s
any other legit public interest: right to due process as well as to the fair and orderly
(1) There should be no doubt what is feared administration of justice, and considering further
may be traced to the expression that the freedom of the press and the right of the
complained of. people to information may be served and satisfied by
(2) Also, there must be reasonable less distracting, degrading and prejudicial means,
apprehension about its imminence. It does live radio and television coverage of the court
not suffice that the danger is only proceedings shall not be allowed. No video shots or
probable. [Gonzales vs. Kalaw Katigbak photographs shall be permitted during the trial
(1985)] proper.
Limited intrusion into a person‘s privacy is Video footages of court hearings for news purposes
permissible when that person is a public figure and shall be limited and restricted as above indicated.
the information sought to be published is of a public [Secretary of Justice vs Sandiganbayan (2001)]
character.
Radio Censorship
What is protected is the right to be free from
unwarranted publicity, from the wrongful publicizing The Supreme Court does not uphold claim that Far
of the private affairs of an individual which are Eastern had no right to require the submission of the
outside the realm of public concern. [Ayer manuscript. It is a duty of Far Eastern to require the
Productions vs Capulong, supra] submission of a manuscript as a requirement in
broadcasting speeches. Besides, laws provide for
Television Censorship such actions:
P.D. 1986 gives the petitioner the power to screen, Act 8130. Franchise for Far Eastern; radio to be
review and examine all television programs. open to the general public but subject to regulations
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
Comm. Act 98. Sec. of Interior and/or the Radio Art. III, Sec. 5. No law shall be made respecting an
Board is empowered to censor what is considered establishment of religion; or prohibiting the free
―neither moral, educational or entertaining, and exercise thereof. The free exercise and enjoyment
prejudicial to public interest.‖ The Board can of religious profession and worship, without
93
forfeit the license of a broadcasting station. discrimination or preference, shall forever be
allowed. No religious test shall be required for the
Sec. of the Interior, Dept. Order 13. Requires exercise of civil or political rights.
submission of daily reports to Sec. of Interior/Radio
Board re: programs before airing. For speeches, a
manuscript or short gist must be submitted.
1. Non-Establishment Clause
[Santiago vs. Far Eastern Broadcasting (1941)]
Concept
The clause prohibits excessive government
6. Commercial Speech entanglement with, endorsement or disapproval of
religion [Victoriano v. Elizalde Rope Workers Union
(1974); Lynch v. Donnelly, 465 US 668 (1984)
Commercial speech is unprotected speech. O'Connor, J., concurring); Allegheny County v.
Commercial Advertising in the U.S. has been Greater Pittsburg ACLU (1989)]
accorded First Amendment protection but it not in
the same level of protection given to political
Basis
speech. One case set down the requirements for
Rooted in the separation of Church and State [Sec.
protection of commercial speech: (1) speech must
2(5), Art. IX-C; Sec. 5(2), Sec. 29(2) Art. VI, 1987
not be false, misleading or proposing an illegal
Consti]
activity; (2) government interest sought to be served
by regulation must be substantial; (3) the regulation
must advance government interest; and (4) the Acts NOT permitted by Non-establishment
regulation must not be overbroad. [BERNAS] Clause
exclusively used for religious, charitable, or Crèche is displayed in a secular manner, and
educational purposes shall be exempt from taxation. merely depicts the origins of the holiday. The
Constitution mandates accommodation and not
(2) Operation of sectarian schools merely tolerance. Instead of an absolutist 94
Sec. 4(2), Art. 14. Educational institutions, other approach, court inquires if the law or conduct
than those established by religious groups and has a secular purpose. [Lynch vs. Donnely
mission boards, shall be owned solely by citizens of (1984)]
the Philippines or corporations or associations at
least sixty per centum of the capital of which is (9) Financial support for secular academic
owned by such citizens… facilities
(8) Display of crèche in a secular setting The power to tax the exercise of the privilege is
the power to control or suppress its enjoyment.
Those who can tax the exercise of religious
practice can make its exercise so costly as to
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
deprive it of the resources necessary for its make them live together and the noble intention of
maintenance. [American Bible Society vs. City the Government of organizing them politically will
of Manila (1957)] come to naught. Furthermore, their relocation (and
the imposition that they are not allowed to emigrate 95
(3) Exemption from union shop to some other places under penalty of imprisonment)
is a proper restraint to their liberty, they being
Neither does the law constitute an taught and guided in Tigbao to improve their living
establishment of religion. It has been held that conditions, and improve their education. In short,
in order to withstand objections based on this everything is being done from them in order that
ground, the statute must have a secular purpose their advancement in civilization and material
and that purpose must not directly advance or prosperity may be assured. [Rubi vs. Provincial
diminish the interest of any religion. Congress Board (1919)]
acted merely to relieve persons of the burden
imposed by union security agreements. The free The executive of a municipality does not have the
exercise of religious profession or belief is right to force citizens of the Philippine Islands to
superior to contract rights. [Victoriano vs. change their domicile from one locality to another.
Elizalde Rope Workers Union (1974)] Law defines power, and there is no law nor
regulation that allows a mayor or a police chief to
(4) Non-disqualification from local government restrain the liberty of abode of citizens of the
office Philippines. [Villavicencio vs. Lukban (1919)]
Art. III Section 7. The right of the people to While the Constitution guarantees access to
information on matters of public concern shall be information on matters of public concern, access is
recognized. Access to official records, and to subject to reasonable regulation for the convenience
documents and papers pertaining to official acts, of and for order in the office that has custody of the 96
transactions, or decisions, as well as to government documents. [Baldoza vs Dimaano (1976)]
research data used as basis for policy development,
shall be afforded the citizen, subject to such While the public officers in custody or in control of
limitations as may be provided by law. public records have the discretion to regulate the
manner in which such records may be inspected,
Art. XVI Section 10. The State shall provide the examined or copied by interested persons, such
discretion does not carry with it the authority to
policy environment for the full development of
prohibit access, inspection, examination, or
Filipino capability and the emergence of
copying.‖ [Lantaco vs Llamas (1981)]
communication structures suitable to the needs and
aspirations of the nation and the balanced flow of
information into, out of, and across the country, in 2. Publication of Laws and
accordance with a policy that respects the freedom Regulations
of speech and of the press.
We hold therefore that all statutes, including those
Scope of local application and private laws, shall be
published as a condition for their effectivity, which
Right to information contemplates inclusion of shall begin fifteen days after publication unless a
negotiations leading to the consummation of the different effectivity date is fixed by the legislature.
transaction. Otherwise, the people can never
exercise the right if no contract is consummated, or Covered by this rule are presidential decrees and
if one is consummated, it may be too late for the executive orders promulgated by the President in
public to expose its defects. However, if the right the exercise of legislative powers whenever the
only affords access to records, documents and same are validly delegated by the legislature or, at
papers, which means the opportunity to inspect and present, directly conferred by the Constitution.
copy them at his expense. The exercise is also Administrative rules and regulations must also be
subject to reasonable regulations to protect the published if their purpose is to enforce or implement
integrity of public records and to minimize existing law pursuant also to a valid delegation.
disruption of government operations. [Chavez v. PEA
and Amari, G.R. No. 133250, July 9, 2002] Interpretative regulations and those merely internal
in nature, that is, regulating only the personnel of
1. Limitations the administrative agency and not the public, need
not be published. Neither is publication required of
The right does not extend to matters recognized as the so-called letters of instructions issued by
privileged information rooted in separation of administrative superiors concerning the rules or
powers, nor to information on military and guidelines to be followed by their subordinates in
diplomatic secrets, information affecting national the performance of their duties.
security, and information on investigations of crimes
by law enforcement agencies before the prosecution Accordingly, even the charter of a city must be
of the accused. [Chavez v. PEA and Amari, supra] published notwithstanding that it applies to only a
portion of the national territory and directly affects
Media practitioners requested information from the only the inhabitants of that place. All presidential
GM of GSIS regarding clean loans granted to certain decrees must be published, x x x. The circulars
members of the defunct Batasang Pambansa on the issued by the Monetary Board must be published if
guaranty of Imelda Marcos shortly before the Feb they are meant not merely to interpret but to "fill in
1986 elections. Request was refused on the ground the details" of the Central Bank Act which that body
of confidentiality. is supposed to enforce.
The right to information is not absolute. It is limited Publication must be in full or it is no publication at
to matters of public concern and is subject to such all since its purpose is to inform the public of the
limitations as may be provided by law. That the GSIS contents of the laws. [Tañada vs Tuvera (1986)]
was exercising a proprietary function would not
justify its exclusion of the transactions from the 3. Access to Court Records
coverage of the right to info. But although citizens
have such right and, pursuant thereto, are entitled Canon II Confidentiality Code of Conduct for Court
to ―access to official records,‖ the Constitution does Personnel (AM No. 03-06-13-SC)
not accord them the right to compel custodians of SECTION 1. Court personnel shall not disclose to any
official records to prepare lists, summaries and the unauthorized person any confidential information
like in their desire to get info on matters of public acquired by them while employed in the judiciary,
concern. [Valmonte vs. Belmonte (1989)] whether such information came from authorized or
unauthorized sources.
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
Confidential information means information not yet proceedings in ensuring a fair and impartial trial
made a matter of public record relating to pending race against another, jurisprudence tells us that the
cases, as well as information not yet made public right of the accused must be preferred to win. With
concerning the work of any justice or judge relating the possibility of losing not only the precious liberty 97
to pending cases, including notes, drafts, research but also the very life of an accused, it behooves all
papers, internal discussions, internal memoranda, to make absolutely certain that an accused receives
records of internal deliberations and similar papers. a verdict solely on the basis of a just and
dispassionate judgment, a verdict that would come
The notes, drafts, research papers, internal only after the presentation of credible evidence
discussions, internal memoranda, records of internal testified to by unbiased witnesses unswayed by any
deliberations and similar papers that a justice or kind of pressure, whether open or subtle, in
judge uses in preparing a decision, resolution or proceedings that are devoid of histrionics that might
order shall remain confidential even after the detract from its basic aim to ferret veritable facts
decision, resolution or order is made public. free from improper influence, and decreed by a
judge with an unprejudiced mind unbridled by
Decisions are matters of public concern and interest. running emotions or passions. [Re: Request for Live
Pleadings and other documents filed by parties to a Radio-TV Coverage of the Trial in the Sandiganbayan
case need not be matters of public concern or of the Plunder Cases against former President
interest. They are filed for the purpose of Joseph Ejercito Estrada, Secretary of Justice
establishing the basis upon which the court may Hernando Perez v. Joseph Ejercito Estrada, A.M. No.
issue an order or a judgment affecting their rights 00-1-4-03-SC, June 29, 2001]
and interest. Access to court records may be
permitted at the discretion and subject to the K. Right to Association
supervisory and protective powers of the court, after 1. Labor Unionism
considering the actual use or purpose for which the 2. Communist and Similar Organizations
request for access is based and the obvious 3. Integrated Bar of the Philippines
prejudice to any of the parties. [Hilado, et al vs
Judge (2006)]
Sec. 8, Art. III. The right of the people, including
those employed in the public and private sectors, to
4. Right to Information Relative to form unions, association, or societies for purposes
not contrary to law shall not be abridged.
Government Contract Negotiations
Sec 2(5), Art. IX-B. The right to self-organization
The constitutional right to information includes shall not be denied to government employees.
official information on on-going negotiations before
a final contract. The information, however, must Sec. 3, Art. XIII. x x x. It shall guarantee the rights
constitute definite propositions by the government, of all workers to self-organization, collective
and should not cover recognized exceptions. [Chavez bargaining and negotiations, and peaceful concerted
v. Philippine Estate Authority (2002)] activities, including the right to strike in accordance
with law. They shall be entitled to security of
The limitations recognized to the right of tenure, humane conditions of work, and a living
information are: wage. They shall also participate in policy and
(1) National security matter including state decision-making processes affecting their rights and
secrets regarding military and diplomatic benefits as may be provided by law.
matters, inter-government exchanges prior
to the conclusion of treaties and executive With or without a constitutional provision of this
agreements. character, it may be assumed that the freedom to
(2) Trade secrets and banking transactions organize or to be a member of any group or society
(3) Criminal Matters exists. With this explicit provision, whatever doubts
(4) Other confidential matters. [Neri vs Senate there may be on the matter are dispelled. Unlike the
(2008) citing Chavez vs President cases of other guarantee which are mostly American
Commission on Good Government] in origin, this particular freedom has an indigenous
cast. It can trace its origin to the Malolos
Diplomatic Negotiations Constitution.
Diplomatic negotiations have a privileged character. The limitation "for purposes not contrary to law"
[Akbayan vs Aquino cited in Neri vs Senate (2008)] should be interpreted as another way of expressing
the clear and present danger rule for unless an
Court Hearings association or society could be shown to create an
imminent danger to public safety, there is no
When the constitutional guarantees of freedom of justification for abridging the right to form
the press and the right to public information, on the association societies. [Gonzales vs COMELEC (1969)]
one hand, and the fundamental rights of the
accused, on the other hand, along with the Note: The right is recognized as belonging to people
constitutional power of a court to control its whether employed or unemployed, and whether
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
employed in the government or in the private sector. organized conspiracy for the overthrow of
It also recognizes that the right to form associations the Government by illegal means for the
includes the right to unionize purpose of placing the country under the
control of a foreign power; (b) that the 98
It should be noted that the provision guarantees the accused joined the CPP; (c) that he did so
right to associations. It does not include the right to willfully, knowingly and by overt acts.
compel others to form an association. But there may [People vs Ferrer (1972)]
be situations in which, by entering into a contract,
one may also be agreeing to join an association. 3. Integrated Bar of the Philippines
[BERNAS]
If a land buyer who buys a lot with an annotated lien Compulsory membership of a lawyer in the
that the lot owner becomes an automatic member of integrated bar of the Philippines does not violate the
a homeowners‘ association thereby voluntarily joins constitutional guarantee. [In Re: Edillon, 84 SCRA
554]
the association. [Bel-Air Village Association vs
Diokno (1989)]
L. Eminent Domain
1. Labor Unionism 1. Concept
2. Expansive Concept of ―Public Use‖
The right to form associations does not necessarily 3. Just Compensation
include the right to be given legal personality. 4. Abandonment of Intended Use and Right of
However, if the law itself should make possession of Repurchase
legal personality a pre-condition for effective 5. Miscellaneous Application
associational action, involved would be not just the
right to have legal personality but also the right to 1. Concept
be an association. [Philippine Association of Free
Labor Unions vs Secretary of Labor (1969)]
It is the right of the government to take private
The right of association of managerial employees is property with just compensation.
denied because of Article 245 of the Labor Code
which provides that managerial employees are not The power of eminent domain does not depend for
eligible to join, assist or form any labor its existence on a specific grant in the constitution.
organization. This is because Art III Sec 8 is subject It is inherent in sovereignty and exists in a sovereign
to the condition that its exercise is for the purposes state without any recognition of it in the
not contrary to law. [United Pepsi-Cola Supervisory constitution. The provisions found in most of the
Union (UPSU) vs Laguesma (1998)] state constitutions relating to the taking of property
for the public use do not, by implication, grant the
2. Communist and Similar power to the government of the state, but limit a
power which would otherwise be without limit.
Organizations (citations omitted) [Visayan Refining Co. vs. Camus,
G.R. No. L-15870, December 3, 1919]
This is a question of the constitutionality of the Anti-
Subversion Act which declares the Communist Party Generally
of the Philippines (CPP) and similar organizations (1) Taking of Private Property
―illegal and outlawed.‖ Although the Supreme Court (2) for Public Use,
upheld the validity of the statute, ―we cannot (3) with Just Compensation, and
overemphasize the need for prudence and (4) Due Process.
circumspection in its enforcement, operating as it
does in the sensitive area of freedom of expression Specifically (LGUs, Sec. 19, Local Government Code)
and belief.‖ The basic guidelines for prosecution (1) Ordinance by a local legislature council is
under the Act, are the following elements for the enacted authorizing local chief executive to
crime to be established: exercise eminent domain,
(2) For public use, purpose or welfare or for
(1) In case of subversive organizations other the benefit of the poor and of the landless,
than the CPP, (a) that the purpose of the (3) Payment of just compensation,
organization is to overthrow the present (4) Valid and definite offer has been previously
Government of the Philippines and to made to owner of the property sought to be
establish in this country a totalitarian expropriated but such offer was not
regime under the domination of a foreign accepted [Municipality of Parañaque vs. VM
power; (b) that the accused joined such Realty (1998)]
organization; and (c) that he did so
knowingly, willfully and by overt acts; and Jurisdiction over a complaint for eminent domain is
with the Regional Trial Court. While the value of the
(2) In the case of the CPP, (a) that the CPP property to be expropriated is estimated in
continues to pursue the objectives which monetary terms – for the court is duty bound to
led Congress in 1957 to declare it to be an determine the amount of just compensation to be
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
paid for the property – it is merely incidental to the (1) The expropriator must enter a private
expropriation suit [Barangay San Roque, Talisay, property
Cebu v. Heirs of Francisco Pastor, G.R. No. 138869, (2) Entry must be for more than a momentary
June 20, 2000; Bardillion v. Barangay Masili of period 99
Calamba, Laguna, G.R. No. 146886, April 30, 2003] (3) Entry must be under warrant or color of
legal authority
The issuance of a writ of possession becomes (4) Property must be devoted to public use or
ministerial upon the (1) filing of a complaint for otherwise informally appropriated or
expropriation sufficient in form and substance, and injuriously affected
(2) upon deposit made by the government of the Utilization of the property must be in such a way as
amount equivalent to 15% of the fair market value of to oust the owner and deprive him of beneficial
the property sought to be expropriated per current enjoyment of the property. [Republic v. Castelvi, 58
tax declaration. [Biglang-Awa v. Judge Bacalla, G.R. SCRA 336]
Nos. 139927-139936, November 22, 2000; Bardillon
v. Barangay Masili of Calamba, Laguna, Laguna, G.R. Due Process
No. 146886, April 30, 2003] The defendant must be given an opportunity to be
heard. In the case of Belen v. Court of Appeals, the
Scope and Limitations Supreme Court declared two Presidential Decrees
All Private Property capable of ownership may be unconstitutional for violating due process because
expropriated, except money and choses in action. they did not provide for any form of hearing or
Even services may be subject to eminent domain. procedure by which the propriety of the
[Republic v. PLDT, 26 SCRA 620] expropriation or the reasonableness of the
compensation.
The exercise of the right of eminent domain,
whether directly by the State or by its authorized ―Taking‖ via eminent domain vs. ―taking‖ under
agents, is necessarily in derogation of private rights. social justice clause
Hence, strict construction will be made against the Agrarian Reform (Art. XIII, Sec. 4): This provision is
agency exercising the power. [Jesus is Lord Christian an exercise of the police power of the State through
School Foundation v. Municipality of Pasig, G.R. No. eminent domain (Association of Small Landowners
152230, August 9, 2005] vs. Secretary of Agrarian Reform) as it is a means to
regulate private property.
Necessity
The foundation of the right to exercise eminent The Comprehensive Agrarian Reform Law prescribes
domain is genuine necessity and that necessity must retention limits to the landowners, there is an
be of public character. Government may not exercise of police power for the regulation of private
capriciously or arbitrarily choose which private property in accordance with the constitution. But in
property should be expropriated. [Lagcao v. Judge carrying out such regulation, the owners are
Labra, G.R. No. 155746, October 13, 2004] deprived of lands they own in excess of the
maximum area allowed, there is also taking under
When the power is exercised by the legislature, the the power of eminent domain. The taking
question of necessity is generally a political contemplated is not a mere limitation on the use of
question. [Municipality of Meycauyan, Bulacan v. the land, but the surrender of the title to and
Intermediate Appellate Court, 157 SCRA 640] physical possession of the excess and all beneficial
rights accruing to the owner in favor of the
The RTC has the power to inquire into the legality of beneficiary. [Sta. Rosa Realty & Development Corp.
the exercise of the right of eminent domain and to v. Court of Appeals, G.R. No. 112526, October 12,
determine whether there is a genuine necessity for 2001]
it. [Bardillon v. Barangay Masili of Calamba, Laguna,
G.R. No. 146886, April 30, 2003] 2. Expansive Concept of ―Public Use‖
Private Property
Definition
Private property already devoted to public use
cannot be expropriated by a delegate of legislature The idea that "public use" means "use by the public"
acting under a general grant of authority. [City of has been discarded. At present, whatever may be
Manila v. Chinese Community, 40 Phil 349] beneficially employed for the general welfare
satisfies the requirement of public use. [Heirs of
Taking Juancho Ardona vs. Reyes, 123 SCRA 220]
The exercise of the power of eminent does not
always result in the taking or appropriation of title That only a few benefit from the expropriation does
to the expropriated property; it may only result in not diminish its public-use character, inasmuch as
the imposition of a burden upon the owner of the pubic use now includes the broader notion of
indirect public benefit or advantage [Filstream
condemned property, without loss of title or
International vs. CA, 284 SCRA 716]
possession. [National Power Corporation v.
Gutierrez, 193 SCRA 1]
―Public use‖ is the general concept of meeting
Requisites for a valid taking: public need or public exigency. It is not confined to
actual use by the public in its traditional sense. The
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
idea that ―public use‖ is strictly limited to clear value of the property at time of taking). The courts
cases of ―use by the public‖ has been abandoned. have the power and authority to determine just
The term ―public use‖ has now been held to be compensation, independent of what the decrees
synonymous with ―public interest‖, ―public benefit‘, state, and thus may appoint commissioners to help 10
―public welfare‖ and ―public convenience‘. [Reyes v. in determining just compensation. [EPZA vs. Dulay, 0
National Housing Authority, G.R. No. 147511, 148 SCRA 305]
January 20, 2003]
While commissioners are to be appointed by the
The practical reality that greater benefit may be court for the determination of just compensation,
derived by Iglesia ni Cristo members than most the latter is not bound by the commissioners‘
others could well be true, but such peculiar findings. [Republic v. Santos, 141 SCRA 30; Republic
advantage still remains merely incidental and (MECS) v. IAC, 185 SCRA 572]
secondary in nature. That only few would benefit
from the expropriation of the property does not The court may substitute its own estimate of the
necessarily diminish the essence and character of value of the property only for valid reasons: (a) the
public use [Manosca v. Court of Appeals, 252 SCRA commissioners have applied illegal principles to the
412] evidence submitted to them; (b) they have
disregarded a clear preponderance of evidence; or
3. Just Compensation (c) where the amount allowed is either grossly
inadequate or excessive. [National Power
Corporation v. De la Cruz, G.R. No. 156093,
Definition February 2, 2007]
It is the just and complete equivalent of the loss
which the owner of the thing expropriated has to Non-payment of just compensation in an
suffer by reason of the expropriation. expropriation proceeding does not entitle the
private landowners to recover possession of the
Full and fair equivalent of the property taken; it is
expropriated lots, but only to demand payment of
the fair market value of the property. It is settled
the fair market value of the property. [Republic of
that the market value of the property is ―that the the Philippines v. Court of Appeals, G.R. No.
sum of money which a person, desirous but not 146587, July 2, 2002; Reyes v. National Housing
compelled to buy, and an owner, willing but not Authority, G.R. No. 147511, Janaury 29, 2003]
compelled to sell, would agree on as a price to be
given and received therefor‖ [Province of Tayabas The Republic was ordered to pay just compensation
vs. Perez (1938)] twice: first, in the expropriation and then, in the
action for recovery of possession but it never did. 57
Determination years have lapsed since the expropriation case was
terminated but the Republic never paid the owners.
BASIS: Fair Market Value The court construed the failure to pay as a
Price fixed by a buyer desirous but not compelled to deliberate refusal on the part of the Republic. When
buy and a seller willing but not compelled to sell. the government fails to pay just compensation
within five years from the finality of the judgment in
Must include consequential damages (damages to the expropriation proceedings, the owners
other interest of the owner attributable to the concerned shall have the right to recover possession
expropriation) and deduct consequential benefits of their property. [Republic of the Philippines v.
(increase of value of other interests attributable to Vicente Lim, G.R. No. 161656, June 29, 2005]
new use of the former property).
Effect of Delay
CHOICE OF PROPERTY TO BE EXPROPRIATED IS
SUBJECT TO JUDICIAL REVIEW AS TO Just compensation means not only the correct
REASONABLENESS: Under Section 2, Article IV of the amount to be paid to the owner of the land but also
Philippine Constitution, the Republic of the payment within a reasonable time from its taking
Philippines can take private property upon payment [Eslaban v. De Onorio, G.R. No. 146062, June 28,
of just compensation. However, private property to 2001]
be taken cannot be chosen arbitrarily and
capriciously, as the landowner is entitled to due
The filing of the case generally coincides with the
process. The Department of Public Highways
taking. When the filing of the case coincides with
originally established the extension in Cuneta the taking, and the value of the property has
Avenue, and it is assumed that they made extensive increased because of the use to which the
studies regarding it. The change from Cuneta Avenue expropriator has put it, the value is that of the time
to Fernando Rein-Del Pan Streets cannot be justified of the earlier taking. Otherwise the owner would
on the ground of social impact, as the properties to gain undeserved profit. But if the value increased
be affected along Cuneta Avenue are mostly motels. independently of what the expropriator did, then
[De Knecht vs. Bautista (1980)] the value is that of the later filing of the case. Also,
between the time payment is due and the actual
The Presidential Decrees merely serve as a guide or payment, legal interest (6%) accrues. [NAPOCOR v.
a factor for the courts in determining amount of just
CA (1996)]
compensation (which should be the fair and full
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
4. Abandonment of Intended Use and Private bus firms, taxicab fleets, roadside 10
Right of Repurchase
restaurants, and other private businesses using 1
public streets and highways do not diminish in the
least bit the public character of expropriations for
If the expropriator (government) does not use the roads and streets. The lease of store spaces in
property for a public purpose, the property reverts underpasses of streets built on expropriated land
to the owner in fee simple. [Heirs of Moreno vs. does not make the taking for a private purpose.
Mactan-Cebu International Airport (2005)] Airports and piers catering exclusively to private
airlines and shipping companies are still for public
5. Miscellaneous Application use. The expropriation of private land for slum
clearance and urban development is for a public
purpose even if the developed area is later sold to
What the due process clause requires is that the
private homeowners, commercial firms,
landowner must be given reasonable opportunity to
entertainment and service companies, and other
be heard and to present his claim or defense.
private concerns. [Heirs of Ardona vs. Reyes, G.R.
Although due process does not always necessarily
Nos. L-60549, 60553 to 60555, October 26, 1983)
demand that a proceeding be had before a court of
law, it still mandates some form of proceeding
wherein notice and reasonable opportunity to be Art. III, Sec. 9. Private property shall not be taken
heard are given to the owner to protect his property for public use without just compensation.
rights. Although there are exceptional situations
when in the exercise of the power of eminent Art. XII, Sec. 18. The State may, in the interest of
domain, the requirement does not need judicial national welfare or defense, establish and operate
process, when it is alleged that the landowner‘s vital industries and, upon payment of just
right to due process of law has been violated in the compensation, transfer to public ownership utilities
taking of his property, the courts can probe and and other private enterprises to be operated by the
check on the alleged violation. [Manotok vs. NHA government.
(1987)]
Art. XIII, Sec. 4 The State shall, by law, undertake
The performance of the administrative acts an agrarian reform program founded on the right
necessary to the exercise of the power of eminent of farmers and regular farmworkers who are
domain in behalf of the state is lodged by tradition landless, to own directly or collectively the lands
in the Sovereign or other Chief Executive. they till or, in the case of other farmworkers, to
receive a just share of the fruits thereof.
Where the Legislature has expressly conferred the
authority to maintain expropriation proceedings To this end, the State shall encourage and undertake
upon the Chief Executive, the right of the latter to the just distribution of all agricultural lands, subject
proceed therein is clear. to such priorities and reasonable retention limits as
the Congress may prescribe, taking into account
Once authority is given to exercise the power of ecological, developmental, or equity considerations,
eminent domain, the matter ceases to be wholly and subject to the payment of just compensation.
legislative. The executive authorities may then
decide whether the power will be invoked and to In determining retention limits, the State shall
what extent. (citations omitted) [Visayan Refining respect the right of small landowners. The State
Co. vs. Camus, G.R. No. L-15870, December 3, 1919] shall further provide incentives for voluntary land-
sharing.
The particular mention in the Constitution of
agrarian reform and the transfer of utilities and
Art. XIII, Sec. 9 The State shall, by law, and for the
other private enterprises to public ownership merely
common good, undertake, in cooperation with the
underscores the magnitude of the problems sought
private sector, a continuing program of urban land
to be remedied by these programs. They do not
reform and housing which will make available at
preclude nor limit the exercise of the power of
affordable cost, decent housing and basic services
eminent domain for such purposes like tourism and
to under-privileged and homeless citizens in urban
other development programs.
centers and resettlement areas.
There can be no doubt that expropriation for such
It shall also promote adequate employment
traditions' purposes as the construction of roads,
opportunities to such citizens. In the implementation
bridges, ports, waterworks, schools, electric and
of such program the State shall respect the rights of
telecommunications systems, hydroelectric power
small property owners.
plants, markets and slaughterhouses, parks,
hospitals, government office buildings, and flood
control or irrigation systems is valid. However, the Art XIV, Sec. 13. The National assembly may
concept of public use is not limited to traditional authorize, upon payment of just compensation, the
purposes. Here as elsewhere the Idea that "public
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
popularity. Such laws might affect advertising prejudice to whatever criminal liability may have
contracts, the non-impairment clause of the been incurred.
Constitution must yield to the loftier purposes
targeted by the Government. [Chavez v. COMELEC 10
Rules of Court Rule 3 Sec. 21:
(2004)] Indigent party.—A party may be authorized to 3
litigate his action, claim or defense as an indigent if
The Court has imposed 2 essential requisites in order the court, upon an ex parte application and hearing,
that RA 7641 (Retirement Law) may be given is satisfied that the party is one who has no money
retroactive effect. First, the claimant for retirement or property sufficient and available for food, shelter
benefits must still be in the employ of the employer and basic necessities for himself and his family.
at the time the statute took effect. Second, the
claimant must have complied with the requirements Such authority shall include an exemption from
for eligibility for such retirement benefits under the payment of docket and other lawful fees, and of
statute. [Universal Robina Sugar v. Cabaleda (2008)] transcripts of stenographic notes which the court
may order to be furnished him. The amount of the
3. Limitations docket and other lawful fees which the indigent was
exempted from paying shall be a lien on any
It is ingrained in jurisprudence that the judgment rendered in the case favorable to the
constitutional prohibition does not prohibit every indigent, unless the court otherwise provides.
change in existing laws. To fall within the
prohibition, the change must not only impair the Any adverse party may contest the grant of such
obligation of the existing contract, but the authority at any time before judgment is rendered
impairment must be substantial. Moreover, the law by the trial court. If the court should determine
must effect a change in the rights of the parties with after hearing that the party declared as an indigent
reference to each other, and not with respect to is in fact a person with sufficient income or
non-parties. [Philippine Rural Electric Cooperatives property, the proper docket and other lawful fees
Association v. Secretary, DILG, G.R. No. 143076, shall be assessed and collected by the clerk of court.
June 10, 2003] If the payment is not made within the time fixed by
the court, execution shall issue or the payment
thereof, without prejudice to such other sanctions as
N. Legal Assistance and Free the court may impose.
Access to Courts
Those protected include low paid employees,
domestic servants and laborers. [Cabangis v. Almeda
Sec. 11 Art. III: Lopez (1940)]
Free access to the courts and quasi-judicial bodies
and adequate legal assistance shall not be denied to The difference between ‗paupers‘ and ‗indigent‘
any person by reason of poverty. persons is that the latter are ―persons who have no
property or sources of income sufficient for their
support aside from their own labor though self-
Rules of Court Rule 141 Sec. 18: supporting when able to work and in employment.‖
SEC. 18. Indigent litigants exempt from payment of [Acar v. Rosal (1067)]
legal fees.—Indigent litigants (a) whose gross income
and that of their immediate family do not exceed The new rule applies even to litigation pending at
four thousand (P4,000.00) pesos a month if residing the time of its enactment. The retroactive
in Metro Manila, and three thousand (P3,000.00) application of the new rule has been found to be
pesos a month if residing outside Metro Manila, and more in keeping with Section 11 of Article III. The
(b) who do not own real property with an assessed previous rule, denied the right to litigate as paupers
value of more than fifty thousand (P50,000.00) pesos in appellate courts. [Martinez v. People (2000)]
shall be exempt from the payment of legal fees.
Note: The significance of having an explicit ―free
The legal fees shall be a lien on any judgment access‖ provisions in the Constitution may be
rendered in the case favorably to the indigent gathered from the rocky road which ―free access‖
litigant, unless the court otherwise provides. seems to have traveled in American jurisprudence.
The American constitution does not have an explicit
To be entitled to the exemption herein provided, the free access provision and, hence, its free access
litigant shall execute an affidavit that he and his doctrine has been developed as implicit from both
immediate family do not earn a gross income the equal protection clause and the due process
abovementioned, nor they own any real property clause. [BERNAS]
with the assessed value aforementioned, supported
by an affidavit of a disinterested person attesting to
the truth of the litigant's affidavit. O. Rights of Suspects
1. Availability
Any falsity in the affidavit of a litigant or 2. Requisites
disinterested person shall be sufficient cause to 3. Waiver
strike out the pleading of that party, without
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
ART. III, SEC. 12, 1987 CONSTITUTION The SC reversed the lower court‘s imposition of
1. Any person under investigation for the death penalty because ―the accused was not even
commission of an offense shall have the right to informed at the start of the investigation of his right
be informed of his right to remain silent and to to counsel, much less afforded the service of counsel 10
have competent and independent counsel notwithstanding his insistence.‖ He was given the 4
preferably of his own choice. If the person unacceptable excuse that there were no available
cannot afford the services of counsel, he must lawyers.
be provided with one. These rights cannot be
waived except in writing and in the presence of As used in this Act, "custodial investigation" shall
counsel. include the practice of issuing an "invitation" to a
2. No torture, force, violence, threat, person who is investigated in connection with an
intimidation, or any other means which vitiate offense he is suspected to have committed, without
the free will shall be used against him. Secret prejudice to the liability of the "inviting" officer for
detention places, solitary, incommunicado, or any violation of law. [People vs. Andag (1980)]
other similar forms of detention are prohibited.
3. Any confession or admission obtained in NOTE: These rights were further reiterated under RA
violation of this or Section 17 hereof shall be 7438, otherwise known as AN ACT DEFINING CERTAIN
inadmissible in evidence against him. RIGHTS OF PERSON ARRESTED, DETAINED OR UNDER
4. The law shall provide for penal and civil CUSTODIAL INVESTIGATION AS WELL AS THE DUTIES
sanctions for violations of this section as well as OF THE ARRESTING, DETAINING AND INVESTIGATING
compensation to the rehabilitation of victims of OFFICERS, AND PROVIDING PENALTIES FOR
torture or similar practices, and their families. VIOLATIONS THEREOF
In Miranda vs. Arizona: The Federal Supreme Court RA 7438, Rights of Persons under Custodial
made it clear that what is prohibited is the Investigation;
"incommunicado interrogation of individuals in a
police dominated atmosphere, resulting in self- Section 1. Statement of Policy. - It is the policy of
incriminating statements without full warnings of the Senate to value the dignity of every human being
constitutional rights.‖ and guarantee full respect for human rights
MIRANDA RIGHTS: The person under custodial Section 2. Rights of Persons Arrested, Detained or
investigation must be warned that— Under Custodial Investigation; Duties of Public
(1) He has a right to remain silent, Officers. –
(2) That any statement he makes may be used
as evidence against him, and (b) Any public officer or employee, or anyone acting
(3) That he has a right to the presence of an under his order or his place, who arrests, detains or
attorney, either retained or appointed. investigates any person for the commission of an
offense:
The long question during the appraisal of Galit‘s (1) shall inform the latter, in a language known to
constitutional rights followed by a monosyllabic and understood by him,
answer does not satisfy the requirements of the law (2) of his rights to remain silent and
that the accused be informed of his rights. Instead (3) to have competent and independent counsel,
there should be several short and clear questions preferably of his own choice,
and every right explained in simple words in a (4) who shall at all times be allowed to confer
dialect or language known to the person under privately with the person arrested, detained or
investigation. In this case, the accused is from under custodial investigation.
Samar and there is no showing that he understands (5) If such person cannot afford the services of his
Tagalog. Furthermore, waiver of the right to counsel own counsel, he must be provided with a
must be done in the presence of counsel, otherwise, competent and independent counsel by the
the procured statements will be inadmissible. investigating officer.
[People vs. Galit (1985)]
1. Availability
―Inasmuch as the prosecution in this case failed to
prove that before Duero made his alleged oral
confession he was informed of his rights to remain When the person is already in custody
silent and to have counsel and because there is no Custodial investigation involves any questioning
proof that he knowingly and intelligently waived initiated by law enforcement
those rights, his confession is inadmissible in During ―critical pre-trial stages‖ in the criminal
evidence.‖ Accused repudiated his alleged oral process
confession during trial. Since, the SC found that the
procedure set out in the Miranda case was not The rights under Sec. 12, Art. 3 are available when
followed, oral confession of accused to police station the investigation is no longer a general inquiry unto
commander is inadmissible in evidence. (enshrined an unsolved crime but has begun to focus on a
in Art. III, Sec. 12 of the 1987 Constitution) [People particular suspect, as when the suspect has been
vs. Duero (1985)] taken into police custody and the police carries out
a process of interrogation that lends itself to
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
eliciting incriminating statements. [People vs. Mara communication which results in the subject/accused
(1994)] understanding what is conveyed.
Ordinarily, an invitation to attend a hearing and The Miranda doctrine was modified to qualify
answer some questions which the person invited may the right to counsel to mean competent and
heed or refuse is not unconstitutional. Under certain independent counsel preferably of the
circumstances, however, such an invitation can suspect's own choice.
easily assume a different appearance. Here, where An individual need not make a pre-
the invitation comes from a powerful group interrogation request for a lawyer.
composed predominantly of ranking military officers While such request affirmatively secures his
issued at a time when the country has just emerged right to have one, his failure to ask for a
from martial rule and when the suspension of the lawyer does not constitute a waiver.
privilege of the writ of habeas corpus has not No effective waiver of the right to counsel
entirely been lifted and the designated interrogation during interrogation can be recognized
site is a military camp, the same can easily be taken unless specifically made AFTER the
not as a strictly voluntary invitation but as an warnings have been given.
authoritative command which one can only defy at - The accused who does not know his
his peril, especially where the invitation carries the rights and therefore does not make a
ominous seaming that "failure to appear . . . shall be request may be the person who most
considered as a waiver…and this Committee will be needs counsel.
constrained to proceed in accordance with law." If an individual indicates that he wishes the
[Babst vs. NBI (1984)] assistance of counsel before any
interrogation occurs, the authorities cannot
2. Requisites rationally ignore or deny his request on the
basis that the individual does not have or
People vs. Agustin (1995): This carries the cannot afford a retained attorney.
correlative obligation on the part of the investigator In order fully to apprise a person interrogated
to explain, and contemplates effective of the extent of his rights under this system
then, it is necessary to warn him not only
that he has the right to consult with an
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
Thus, it was held that when the process had not yet Burden of Proving Voluntariness of Waiver
shifted from the investigatory to the accusatory as (People vs. Jara, 1986)
when police investigation does not elicit a confession
the accused may not yet avail of the services of his Whenever a protection given by the Constitution is
lawyer. [Escobedo vs. Illinois of the United States waived by the person entitled to that protection,
Federal Supreme Court (1964)] the presumption is always against the waiver.
However, given the clear constitutional intent in the Consequently, the prosecution must prove with
1987 Constitution, the moment there is a move or strongly convincing evidence to the satisfaction of
even an urge of said investigators to elicit admissions this Court that indeed the accused:
or confessions or even plain information which may (1) Willingly and voluntarily submitted his
appear innocent or innocuous at the time, from said confession and
suspect, he should then and there be assisted by (2) Knowingly and deliberately manifested that
counsel, unless he waives the right, but the waiver he was not interested in having a lawyer
shall be made in writing and in the presence of assist him during the taking of that
counsel. [Gamboa vs. Cruz (1988)] confession.
Section 1. Rights of accused at trial. – In all (2) Accused is proceeded against under the
criminal prosecutions, the accused shall be entitled orderly process of law;
to the following rights: (3) Accused is given notice and opportunity to
(a) To be presumed innocent until the contrary is be heard; 10
proved beyond reasonable doubt. (4) Judgment rendered is within the authority 7
of a constitutional law. (Mejia vs. Pamaran,
(b) To be informed of the nature and cause of the 1988)
accusation against him.
Enrile was arrested two (2) days after he delivered No charge need be filed formally before one can file
allegedly seditious speeches. Consequently, his for bail, so long as one is under arrest. [Heras
arrest without warrant cannot be justified under Teehankee vs. Rovica (1945)]
Section 5(b) which states that an arrest without a 10
warrant is lawful when made after an offense has Arraignment of the accused is not essential to the 8
just been committed and the arresting officer or approval of the bail bond. When bail is authorized, it
private person has probable cause to believe based should be granted before arraignment. Otherwise
on personal knowledge of facts and circumstances the accused may be precluded from filing a motion
that the person arrested has committed the offense. to quash. Also, the court will be assured of the
presence of the accused at the arraignment
―Since the evidence in this case is hearsay, the precisely by grating bail and ordering his presence at
evidence of guilt is not strong, bail is allowed.‖ any stage of the proceeding. [Lavides vs CA (2000)]
[Enrile vs. Perez (En Banc Resolution, 2001)]
Exceptions:
Bail as a Matter of Right vs. Matter of (1) When charged with an offense punishable
Discretion by reclusion perpetua.
(2) Traditionally, the right to bail is not
Matter of right Matter of Discretion available to the military, as an exception to
Bail is a matter of right 1. In case the evidence the bill of rights. [People v. Reyes, 212
in all cases not of guilt is strong. In such SCRA 402]
punishable by reclusion a case, according to
perpetua. People vs. San Diego Standards for Fixing Bail
(1966), the court's
discretion to grant bail RULE 114. Sec. 9. Amount of bail; guidelines. –
must be exercised in the The judge who issued the warrant or granted the
light of a summary of the application shall fix a reasonable amount of bail
evidence presented by considering primarily, but not limited to, the
the prosecution. following factors:
(a) Financial liability of the accused to give bail;
Thus, the order granting (b) Nature and circumstance of the offense;
or refusing bail must (c) Penalty for the offense charged;
contain a summary of (d) Character and reputation of the accused;
the evidence for the (e) Age and health of the accused;
prosecution followed by (f) Weight of the evidence against the accused;
the conclusion on (g) Probability of the accused appearing at the
whether or not the trial;
evidence of guilt is (h) Forfeiture of other bail;
strong (Note: it is not (i) The fact that the accused was a fugitive from
the existence of guilt justice when arrested; and
itself which is (j) Pendency of other cases where the accused is on
concluded but the bail.
strength of the
probability that guilt Excessive bail shall not be required.
exists).
The constitution prohibits ―excessive bail.‖ Where
2. In extradition the lower court fixed bail at P 1, 195, 200.00, it
proceedings. Extradition rendered the right to bail nugatory.
courts do not render
judgments of conviction "Discretion is with the court called upon to rule on
or acquittal so it does the question of bail. We must stress, however, that
not matter WON the where conditions imposed upon a defendant seeking
crimes the accused is bail would amount to a refusal thereof and render
being extradited for is nugatory the constitutional right to bail, we will not
punishable by reclusion hesitate to exercise our supervisory powers to
perpetua [US Gov’t. vs. provide the required remedy. [Dela Camara v. Enage
Judge Puruganan and (1971)]
Mark Jimenez (2002)]
STANDARDS FOR FIXING BAIL: Guidelines in the
When Available fixing of bail are: (1) ability of the accused to give
bail; (2) nature of the offense; (3) penalty for the
General rule: From the very moment of arrest offense charged; (4) character and reputation of the
(which may be before or after the filing of formal accused; (5) health of the accused; (6) character and
charges in court) up to the time of conviction by strength of the evidence; (7) probability of the
final judgment (which means after appeal). accused appearing in trial; (8) forfeiture of other
bonds; (9) whether the accused was a fugitive from
justice when arrested; and (10) if the accused is
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
under bond for appearance at trial in other cases." These rights cannot be waived except in writing and
[Villaseñor vs. Abano (1967)] in the presence of counsel.
Right to Bail and Right to Travel Abroad It means the accused is amply accorded legal
10
assistance extended by a counsel who commits 9
The main issue in this case is WON a person facing a himself to the cause of the defense and acts
criminal indictment and provisionally released on accordingly. It is an efficient and truly decisive legal
bail have an unrestricted right to travel. The Court assistance, and not simply a perfunctory
held that the ―constitutional right to travel being representation. [People v. Bermas, G.R. No. 120420,
invoked by petitioner is not an absolute right. April 21, 1999]
Section 5, Article IV of the 1973 Constitution states:
The liberty of abode and of travel shall not be 5. Assistance of Counsel
impaired except upon lawful order of the court, or
when necessary in the interest of national security,
public safety or public health. RA 7438. Rights of Persons under Custodial
Investigation. SEC. 2. Rights of Persons Arrested,
The Court considered the order of the TC releasing Detained or Under Custodial Investigation; Duties of
petitioner on bail as a lawful order contemplated by Public Officers. – (a) Any person arrested detained
the above-quoted constitutional provision. [Manotok or under custodial investigation shall at all times
vs CA (1986)] be assisted by counsel;
Dismissal based on the denial of the right to speedy Subpoena is a process directed to a person requiring
trial amounts to an acquittal. [Acevedo vs. him to attend and to testify at the hearing or trial of
Sarmiento (1970)] an action or at any investigation conducted under
the laws of the Philippines, or for the taking of his 11
Note: RA 8493 provides: a 30-day arraignment deposition. [Caamic v. Galapon, 237 SCRA 390] 0
within the filing of the information or from the date
the accused appeared before the court; trial shall Before a subpoena duces tecum may issue, the court
commence 30 days from the arraignment, as fixed by must first be satisfied that the following requisites
the court. The entire trial period shall not exceed are present:
180 days, except as otherwise authorized by the SC (1) The books, documents or other things
Chief Justice. requested must appear prima facie relevant
to the issue subject of the controversy (test
The right to a speedy trial is violated only when the of relevancy), and
proceeding is attended by vexatious, capricious and (2) Such books must be reasonably described by
oppressive delays, or when unjustified the parties to be readily identified (test of
postponements of the trial are asked for and definiteness). [Roco v. Contreras, G.R. No.
secured, or when without cause or justifiable 158275, June 28, 2005]
motive, a long period of time is allowed to elapse
without the party having his case tried. [dela Rosa v. 10. Trials In Absentia
Court of Appeals, 253 SCRA 499; Tai Lim v. Court of
Appeals, G.R. No. 131483, October 26, 1999] WHEN CAN TRIAL IN ABSENTIA BE DONE: Accused
failed to appear for trial despite postponement and
The different interests of the defendant which the notice to his bondsmen. The Court then allowed
right to speedy trail are designed to protect are: prosecution to present evidence despite the fact
(1) To prevent oppressive pre-trail that accused had not been arraigned. Petitioner was
incarceration, found guilty. The issue is WON the court has
(2) To minimize anxiety and concern of the jurisdiction. The Court held that because accused
accused, was not arraigned, he was not informed of the
(3) To limit the possibility that the defense will nature and cause of accusation against him,
be impaired. Therefore, the Court has no jurisdiction. The
But the right to speedy trail cannot be invoked indispensable requisite for trial in absentia is that it
where to sustain the same would result in a clear should come after arraignment. [Borja vs. Mendoza
denial of due process to the prosecution. In essence, (1977)]
the right to a speedy trial does not preclude the
people‘s equally important right to public justice. After arraignment, during which accused pleaded
[Uy v. Hon. Adriano, G.r. No. 159098, October 27, not guilty, case was set for hearing but the accused
2006] escaped. He was tried in absentia. Lower court held
the proceedings against him in abeyance to give him
RA 8493 is a means of enforcing the right of the the opportunity to cross examine witnesses against
accused to a speedy trial. The spirit of the law is him and present his evidence.
that the accused must go on record in the attitude
of demanding a trial or resisting delay. If he does not The Court held that abeyance of proceedings was
do this, he must be held, in law, to have waived the invalid. Such right to cross examine and present
privilege. [Uy v. Hon. Adriano, G.R. No. 159098, evidence on his behalf is waived by failure to appear
October 27, 2006] during the trial of which he had notice. [Gimenez vs.
Nazareno (1988)]
8. Right of Confrontation
When Presence of the Accused is a DUTY
This is the basis of the right to cross-examination. (1) Arraignment and Plea
(2) During Trial, for identification
Testimony of a witness who has not submitted (3) Promulgation of Sentence
himself to cross examination is not admissible in (Exception: Light offense -> can be via counsel)
evidence. The affidavits of witnesses who are not
presented during the trial, hence not subjected to Petitioner challenges the jurisdiction of military
cross examination, are inadmissible because they are commissions to try him (for murder, illegal
hearsay. [People v. Quidate, G.R. No. 117401, possession of firearms and for violation of the Anti-
October 1, 1998; Cariago v. Court of Appeals, G.R. Subversion Act) arguing that he being a civilian, such
No. 143561, June 6, 2001] trial during martial law deprives him of his right to
due process.
9. Compulsory Process
An issue has been raised as to WON petitioner could
waive his right to be present during trial.
(1) Right to Secure Attendance of Witness
(2) Right to Production of Other Evidence
On a 7-5 voting: SEVEN justices voted that petitioner
may waive his right to be present at ALL stages of
the proceedings while FIVE voted that this waiver is
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
Considering Art IV, Sec 19, 1973 Constitution (trial A state of martial law does not suspend the
of a capital offense may proceed even in the operation of the Constitution, nor supplant the
absence of the accused) and the absence of any law functioning of the civil courts or legislative
specifically requiring his presence at all stages of his assemblies, nor authorize the conferment of
trial, there appears, no logical reason why jurisdiction on military courts and agencies over
petitioner, although he is charged with a capital civilians where civil courts are able to function, nor
offense, should be precluded from waiving his right automatically suspend the privilege of the writ.
to be present in the proceedings for the
perpetuation of testimony, since this right was The suspension of the privilege of the writ shall
conferred upon him for his protection and benefit. apply only to persons judicially charged for
[Aquino vs. Military Commission (1975)] rebellion or offenses inherent in or directly
connected with invasion.
Q. Writ of Habeas Corpus
A prime specification of an application for a writ of
habeas corpus is restraint of liberty.
Habeas Corpus The essential object and purpose of the writ of
SEC. 15. ART. III. 1987 CONSTITUTION habeas corpus is to inquire into all manner of
The privilege of the writ of habeas corpus shall not involuntary restraint as distinguished from voluntary,
be suspended except in cases of invasion or rebellion and to relieve a person therefrom if such restraint is
when the public safety requires it. illegal. Any restraint which will preclude freedom of
action is sufficient.
SEC. 18. ART. VII. 1987 CONSTITUTION
The President shall be the Commander-in-Chief of
all armed forces of the Philippines and whenever it The forcible taking of these women from Manila by
becomes necessary, he may call out such armed officials of that city, who handed them over to other
forces to prevent or suppress lawless violence, parties, who deposited them in a distant region,
invasion or rebellion. deprived these women of freedom of locomotion
just as effectively as if they had been imprisoned.
In case of invasion or rebellion, when the public Placed in Davao without either money or personal
safety requires it, he may, for a period not belongings, they were prevented from exercising the
exceeding sixty days, suspend the privilege of the liberty of going when and where they pleased.
writ of habeas corpus or place the Philippines or any
part thereof under martial law. The restraint of liberty which began in Manila
continued until the aggrieved parties were returned
Within forty-eight hours from the proclamation of to Manila and released or until they freely and truly
martial law or the suspension of the privilege of the waived his right.
writ of habeas corpus, the President shall submit a
report in person or in writing to the Congress. The true principle should be that, if the respondent
is within the jurisdiction of the court and has it in
The Congress, voting jointly, by a vote of at least a his power to obey the order of the court and thus to
majority of all its Members in regular or special undo the wrong that he has inflicted, he should be
session, may revoke such proclamation or compelled to do so. Even if the party to whom the
suspension, which revocation shall not be set aside writ is addressed has illegally parted with the
by the President. custody of a person before the application for the
writ is no reason why the writ should not issue.
Upon the initiative of the President, the Congress [Villavicencio vs. Lukban (1919)]
may, in the same manner, extend such proclamation
or suspension for a period to be determined by the Petitioners were arrested without warrants and
Congress, if the invasion or rebellion shall persist detained, upon the authority of Proclamation 889
and public safety requires it. (Which suspended the privilege of the Writ of Habeas
Corpus) and subsequently filed a petition for writ of
The Congress, if not in session, shall, within twenty- habeas corpus, assailing the validity of the said
four hours following such proclamation or Proclamation and their detention.
suspension, convene in accordance with its rules
without need of a call. The Court upheld the violation of the Proclamation
and dismissed the petitions. The Supreme Court held
that the authority to suspend the privilege of the
writ is circumscribed, confined and restricted, not
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
The return shall also state other matters relevant to S. Self-Incrimination Clause
the investigation, its resolution and the prosecution
of the case. 1. Scope and Coverage
2. Application
A general denial of the allegations in the petition 3. Immunity Statutes
shall not be allowed. [Sec. 9]
1. Scope and Coverage
Hearing
The hearing on the petition shall be summary.
However, the court, justice or judge may call for a Sec. 17, Art. 3. No person shall be compelled to be
preliminary conference to simplify the issues and a witness against himself.
determine the possibility of obtaining stipulations
and admissions from the parties. Only applies to compulsory testimonial, and doesn‘t
apply to material objects [Villaflor vs. Summers
The hearing shall be from day to day until completed (1920)]
and given the same priority as petitions for habeas
corpus. [Sec. 13] It refers therefore to the use of the mental process
and the communicative faculties, and not to a
Burden of proof merely physical activity.
The parties shall establish their claims by substantial If the act is physical or mechanical, the accused can
evidence. be compelled to allow or perform the act, and the
result can be used in evidence against him.
The respondent who is a private individual or entity
must prove that ordinary diligence as required by Examples
applicable laws, rules and regulations was observed (1) Handwriting in connection with a
in the performance of duty. prosecution for falsification is NOT allowed,
for this involves the use of the mental
The respondent who is a public official or employee processes [Beltran vs. Samson, 53 Phil 570;
must prove that extraordinary diligence as required Bermudez vs. Castillo (1937)]
by applicable laws, rules and regulations was (2) Re-enactment of the crime by the accused
observed in the performance of duty. is NOT allowed, for this also involves the
mental process.
The respondent public official or employee cannot (3) The accused can be required to allow a
invoke the presumption that official duty has been sample of a substance taken from his body
regularly performed to evade responsibility or [U.S. vs. Tan The (1912)], or be ordered to
liability. [Sec. 17] expel the morphine from his mouth [U.S. vs.
Ong Sio Hong (1917)]
The Manalo brothers were abducted, detained, and (4) Accused may be made to take off her
tortured repeatedly by the military. After their garments and shoes and be photographed
escape, they filed a petition for the privilege of the [People vs. Otadura, 96 Phil 244, 1950];
Writ of Amparo. The Supreme Court granted the compelled to show her body for physical
petition and held that there was a continuing investigation to see if she is pregnant by an
violation of the Manalos‘ right to security. adulterous relation [Villaflor vs. Summers
Considering that they only escaped from captivity (1920)]
and have implicated military officers, there is still a (5) Order to give a footprint sample to see if it
threat to their lives, liberty, and security. The matches the ones found in the scene of the
threat vitiates their free will and they are forced to crime is allowed [People vs. Salas and
limit their movements and activities. The People vs. Sara]
government also failed to provide them protection
because the military themselves perpetrated the Foreign Laws
abduction, detention, and torture. The government
also failed to provide an effective investigation.
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
The privilege which exists as to private papers, (8) Grant immunity from prosecution to any person
cannot be maintained in relation to ―records whose testimony or whose possession of
required by law to be kept in order that there may documents or other evidence is necessary or
be suitable information of transactions which are the convenient to determine the truth in any
11
appropriate subjects of governmental regulation and investigation conducted by it or under its 5
the enforcement of restrictions validly established. authority;
[Shapiro v. US (1948)]
Use and Fruit of Immunity
In recent cases, the US Supreme Court has struck
down certain registration requirements that ―Use immunity‖ prohibits use of a witness‘
presented real and appreciable risk of self- compelled testimony and its fruits in any manner in
incrimination. These involved statues directed at connection with the criminal prosecution of the
inherently suspect groups in areas permeated by witness. On the other hand, ―transactional
criminal statutes, a circumstance which laid the immunity‖ grants immunity to witness from
subjects open to real risk of self-incrimination. prosecution for an offense to which his compelled
[BERNAS] testimony relates. [Galman vs. Pamaran (1985)]
GENERAL RULE: The privilege is available in any (2) No involuntary servitude in any form shall exist
proceedings, even outside the court, for they may except as a punishment for a crime whereof the
eventually lead to a criminal prosecution. party shall have been duly convicted.
A former court stenographer may be compelled SEC. 19. ART. III. 1987 CONSTITUTION
under pain of contempt to transcribe stenographic 1. Excessive fines shall not be imposed, nor cruel,
notes he had failed to attend to while in service. x x degrading or inhuman punishment inflicted.
11
x such compulsion is not the condition of enforced Neither shall death penalty be imposed, unless, 6
compulsory service referred to by the Constitution. for compelling reasons involving heinous crimes,
the Congress hereafter provides for it. Any
Fernando, J. concurring opinion: death penalty already imposed shall be reduced
The matter could become tricky should a to reclusion perpetua.
stenographer stubbornly refuse to obey and the 2. The employment of physical, psychological, or
court insist on keeping him in jail. The detention degrading punishment against any prisoner or
could then become punitive and give rise to the detainee or the use of substandard or
issue of involuntary servitude. [Aclaracion v. inadequate penal facilities under subhuman
Gatmaitan (1975)] conditions shall be dealt with by law.
Political Prisoners In this case the Court took into account, in lowering
the penalty to reclusion perpetua of the accused
Although they may also be considered as military most of whom were already death row convicts, the
prisoners as indicated in the second "Whereas", are deplorable sub-human conditions of the National
in fact civil prisoners, accused of offenses of Penitentiary where the crime was committed.
political character, not amenable to military justice [People vs. dela Cruz (1953)]
but to the ordinary administration of justice in civil
courts. RA 9346 (June 24, 2006): An Act Prohibiting the
Imposition of Death Penalty in the Philippines:
If the petitioners are political prisoners subject to Sec. 1. The imposition of the penalty of death is
the civil jurisdiction of ordinary courts of justice if hereby prohibited. Accordingly, R.A. No. 8177,
they are to be prosecuted at all, the army has no otherwise known as the Act Designating Death by
jurisdiction, nor power, nor authority, from all legal Lethal Injection is hereby repealed. R.A. No. 7659,
standpoints, to continue holding them in restraint. otherwise known as the Death Penalty Law, and all
They are entitled, as a matter of fundamental right, other laws, executive orders and decrees, insofar as
to be immediately released, any allegation as to they impose the death penalty are hereby repealed
whether the war was ended or not. [Raquiza v. or amended accordingly.
Bradford (1945)]
The import of the grant of power to Congress to
restore the death penalty requires: (1) that Congress
Sec. 19 of CA No. 682 authorizes that the political define or describe what is meant by heinous crimes;
prisoners in question "may be released on bail, even (2) that Congress specify and penalize by death, only
prior to the presentation of the corresponding crimes that qualify as heinous in accordance with
information," and this may be done "existing the definition or description set in the death penalty
provisions of law to the contrary notwithstanding." bill and/or designate crimes punishable by reclusion
We must assume that the discretion granted must be perpetua to death in which latter case, death can
construed in the sense that the same may be only be imposed upon the attendance of
exercised in cases wherein it was not heretofore circumstances duly proven in court that characterize
granted by law. And it is reasonable to assume that the crime to be heinous in accordance with the
the discretion granted is to the effect that the definition or description set in the death penalty
People's Court may exercise jurisdiction to order the bill; and (3) that Congress, in enacting this death
release on bail of political prisoners "even prior to penalty bill be singularly motivated by ―compelling
the presentation of the corresponding information." reasons involving heinous crimes.‖
[Duran v. Abad Santos (1945)]
For a death penalty bill to be valid, a positive
Petitioner has also contended that his arrest was manifestation in the form of higher incidence of
partly motivated by political reasons, and has crime should first be perceived and statistically
endeavored to show that, due to his oratorical proven following the suspension of the death penalty
ability, he became very popular and contributed "to [is not required in Sec. 19 (1)]. Neither does the said
the bad licking" of political opponents in Davao. provision require that the death penalty be resorted
Petitioner also called our attention to the fact that to as a last recourse when all other criminal reforms
of the thousands of other prisoners who were have failed to abate criminality in society. [People
released by the Japanese by pardon or otherwise, no v. Echegaray (1997)]
one except him has been re-arrested. Thus,
Camasura was released from confinement. The Golez resolution, signed by 113 congressman as
[Camasura v. Provost Marshal (1947)] of January 11, 1999 (House Resolution No. 629
introduced by Congressman Golez entitled
U. Excessive Fines and Cruel and "Resolution expressing the sense of the House of
Representatives to reject any move to review R.A.
Inhuman Punishments No. 7659, which provided for the re-imposition of
death penalty, notifying the Senate, the Judiciary
CONSTITUTIONAL LAW 2 POLITICAL LAW REVIEWER
and the Executive Department of the position of the not involuntary servitude or imprisonment for debt.
House of Representative on this matter and urging [Ramirez v. de Orozco (1916)]
the President to exhaust all means under the law to
immediately implement the death penalty law.") The obligation incurred by the debtor, as shown by 11
House Resolution No. 25 expressed the sentiment the receipt, was yp [ay an ordinary contractual 7
that the House ". . . does not desire at this time to obligation. Since the guardianship proceeding was
review Republic Act 7659." In addition, the President civil in nature, the Court did not allow enforcement
has stated that he will not request Congress to ratify of the civil obligation by an order of imprisonment.
the Second Protocol in review of the prevalence of [In re Tamboco (1917)]
heinous crimes in the country. [Echegaray v.
Secretary (1998)] No person may be imprisoned for debt in virtue of a
civil proceeding. [Makapagal v. Santamaria (1930)]
To be prohibited by this provision the punishment
must not only be unusual but it must also be cruel. A person may be imprisoned as a penalty for a crime
There is no reason why unusual punishments which arising from a contractual debt and imposed in a
were not cruel should have been prohibited. If that proper criminal proceeding. Thus, the conversion of
had been done it would have been impossible to a criminal fine into a prison term does not violate
change the punishments that existed when the the provision because in such a case, imprisonment
Constitution was adopted. A law which changes a is imposed for a monetary obligation arising from a
penalty so as to make it less severe would be crime. [Ajeno v, Judge Insero (1976)]
unconstitutional if the new penalty were an unusual
one. W. Double Jeopardy
Punishments are cruel when they involve torture or a 1. Requisites
lingering death; but the punishment of death is not 2. Motions for Reconsideration and Appeals
cruel, within the meaning of that word as used in 3. Dismissal with Consent of Accused
the Constitution. It implies there something inhuman
and barbarous, something more than the mere SEC. 21. ART. III. No person shall be twice put in
extinguishment of life. The constitutional limit must jeopardy of punishment for the same offense. If an
be reckoned on the basis of the nature and mode of act is punished by a law and an ordinance,
punishment measured in terms of physical pain. conviction or acquittal under either shall constitute
[Legarda v. Valdez (1902)] a bar to another prosecution for the same act.
act or omission constituting the former When the case is dismissed other than on the merits,
charged. upon motion of the accused personally, or through
(2) The facts constituting the graver charge counsel, such dismissal is regarded as ―with express
became known or were discovered only consent of the accused‖, who is therefore deemed 11
after the filing of the former complaint or to have waived the right to plea double jeopardy. 8
information.
(3) The plea of guilty to the lesser offense was X. Ex Post Facto and Bills of
made without the consent of the fiscal and
the offended party. Attainder
When Defense of Double Jeopardy is Available
(1) Dismissal based on insufficiency of SEC. 22. ART. III. 1987 CONSTITUTION
evidence; No ex post facto law or bill of attainder shall be
(2) Dismissal because of denial of right to enacted.
speedy trial;
(3) Accused is discharged to be a state witness. RA 1700 which declared the Communist Party of the
Philippines a clear and present danger to Philippine
2. Motions for Reconsideration and security, and thus prohibited membership in such
Appeals 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
The accused cannot be prosecuted a second time for
only to lay a basis or to justify the legislative
the same offense and the prosecution cannot appeal
determination that membership in such organization
a judgment of acquittal. [Kepner v. US (1904)]
is a crime because of the clear and present danger
to national security. [People vs. Ferrer (1972)]
Provided, that the judge considered the evidence,
even if the appreciation of the evidence leading to
the acquittal is erroneous, an appeal or motion for Ex Post Facto Laws—Defined
reconsideration by the prosecution will not be
allowed. [People v. Judge Velasco (2000)] (1) Makes an action done before the passing of
the law and which was innocent when done
No error, however, flagrant, committed by the court criminal, and punishes such action.
against the state, can be reserved by it for decision
by the Supreme Court when the defendant has once (2) Aggravates a crime or makes it greater than
been placed in jeopardy and discharged even though when it was committed.
the discharge was the result of the error committed.
[People v. Ang Cho (1945) citing State v. Rook] (3) Changes the punishment and inflicts a
greater punishment than the law annexed
A mere verbal dismissal is not final until written and to the crime when it was committed.
signed by the judge. [Rivera, Jr. v. People (1990)]
(4) Alters the legal rules of evidence and
When an accused appeals his conviction, he waives receives less or different testimony than
his right to the plea of double jeopardy. If the the law required at the time of the
accused had been prosecuted for a higher offense commission of the offense in order to
but was convicted for a lower offense, he has convict the defendant. (Mekin v. Wolfe,
technically been acquitted of the higher offense. His 1903)
appeal would give the Court the right to impose a
penalty higher than that of the original conviction (5) Assumes to regulate civil rights and
imposed on him. [Trono v. US (1905)] remedies only but in effect imposes a
penalty or deprivation of a right which
Double jeopardy provides three related protections: when done was lawful.
(1) Against a second prosecution for the same
offense after conviction; (6) Deprives a person accused of a crime of
(2) Against a second prosecution for the same some lawful protection of a former
offense after conviction; and conviction or acquittal, or a proclamation
(3) Against multiple punishments for the same of amnesty. [In re Kay Villegas Kami (1970)]
offense. [People v. Dela Torre, G.R. No.
1379-58, March 11, 2002] The prohibition applies only to criminal legislation
which affects the substantial rights of the accused.
3. Dismissal with Consent of Accused [Phil. National Bank v. Ruperto (1960)]
the writ of habeas corpus. [Montenegro v. Castañeda and penalties. Within the meaning of the
(1952)] Constitution, bills of attainder include bills of pains
and penalties. [Cummings v. Missouri (1867)]
Bills of Attainder—Defined
11
It is a general safeguard against legislative exercise 9
A bill of attainder is a legislative act which inflicts of the judicial function, or trial by legislature. [US v.
punishment without judicial trial. If the punishment Brown (1965)]
be less than death, the act is termed a bill of pains
Annex A
QUERY HABEAS DATA
What is the writ of Remedy
habeas data? Available to any person
Whose right to life, liberty, and security
has been violated or is threatened with violation
By an unlawful act or omission
of a public official or employee, or of a private individual or entity
Engaged in the gathering, collecting or storing of data or information
regarding the person, family, home and correspondence of the aggrieved
party.
What rule governs The Rule on the Writ of Habeas Data (A.M. No. 08-1-16-SC), which was approved by the
petitions for and the Supreme Court on 22 January 2008. That Rule shall not diminish, increase or modify
issuance of a writ of substantive rights.
habeas data?
What is the Supreme (Constitution, Art. VIII, Sec. 5[5]).
Court‘s basis in issuing
the Rule?
When does the Rule take The Rule takes effect on 2 February 2008, following its publication in three (3)
effect? newspapers of general circulation.
Who may file a petition The aggrieved party.
for the issuance of a writ However, in cases of extralegal killings and enforced disappearances, the
of habeas data? petition may be filed by
- Any member of the immediate family of the aggrieved party,
namely: the spouse, children and parents; or
- Any ascendant, descendant or collateral relative of the aggrieved
party within the fourth civil degree of consanguinity or affinity, in
default of those mentioned in the preceding paragraph.
Supreme Court;
Court of Appeals;
Sandiganbayan: when the action concerns public data files of government offices.
How much is the docket No docket and other lawful fees shall be required from an indigent petitioner.
or filing fees for the
petition? The petition of the indigent shall be docketed and acted upon immediately,
without prejudice to subsequent submission of proof of indigency not later than 15
days from the filing of the petition.
Instead of having the Yes. It can be done when the respondent invokes the defense that the release of the
hearing in open court, data or information in question shall compromise national security or state secrets,
can it be done in or when the data or information cannot be divulged to the public due to its nature or
chambers? privileged character
2012 UP LAW
BAR REVIEWER
POLITICAL
Law on Public Officers LAW
POLITICAL LAW TEAM 2012
Faculty Editor | Florin T. Hilbay
BAR OPERATIONS COMMISSION 2012 Subject Heads| Rogelio
EXECUTIVE COMMITTEE Benjamin Redoble • Moises
Ramon Carlo Marcaida |Commissioner Ronette Colobong
Raymond Velasco • Mara Kriska Chen |Deputy Commissioners Contributors| Alferri Bayalan •
Barbie Kaye Perez |Secretary Cielo Gono • Noel Luciano
Carmen Cecilia Veneracion |Treasurer
Hazel Angeline Abenoja|Auditor LAYOUT TEAM 2012
Layout Artists | Alyanna
COMMITTEE HEADS Apacible • Noel Luciano • RM
Eleanor Balaquiao • Mark Xavier Oyales | Acads
Meneses • Jenin Velasquez •
Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel
Miranda (D) |Special Lectures Mara Villegas • Naomi Quimpo •
Patricia Madarang • Marinella Felizmenio |Secretariat Leslie Octaviano • Yas Refran •
Victoria Caranay |Publicity and Promotions Cris Bernardino
Loraine Saguinsin • Ma. Luz Baldueza |Marketing Layout Head| Graciello Timothy
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Charmaine Sto. Domingo • Katrina Maniquis |Mock Bar
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OPERATIONS HEADS
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Paula Plaza |Linkages
that Laurel was not compensated during his Where The law Contract
tenure. A salary is a usual (but not duties
necessary) criterion for determining the are
nature of a position. Also, the element of defined 12
continuance is not indispensable. [Laurel v. 2
Desierto (2002)] 7. No vested right to public office.
as in the case of Ad Hoc Bodies or
commissions GENERAL RULE:
A public office, being a mere privilege given by the
5. Public Office v. Public Employment State, does not vest any right in the holder of the
office. This rule applies when the law is clear.
Public employment is broader than public
office. All public office is public employment, EXCEPTION:
but not all public employment is a public office. When the law is vague, the person‘s holding of the
Public employment as a position lacks either one office is protected and he should not be easily
or more of the foregoing elements of a public deprived of his office.
office. (Bernard v. Humble [182 S.W. 2d. 24.
Cited by De Leon, page 8-9])1 A public office is neither property nor a public
o created by contract rather than by force of contract. Yet the incumbent has, in a sense, a
law right to his office. If that right is to be taken
the most important characteristic which away by statute, the terms should be clear.
distinguishes an office from an employment is [Segovia v. Noel (1925)]
that:
o the creation and conferring of an office 8. Public Office is not Property.
involves a delegation to the individual of
ome of the sovereign functions of A public office is not the property of the public
government, to be exercised by him for the officer within the meaning of the due process clause
benefit of the public, and of the non-impairment of the obligation of contract
o that the same portion of the sovereignty of clause of the Constitution.
the country, either legislative, executive or It is a public trust/agency. Due process is
judicial, attached, for the time being, to be violated only if an office is considered property.
exercised for the public benefit. However, a public office is not property within
the constitutional guaranties of due process. It
Unless the powers so conferred are of this nature, is a public trust or agency. As public officers
the individual is not a public officer. [Laurel v. are mere agents and not rulers of the people, no
Desierto (2002)] man has a proprietary or contractual right to an
office. [Cornejo v. Gabriel (1920)]
6. Public Office v. Public Contract It is personal. Public office being personal, the
Public Office Public Contract death of a public officer terminates his right to
How Incident of Originates from will occupy the contested office and extinguishes his
Created sovereignty. of contracting counterclaim for damages. His widow and/or
Sovereignty is parties. heirs cannot be substituted in the counterclaim
omnipresent. suit. [Abeja v. Tañada (1994)]
Object To carry out the Obligations
sovereign as well as imposed only upon Exceptions:
governmental the persons who In quo warranto proceedings relating to the
functions affecting entered into the question as to which of 2 persons is entitled to a
even persons not contract. public office
bound by the In an action for recovery of compensation
contract. accruing by virtue of the public office
Subject A public office Limited duration and
Matter embraces the idea specific in its object. 9. Creation of Public Office
of tenure, Its terms define and
duration, limit the rights and Modes of Creation of Public Office
continuity, and the obligations of the by the Constitution
duties connected parties, and neither by statute / law
therewith are may depart by a tribunal or body to which the power to
generally therefrom without create the office has been delegated
continuing and the consent of the
permanent. other. How Public Office is Created
Scope Duties that are Duties are very GENERAL RULE: The creation of a public
generally specific to the office is PRIMARILY a Legislative Function.
continuing and contract. EXCEPTIONS:
permanent. o where the offices are created by the
Constitution;
1
ALL DE LEON CITATIONS BASED ON: De Leon, Hector. THE
LAW ON PUBLIC OFFICERS POLITICAL LAW REVIEWER
o where the Legislature validly delegates such Except when the public official is constrained to
power. accept because the non-acceptance of the new
appointment would affect public interest. (no
Legislature should Validly Delegate the Power to abandonment) [Zandueta v. De La Costa 12
Create a Public Office (1938)] 3
Or else, the office is inexistent. The President‘s
authority to "reorganize within one year the 12. Estoppel in Denying Existence of Office
different executive departments, bureaus and
other instrumentalities of the Government" in A person is estopped from denying that he has
order to promote efficiency in the public service occupied a public office when he has acted as a
is limited in scope and cannot be extended to public officer; more so when he has received public
other matters not embraced therein. [UST v. monies by virtue of such office. [Mendenilla v.
Board of Tax Appeals (1953)] Onandia (1962)]
o They become such either by direct provision officers therefore are likewise agents entrusted with
of law, by election or by a competent the responsibility of discharging its functions. As
authority‘s appointment. such, there is no presumption that they are
o Examples are barrio captain, barrio empowered to act. There must be a DELEGATION 12
councilman, barrio policeman, barangay of such authority, either express or implied. In the 4
leader, and any person who comes to the absence of a valid grant, they are devoid of power.
aid of persons in authority. [Villegas v. Subido (1971)]
EXCEPTIONS 2. Appointment
When citizens are required, under conditions
provided by law, to render personal military or (a) Definition
civil service (see Sec. 4, Art. II, 1987 Const.); Designation Appointment
When a person who, having been elected by Definition Imposition of Appointing
popular election to a public office, refuses additional duties authority selects
without legal motive to be sworn in or to upon existing an individual
discharge the duties of said office. This is a office who will occupy
felony. a certain public
Art 234, RPC: Refusal to discharge elective office
office- the penalty of arresto mayor or a fine Extent of Limited Comprehensive
not exceeding 1,000 pesos, or both, shall be Powers
imposed upon any person who, having been Security of No. Yes.
elected by popular election to a public office, tenure?
shall refuse without legal motive to be sworn in Is prior/1st …a 2nd …a 2nd
or to discharge the duties of said office. office designated appointive
abandoned position is position is
3. Public Officer’s Power is Delegated (not when… assumed? assumed?
Presumed) NO Usually YES
A public official exercises power, not rights. The Political. Appointment is generally a political
government itself is merely an agency through which question so long as the appointee fulfills the
the will of the state is expressed and enforced. Its
LAW ON PUBLIC OFFICERS POLITICAL LAW REVIEWER
minimum qualification requirements prescribed (No Security of Tenure) revocable at will: just
by law. cause or valid investigation UNNECESSARY;
o an ―acting‖ appointment is a temporary
Vacancy for Validity. For the appointment to be appointment and revocable in 12
valid, the position must be vacant [Castin v. character. [Marohombsar v. Alonto 5
Quimbo (1983)] (1991)]
o A temporary appointee is like a
(b) Nature of Power to Appoint designated officer – they:
The power to appoint is intrinsically an occupy a position in an acting
executive act involving the exercise of capacity and
discretion. [Concepcion v. Paredes (1921)] do not enjoy security of tenure.
[Sevilla v. CA (1992)]
Must be unhindered and unlimited by Congress. o Even a Career Service Officer
Congress cannot either appoint a public officer unqualified for the position is deemed
or impose upon the President the duty to temporarily-appointed. Thus he does
appoint any particular person to an office. The not enjoy security of tenure – he is
appointing power is the exclusive prerogative terminable at will.
of the President, upon which no limitations o A public officer who later accepts a
may be imposed by Congress, EXCEPT those: temporary appointment terminates his
o requiring the concurrence of the Commission relationship with his former office.
on Appointments; and [Romualdez III v. CSC (1991)]
o resulting from the exercise of the limited o EXCEPT Fixed-Period Temporary
legislative power to prescribe the Appointments: may be revoked ONLY at
qualifications to a given appointive office. the period‘s expiration. Revocation
[Manalang v. Quitoriano (1954)] before expiration must be for a valid
cause.
The President‘s power to appoint under the (Duration) until a permanent appointment is
Constitution should necessarily have a issued.
reasonable measure of freedom, latitude, or
discretion in choosing appointees. [Cuyegkeng II. Steps in Appointment Process
v. Cruz (1960)]
For Appointments requiring confirmation
Where only one can qualify for the posts in
Regular Appointments (NCIA)
question, the President is precluded from
1. President nominates.
exercising his discretion to choose whom to
2. Commission on Appointments confirms.
appoint. Such supposed power of appointment,
3. Commission issues appointment.
sans the essential element of choice, is no
4. Appointee accepts.
power at all and goes against the very nature of
appointment itself. [Flores v. Drilon (1993)]
Ad-Interim Appointments (NIAC)
1. President nominates.
C. Modes and Kinds of Appointment 2. Commission issues appointment.
I. Classification of Appointments 3. Appointee accepts.
II. Steps in Appointment Process 4. Commission on Appointments confirms.
III. Presidential Appointees
IV. Discretion of Appointing Official For Appointments Not Requiring Confirmation
V. Effectivity of Appointment (AIA)
VI. Effects of a Complete, Final and Irrevocable 1. Appointing authority appoints.
Appointment 2. Commission issues appointment.
3. Appointee accepts.
I. Classification of Appointments
Note: If a person is appointed to the career
service of the Civil Service, the Civil Service
1) Permanent: Commission must bestow attestation.
The permanent appointee:
o must be qualified
o must be eligible
III. Presidential Appointees
o is constitutionally guaranteed security
of tenure Who can be nominated and appointed only WITH
(Duration) until lawful termination. the Commission on Appointments’ consent? (Art.
Note: Conditional appointments are not VII, Sec. 16, 1987 Const.)
permanent. Heads of the executive departments;
Ambassadors;
2) Temporary: Other public ministers and consuls;
an acting appointment; Officers of the armed forces from the rank of
the temporary appointee NEED NOT be colonel or naval captain;
qualified or eligible;
LAW ON PUBLIC OFFICERS POLITICAL LAW REVIEWER
Other officers whose appointments are vested in the Constitutional prohibition on temporary
him by the Constitution, including Constitutional or acting appointments of COMELEC
Commissioners (Art. IX-B, Sec. 1 (2) for CSC; Commissioners.
Art. IX-C, Sec. 1 (2) for COMELEC; Art. IX-D, 12
Sec. 1 (2) for COA). o By-passed Appointee may be Reappointed. 6
Commission on Appointments‘ failure to
Who can the President appoint WITHOUT CA’s confirm an ad interim appointment is NOT
approval? disapproval. An ad interim appointee
All other officers of the government whose disapproved by the COA cannot be
appointments are not otherwise provided for by reappointed. But a by-passed appointee, or
law; one whose appointment was not acted upon
Those whom he may be authorized by law to the merits by the COA, may be appointed
appoint; again by the President.
Members of the Supreme Court;
Judges of lower courts; IV. Discretion of Appointing Official
Ombudsman and his deputies
Presumed.
Kinds of Presidential Appointments Administrators of public officers, primarily the
Regular: made by the President while Congress department heads should be entrusted with plenary,
is in session after the nomination is confirmed or at least sufficient, discretion. Their position most
by the Commission of Appointments, and favorably determines who can best fulfill the
continues until the end of the term. functions of a vacated office. There should always
Ad interim: made while Congress is not in be full recognition of the wide scope of a
session, before confirmation by the Commission discretionary authority, UNLESS the law speaks in
on Appointments; immediately effective and the most mandatory and peremptory tone,
ceases to be valid if disapproved or bypassed by considering all the circumstances. [Reyes v.
the Commission on Appointments. This is a Abeleda (1968)]
permanent appointment and it being subject to
confirmation does not alter its permanent Discretionary Act.
character. Appointment is an essentially discretionary power. It
o Efficient. Recess appointment power keeps in must be performed by the officer in whom it is
continuous operation the business of vested, the only condition being that the appointee
government when Congress is not in session. should possess the qualifications required by law.
The individual chosen may thus qualify and [Lapinid v. CSC (1991)]
perform his function without loss of time.
Scope. The discretion of the appointing
o Duration. The appointment shall cease to be authority is not only in the choice of the person
effective upon rejection by the Commission who is to be appointed but also in the nature
on Appointments, or if not acted upon, at and character of the appointment intended
the adjournment of the next session, (i.e., whether the appointment is permanent or
regular or special, of Congress. temporary).
o Permanent. It takes effect immediately and Inclusive Power. The appointing authority holds
can no longer be withdrawn by the the power and prerogative to fulfill a vacant
President once the appointee has qualified position in the civil service.
into office.
The exercise of the power to transfer,
The fact that it is subject to confirmation reinstate, reemploy or certify is widely used
by the Commission on Appointments does (need not state reason)
not alter its permanent character.
To hold that the Civil Service Law requires filling up
The Constitution itself makes an ad interim any vacancy by promotion, transfer, reinstatement,
appointment permanent in character by reemployment, or certification IN THAT ORDER
making it effective until disapproved by the would be tantamount to legislative appointment
Commission on Appointments or until the which is repugnant to the Constitution. What it does
next adjournment of Congress. [Matibay v. purport to say is that as far as practicable the
Benipayo (2002)] person next in rank should be promoted,
otherwise the vacancy may be filled by transfer,
o Not Acting. An ad interim appointment is reinstatement, reemployment or certification, as
distinguishable from an ―acting‖ the appointing power sees fit, provided the
appointment which is merely temporary, appointee is certified to be qualified and eligible.
good until another permanent appointment [Pineda v. Claudio (1969)]
is issued.
Promotion of “next-in-rank” career officer is
o Applicable to COMELEC Commissionsers, being
not Mandatory. The appointing authority should
permanent appointments, do not violate
LAW ON PUBLIC OFFICERS POLITICAL LAW REVIEWER
At the time specified by the Constitution or law. 3. For Congressmen (Sec. 6, Art. VI,
Constitution)
If time is unspecified, 2 views: Natural-born citizen
a. qualification during commencement of term 25 years old on election day
or induction into office; able to read and write
b. qualification / eligibility during election or registered voter in district in which he shall
appointment be elected
(De Leon, 26-27) resident thereof for not less than one year
immediately preceding election day
Eligibility is a continuing nature, and must
exist throughout the holding of the public 4. Supreme Court Justice
office. Once the qualifications are lost, the Natural born citizen
public officer forfeits the office. at least 40 years old
o No estoppel in ineligibility. Knowledge of 15 years or more as a judge or engaged in law
ineligibility of a candidate and failure to practice
question such ineligibility before or during of proven competence, integrity, probity and
the election is not a bar to questioning such independence (C.I.P.I.)
eligibility after such ineligible candidate
has won and been proclaimed. Estoppel will 5. Civil Service Commissioners (Sec. 1 [1], Art.
not apply in such a case. [Castaneda v. Yap IXB. Constitution)
(1952)]
LAW ON PUBLIC OFFICERS POLITICAL LAW REVIEWER
Natural-born citizen
35 years old at time of appointment VI. Religious Test or Qualification is
proven capacity for public administration not Required
not a candidate for any elective position in
12
election immediately preceding 9
appointment Philippine Constitution, Art. III
Sec. 5. … No religious test shall be required for the
6. COMELEC Commissioners (Sec. 1[1], Art. IXC) exercise of civil or political rights.
Natural-born citizen
35 years old at time of appointment VII. Qualification Standards and
college degree holder
Requirements under the Civil Service
not a candidate for elective position in
election immediately preceding Law
appointment
chairman and majority should be members of 1. Qualification Standards
the bar who have been engaged in the It enumerates the minimum requirements for
practice of law for at least 10 years a class of positions in terms of education,
training and experience, civil service
7. COA Commissioners eligibility, physical fitness, and other
Natural-born citizen qualities required for successful
35 years old at time of appointment performance. (Sec. 22, Book V,
CPA with >10 year of auditing experience or Administrative Code)
Bar member engaged in practice of law for at The Departments and Agencies are responsible
least 10 years for continuously establishing, administering
Not candidates for any elective position in and maintaining the qualification standards
election immediately preceding as an incentive to career advancement.
appointment. (Sec. 7, Rule IV, Omnibus Rules)
Such establishment, administration, and
Notes: maintenance shall be assisted and approved
“Practice of Law” defined. Practice of law by the CSC and shall be in consultation with
means any activity, in or out of court, which the Wage and Position Classification Office
requires the application of law, legal (ibid)
procedure, knowledge, training and It shall be established for all positions in the
experience. Generally, to practice law is to 1st and 2nd levels (Sec. 1, Rule IV,
give notice or render any kind of service which Omnibus Rules)
requires the use in any degree of legal
knowledge or skill. [Cayetano v. Monsod 2. Political Qualifications for an Office
(1991)] (i.e. membership in a political party)
In the dissenting opinion of Justice Padilla in the
case of Cayetano v. Monsod, citing Agpalo, he GENERAL RULE
stated that engaging in the practice of law Political qualifications are NOT Required for public
presupposes the existence of lawyer-client office.
relationship. Hence, where a lawyer undertakes
an activity which requires knowledge of law but EXCEPTIONS
involves no attorney-client relationship, such as Membership in the electoral tribunals of either
teaching law or writing law books or articles, he the House of Representatives or Senate (Art. VI,
cannot be said to be engaged in the practice of Sec. 17, 1987 Const.);
his profession or a lawyer Party-list representation;
“Residency” defined. In election law, residence Commission on Appointments;
refers to domicile, i.e. the place where a party Vacancies in the Sanggunian (Sec. 45, Local
actually or constructively has his permanent Government Code)
home, where he intends to return. To
successfully effect a change of domicile, the 3. No Property Qualifications
candidate must prove an actual removal or an Since sovereignty resides in the people, it is
actual change of domicile. [Aquino v. COMELEC necessarily implied that the right to vote and to be
(1995)] voted should not be dependent upon a candidate‘s
Presumption in favor of domicile of origin. wealth. Poor people should also be allowed to be
Domicile requires the twin elements of actual elected to public office because social justice
habitual residence and animus manendi presupposes equal opportunity for both rich and
(intent to permanently remain). Domicile of poor. [Maguera v. Borra and Aurea v. COMELEC
origin is not easily lost; it is deemed to continue (1965)]
absent a clear and positive proof of a successful
change of domicile. [Marcos v. COMELEC 4. Citizenship
(1995)] Aliens not eligible for public office.
The purpose of the citizenship requirement is
to ensure that no alien, i.e., no person
LAW ON PUBLIC OFFICERS POLITICAL LAW REVIEWER
[I]n including §5 in Article IV on citizenship, the The presumption is that the public officer was
concern of the Constitutional Commission was chosen because he was deemed fit and
not with dual citizens per se but with competent to exercise that judgment and
naturalized citizens who maintain their discretion. Unless the power to substitute 13
allegiance to their countries of origin even after another in his place has been given to him, a 2
their naturalization. public officer cannot delegate his duties to
Hence, the phrase ―dual citizenship‖ in R.A. another.
No. 7160, §40(d) and in R.A. No. 7854, §20 must
be understood as referring to ―dual 2. As to the Obligation of the Officer to
allegiance.‖ Perform his Powers and Duties
v. Fugitive from justice in criminal or non- a. Mandatory
political cases here or abroad;
vi.Permanent residents in a foreign country or Powers conferred on public officers are generally
those who have acquired the right to reside construed as mandatory although the language may
abroad and continue to avail of the same be permissive, where they are for the benefit of the
right after the effectivity of the Local public or individuals
Government Code;
vii. Insane or feeble-minded. b. Permissive
They are such as necessarily require the Under our political system, the source of
exercise of reason in the adaptation of means to governmental authority is found in the people.
an end, and discretion in determining how or Directly or indirectly through their chosen
whether the act shall be done or the course representatives, they create such offices and
pursued. agencies as they deem to be desirable for the
When the law commits to any officer the duty of administration of the public functions and
looking into facts and acting upon them, not in a declare in what manner and by what persons
way which it specifically directs, but after a they shall be exercised.
discretion in its nature, the function is quasi- Their will, in these respects, finds its expression
judicial. in the Constitution and the laws. The right to be
LAW ON PUBLIC OFFICERS POLITICAL LAW REVIEWER
a public officer, then, or to exercise the powers the best of his ability, in such a manner as to be
and authority of a public office, must find its above suspicion of irregularities, and to act
source in some provision of the public law. primarily for the benefit of the public.
Nothing is better settled in the law than that a As to outside activities: It is the duty of public 13
public official exercises power, not rights. The officers to refrain from outside activities which 3
government itself is merely an agency through interfere with the proper discharge of their
which the will of the state is expressed and duties
enforced. Its officers therefore are likewise
agents entrusted with the responsibility of 2. Duty to make public disclosure of
discharging its functions. As such there is no statements of assets and liabilities
presumption that they are empowered to act. Public officials and employees have an
There must be a delegation of such authority, obligation under the Code of Conduct and
either express or implied. In the absence of a Ethical Standards for Public Officials and
valid grant, they are devoid of power. What Employees to accomplish and submit
they do suffers from a fatal infirmity. [Villegas declarations under oath of, and the public has
v. Subido (1969)] the right to know, their assets, liabilities, net
worth and financial and business interests
III. Duties of Public Officers including those of their spouses and of
(De Leon, 2008) unmarried children under 18 years of age living
in their household.
1. Duties as Trustees for the Public
3. Transparency of transactions and access to
a. To obey the law information
It is the duty of an officer to obey the general
laws and the laws which prescribe the duties of
his office, and a public officer has no power to G. Rights of Public Officers
vary or waive any statutory law. I. In General
As a general rule, a public officer must obey a II. Right to Compensation
law found on the statute books until its III. Other Rights
constitutionality is judicially passed upon in a
proper proceeding.
I. In General
b. To accept and continue in office (De Leon, 2008)
It is the duty of every person having the requisite
qualifications, when elected or appointed to a public 1. Rights incident to public office
office, to accept it. The theory is that the public has
the right to command the services of any citizen in The rights of one elected or appointed to office are,
any official position which it may designate. in general, measured by the Constitution or the law
under which he was elected or appointed.
c. To accept the burden of office
One who accepts a public office does so with the 2. Rights as a citizen
burden, and is considered as accepting its burdens
and obligations with its benefits. He thereby a. Protection from publication commenting on
subjects himself to all constitutional and legislative his fitness and the like
provisions relating thereto and undertakes to
perform all the duties of the office. The mere fact that one occupies a public office
does not deprive him of the protection accorded
d. As to diligence and care to citizens by the Constitution and the laws.
Every public officer is bound to use reasonable skill However, by reason of the public character of
and diligence in the performance of his official his employment or office, a public officer is, in
duties, particularly where rights of individuals may general, held not entitled to the same
be jeopardized by his neglect. protection from publications commenting on his
fitness and the like, as is accorded to the
e. As to choice and supervision of ordinary citizen.
subordinates
It is the duty of a public officer having an b. Engaging in certain political and business
appointing power to make the best available activities
appointment.
The degree of care required in selecting The governmental interest in maintaining a high
subordinates must depend upon the nature of level service by assuring the efficiency of its
the work to be performed and the employees in the performance of their tasks may
circumstances of each case. require public employees to suspend or refrain from
certain political or business activities that are
f. Ethical duties embraced within the constitutional rights of others,
Every public officer is bound to perform the when such activities are reasonably deemed
duties of his office honestly, faithfully and to inconsistent with their public status and duties.
LAW ON PUBLIC OFFICERS POLITICAL LAW REVIEWER
Any action denoting the movement or progress office, belong to the public, must be
of personnel in the civil service is known as determined wit reference to the facts of each
personnel action. case.
It includes: o where such are indispensable in the proper 13
o appointment through certification conduct of the office, the officer may not 5
o promotion take them as his own property.
o transfer o if, not being required by law, they are
o reinstatement prepared by the officer apart from his
o reemployment official duties and are not indispensable in
o detail the proper conduct of the office, the officer
o reassignment may acquire a property right therein.
o demotion and
o separation H. Liabilities of Public Officers
I. Preventive Suspension and Back Salaries
5. Rights under the Revised Government II. Illegal Dismissal, Reinstatement and Back
Service Insurance Act Salaries
Covered employees are entitled to retirement The liability of a public officer to an individual or
benefits, separation benefits, unemployment or the public is based upon and is co-extensive with his
involuntary separation benefits, disability benefits, duty to the individual or the public. (De Leon, 2008)
survivorship benefits, funeral benefits and life
insurance benefits. Three-fold Responsibility of Public Officers (De
Leon, 2008)
6. Right to Reimbursement and Indemnity A public officer is under a three-fold responsibility
for violation of duty or for wrongful act or omission:
When a public officer, in the due performance Civil Liability: if the individual is damaged by
of his duties, has been expressly or impliedly such violation, the official shall, in some cases,
required by law to incur expenses on the public be held liable civilly to reimburse the injured
account, not covered by his salary or party
commission and not attributable to his own Criminal Liability: if he law has attached a penal
neglect or default, the reasonable and proper sanction, the officer may be punished criminally
amount thereof forms a legitimate charge Administrative Liability: such violation may also
against the public for which he should be lead to imposition of fine, reprimand,
reimbursed. suspension or removal from office. This
Within the same limits, the officer is entitled to administrative liability is separate and distinct
be indemnified by the public against the from the penal and civil liabilities. (Agpalo,
consequences of acts which he has been 2005)
expressly or impliedly required to perform upon
the public account, and which are not Civil Liability (Agpalo, 2005)
manifestly illegal and which he does not know to A public officer is not liable for damages which
be wrong. a person may suffer arising from the just
performance of his official duties and within the
7. Right to Reinstatement and Back Salary scope of his assigned tasks. An officer who acts
within his authority is not liable for damages as
Reinstatement means the restoration to a state it would virtually be a charge against the
or condition from which one had been removed Republic, which is not amenable to judgment
or separated. One who is reinstated assumes the for monetary claims without its consent.
position he had occupied prior to the dismissal Statutory basis of liability:
Back salary or wages is a form of relief that o Under the Administrative Code:
restores the income that was lost by reason of Sec. 38. Liability of Superior Officers. - (1) A public
unlawful dismissal officer shall not be civilly liable for acts done in the
For a plaintiff to succeed in seeking performance of his official duties, unless there is a
reinstatement to an office, he must prove his clear showing of bad faith, malice or gross
right to the office. Unless this right is shown, negligence.
the action must fail even if the appointment of (2) Any public officer who, without just cause,
the successor is first in issue. neglects to perform a duty within a period fixed by
law or regulation, or within a reasonable period if
8. Rights to Property, Devices and none is fixed, shall be liable for damages to the
Inventions private party concerned without prejudice to such
other liability as may be prescribed by law.
Title to a public office carries with it the right, (3) A head of a department or a superior officer
during the incumbency of the officer, to the shall not be civilly liable for the wrongful acts,
insignia and property thereof. omissions of duty, negligence, or misfeasance of his
The question whether records, discoveries, subordinates, unless he has actually authorized by
inventions, devices, data and the like, made or written order the specific act or misconduct
prepared by an officer while he is occupying the complained of.
LAW ON PUBLIC OFFICERS POLITICAL LAW REVIEWER
GENERAL RULE
None. A de facto officer cannot sue for the recovery
I. Expiration of the term or tenure of
of salary, fees or other emoluments attached to the office
office, for the duties he has performed. His acts, as
far as he himself is concerned, are void. (63A Am. Upon the expiration of the officer‘s term, unless
Jur. 2d 1094-1095) he is authorized by law to hold over, his rights,
duties and authority as a public officer must
The rightful incumbent may recover from the de ipso facto cease
facto officer the salary received by the latter during Term of office means the time during which the
his wrongful tenure, even though he entered into the officer may claim to hold the office as of right
office in good faith and under color of title.[ Monroy and fixes the interval after which the several
v CA (1967) incumbents shall succeed one another. It is a
fixed and definite period of time to hold office,
EXCEPTIONS perform its functions and enjoy its privileges
Where there is no de jure public officer, the and emoluments until the expiration of said
officer de facto who in good faith has had period
possession of the office and has discharged the Tenure of office represents the period during
duties pertaining thereto is legally entitled to which the incumbent actually holds office.
the emoluments of the office. [Monroy v. CA
[1967])
In Civil Liberties Union v. Executive Secretary
II. Reaching the age limit (retirement)
(1991), even as EO No. 284 was declared
unconstitutional because it allowed Cabinet This mode results in the compulsory and automatic
members to hold multiple offices in direct retirement of a public officer
contravention of the Constitution, it was held
that during their tenure in the questioned III. Death or permanent disability
positions, the respondents may be considered de
facto officers and as such entitled to the
The death of the incumbent of an office, which
emoluments of the office/s for actual service
is by law to be filled by one person only,
rendered.
necessarily renders the office vacant. The public
A de facto officer, not having good title, takes official cease to hold office upon his death and
the salaries at his risk and must account to the all his rights, duties and obligations pertinent to
de jure officer (when there is one) for whatever the office are extinguished
salary he received during the period of his
Permanent disability covers both physical or
wrongful tenure, even if he occupied the office
mental disability.
in good faith.
o BUT when the de jure officer assumed
another position under protest, for which IV. Resignation
she received compensation: while her
assumption to the said position and her Resignation is the formal renunciation or
acceptance of the corresponding relinquishment of a public office. It implies an
emoluments do not constitute expression by the incumbent in some form,
abandonment of her rightful office, she express or implied, of the intention to
cannot recover full back wages for such. surrender, renounce and relinquish his right to
She is only entitled to back pay the office and its acceptance by competent and
differentials between the salary rates for lawful authority.
the lower position she assumed and the To constitute resignation of public office, there
position she is rightfully entitled to. [Gen. must be an intention to relinquish a part of the
Manager, Philippine Ports Authority v. term, accompanied by the act of
Monserate (2002)] relinquishment.
A written resignation, delivered to the board or
officer authorized to receive it and fill the
K. Termination of Official Relation vacancy thereby created, is prima facie, but not
conclusive evidence of the intention to
I. Expiration of the term or tenure of office
relinquish the office.
II. Reaching the age limit (retirement)
III. Death or permanent disability Acceptance by the proper authority is necessary
IV. Resignation for a resignation to be operative and effective.
V. Acceptance of an incompatible office
LAW ON PUBLIC OFFICERS POLITICAL LAW REVIEWER
Conviction means conviction in a trial court. It o The CSC cannot co-manage or be a surrogate
contemplates a court finding guilt beyond administrator of government offices and
reasonable doubt followed by a judgment agencies.
upholding and implementing such finding. o It cannot change the nature of the 14
appointment extended by the appointing 2
XII. Recall officer. [ Luego v. CSC (1986)]
imprisonment for six (6) years, or a fine of prosecutors in the Office of the
P6,000; and Ombudsman and special prosecutor;
(d) Civil and criminal cases filed pursuant to and in b) Presidents, directors or trustees, or managers
connection with Executive Orders No. 1,2, 14, of government-owned or controlled 14
and 14-a issued in 1986 corporations, state universities or 5
educational institutions or foundations;
In the absence of any allegation that the offense (c) Members of Congress and officials thereof
charged was necessarily connected with the classified as Grade "27" and up under the
discharge of the duties or functions of a public Compensation and Position Classification
officer, the ordinary court, not the Act of 1989;
Sandiganbayan, has jurisdiction to hear and (d) Members of the judiciary without prejudice
decide the case. to the provisions of the Constitution;
What is controlling is not whether the phrase (e) Chairmen and members of Constitutional
"committed in relation to public office" appears Commissions, without prejudice to the
in the Information. What determines the provisions of the Constitution; and
jurisdiction of the Sandiganbayan is the specific (f) All other national and local officials
factual allegation in the Information that would classified as Grade "27" and higher
indicate close intimacy between the discharge under the Compensation and Position
of the accused's official duties and the Classificafion Act of 1989.
commission of the offense charged in order to In case private individuals are charged as co-
qualify the crime is having been committed in principals, accomplices or accessories with the
relation to public office. The relation between public officers or employees, including those
the crime and the office must be direct and not employed in government-owned or -controlled
accidental, that is, the relation has to be such corporations, they shall be tried jointly with
that, in the legal sense, the offense cannot exist said public officers and employees in the proper
without the office. courts which shall exercise exclusive jurisdiction
over them.
Officials and private individuals subject to its
jurisdiction Exclusive Appellate Jurisdiction
The Sandiganbayan shall exercise exclusive appellate
Under Section 4(a, b) of PD No. 1606, as jurisdiction over final judgments, resolutions or
amended, the Sandiganbayan shall exercise orders of regional trial courts whether in the
exclusive original jurisdiction over the cases exercise of their own original jurisdiction or of their
mentioned in (a), (b), and (c) above where one appellate jurisdiction.
or more of the accused are officials
occupying the following positions in the IV. Ill-Gotten Wealth
government, whether in a permanent, acting or
interim capacity at the time of the commission
Ill-gotten wealth means any asset, property,
of the offense:
business enterprise or material possession of any
(a) Officials of the executive branch occupying
person acquired by himself directly or indirectly
the positions of regional director and
through dummies, nominees, agents,
higher, otherwise classified as Grade '27'
subordinates and/or business associates by any
and higher, of the Compensation and
combination or series of the following means or
Position Classification Act of 1989 (R.A. No.
similar schemes:
6758), specifically including:
(1) through misappropriation, conversion,
1) Provincial governors, vice-governors,
misuse, or malversation of public funds or
members of the sangguniang
raids on the public treasury;
panlalawigan, and provincial
(2) by receiving, directly or indirectly, any
treasurers, assessors, engineers, and
commission, gift, share, percentage,
other provincial department heads;
kickbacks or any other form of pecuniary
2) City mayors, vice-mayors, members of
benefit from any person and/or entity in
the sangguniang panlungsod, city
connection with any government contract
treasurers, assessors, engineers, and
or project or by reason of the office or
other city department heads;
position of the public officer concerned;
3) Officials of the diplomatic service
(3) by the illegal or fraudulent conveyance or
occupying the position of consul
disposition of assets belonging to the
and higher;
National Government or any of its
4) Philippine army and air force colonels,
subdivisions, agencies or instrumentalities
naval captains, and all officers of
or government-owned or controlled
higher rank;
corporations and their subsidiaries,
5) Officers of the Philippine National
(4) by obtaining, receiving or accepting directly
Police while occupying the position of
or indirectly any shares of stock, equity or
provincial director and those holding
any other form of interest or participation
the rank of senior superintendent or
including the promise of future employment
higher;
in any business enterprise or undertaking;
6) City and provincial prosecutors and
their assistants, and officials and
LAW ON PUBLIC OFFICERS POLITICAL LAW REVIEWER
N. Term Limits
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Potestas delegata non delegare potest. What has Legislative Rules Interpretative Rules
been delegated cannot be delegated. interpretation or give its
own set of rules.
Legislative Delegation Due process involves Due process means that
14
whether the parties the body observed the 9
Requisites for a valid delegation were afforded the proper procedure in
(1) The law must be complete in itself and must set opportunity to be passing rules.
forth the policy to be executed notified and heard
(2) The law must fix a standard, the limits of which before the issuance of
are sufficiently determinate or determinable, the ruling.
to which the delegate must conform
Restrictions on interpretative regulations: (a)
What is a sufficient standard: does not change the character of a ministerial
(1) Defines legislative policy, marks its limits, maps duty, (b) does not involve unlawful use of
out its boundaries and specifies the public legislative or judicial power.
agency to apply it; and
(2) Indicates the circumstances under which the Administrative interpretations: may eliminate
legislative command is to be effected. construction and uncertainty in doubtful cases.
[Santiago v COMELEC (1997); ABAKADA Guro When laws are susceptible of two or more
List vs Ermita (2005)] interpretations, the administrative agency
should make known its official position.
Forms of the sufficient standard:
(1) Express Administrative construction/ interpretation not
(2) Implied [Edu vs Ericta (1970)] controlling as to the proper construction of a
(3) Embodied in other statutes on the same matter statute, but generally it is given great weight,
and not necessarily in the same law being has a very persuasive influence and may actually
challenged. [Chiongbian vs Orbos (1995)] be regarded by the courts as the controlling
factor.
(1) Kinds of Administrative Rules and
Regulations Administrative interpretation is merely advisory;
Courts finally determine what the law means.
a. Supplementary legislation
Pertains to rules and regulations to fix details in the c. Contingent legislation
execution of a policy in the law. e.g. IRRs of the Pertains to rules and regulations made by an
Labor Code. administrative authority on the existence of certain
facts or things upon which the enforcement of the
b. Interpretative legislation law depends.
Pertains to rules and regulations construing or
interpreting the provisions of a statute to be (2) Requisites for Validity
enforced and they are binding on all concerned until
they are changed, i.e. BIR Circulars. Requisites of a valid administrative rule (WRAP)
(1) Within the scope or authority of law
GENERAL DISTINCTIONS FROM LEGISLATIVE RULES (2) Authorized by law
Legislative Rules Interpretative Rules (3) Reasonableness
Promulgated pursuant Passed pursuant to its (4) Promulgated in accordance with prescribed
to its quasi-legislative quasi-judicial capacity. Procedure
/ rule-making
functions. Publication Rules
Create a new law, a Merely clarify the meaning (1) Administrative rules and regulations are subject
new policy, with the of a pre-existing law by to the publication and effectivity rules of the
force and effect of inferring its implications. Admin Code in relation to the Civil Code.
law. (2) EO 200 requires publication of laws in the
Need publication. Need not be published. Official Gazette or in a newspaper of general
So long as the court The court may review their circulation. Publication is indispensable,
finds that the correctness of the especially if the rule is general.
legislative rules are interpretation of the law
within the power of given by the EXCEPTIONS:
the administrative administrative body, and (a) Interpretative rules
agency to pass, as seen substitute its own view of (b) Internal regulations (i.e. regulating
in the primary law, what is correct to the personnel)
then the rules bind the administrative body. If it (c) Letters of instructions issued by
court. The court is not within the scope of administrative superior to
cannot question the the administrative agency, subordinates
wisdom or correctness court can only invalidate (3) Effectivity: 15 days after publication, not 15
of the policy contained the same but not days from date of filing with the UP Law
in the rules. substitute its decision or Center.
ADMINISTRATIVE LAW POLITICAL LAW REVIEWER
General Rule
EXCEPTIONS: A tribunal, board or officer exercising judicial
(a) Different date is fixed by law or functions acts without jurisdiction if no authority has
specified in the rule. been conferred to it by law to hear and decide cases 15
(b) In case of imminent danger to public (1) Jurisdiction to hear is explicitly or by necessary 0
health, safety and welfare. implication, conferred through the terms of
the enabling statute.
Penal Rules (2) Effect of administrative acts outside
Sec. 6, 1987 Administrative Code. Omission of jurisdiction—VOID.
Some Rules. – (2) Every rule establishing an offense
or defining an act which, pursuant to law is (1) Administrative Due Process
punishable as a crime or subject to a penalty shall in
all cases be published in full text. 1. Due Process
Findings of facts by administrative bodies which
(1) The law itself must declare the act as observed procedural safeguards (e.g. notice and
punishable and must also define or fix the hearing parties, and a full consideration of evidence)
penalty for the violation. are accorded the greatest respect by courts
(2) Can administrative bodies make penal rules? NO. Cardinal Primary Rights: Ang Tibay v CIR (1950) lays
Penal statutes are exclusive to the legislature down the cardinal primary rights:
and cannot be delegated. Administrative rules (1) Right to a hearing (Includes the right of a party
and regulations must not include, prohibit or to present his own case and submit evidence in
punish acts which the law does not even define support thereof)
as a criminal act. [People vs Maceren (1977)] (2) The tribunal must consider the evidence
presented
(3) If a rule is penal, it must be published before it (3) Decision must be supported by evidence.
takes effect. [People vs Que Po Lay (1954)] (4) Evidence must be substantial.
Rationale: In this era of clogged docket courts, the EXCEPTIONS to the Doctrine of Exhaustion of
need for specialized administrative boards with the Remedies:
special knowledge and capability to hear and (1) Purely legal questions. [Castro vs Secretary
determine promptly disputes on technical matters (2001)]
has become well nigh indispensable. Between the
power lodged in an administrative body and a court, (2) Steps to be taken are merely matters of form.
the unmistakable trend has been to refer it to the [Pascual vs Provincial Board (1959)]
former. [GMA vs ABS CBN (2005)]
ADMINISTRATIVE LAW POLITICAL LAW REVIEWER
(3) Administrative remedy not exclusive but merely It does not affect jurisdiction of the court.
cumulative or concurrent to a judicial remedy.
[Pascual vs Provincial Board (1959)] The only effect of non-compliance is it that will
deprive complainant of a cause of action, which is a 15
(4) Validity and urgency of judicial action or ground for a motion to dismiss. 4
intervention. [Paat vs CA (1997)]
But if not invoked at the proper time, this ground is
(5) No other plain, speedy, adequate remedy in the deemed waived. [Republic vs Sandiganbayan (1996)]
ordinary course of the law. [Paat v CA (1997)t;
Information Technology Found’n v COMELEC III. Doctrine of Finality of
(2004)]
Administrative Action
(6) Resort to exhaustion will only be oppressive and
patently unreasonable. [Paat vs CA (1997); No resort to the courts will be allowed unless the
Cipriano vs Marcelino (1972)] administrative action has been completed and there
is nothing left to be done in the administrative
(7) Where the administrative remedy is only structure.
permissive or voluntary and not a prerequisite
to the institution of judicial proceedings. The Doctrine of Finality of Administrative Action is a
[Corpuz vs Cuaderno (1962)] broader doctrine which encompasses the Doctrine of
Exhaustion of Administrative Remedies. It is a
(8) Application of the doctrine will only cause great prerequisite for judicial review.
and irreparable damage which cannot be
prevented except by taking the appropriate
court action. [Paat vs CA (1997); Cipriano vs
Marcelino (1972)]
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Plebiscite: election at which any proposed Note: Any person who temporarily resides in another
amendment to, or revision of, the Constitution is city, municipality or country solely by reason of his:
submitted to the people for their ratification. (1) employment in private or public service
(2) educational activities
Referendum: submission of a law pass by the (3) work in the military or naval reservations
national or local legislative body to the registered within the Philippines
voters at an election called for the purpose for their (4) service in the AFP, PNP or
ratification or rejection. (5) confinement or detention in government
institutions in accordance with law shall
Initiative: the power of the people to propose not be deemed to have lost his original
amendments to the Constitution or to propose and residence [Sec. 9, R.A. 8189, Voter’s
enact legislation through an election called for the Registration Act of 1996]
purpose. [Sec. 3a, R.A. 6735, The Initiative and
Referendum Act] It is not necessary that a person should have a house
in order to establish his residence or domicile in a
3 systems of initiative: municipality. It is enough that he should live there,
(1) Initiative on the Constitution: petition provided that his stay is accompanied by his
proposing amendments to the Constitution. intention to reside therein permanently. [Marcos v.
(2) Initiative on statutes: petition proposing COMELEC (1995)]
to enact a national legislation.
(3) Initiative on local legislation: petition Not otherwise disqualified by law: These are the 3
proposing to enact a regional, provincial, grounds for disqualification to register as a voter
city, municipal or barangay law, resolution under Sec. 11, R.A. 8189, Voter‘s Registration Act of
or ordinance. 1996:
ELECTION LAW POLITICAL LAW REVIEWER
(1) Sentenced by final judgment to suffer Effect of failure to return: cause for the
imprisonment for not less than 1 year removal of his/her name from the National
(unless granted a plenary pardon or an Registry of Absentee Voters and his/her
amnesty) shall automatically reacquire permanent disqualification to vote in absentia. 15
right to vote upon the expiration of 5 years 7
after the service of sentence. (5) Previously declared insane or
(2) Adjudged by final judgment for having incompetent by competent authority in
committed any crime involving disloyalty the Philippines or abroad, as verified by
to the duly constituted government (e.g. the Philippine embassies, consulates or
rebellion, sedition, violation of the foreign eservice establishments
firearms law) or any crime against national concerned. [Sec. 5, R.A. 9189]
security (unless restored to full civil and
political rights in accordance with law) C. Registration of Voters
shall automatically reacquire the right to
vote upon the expiration of 5 years after I. Definition
the service of sentence II. System of Continuing Registration of Voters
(3) Insane or incompetent persons as declared III. Illiterate or disabled voters
by competent authority IV. Election Registration Board
V. Change of residence or address
Registered voter: In order that a qualified elector VI. Challenges to right to register
may vote in any election, plebiscite or referendum, VII. Deactivation of Registration
he must be registered in the Permanent List of VIII. Reactivation of Registration
Voters for the city or municipality in which he IX. Certified List of Voters
resides. [Sec. 115, B.P. 881, Omnibus Election Code] X. Annulment of Book of Voters
XI. Overseas Absentee Voter
Note: No literacy, property or other substantive
requirement shall be imposed on the exercise of I. Definition
suffrage
Act of accomplishing and filing of a sworn
II. Overseas Absentee Voter application for registration by a qualified voter
before the election officer of the city or
1. Qualifications municipality wherein he resides and including the
same in the book of registered voters upon approval
(1) All Filipino citizens abroad by the Election Registration Board. [Sec. 3a, R.A.
(2) Not otherwise disqualified by law 8189]
(3) At least 18 years of age on the day of
elections [Sec. 3f, R.A. 9189] II. System of Continuing Registration
of Voters
2. Disqualifications
The personal filing of application of registration of
(1) have lost their Filipino citizenship in
voters shall be conducted daily in the office of the
accordance with Philippine laws
Election Officer during regular office hours.
(2) have expressly renounced their Philippine
citizenship and who have pledged
Period of registration:
allegiance to a foreign country
No registration shall be conducted within
(3) have committed and are convicted in a
(1) 120 days before a regular election
final judgment by a court or tribunal of
(2) 90 days before a special election [Sec. 8,
an offense punishable by imprisonment of
R.A. 8189]
not less than 1 year, including those who
have committed and been found guilty of
PALATINO VS COMELEC
Disloyalty as defined under Article 137 of
G.R. No. 189868, December 15. 2009
the RPC
(4) immigrant or a permanent resident who is
Facts: COMELEC Resolution 8585 set the deadline for
recognized as such in the host country
voter registration to 31 October 2009. Petitioners
unless he/she executes, upon
asked the SC to declare the resolution null and void,
registration, an affidavit prepared for the
and to require COMELEC to extend the voter
purpose by the Commission declaring
registration until 9 January 2010, the day before the
that:
120-day period prior to the 10 May 2010 regular
(a) he/she shall resume actual physical
elections. COMELEC argued that it is authorize under
permanent residence in the
the law to fix other dates for pre-election acts which
Philippines not later than 3 years
include voter registration and in Akbayan-Youth vs.
from approval of his/her
COMELEC, the SC denied a similar prayer for
registration and
extension of deadline for voter registration for the
(b) he/she has not applied for
14 May 2001 elections.
citizenship in another country
ELECTION LAW POLITICAL LAW REVIEWER
Issue: WON COMELEC Resolution 8585 should be Change of residence to another city or
declared void. municipality – the registered voter may apply with
the Election Officer of his new residence for the
Ruling: Yes. By Sec. 8 R.A. 8189, Congress itself has transfer of his registration records. [Sec. 12, R.A. 15
determined that the period of 120 days before a 8189] 8
regular election and 90 days before a special
election is enough time for the COMELEC to make Change of address in the same municipality or city
ALL the necessary preparations with respect to the – voter shall immediately notify the Election Officer
coming elections. COMELEC is granted the power to in writing. [Sec. 13, R.A. 8189]
fix other periods and dates for pre-election activities
only if the same cannot be reasonably held within VI. Challenges to right to register
the period provided by law. There is no ground to
hold that the mandate of continuing voter
registration cannot be reasonably held within the Who may challenge application for registration:
period provided by Sec. 8 of R.A. 8189. Any voter, candidate or representative of a
registered political party
The case is different from Akbayan-Youth vs.
COMELEC, wherein the petitioners filed their Form:
(1) In writing
petition with the Court and sought the conduct of a
(2) State the grounds therefor
two-day registration all within the 120-day
(3) Under oath and
prohibitive period. In this case, both the dates of
filing of the petition and the extension sought are (4) Attached to the application, together with
prior to the 120-day prohibitive period. the proof of notice of hearing to the
challenger and the applicant
III. Illiterate or disabled voters When: must be filed not later than the 2nd Monday
of the month in which the same is scheduled to be
Illiterate person - may register with the assistance heard or processed by the ERB [Sec. 18, R.A. 8189]
of the Election Officer or any member of an
accredited citizen‘s arms VII. Deactivation of Registration
Physically disabled person – application for
registration may be prepared by: (1) The board shall remove the registration
records of the following persons from the
(1) any relative within the 4th civil degree of
corresponding precinct book of voters and
consanguinity or affinity or
(2) by the Election Officer or place the same in the inactive file:
(3) any member of an accredited citizen‘s arm (2) Sentenced by final judgment to suffer
[Sec. 14, R.A. 8189] imprisonment for not less than 1 year
(unless granted a plenary pardon or an
R.A. 9369 The Poll Automation Law now defines a amnesty)
disabled voter as ―a person with impaired capacity (3) shall automatically reacquire right to vote
to use the Automated Election System (AES)‖ (Sec. upon the expiration of 5 years after the
2, Par. 11) service of sentence as certified by clerks of
courts
(4) Adjudged by final judgment for having
IV. Election Registration Board committed any crime involving disloyalty to
the duly constituted government (e.g.
Composition: rebellion, sedition, violation of the firearms
(1) Chairman: Election Officer law) or any crime against national security
If disqualified, COMELEC shall designate an (unless restored to full civil and political
acting Election Officer rights in accordance with law) shall
(2) Members: automatically reacquire the right to vote
(a) Public school official most senior in rank upon the expiration of 5 years after the
(b) Local civil registrar, or in his absence, service of sentence
the city or municipal treasurer. If (5) Insane or incompetent persons as declared
neither are available, any other by competent authority
appointive civil service official from the (6) Did not vote in the 2 successive preceding
same locality as designated by the regular elections (excluding SK elections)
COMELEC. (7) Registration has been ordered excluded by
the Court and
Disqualification: relation to each other or to any (8) Lost his Filipino citizenship. [Sec. 27, R.A.
incumbent city or municipal elective official within 8189]
the 4th civil degree of consanguinity or affinity. [Sec.
15, R.A. 8189] VIII. Reactivation of Registration
V. Change of residence or address Any voter whose registration has been deactivated
may file with the Election Officer a sworn
ELECTION LAW POLITICAL LAW REVIEWER
application for reactivation of his registration in the Grounds for cancellation/amendment of entries
form of an affidavit stating that the grounds for the therein:
deactivation no longer exist. (1) When the overseas absentee voter files a
letter under oath addressed to the Comelec 15
When: Any time not later than 120 days before a that he/she wishes to be removed from the 9
regular election and 90 days before a special Registry of Overseas Absentee Voters, or
election. [Sec. 28, R.A. 8189] that his/her name be transferred to the
regular registry of voters.
IX. Certified List of Voters (2) When an overseas absentee voter‘s name
was ordered removed by the Comelec from
the Registry of Overseas Absentee Voters for
The ERB shall prepare and post a certified list of his/her failure to exercise his/her right to
voters 90 before a regular election and 60 days vote under R.A. 9189 for 2 consecutive
before a special election. [Sec. 30, R.A. 8189] national elections. [Sec. 9, R.A. 9189]
(4) Foreign party or organization There are 2 steps in the second round of seat
(5) Receives support from any foreign allocation:
government, foreign political party,
foundation, organization, whether directly or 1) The percentage of votes garnered by each party- 16
through any of its officers or members or list candidate is multiplied by the remaining 1
indirectly through third parties for partisan available seats. The whole integer of the product
election purposes corresponds to a party‘s share in the remaining
(6) Violates or fails to comply with laws, rules or available seats
regulations relating to elections
(7) Declares untruthful statements in its petition Formula for remaining available seats =
(8) Ceased to exist for at least 1 year No. of seats available to x Guaranteed seats
(9) Fails to participate in the last 2 preceding party-list representatives of the two-
elections or percenters
(10) Fails to obtain at least 2% of the votes cast
under the party-list system in the 2 preceding Formula for percentage of votes garnered by each
elections for the constituency in which it has party-list candidate =
registered [Sec. 6, R.A. 7941] No. of votes garnered by
each party ÷ Total no. of
votes cast for
VII. Parameters in Allocation of Seats party-list
candidates
for Party-List Representatives
2) Assign one party-list seat to each of the parties
20% allocation – the combined number of all party- next in rank until all available seats are completely
list congressmen shall not exceed 20% of the total distributed.
membership of the House of Representatives,
including those elected under the party-list.
VIII. Effect of Change of Affiliation
Number available to x 20 = Number of seats
party-list available to Any elected party-list representative who changes
representatives party-list his political party or sectoral affiliation:
actually obtained, is representatives during his term of office shall forfeit his seat
entitled to a maximum within 6 months before an election shall not be
of 3 seats; one eligible for nomination as party-list
qualifying and of seats representative under his new party or
available to organization [Sec. 15, R.A. 7941]
legislative districts
.80 IX. Nomination of Party-List
2% threshold – only those parties garnering a
Representative
minimum of 2% of the total votes cast for the party-
list system shall be entitled to one guaranteed seat Each registered party, organization or coalition shall
each. submit to the COMELEC not later 45 days before the
election a list of at least 5 names from which party-
Proportional representation – the additional seats list representatives shall be chosen in case it obtains
shall be computed in ―proportion to their total the required number of votes.
number of votes‖.
A person may be nominated:
3-seat limit – each party, regardless of the number (1) in 1 list only
of votes it actually obtained, is entitled to a (2) if he/she has given their consent in writing
maximum of 3 seats; one qualifying and 2 additional (3) is not a candidate for any elective office or
seats. (4) has not lost his bid for an elective office in
the immediately preceding election
BANAT VS. COMELEC
GR NO. 179271, July 8. 2009 No change of names or alteration of the order of
nominees shall be allowed after the same shall have
Held: In computing the allocation of additional been submitted to the COMELEC except where the
seats, the continued operation of the 2% threshold nominee:
for the distribution of the additional seats as found (1) dies
in the second clause of Sec. 11(b) of R.A. 7941 which (2) withdraws in writing his nomination or
provides that ―those garnering more than 2% of the (3) becomes incapacitated in which case the
votes shall be entitled to additional seats in name of the substitute nominee shall be
proportion to their total number of votes‖ is placed last in the list
unconstitutional. The 2% threshold frustrates the
attainment of the permissive ceiling that 20% of the Incumbent sectoral representatives in the HR who
members of the HR shall consist of party-list are nominated in the party-list system shall not be
representatives. considered resigned. [Sec. 8, R.A. 7941]
ELECTION LAW POLITICAL LAW REVIEWER
requirement of a personal and sworn Any person holding an elective office or position
renunciation of foreign citizenship. Section shall not be considered resigned upon the filing of
5(2) of R.A. No. 9225 compels natural-born his certificate of candidacy for the same or any
Filipinos, who have been naturalized as other elective office or position. [Sec. 4, Comelec 16
citizens of a foreign country, but who Resolution No. 8678 Guidelines on the Filing of 3
reacquired or retained their Philippine Certificates of Candidacy and Nomination of Official
citizenship (1) to take the oath of Candidates of Registered Political Parties in
allegiance under Section 3 of Republic Act Connection with the May 10, 2010 National and Local
No. 9225, and (2) for those seeking elective Elections]
public offices in the Philippines, to
additionally execute a personal and sworn NOTE: Sec. 67 B.P. 811 which deemed elective
renunciation of any and all foreign officials automatically resigned from office upon
citizenship before an authorized public filing of their certificate of candidacy was repealed
officer prior or simultaneous to the filing of by Sec. 14 R.A 9006, Fair Election Act.
their certificates of candidacy, to qualify as
candidates in Philippine elections. [Jacot QUINTO VS COMELEC (MR Ruling)
vs. Dal, (November 2008)] GR 189698, February 22. 2010
(5) Fugitive from justice in criminal and non- Held: The SC reversed its earlier ruling (1 Dec. 2009)
political cases here and abroad and upheld the constitutionality of 3 provisions in
(6) Insane or feeble-minded election laws – Sec. 13(3) R.A. 9369, Sec. 66 B.P. 881
and Sec. 4(a) COMELEC Resolution 8678 - that
II. Filing of Certificates of Candidacy deemed appointive officials automatically resigned
once they filed their certificates of candidacy.
No person shall be eligible for any elective public Ratio: By repealing Section 67 but retaining Section
office unless he files a sworn certificate of 66 of B.P. 881, the legislators deemed it proper to
candidacy within the period fixed herein. [Sec. 73, treat these two classes of officials differently with
B.P. 881] respect to the effect on their tenure in the office of
the filing of the certificates of candidacy for any
The certificate of candidacy shall be filed by the
position other than those occupied by them. It is not
candidate personally or by his duly authorized
within the power of the Court to pass upon or look
representative.
into the wisdom of this classification. Since the
classification justifying Section 14 of R.A. 9006 is
When: any day from the commencement of the anchored upon material and significant distinctions
election period but not later than the day before the and all the persons belonging under the same
beginning of the campaign period. classification are similarly treated, the equal
protection clause of the Constitution is, thus, not
In cases of postponement or failure of election, no infringed.
additional certificate of candidacy shall be accepted
except in cases of substitution of candidates. [Sec.
(2) Substitution of Candidates
75, B.P. 881]
If after the last day for filing of the certificates of
Filing of 2 certificates of candidacy:
candidacy, an official candidate of a registered
(1) No person shall be eligible for more than one
political party dies, withdraws or is disqualified for
office to be filled in the same election.
any cause:
(2) If he files a certificate of candidacy for more
(1) He may be substituted by a candidate
than one office he shall not be eligible for
belonging to and nominated by the same
either.
political party.
(3) Before the expiration of the period for the
(2) No substitute shall be allowed for any
filing of certificates of candidacy, the person
independent candidate.
who has filed more than one certificate of
(3) The substitute must file his certificate of
candidacy, may -
candidacy not later than mid-day of the
declare under oath the office for which
election day
he desires to be eligible and
cancel the certificate of candidacy for If the death, withdrawal or disqualification should
the other office/s [Sec. 73, B.P. 881] happen between the day before the election and
mid-day of the election day, certificate may be filed
(1) Effect of Filing with:
(1) any Board of Election Inspectors in the
Any person holding a public appointive office or political subdivision where he is a candidate
position including active members of the AFP, and or
other officers and employees in GOCCs, shall be (2) with the COMELEC if it is a national position
considered ipso facto resigned from his office upon [Sec. 77, B.P. 881]
the filing of his certificate of candidacy. [Sec. 66(1),
B.P. 881] Duty of COMELEC [Sec. 76, B.P. 881]
GENERAL RULE: The COMELEC shall have the
ELECTION LAW POLITICAL LAW REVIEWER
When: within 5 days from the last day for the filing Effect (asked in 1990, 1992, 1996, 2003)
of certificates of candidacy Any candidate who has been declared by final
judgment to be disqualified shall not be voted for,
How: personally or through duly authorized and the votes cast for him shall not be counted. The
representative with the COMELEC fact that the candidate who obtained the highest
number of votes is later declared to be disqualified
Grounds: certificate of candidacy has been filed - or not eligible for the office to which he was
(1) To put the election process in mockery or elected, does not necessarily entitle the candidate
disrepute or who obtained the second highest number of votes to
(2) To cause confusion among the voters by the be declared the winner of the elective office.
similarity of the names of the registered
candidates or Any candidate who has been declared by final
(3) Clearly demonstrate that the candidate has judgment to be disqualified –
no bona fide intention to run for the office (1) shall not be voted for and
for which the certificate of candidacy has (2) the votes cast for him shall not be counted
been filed and thus prevent a faithful (3) If a candidate is not declared by final
determination of the true will of the judgment before an election to be
electorate [Sec. 69, B.P. 881] disqualified and he is voted for and receives
the winning number of votes in such
Proceeding: summary in nature election
(4) Petition to Deny or Cancel The Court or COMELEC shall continue with the trial
Certificates of Candidacy and hearing of the action, inquiry, or protest and
Who may file: Any person Upon motion of the complainant or any intervenor,
may during the pendency thereof, order the
When: Any time not later than 25 days from the suspension of the proclamation of such candidate
time of the filing of the certificate of candidacy whenever the evidence of his guilt is strong. [Sec. 6,
R.A. 6646, The Electoral Reforms Law of 1987]
Exclusive ground: any material representation
contained in the certificate of candidacy is false. Where a similar complaint/petition is filed:
(1) before the election and proclamation of the
Decision: Shall be decided, after due notice and respondent and the case is not resolved
hearing, not later than 15 days before the election. before the election - the trial and hearing
[Sec. 78, B.P. 881] of the case shall continue and referred to
the Law Department for preliminary
investigation
ELECTION LAW POLITICAL LAW REVIEWER
(2) after the election and before the Issue: WON Penera‘s disqualification for engaging in
proclamation of the respondent - the trial premature campaigning should be reconsidered.
and hearing of the case shall be suspended
and referred to the Law Department for Held: At the time the supposed premature 16
preliminary investigation campaigning took place, Penera was not officially a 5
―candidate‖ albeit she already filed her certificate
NOTE: In either case, if the evidence of guilt is of candidacy. Under Section 15 of R.A. 9369, a
strong, the COMELEC may order the suspension person who files his certificate of candidacy is
of the proclamation of respondent, and if considered a candidate only at the start of the
proclaimed, to suspend the effects of campaign period, and unlawful acts applicable to
proclamation. [Sec. 4, Resolution No. 8678] such candidate take effect only at the start of such
campaign period. Thus, a candidate is liable for an
(6) Withdrawal of Candidates election offense only for acts done during the
campaign period, not before. Before the start of the
A person who has filed a certificate of candidacy campaign period, such election offenses cannot be
may, prior to the election, withdraw the same by committed and any partisan political activity is
submitting to the office concerned a written lawful.
declaration under oath.
1. Election Campaign or Partisan Political
Effect of filing or withdrawal of a certificate of Activity
candidacy: shall not affect whatever civil, criminal
or administrative liabilities which a candidate may An act designed to promote the election or defeat of
have incurred. a particular candidate or candidates to a public
office. [Sec. 79, B.P. 881]
G. Campaign
Exclusions:
I. Premature Campaigning (1) Acts performed for the purpose of
II. Prohibited Contributions enhancing the chances of aspirants for
nomination for candidacy to a public office
I. Premature Campaigning by a political party, aggroupment, or
coalition of parties.
GENERAL RULE: Any election campaign or partisan (2) Public expressions of opinions or discussions
political activity for or against any candidate outside of probable issues in a forthcoming election
of the campaign period is prohibited and shall be or on attributes or criticisms of probable
considered as an election offense. [Sec. 80, B.P. candidates proposed to be nominated in a
881] forthcoming political party convention.
[Sec. 79, B.P. 881]
EXCEPTION: Political parties may hold political
conventions to nominate their official candidates Persons Prohibited from Campaigning:
within 30 days before the start of the period for (1) Members of the board of election
filing a certificate of candidacy. [Sec. 15, R.A. 9369, inspections [Sec. 173, B.P. 881]
Poll Automation Law] (2) Civil service officers or employees [Art. IX-
B, Sec. 2 (4), Const.]
Prohibited campaigning days: It is unlawful for any (3) Members of the military [Art. XVI, Sec. 5
person to engage in an election campaign or partisan (3), Const.]
political activity on: (4) Foreigners, whether juridical or natural
(1) Maundy Thursday persons.
(2) Good Friday
(3) eve of Election Day and 2. Campaign Period
(4) Election Day [Sec. 3, COMELEC Resolution
8758] For President, Vice-President and Senators - 90
days before the day of the election.
PENERA VS COMELEC
G.R. No. 181613, November 25. 2009 For Members of the HR and elective provincial,
city and municipal officials - 45 days before the day
Facts: On 11 September 2009, the SC affirmed the of the election. [Sec. 5, R.A. 7166]
COMELEC‘s decision to disqualify Penera as
mayoralty candidate in Sta. Monica, Surigao del 3. Lawful Election Propaganda
Norte, for engaging in election campaign outside the
campaign period, in violation of Sec. 80 of B.P. 881. (1) Pamphlets, leaflets, cards, decals, stickers, or
Penera moved for reconsideration, arguing that she other written or printed materials not larger
was not yet a candidate at the time of the supposed than 8.5x14 inches
premature campaigning, since under Sec. 15 of R.A. (2) Handwritten or printed letters urging voters to
9369 one is not officially a candidate until the start vote for or against any political party or
of the campaign period. candidate
(3) Cloth, paper or cardboard posters, framed or
ELECTION LAW POLITICAL LAW REVIEWER
For any person during the campaign period to: No movie, cinematograph or documentary shall be
(1) Remove, destroy, obliterate or in any manner publicly exhibited in a theater, television station or
deface or tamper with lawful election any public forum during the campaign period which:
propaganda (1) portrays the life or biography of a candidate
(2) Prevent the distribution of lawful election (2) is portrayed by an actor or media personality
propaganda [Sec. 83, B.P.881] who is himself a candidate. [Sec. 6, R.A. 9006]
published 15 days before an election and surveys which can be assessed based on the rates
affecting local candidates shall not be published 7 prevailing in the area. [Sec. 94, B.P. 881]
days before an election.
2. Prohibited Contributions 16
Exit polls may only be taken subject to the following 7
requirements: (1) From Public or private financial institutions.
(1) Pollsters shall not conduct their surveys within Unless:
50m from the polling place, whether said (a) the financial institutions are legally in
survey is taken in a home, dwelling place and the business of lending money
other places (b) the loan is made in accordance with
(2) Pollsters shall wear distinctive clothing laws and regulations AND
(3) Pollsters shall inform the voters that they may (c) the loan is made in the ordinary course
refuse to answer and of business
(4) The result of the exit polls may be announced (2) Natural and juridical persons operating a public
after the closing of the polls on election day utility or in possession of or exploiting any
and must clearly identify the total number of natural resources of the nation
respondents, and the places where they were (3) Natural and juridical persons who hold contracts
taken. Said announcement shall state that the or sub-contracts to supply the government or
same is unofficial and does not represent a any of its divisions, subdivisions or
trend. [Sec. 5, R.A. 9006] instrumentalities, with goods or services or to
perform construction or other works
7. Application for Rallies, Meetings and Other (4) Grantees of franchises, incentives, exemptions,
Political Activity allocations or similar privileges or concessions
by the government or any of its divisions,
(a) All applications for permits must immediately be subdivisions or instrumentalities, including
posted in a conspicuous place in the city or GOCCs
municipal building, and the receipt thereof (5) Grantees, within 1 year prior to the date of the
acknowledged in writing. election, of loans or other accommodations in
(b) Applications must be acted upon in writing by excess of P100,000 by the government or any
local authorities concerned within 3 days after of its divisions, subdivisions or
their filing. If not acted upon within said instrumentalities including GOCCs
period, deemed approved. (6) Educational institutions which have received
(c) The only justifiable ground for denial of the grants of public funds amounting to no less
application is when a prior written application than P100,000
by any candidate or political party for the same (7) Officials or employees in the Civil Service, or
purpose has been approved. members of the Armed Forces of the
(d) Denial of any application for said permit is Philippines
appealable to the provincial election supervisor (8) Foreigners and foreign corporations, including
or to the COMELEC whose decision shall be foreign governments. [Sec. 95 and 96, B.P.
made within 48 hours and which shall be final 881]
and executory. [Sec. 87, B.P. 881]
3. Prohibited Fund-raising Activities
II. Prohibited Contributions
The following are prohibited if held for raising
campaign funds or for the support of any candidate
1. Definitions from the start of the election period up to and
including election day:
Contribution: gift, donation, subscription, loan, (1) Dances
advance or deposit of money or anything of value, or (2) Lotteries
a contract, promise or agreement to contribute (3) Cockfights
WON legally enforceable (4) Games
made for influencing the results of the elections (5) Boxing bouts
excludes services rendered without (6) Bingo
compensation by individuals volunteering their (7) Beauty contests
time in behalf of a candidate or political party (8) Entertainments, or cinematographic,
includes the use of facilities voluntarily donated theatrical or other performances
by other persons, the money value of which can
be assessed based on the rates prevailing in the For any person or organization, civic or religious,
area. [Sec. 94, B.P. 881] directly or indirectly, to solicit and/or accept from
any candidate or from his campaign manager, agent
Expenditures: payment of money or anything of or representative, or any person acting in their
value or a contract, promise or agreement to make behalf, any gift, food, transportation, contribution
an expenditure or donation in cash or in kind from the start of the
for the purpose of influencing the results of the election period up to and including election day
election EXCEPT: normal and customary religious
includes the use of facilities personally owned stipends, tithes, or collections on Sundays
by the candidate, the money value of the use of and/or other designated collection days [Sec.
ELECTION LAW POLITICAL LAW REVIEWER
III. Canvass by the BOC Composition: The chairman and members of the
COMELEC sitting en banc
Canvass - the process by which the results in the
election returns are tallied and totalled. Function: It shall canvass the results by
consolidating the certificates of canvass
Certificates of canvass - official tabulations of votes electronically transmitted. Thereafter, the national
accomplished by district, municipal, city and board shall proclaim the winning candidates for
provincial canvassers based on the election returns, senators and party-list representatives. [Sec. 23,
which are the results of the ballot count at the R.A. 9369]
precinct level.
The BOC shall canvass the votes by V. Proclamation
consolidating the electronically
transmitted results or the results Proclamation shall be after the canvass of election
contained in the data storage devices returns, in the absence of a perfected appeal to the
used in the printing of the election COMELEC, proclaim the candidates who obtained the
returns. [Sec. 20, R.A. 9369] highest number of votes cast in the province, city,
municipality or barangay, on the basis of the
IV. Certificate of Canvass and certificates of canvass.
Statement of Votes Failure to comply with this duty
constitutes an election offense.
[Sec. 231, B.P. 881]
(1) Within one hour after the canvassing, the
Chairman of the district or provincial BOC or When proclamation void:
the city BOC of those cities which comprise (1) When it is based on incomplete returns
one or more legislative districts shall [Castromayor v. Comelec (1995)] or
electronically transmit the certificates of (2) When there is yet no complete canvass. [Jamil
canvass to: v. Comelec (1997)]
(a) COMELEC sitting as the National BOC for (3) A void proclamation is no proclamation at all,
senators and party-list representatives and the proclaimed candidate‘s assumption
and into office cannot deprive the COMELEC of its
(b) Congress as the National BOC for the power to annul the proclamation.
president and vice president, directed
to the President of the Senate. [Sec. 20, Partial proclamation: Notwithstanding pendency of
R.A. 9369] any pre-proclamation controversy, COMELEC may
summarily order proclamation of other winning
(2) The certificates of canvass transmitted candidates whose election will not be affected by
electronically and digitally signed shall be the outcome of the controversy. [Sec. 21, R.A. 7166]
considered as official election results and shall
be used as the basis for the proclamation of a Election resulting in a tie: BOC, by resolution, upon
winning candidate. [Sec. 20, R.A. 9369] 5 days notice to all tied candidates, shall hold a
ELECTION LAW POLITICAL LAW REVIEWER
special public meeting at which the board shall 1. What Constitutes an Election
proceed to the drawing of lots of tied candidates
and shall proclaim as elected the candidates who Plurality of votes sufficient for:
may be favored by luck. [Sec. 240, B.P. 881] (1) a choice conditioned on the plurality of valid
17
votes or 0
There is a tie when: (2) a valid constituency regardless of the actual
(1) 2 or more candidates receive an equal and number of votes cast.
highest number of votes; or
(2) 2 or more candidates are to be elected for the 2. Failure of Elections
same position and 2 or more candidates
received the same number of votes for the Grounds: in any of such cases the failure or
LAST PLACE in the number to be elected. suspension of election must affect the result of the
election
Proclamation of a lone candidate: Upon the (1) Election in any polling place has not been
expiration of the deadline for the filing of held on the date fixed due to force
certificates of candidacy in a special election called majeure, violence, terrorism, fraud, or
to fill a vacancy in an elective position other than other analogous causes.
for President and VP, when there is only 1 qualified (2) Election in any polling place had been
candidate, he shall be proclaimed elected without suspended before the hour fixed for the
holding the special election upon certification by the closing of the voting due to force majeure,
COMELEC that he is the only candidate for the office violence, terrorism, fraud, or other
and is therefore deemed elected. [Sec. 2, R.A. analogous causes.
8295, Law on Proclamation of Solo Candidates] (3) After the voting and during the preparation
and transmission of the election returns or
I. Remedies and Jurisdiction in in the custody or canvass thereof such
election results in a failure to elect due to
Election Law force majeure, violence, terrorism, fraud or
I. Petition Not to Give Due Course to Certificate other analogous causes. [Sec. 6, B.P. 881]
of Candidacy
II. Petition to Declare Failure of Elections Causes for the declaration of failure of election may
III. Pre-Proclamation Controversy occur before or after the casting of votes or on the
IV. Election Protest day of the election. [Sec. 4, R.A. 7166]
V. Quo Warranto
The postponement, declaration of failure of election
I. Petition Not to Give Due Course to and the calling of special elections shall be decided
by the COMELEC sitting en banc by a majority vote
Certificate of Candidacy of its members. [Sec. 4, R.A. 7166]
Cancellation of Certificate of Candidacy The COMELEC shall call for the holding or
continuation of the election not held, suspended or
1. Grounds which resulted in a failure to elect:
(1) False material representation in the certificate (1) upon a verified petition by any interested
of candidacy; party and
(2) If the certificate filed is a substitute Certificate (2) after due notice and hearing [Sec. 6, B.P.
of Candidacy, when it is not a proper case of 881]
substitution under Sec. 77 of BP 881.
When: on a date reasonably close to the date of the
2. Nature of Proceedings - Summary election not held, suspended or which resulted in a
failure to elect BUT not later than 30 days after the
3. Procedure cessation of the cause of such postponement or
suspension of the election or failure to elect. [Sec.
Who may file: any citizen of voting age, or a duly 6, B.P. 881]
registered political party, organization, or coalition
of political parties 3. Declaration of Failure of Election
When filed: Within 5 days from the last day for the It is neither an election protest nor a pre-
filing of certificates of candidacy proclamation controversy. [Borja v. Comelec,
(1998)]
Where filed: With the Law Department of the
COMELEC Jurisdiction: COMELEC, sitting en banc, may declare
a failure of election by a majority vote of its
II. Petition to Declare Failure of members.
Elections Requisites: The following conditions must concur:
(1) No voting has taken place in the precincts
concerned on the date fixed by law, or even if
ELECTION LAW POLITICAL LAW REVIEWER
9. Petition to Annul or Suspend Proclamation When: within ten days after the proclamation of the
results of the election.
The filing of the petition suspends the running of the
period to file an election protest. [Alangdeo v. Who has jurisdiction:
Comelec, (1989)] (1) Comelec – over all contests relating to the
elections, returns and qualifications of all
No law provides for a reglementary period within elective regional, provincial and city
which to file a petition for the annulment of an officials [Sec. 250. BP 881]
election if there is as yet no proclamation. [Loong (2) RTC - over contests involving municipal
v. Comelec (supra)] officials [Sec. 251. BP 881]
ELECTION LAW POLITICAL LAW REVIEWER
(3) MeTC or MTC – over election contests complainant may file the complaint with the fiscal
involving barangay officials [Sec. 252. BP or the Department of Justice, if warranted. [Sec.
881] 265, B.P. 881]
17
Effect of filing petition to annual or to suspend the I. Jurisdiction over Election Offenses 3
proclamation. - The filing with the Commission of a
petition to annual or to suspend the proclamation of
any candidate shall suspend the running of the RTCs have exclusive original jurisdiction to try and
period within which to file an election protest or quo decide any criminal actions or proceedings for
warranto proceedings. [Sec. 248. BP 881] violation of election laws. [Sec. 268, B.P. 881]
(4) Acting as bodyguards or security in the case of service within the election period without the
policemen and provincial guards during the prior approval of the COMELEC [Sec. 261h, B.P.
campaign period [Sec. 261t, B.P. 881] 881]
17
(5) Removal, destruction, obliteration, or (3) Intervening of public officers and employees in 4
tampering of lawful election propaganda, or the civil service in any partisan political
preventing the distribution thereof [Sec. 83, activity [Sec. 261i, B.P. 881]
B.P. 881 vis-à-vis Sec. 262, B.P. 881]
(4) Use of public funds for an election campaign
4. Voting [Sec. 261o, B.P. 881]
(1) Vote-buying and vote-selling [Sec. 261a, B.P. (5) Illegal release of prisoners before and after
881] election [Sec. 261n, B.P. 881]
(2) Conspiracy to bribe voters [Sec. 261b, B.P. (6) Release, disbursement or expenditure of public
881]: A disputable presumption of a conspiracy funds during the prohibited period [Sec. 261v,
to bribe voters is created when there is proof B.P. 881]
that at least 1 voter in different precincts
representing at least 20% of the total precincts (7) Construction of public works, etc. during the
in any municipality, city or province has been prohibited period [Sec. 261w, B.P. 881]
offered, promised or given money, valuable
consideration or other expenditure by a (8) Suspension of elective local officials during the
candidate's relatives, leaders and/or election period without prior approval of the
sympathizers for the purpose of promoting the COMELEC [Sec. 261x, B.P. 881]
election of such candidate. [Sec. 28, R.A.
6646] 8. Coercion, Intimidation, Violence
(3) Coercion of subordinates to vote for or against (1) Coercion of election officials and employees
any candidate [Sec. 261d, B.P. 881]
(2) Threats, intimidation, terrorism, use of
(4) Dismissal of employees, laborers, or tenants for fraudulent devices or other forms of coercion
refusing or failing to vote for any candidate [Sec. 261e, B.P. 881]
[Sec. 261d(2), B.P. 881]
(3) Use of undue influence [Sec. 261j, B.P. 881]
(5) Being a flying voter [Sec. 261z (2), B.P. 881] (4) Carrying deadly weapons within the prohibited
area [Sec. 261p, B.P. 881]
5. Counting of Votes
(5) Carrying firearms outside residence or place of
(1) Tampering, increasing, decreasing votes, or business [Sec. 261q, B.P. 881]
refusal to correct tampered votes after proper
verification and hearing by any member of the (6) Organization or maintenance of reaction forces,
board of election inspectors [Sec. 27b, R.A. strike forces, or similar forces during the
6646] election period [Sec. 261u, B.P. 881]
A special election offense to be
known as electoral sabotage and the 9. Other Prohibitions
penalty to be imposed shall be life
imprisonment. [Sec. 42, RA 9369] (1) Unauthorized printing of official ballots and
(2) Refusal to issue to duly accredited watchers the election returns with printing establishments
certificate of votes cast and the announcement that are not under contract with the COMELEC
of the election, by any member of the board of [Sec. 27a, R.A. 6646
election inspectors [Sec. 27c, R.A. 6646] ]
(2) Wagering upon the results of elections [Sec.
6. Canvassing 261c, B.P. 881]
Any chairperson of the board of canvassers who fails (3) Sale, etc. of intoxicating liquor on the day fixed
to give notice of meeting to other members of the by law for the registration of voters in the
board, candidate or political party as required [Sec. polling place, or the day before the election or
27e, R.A. 6646] on election day [Sec. 261dd (1), B.P. 881]
7. Acts of Government or Public Officers (4) Opening booths or stalls within 30 meters of any
polling place [Sec, 261dd (2), B.P. 881]
(1) Appointment of new employees, creation of new
(5) Holding fairs, cockfights, etc. on election day
positions, promotion, or giving salary increases
[Sec. 261dd (3), B.P. 881]
within the election period [Sec. 261g, B.P. 881]
(6) Refusal to carry election mail during the
(2) Transfer of officers and employees in the civil
ELECTION LAW POLITICAL LAW REVIEWER
election period [Sec. 261dd (4), B.P. 881]. In such as counting machine, memory
addition to the prescribed penalty, such pack/diskette, memory pack receiver
refusal constitutes a ground for cancellation or and computer set
revocation of certificate of public convenience 17
or franchise. (2) Interfering with, impeding, absconding for 5
purpose of gain, preventing the installation or
(7) Discrimination in the sale of air time [Sec. 261dd use of computer counting devices and the
(5), B.P. 881] In addition to the prescribed processing, storage, generation and
penalty, such refusal constitutes a ground for transmission of election results, data or
cancellation or revocation of the franchise. information
NOTE: Good faith is not a defense, as election (3) Gaining or causing access to using, altering,
offenses are generally mala prohibita. destroying or disclosing any computer data,
program, system software, network, or any
10. Penalties computer-related devices, facilities, hardware
or equipment, whether classified or
For individuals declassified
(1) Imprisonment of not less than 1 year but not
more than 6 years, without probation [Sec. (4) Refusal of the citizens' arm to present for
264, B.P. 881] perusal its copy of election return to the board
(2) Disqualification to hold public office of canvassers
(3) Deprivation of the right of suffrage
(5) Presentation by the citizens' arm of tampered or
For a Foreigner spurious election returns
(1) Imprisonment of not less than 1 year but not
more than 6 years (without probation); (6) Refusal or failure to provide the dominant
(2) Deportation after service of sentence majority and dominant minority parties or the
citizens'' arm their copy of election returns and
For a Political Party
Payment of a fine not less than P10,000 after a (7) The failure to post the voters' list within the
criminal conviction specified time, duration and in the designated
location shall constitute an election offense on
Persons Required by Law to Keep Prisoners in the part the election officer concerned."
their Custody:
For prisoners illegally released from any penitentiary PENALTY
or jail during the prohibited period, where such (1) imprisonment of 8 years and one day to 12 years
prisoners commit any act of intimidation, terrorism without possibility of parole
or interference in the election, prison mayor in its
maximum period. [Sec. 264, B.P. 881] (2) perpetual disqualification to hold public and any
non-elective public office and
IV. Arrests in Connection with (3) deprivation of the right of suffrage.
Election Campaign
Exception: Those convicted of the crime of electoral
Only upon a warrant of arrest issued by a competent sabotage, which includes acts or offenses committed
judge after all the requirements of the Constitution in any of the following instances:
have been strictly complied with
National elective office:
V. Prescription When the tampering, increase and/or decrease
of votes perpetrated or the refusal to credit the
correct votes or to deduct tampered votes
5 years from the date of their commission. If the is/are committed in the election of a national
discovery of the offense be made in an election elective office which is voted upon nationwide
contest proceeding, the period of prescription shall and
commence on the date on which the judgment in
the tampering, increase and/ or decrease votes
such proceedings becomes final and executory.
refusal to credit the correct votes or to deduct
[Sec. 267, B.P. 881]
tampered votes, shall adversely affect the
results of the election to the said national office
VI. Prohibited Acts Under R.A. 9369 to the extent that losing candidate/s is /are
made to appear the winner/s;
(1) Utilizing without authorization, tampering with,
damaging, destroying or stealing: Regardless of the elective office involved, when
(a) Official ballots, election returns, and the tampering, increase and/or decrease of
certificates of canvass of votes used in votes committed or the refusal to credit the
the system; and correct votes or to deduct tampered votes
(b) Electronic devices or their components, perpetrated
peripherals or supplies used in the AES
ELECTION LAW POLITICAL LAW REVIEWER
OPERATIONS HEADS
Charles Icasiano • Katrina Rivera |Hotel Operations
Marijo Alcala • Marian Salanguit |Day-Operations
Jauhari Azis |Night-Operations
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Kris Francisco Rimban • Elvin Salindo |Transpo
Paula Plaza |Linkages
The jurisdiction of the metropolitan authority that within its territorial jurisdiction,
will thereby be created shall be limited to basic subject to such limitations and requirements
services requiring coordination. [Sec. 11, LGC] prescribed in this Code. [Sec. 6, LGC]
180
Highly Urbanized Cities and Independent Component The authority to create municipal corporations is
Cities essentially legislative in nature. [Pelaez v. Auditor
Cities that are highly urbanized, as determined by General (1965)]
law, and component cities whose charters prohibit
their voters from voting for provincial elective The enactment of a LGC is not a condition sine qua
officials, shall be independent of the province. non for the creation of a municipality, and before
the enactment of such code, the power remains
The voters of component cities within a province, plenary except that the creation should be approved
whose charters contain no such prohibition, shall not by the people concerned in a plebiscite called for
be deprived of their right to vote for elective the purpose. [Torralba v. Sibagat (1987)]
provincial officials. [Sec.12, LGC]
The SC held that sec. 19 of RA 9054 insofar as it
grants ARMM Regional Assembly the power to create
Autonomous Regions
provinces and cities is void. (Constitution allows
There shall be created autonomous regions in Muslim delegation of creating municipalities and barangays
Mindanao and in the Cordilleras consisting of only.) [Bai Sema v. COMELEC (2008)]
provinces, cities, municipalities, and geographical
areas sharing common and distinctive historical and Creations under Sec. 68, Admin Code
cultural heritage, economic and social structures, The alleged power of the President to create
and other relevant characteristics within the municipalities under Sec. 68 of the Admin Code
framework of this Constitution and the national amounts to an undue delegation of legislative power.
sovereignty as well as territorial integrity of the The authority to create municipal corporations is
Republic of the Philippines. [Sec. 15, LGC] essentially legislative in nature. The power of
control of the President over executive departments,
The President shall exercise general supervision over bureaus or offices implies no more than the
autonomous regions to ensure that laws are authority to assume directly the functions thereof or
faithfully executed. [Sec. 16, LGC] to interfere in the exercise of discretion by its
officials. It does not include the authority either to
All powers, functions, and responsibilities not abolish or create such. [Pelaez v. Auditor General
granted by this Constitution or by law to the (1965)]
autonomous regions shall be vested in the National
Government. [Sec. 17, LGC] Effect if created under Sec 68, Admin Code: The
municipality is non-existent. It cannot be a party to
any civil action [Mun. of Kapalong v. Moya (1988)]
The Congress shall enact an organic act for each
autonomous region with the assistance and
De Facto Corporations
participation of the regional consultative commission
De facto municipal corporation: There is defect in
composed of representatives appointed by the
creation; legal existence has been recognized and
President from a list of nominees from multi-sectoral
acquiesced publicly and officially.
bodies.
Requisites: (LACA)
The organic act shall define the basic structure of
(1) valid law authorizing incorporation;
government for the region consisting of the
(2) attempt in good faith to organize it;
executive department and legislative assembly, both
(3) colorable compliance with law; and
of which shall be elective and representative of the
(4) assumption of corporate powers.
constituent political units.
There can be no color of authority in an
The organic acts shall likewise provide for special
unconstitutional statute. An unconstitutional act
courts with personal, family, and property law
confers no rights, imposes no duties, affords no
jurisdiction consistent with the provisions of this
protection, and creates no office. However, even if
Constitution and national laws. [Sec.18, LGC]
the EO was invalid, it does not mean that the acts
done by the municipality of Balabagan in the
c. Authority to Create Local Government exercise of its corporate powers are a nullity. This is
Units because the existence of the EO is ‗an operative fact
A local government unit may be which cannot justly be ignored.‘ [Malabanan v
created, divided, merged, abolished, or its Benito (1969)]
boundaries substantially altered either
- by law enacted by Congress in the case of a The Municipality of Sinacban2 possesses legal
province, city, municipality, or any other personality. Where a municipality created as such by
political subdivision, OR
- by ordinance passed by the sangguniang 2
Sinacban was created by EO 258 of then President Elpidio
panlalawigan or sangguniang panlungsod Quirino, pursuant to Sec. 68 of the Revised Administrative
concerned in the case of a barangay located Code of 1917.
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
Since Sinacban had attained de facto status at the Criteria [Sec. 7, LGC]
time the 1987 Constitution took effect on February As a general rule, the creation of a local government
2, 1987, it is not subject to the plebiscite unit or its conversion from one level to another level
requirement. This requirement applies only to new shall be based on verifiable indicators of viability
municipalities created for the first time under the and projected capacity to provide services, to wit:
Constitution. (IPL)
(1) Income. - must be sufficient, based on
Attack Against Validity of Incorporation acceptable standards, to provide for all
When the inquiry is focused on the legal existence of essential government facilities and services
a body politic, the action is reversed to the state in and special functions commensurate with
a proceeding for quo warranto or any other direct the size of its population.
proceeding. Collateral attacks shall not lie. (2) Population. - total number of inhabitants
within the territorial jurisdiction of the
Proceeding must be: (RST) local government unit concerned.
(1) Brought in the name of the Republic of the (3) Land Area. - must be:
Philippines Contiguous, unless it comprises two or
(2) Commenced by the Sol Gen or the fiscal more islands OR is separated by a LGU
when directed by the president independent of the others;
(3) Timely raised [Municipality of San Narciso v Properly identified by metes and
Mendez (1994)] bounds with technical descriptions; and
Sufficient to provide for such basic
The municipality can still be considered to have services and facilities to meet the
attained at least a status closely approximating that requirements of its populace.
of a de facto corporation despite the invalidity of
the EO creating it. This is because the State itself Compliance attested to by:
recognized the continued existence of San Andres (1) Department of Finance (DOF)
when it classified it as a 5th class municipality. And, (2) National Statistics Office (NSO)
more importantly, Sec. 442(d) of the LGC cured (3) Lands Management Bureau (LMB) of the
whatever defect there was in its creation. Department of Environment and Natural
[Municipality of San Narciso v. Mendez] Resources (DENR).
(2) Laws and ordinance of the annexing LGU (4) and all other matters relating to the
prevails organization and operation of the local units.
(3) The right of office in the annexed LGU is [Sec. 3, LGC]
terminated 183
(4) Title to property is acquired by the The President of the Philippines shall exercise
annexing LGU general supervision over local governments.
(5) Debts are assumed by the annexing LGU
[Martin, supra] Provinces with respect to component cities and
municipalities, and cities and municipalities with
Effects of division respect to component barangays shall ensure that
(1) The legal existence of the original the acts of their component units are within the
municipality is extinguished scope of their prescribed powers and functions. [Sec.
(2) Property, rights and powers are acquired by 4, LGC]
the dividing LGUs [Martin, supra]
Each LGU shall have the power to create its own
Abolition
sources of revenues and to levy taxes, fees and
A local government unit may be abolished:
charges,
when its income, population, or land area has
(1) subject to such guidelines and limitations as the
been irreversibly reduced to less than the
Congress may provide,
minimum standards prescribed for its creation
(2) consistent with the basic policy of local
under Book III of this Code, as certified by the
autonomy.
national agencies mentioned in Section 7 hereof
Such taxes, fees, and charges shall accrue
to Congress or to the sangguniang concerned, as
exclusively to the local governments. [Sec. 5, LGC]
the case may be.
The law or ordinance abolishing a local government Local Government Code (RA 7160)
unit shall specify the province, city, municipality, or It is likewise the policy of the State to require all
barangay with which the local government unit national agencies and offices to conduct periodic
sought to be abolished will be incorporated or consultations with:
merged. [Sec. 9, LGC] (1) appropriate local government units,
(2) nongovernmental and people's organizations,
When there is no dissolution (3) and other concerned sectors of the community
(1) Non-user or surrender of charter before any project or program is implemented
(2) Failure to elect municipal officers in their respective jurisdictions. [Sec. 2(c), LGC]
(3) Change of sovereignty
(4) Change of name 2. Local Autonomy
C. Principles of Local Autonomy The principle of local autonomy under the 1987
1. State Policy, Principles of Decentralization Constitution simply means decentralization
2. Local Autonomy (discussed below). [Basco vs PAGCOR (1991)]
3. Decentralization
4. Devolution Illustrations
The CSC cannot declare the provision ―upon
recommendation of the local chief executive
1. State Policy, Principles of concerned‖ as merely directory. Such provision is in
Decentralization consonance with local autonomy. [San Juan vs CSC
(1991)]
Art. X, 1987 Constitution
Sec. 2. The territorial and political subdivisions shall An A.O. may not compel LGUs to reduce their total
enjoy local autonomy. expenditures. Supervising officials may not lay down
or modify the rules. These rules were made in
furtherance of local autonomy. [Pimentel vs Aguirre
The Congress shall enact a local government code
(2000)]
which shall
HOWEVER, the Constitution did not intend, for the
(1) provide for a more responsive and accountable
sake of local autonomy, to deprive the legislature of
local government structure instituted through a
all authority over LGUs, in particular, concerning
system of decentralization with effective
discipline. [Ganzon vs CA (1991)]
mechanisms of recall, initiative, and
referendum,
(2) allocate among the different local government 3. Decentralization
units their powers, responsibilities, and
resources, NOTE: Decentralization is a means to achieve local
(3) and provide for the qualifications, election, autonomy.
appointment and removal, term, salaries,
powers and functions and duties of local Autonomy is either (1) decentralization of
officials, administration or (2) decentralization of power.
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
Cf. Decentralization of power is the abdication of Where statute is silent, LGUs have discretion to
political power in favor of LGUs declared to be select reasonable means and methods of exercise.
autonomous. There is self-immolation where
autonomous government is accountable, not to the Power to generate and apply resources
central government, but to its constituents. (Note: Local government units shall have the power and
not allowed by our Constitution.) authority to:
(1) Generate and apply resources
Sec. 1 of AO 372 (Adoption of Economy Measures in (2) Establish an organization responsible for
Government for FY 1998), insofar as it ―directs‖ implementation of development plans,
LGUs to reduce expenditures by at least 25%, is a program objectives, and priorities
valid exercise of the President‘s power of general (3) Own sources of revenues (Sec.5, Art. X,
supervision over LGUs as it is advisory only. Constitution; Sec.18 LGC) which include:
Supervisory power, when contrasted with control, is (a) Power to create own sources
the power of mere oversight over an inferior body; (b) Levy taxes, fees and charges
it does not include any restraining authority over Shall accrue exclusively for their
such body. [Pimentel v. Aguirre, supra] own use and disposition
Limitation: guidelines Congress
4. Devolution (asked in 1999) may provide
(c) Just share in national taxes (Sec.6,
Art. X, Constitution; Sec.18 LGC)
Refers to the act by which the national government Determined by law
confers power and authority upon the various local Automatically and directly
government units to perform specific functions and
released
responsibilities [Sec. 17, LGC]; the transfer of power
(d) Equitable share in utilization and
and authority from the National Government to LGUs development of national wealth (Sec.7,
to enable them to perform specific functions and Art. X, Constitution; Sec.18 LGC)
responsibilities. [Art. 24, IRR of the LGC] Within respective territorial
jurisdictions
D. Powers of Local Government In the manner provided by law
Units (LGUs) Sharing with inhabitants by way of
direct benefits
1. Police Power (General Welfare Clause) (e) Acquire, develop, lease, encumber,
2. Eminent Domain alienate, or otherwise dispose of
3. Taxing Power property (Sec.18 LGC)
4. Closure and Opening of Roads Real or personal property
5. Legislative Power Made in a proprietary capacity
6. Corporate Powers (f) Apply resources and assets (Sec.18
7. Liability of LGUs LGC)
8. Settlement of Boundary Disputes Purpose: productive, development,
9. Succession of Elective Officials or welfare purposes
10. Discipline of Local Officials In the exercise of their
11. Recall governmental or proprietary
powers and functions [Sec.18,
Powers in General LGC]
Sources of Powers of LGUs
(1) 1987 Consti., Sec. 25, Art. II; Sec. 5-7, Art.
1. Police Power (General Welfare
X Clause)
(2) Statutes, e.g. LGC
(3) Charter (particularly of cities) Preservation of peace and order within respective
regions [Sec.21, Art. X, Constitution]
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
(1) Income tax (except when levied on banks of local funds shall be properly bonded, and
and financial institutions) such officer shall be accountable and
(2) Documentary stamp tax responsible for said funds and for the
(3) Estate tax safekeeping thereof in conformity with the 188
(4) Customs duties, registration fees of vessels provisions of law;
and all other kinds of customs fees and (7) Local governments shall formulate sound
charges financial plans, and the local budgets shall
(5) Taxes, fees and charges and other be based on functions, activities, and
impositions upon goods carried in or out of, projects, in terms of expected results;
or passing through, the territorial (8) Local budgets shall operationalize approved
jurisdiction of local government units in the local development plans;
guise of charges for wharfage, tolls for (9) LGUs shall ensure that their respective
bridges or otherwise, or other taxes, fees or budgets incorporate the requirements of
charges in any form whatsoever upon such their component units and provide for
goods or merchandise equitable allocation of resources among
(6) Taxes, fees or charges on agricultural and these component units;
aquatic products when sold by marginal (10) National planning shall be based on local
farmers or fishermen planning to ensure that the needs and
(7) Taxes on business enterprises certified by aspirations of the people as articulated by
the BOI as pioneer or non-pioneer for a the local government units in their
period of 6 and 4 years, respectively, from respective local development plans are
date of registration considered in the formulation of budgets of
(8) Excise taxes national line agencies or offices;
(9) Percentage taxes or VAT (11) Fiscal responsibility shall be shared by all
(10) Taxes on the gross receipts of those exercising authority over the financial
transportation contractors and persons affairs, transactions, and operations of the
engaged in the transportation of passengers local government units; and
or freight, and common carriers (12) The LGU shall endeavor to have a balanced
(11) Taxes on premiums paid by way of budget in each fiscal year of operation
reinsurance or retrocession
(12) Taxes, fees, charges for the registration of Jurisprudence
motor vehicles and for the issuance of all Sec. 234 withdrew all exemptions from real property
kinds of licenses or permits for the driving taxes, even GOCCs when the beneficial use of the
thereof, except tricycles property has been granted to a taxable person for
(13) Taxes, fees, or other charges in Phil. consideration or otherwise. MCIAA is a GOCC and an
products actually exported, except as instrumentality, therefore, RPT exemption granted
otherwise provided therein under its charter is withdrawn [MCIAA vs Marcos
(14) Taxes, fees or charges, on Countryside and (1997)]
Barangay Enterprises and cooperatives duly
registered under RA 6810 and the Tax exemption of property owned by the Republic
Cooperative Code refers to properties owned by the Government and
(15) Taxes, fees, or charges of any kind on the by its agencies which do not have separate and
National Government, its agencies and distinct personalities (unincorporated entities). The
instrumentalities properties of NDC belong to the Government. [NDC
vs Cebu, (1992)]
Fundamental principles governing the financial
affairs, transactions and operations of LGUs [Sec. LGUs, in addition to administrative autonomy, also
305, LGC] enjoy fiscal autonomy. LGUs have the power to
(1) No money shall be paid out of the local create their own sources and revenue, in addition to
treasury except in pursuance of an their equitable share in the national taxes as well as
appropriations ordinance or law; the power to allocate resources in accordance with
(2) Local government funds and monies shall be their own priorities. A basic feature of local fiscal
spent solely for public purposes; autonomy is the automatic release of the shares of
(3) Local revenue is generated only from the LGUs in the national internal revenue. This is
sources expressly authorized by law or mandated by no less than the constitution. Any
ordinance, and collection thereof shall at retention is prohibited. [Pimentel v Aguirre (2000)]
all times be acknowledged properly;
(4) All monies officially received by a local 4. Closure and Opening of Roads [Sec.
government officer in any capacity or on
any occasion shall be accounted for as local 21, LGC]
funds, unless otherwise provided by law;
(5) Trust funds in the local treasury shall not be What roads are subject, those within jurisdiction
paid out except in fulfillment of the of LGU
purpose for which the trust was created or (1) Local road
the funds received; (2) Alley
(6) Every officer of the LGU whose duties (3) Park
permit or require the possession or custody (4) Square
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
Sessions are open to the public, UNLESS a closed- Review of (Component) City or Municipal
door session is ordered by: Ordinances
(1) an affirmative vote of a majority of the
members present (there being a quorum) Within 3 days after approval, the secretary shall
forward to the Sangguniang Panlalawigan for review,
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
Form part of the record of the proceedings Prosecutor or attorney of the LGU involved
and shall be made in the following manner: shall be notified and entitled to be heard;
- Made before the member participates Alleged to be unconstitutional: Solicitor
in the deliberations on the ordinance or General shall also be notified and entitled 192
resolution under consideration to be heard. [Sec. 4, Rule 63]
- If the member did not participate
during the deliberations, the The failure of the SolGen to appear in the lower
disclosure shall be made before court to defend the constitutionality of an ordinance
voting on the ordinance or is not fatal to the case. The determination of the
resolution on second and third question of WON the SolGen should be required to
readings appear ―in any action involving the validity of any
- Made when a member takes a position treaty, law, executive order, rule or regulation‖ is a
or makes a privilege speech on a matter left to the discretion of the Court. Inasmuch
matter that may affect the business as the said requirement is not mandatory, but
interest, financial connections, or discretionary, noncompliance therewith affected
professional relationship neither the jurisdiction of the trial court nor the
Updated rules, the rules of the previous year may be validity of the proceedings. [Homeowner’s
used. Association of the Phil. Inc. v Municipal Board of
Manila (1968)]
The signature of the mayor is not a mere ministerial
act, but involves the exercise of discretion on the Requisites for Valid Ordinance
part of the local chief executive. [Delos Reyes v
Sandiganbayan (1997)] For an ordinance to be valid exercise of police
power, it must:
Incidents of Law-Making (Legislative) Power (1) Not be contrary to the Constitution and/or
Posting and Publication of: statute
(1) Tax ordinances and Revenue measures (2) Not be unfair or oppressive
Within 10 days after approval (3) Must not be partial or discriminatory
Certified true copies of all provincial, (4) Not prohibit but may regulate trade
city, or municipal tax ordinances or (5) Be General and consistent with public policy
revenue measures (6) Not be unreasonable [Tatel v. Mun. of Virac
Published in full for 3 consecutive days (1992)]
In a newspaper of local circulation
- Where no such newspaper: posted Local Initiative and Referendum
in at least 2 conspicuous and
publicly accessible places [Sec. Definition
188, LGC]
NOTE: Both a resolution and an ordinance may be
(2) Ordinance with penal sanctions
the proper subjects of an initiative or a referendum.
At prominent places in the provincial
[Garcia v COMELEC (1994)]
capitol, city, municipal or barangay
hall
Minimum period: 3 consecutive weeks (Based on LGC Sec. 120-127 and RA 6735: AN ACT
Publication in a newspaper of a general PROVIDING FOR A SYSTEM OF INITIATIVE AND
circulation w/in territorial jurisdiction, REFERENDUM)
except barangay ordinances
Effectivity: unless otherwise provided Initiative: legalprocess whereby the registered
on the day following its publication or voters of a LGU may directly propose, enact, or
at the end of period of posting, amend any ordinance.
whichever is later
Violation by public officer or employee Referendum: legal process whereby the registered
- May be meted administrative voters of the LGUs may approve, amend or reject
disciplinary action any ordinance enacted by the sanggunian.
- Without prejudice to filing of
appropriate civil or criminal action Who may exercise — all registered voters of the
Duty of Secretary of Sanggunian: provinces, cities, municipalities and barangays
- Shall transmit official copies to the
chief executive of Official Gazette Requirements
- Within 7 days following approval of
ordinance Referendum or initiative affecting a resolution or
- Purpose for publication ordinance passed by the legislative assembly of a
- If with penal sanction: for archival province or city:
and reference purposes [Sec. 511, (1) petition must be signed by at least 10% of
LGC] the registered voters in the province or
city,
Judicial Intervention (2) of which every legislative district must be
Actions involving the validity of a local government represented by at least 3% of the registered
ordinance: voters therein;
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
(3) Provided, however, that if the province or (2) Initiative shall extend only to subjects or
city is composed only of 1 legislative matters which are within the legal powers
district, then at least each municipality in a of the local legislative bodies to enact.
province or each barangay in a city should (3) If at any time before the initiative is held, 193
be represented by at least 3% of the the local legislative body shall adopt in toto
registered voters therein. the proposition presented, the initiative
shall be cancelled. However, those against
Referendum or initiative on an ordinance passed in a such action may, if they so desire, apply for
municipality: petition must be signed by at least initiative in the manner herein provided.
10% of the registered voters in the municipality, of [Sec. 124, LGC]
which every barangay is represented by at least 3%
of the registered voters therein Limitations Upon Local Legislative Bodies
Limitations on Initiatives
A resolution may be the subject of an initiative or justified from its inherent power to administer what
referendum. [Garcia vs COMELEC (1994)] it owns privately. [NAWASA v Dator (1967)]
Initiative: power of the people to propose bills and If the property is owned by the municipality in its 194
laws, and to enact or reject them at the polls public and governmental capacity, the property is
independent of the legislative assembly. public and Congress has absolute control over it; if
the property is owned in its private or proprietary
Referendum is the right reserved to the people to capacity, then it is patrimonial and Congress has no
adopt or reject any act or measure which has been absolute control. In which case, the municipality
passed by a legislative body and which in most cases cannot be deprived of it without due process and
would without action on the part of electors become payment of just compensation. [Province of
law. Zamboanga v City of Zamboanga (1968)]
These law-making powers belong to the people and Authority to Negotiate and Secure Grants
the COMELEC only exercises administration and Who may negotiate: Local Chief Executive (upon
supervision of the process. Hence, COMELEC cannot authority of Sanggunian)
control or change the substance or the content of
the legislation. What are negotiated
(1) Financial grants or donations in kind in
COMELEC should have prepared for an initiative, not support of basic services or facilities
a referendum. [SBMA v. COMELEC (1996)] (2) From local and foreign assistance agencies
Requisites of Contracts entered into by local chief LGUs and their officials are not exempt from liability
executive on behalf of LGU for death or injury to persons or damage to
(1) Prior authorization by Sanggunian property. [Sec. 24, LGC]
(2) Legible copy of contract posted at a
conspicuous place in the
Provincial capitol or When a member of a city or municipal police force
City, municipal or barangay hall refuses or fails to render aid or protection to any
person in case of danger to life or property, such
Jurisprudence peace officer shall be primarily liable for damages,
The authority of a municipality to fix and collect and the city or municipality shall be subsidiarily
rents for water supplied by its waterworks system is responsible therefor. [Art. 34, CC]
expressly granted by law. However, even without
these provisions the authority of the municipality to The obligation imposed by Article 2176 is
fix and collect fees from its waterworks would be demandable not only for one‘s own acts or
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
omissions, but also for those of persons for whom - The prosecution of crimes, even if
one is responsible. X X X The State is responsible in injury occurs [Palafox vs Ilocos Norte
like manner when it acts through a special agent; (1958)]
but not when the damage has been caused by the 195
official to whom the task done properly pertains, in If in the performance of a proprietary
which case what is provided in Article 2176 shall be function, the LGU is liable
applicable. [Art. 2180(6), CC] - The improper grant of a ferry service
franchise [Mendoza vs de Leon (1916)]
Provinces, cities and municipalities shall be liable
for damages for the death of, or injuries suffered by, NOTE: Municipal corporations‘ liability to private
any person by reason of the defective condition of persons for the wrongful exercise of the corporate
roads, streets, bridges, public buildings, and other powers is the same as that of a private corporation
public works under their control or supervision. [Art. or individual [Mendoza vs de Leon (1916)]
2189, CC]
Deaths caused by a collapsed stage in a town fiesta
[Torio vs Fontanilla (1978)]
Liability for Torts, Violation of the Law and
Contracts Back pay or wages of employees illegally dismissed,
including those involving primary governmental
WHEN LGU IS LIABLE functions (e.g. policemen) [Guillergan v Ganzon
CASE DEFENSE (1966)]
If LGU fails to perform a Exercise of due diligence
governmental function in the selection and By Express Provision of Law
(e.g., maintenance of supervision is not a (1) Article 2189, CC
roads under Art. 2189, defense. When a person falls in an open manhole in the city
CC or rendering aid and streets. [Manila vs Teotico (198)]
protection under Art. 34,
CC) When a person steps on a rusted nail in a flooded
If engaged in Defense of due diligence public market. [Jimenez vs Manila, 150 SCRA 510]
proprietary functions, in the selection and
supervision available When accidents are caused by defective roads even
only if the function if the road does not belong to the LGU as long as it
involved is a corporate exercises control or supervision over said road.
function. [Guilatco vs Dagupan, 171 SCRA 382]
On Tort Illustrations
If in the performance of a governmental
function, the LGU is NOT liable
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
Votes obtained by the winning candidate Examples of local chief executive‘s temporary
Total number of registered voters in each district incapacity to perform duties for physical/legal
reasons:
b. Permanent vacancies in the sanggunian (1) leave of absence;
(2) travel abroad;
If automatic succession as provided in Sec. 44 does (3) suspension from office. [Sec. 46, LGC]
not apply, vacancy is to be filled in by appointment (Asked in 2002)
made as follows:
GENERAL RULE: Vice-governor, city/ municipal vice-
mayor, or the highest ranking sangguniang barangay
Office where Who Succeeds into member shall automatically exercise the powers and
Permanent Vacancy Office perform the duties and functions of the local chief
Occurs executive.
Member of Sanggunian Person appointed by the
Panlalawigan or President, through the EXCEPTION: The power to appoint/suspend/dismiss
Sangguniang Panlungsod Executive Secretary employees can be exercised only if the period of
of highly urbanized temporary incapacity exceeds 30 working days.
cities and ICCs
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
If the local chief executive is traveling within the of Local Government, may make the temporary
country but outside his territorial jurisdiction for a appointment. [Menzon v. Petilla (1991)]
period not exceeding 3 consecutive days, he may
designate in writing the officer-in-charge. A vice-governor who is concurrently an acting 198
governor is actually a quasi-governor. Being the
GENERAL RULE: The local chief executive cannot acting governor, the vice-governor can no longer
authorize any local official to assume the continue to simultaneously exercise the duties of the
powers/duties/functions of his office, other than the latter office, since the nature of the duties of the
vice-governor, city/municipal vice-mayor, or highest governor hinders him from discharging his duties for
ranking sangguniang barangay member. such office. Hence, there is an ―inability‖ on the
part of the regular presiding officer, the vice-
The authorization shall specify the powers and governor, to preside during the sanggunian sessions,
functions that the officer-in-charge shall exercise. which calls for the election of a temporary presiding
officer. [Gamboa v. Aguirre (1999)]
EXCEPTION: The power to appoint, suspend and
dismiss employees. The governor has the power to fill a vacancy in the
Sangguniang Bayan caused by a member not
GENERAL RULE: If the local chief executive belonging to any political party. It is the same
fails/refuses to issue the authorization, the vice- manner as where the member belonged to a political
governor, city/municipal vice-mayor, or highest party. Where there is no political party to make the
ranking sangguniang barangay member has right to nomination, the Sanggunian where the vacancy
assume the powers, duties, and functions of the occurs must be considered authority for making the
office on the 4th day of absence. recommendation. The appointing authority is limited
to the appointment of those recommended to his
EXCEPTION: The power to appoint/ suspend/dismiss office. The recommendation is a condition sine qua
employees. non for the validity of the appointment. [Fariñas v.
Barba (1996)]
Office where Who Temporarily Succeeds
Temporary Vacancy into Office d. Termination of the Temporary Incapacity
Occurs
Governor Vice-governor Upon submission to the sanggunian of a written
(automatically) declaration that he has reported back to office
Mayor Vice-mayor (automatically)
Punong barangay Highest ranking sanggunian If the temporary incapacity is due to legal causes, he
member (automatically) must also submit the necessary documents showing
Local chief executive 1) Person designated in that the legal causes no longer exist.
traveling within the writing by the said local
country but outside chief executive e. Approval of Leaves of Absence.
his territorial Authorization shall
jurisdiction for a specify the powers and LOCAL OFFICIAL LOA APPROVED BY:
period not exceeding functions that the designate governors;
three consecutive will exercise, except the mayors of The President or his duly
days power to appoint, suspend, 1)highly urbanized authorized
or dismiss employees cities or representative
2)independent
2) Vice-governor, vice- component cities
mayor or highest vice-governors;
Sangguniang Barangay city/municipal vice- The local chief executive
member, if the local chief mayors
executive fails or refuses to city/municipal mayors of
designate component The governor
In this case, assumption cities/municipalities
into office shall be on the sanggunian
4th day of absence of the panlalawigan, The Vice-governor or
local chief executive panlungsod and bayan city/municipal vice-
(automatically) members; mayor
its employees
Jurisprudence punong barangays The city/municipal
The LGC is silent on the mode of succession when mayor
there is a temporary vacancy in the office of the sangguniang barangay The punong barangay
vice-governor. In this case, there was a vacancy members
when the vice-governor automatically assumed the
governorship pending the determination of who is If the application for LOA is not acted upon within 5
the local chief executive. Because of such working days after receipt, the application is
circumstances, the President, through the Secretary deemed approved. [Sec. 47, LGC]
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
10. Discipline of Local Officials Penal Code; and all other applicable
general and special laws.
Elective Officials How Initiated 199
(1) by any private individual or any government
Administrative Action officer or employee by filing a sworn
AO 23, as amended by AO 159 (1994) and AO 66 written complaint (verified)
(1999): Prescribing the Rules and Procedures on the (2) by the Office of the President or any
Investigation of Administrative Disciplinary Cases government agency duly authorized by law
to ensure that LGUs act within their
Coverage: administrative disciplinary charges prescribed powers and functions
against:
(1) the governors, and members of the Elective Official against Where to File
sangguniang panlalawigan; whom Administrative Complaint
(2) the mayors, vice mayors, and members of Complaint is Filed
the sangguniang panlungsod of highly Provincial or city official Office of the President
urbanized cities, independent component Municipal official Sangguniang
cities, and component cities; and Panlalawigan
(3) the mayors, vice mayors, and members of Barangay official Sangguniang Panlungsod
the sangguniang panlungsod or bayan of or Sangguniang Bayan
cities or municipalities in Metropolitan
Manila Jurisprudence
Supervision and discipline. The President is not
Disciplining Authority — The President, who may act devoid of disciplinary powers because he merely has
through the Executive Secretary supervisory powers under the Constitution.
May still constitute a Special Investigating Supervision is not incompatible with disciplining
Committee in lieu of the DILG Secretary; authority. [Ganzon vs CA (1991)]
Nothing shall prevent the President from
assuming jurisdiction at any stage of the Valid delegation. Under AO 23, the delegation of the
proceedings over cases to be preliminarily power to investigate to the Sec of Interior is valid.
investigated by the DILG; in such an event, What cannot be delegated is the power to discipline.
the same shall immediately be forwarded to [Joson vs Torres, 290 SCRA 279]
the Special Investigating Committee after it
may have been constituted by the Prejudicial question? The administrative
Disciplining Authority. investigation can proceed even during the pendency
of an appeal of audit findings to the Commission on
Investigating Authority — DILG Secretary Audit [Salalima vs Guingona, 257 SCRA 55]
(1) may constitute an Investigating Committee
in the DILG for the conduct of investigation Jurisdiction
Grounds Power of Tribunals
(1) The Ombudsman (Asked in 1999, 2003)
Grounds for administrative action (discipline, The Ombudsman and the Office of the President
suspension, removal): MAD-VAD-CO have concurrent jurisdiction to conduct
(1) Disloyalty to the Republic of the administrative investigations over local elective
Philippines; officials. The LGC did not withdraw the power of the
(2) Culpable violation of the Constitution; Ombudsman under RA 6770. [Hagad v. Gozo-Dadole
(3) Dishonesty, oppression, misconduct in (1993)]
office, gross negligence, or dereliction of
duty; Preventive Suspension Preventive Suspension
(4) Commission of any offense involving moral under RA 6770 under the LGC
turpitude or any offense punishable by at 1. the evidence of guilt 1. there is reasonable
least prision mayor, which is from 6 years is strong; AND ground to believe
and 1 day to 12 years imprisonment; 2. that any of the ff. are that the respondent
(5) Abuse of authority; present: has committed the
(6) Unauthorized absence for 15 consecutive a. the charge against act or acts
working days in case of local chief the officer or complained of
executives and 4 consecutive sessions in the employee should 2. the evidence of
case of members of the sanggunian; involve dishonesty, culpability is strong
(7) Application for, or acquisition of, foreign oppression or grave 3. the gravity of the
citizenship or residence of the status of an misconduct or offense so warrants;
immigrant of another country; and neglect in the or
(8) Such other grounds as may be provided by performance of 4. the continuance in
the Local Government Code of 1991; duty; office of the
Republic Act No. 6713; Republic Act No. b. the charges should respondent could
3019; Administrative Code of 1987; Revised warrant removal influence the
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
from office; or witnesses or pose a the records and other evidence. [Ganzon v. CA,
c. the respondent‘s threat to the safety (1991)]
continued stay in and integrity of the
office would records and other [cf. suspension as a penalty] 200
prejudice the case evidence
filed against him It may be imposed by the Disciplining Authority in
Maximum period: 6 mos. Maximum period: 60 days cases where the respondent is an elective official:
It is not only the Ombudsman, but also his Deputy, Local Elective Official of: Who may impose:
who may sign an order preventively suspending provinces President, through
officials. Also, the length of the period of suspension highly urbanized cities the DILG Secretary
within the limits provided by law and the evaluation independent component
of the strength of the evidence both lie in the cities
discretion of the Ombudsman. It is immaterial that municipalities Provincial Governor
no evidence has been adduced to prove that the component city
official may influence possible witnesses or may barangay Mayor
tamper with the public records. It is sufficient that
there exists such a possibility. [Castillo-Co v. The governor shall, upon the direct order of the
Barbers (1998)] Disciplining Authority, preventively suspend an
elective official of a component city, who is under
(2) The Courts formal administrative investigation by the Office of
RA 3019: The term ―office‖ in Sec. 13 of RA 3019 the President.
(pertaining to mandatory preventive suspension)
applies to any office which the officer might When imposed: May be imposed at any time after
currently be holding and not necessarily the the issues are joined (after respondent has answered
particular office in relation to which the official is the complaint)
charged. The imposition of the suspension, though
mandatory, is not automatic or self-operative. A pre- BUT no preventive suspension shall be imposed
condition is the existence of a valid Information, within 90 days immediately prior to any local
determined at a pre-suspension hearing. [Segovia v. election. If the preventive suspension has been
Sandiganbayan (1999)] imposed prior to the 90-day period immediately
preceding a local election, it shall be deemed
(3) Sandiganbayan automatically lifted upon the start of the period.
PD 1606, as amended by RA 8249
It is the official‘s grade that determines his or her Grounds for Preventive Suspension:
salary, and not the other way around. An official‘s (1) when the evidence of guilt is strong and,
grade is not a matter of proof but a matter of law (2) given the gravity of the offense, there is a
which the court must take judicial notice. Under great probability that the continuance in
Sec. 444(d) of the LGC, the municipal mayor shall office of the respondent could influence the
receive a minimum monthly compensation witnesses or pose a threat to the safety and
corresponding to SG 27. Thus, the cases filed against integrity of the records and other evidence
the petitioner are within the exclusive jurisdiction of
the Sandiganbayan. [Llorente v. Sandiganbayan Period: Any single preventive suspension of local
(2000)] elective officials shall not extend beyond 60 days;
If the law states that a certain officer is within the Provided that, in the event that several
jurisdiction of the Sandiganbayan, the fact that the administrative cases are filed against an elective
officer's SG is below 27 does not divest jurisdiction. official:
[Inding v. Sandiganbayan (2004)] he cannot be preventively suspended for more
than 90 days within a single year
RA 8249 provides that as long as one of the accused on the same ground or grounds existing and
is an official of the executive branch occupying the known at the time of the first suspension.
position otherwise classified as SG 27 and higher, the
Sandiganbayan exercises exclusive original Expiration: the suspended elective official shall be
jurisdiction. To vest Sandiganbayan with jurisdiction, deemed reinstated in office without prejudice to the
public office must be an element of the crime OR continuation of the proceedings against him [which
that without the public office, the crime could not shall be terminated within 120 days from formal
have been committed. [Rodriguez v. Sandiganbayan notice of the case]. HOWEVER, if the delay in the
(2004)] proceeding of the case is due to his fault, or
request, other than the appeal duly filed, the
Preventive Suspension [Sec. 63, LGC] duration of such delay shall not be counted in
(Asked in 1990, 1996) computing the time of termination of the case. [Sec.
63 (c)]
Sole Objective: to prevent the accused official from
hampering the investigation with his influence and Compensation: officer shall receive no salary or
authority over possible witnesses and keep him off compensation during such suspension; BUT, upon
subsequent exoneration and reinstatement, he shall
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
be paid his full salary or compensation, including (2) Confront and cross-examine the witnesses
such emoluments accruing during such suspension. against him
[Sec. 64, LGC] (3) Require attendance of witnesses and the
production of documentary evidence in his 201
The provincial governor is authorized to preventively favor through subpoena or subpoena duces
suspend the municipal mayor any time after the tecum. [Sec. 65, LGC]
issues have been joined and any of the following
grounds were shown to exist: Due process. The petitioner has the right to a
(1) When there is reasonable ground to formal investigation under AO 23. Where the Sec
believe that the respondent has denied the motion for a formal investigation and
committed the act or acts complained decided the case on the basis of position papers, the
of right of the petitioner was violated. [Joson vs
(2) When the evidence of culpability is Torres, 290 SCRA 279]
strong
(3) When the gravity of the offense so Form and Notice of Decision
warrants (1) Shall be terminated within 90 days from
(4) When the continuance in office of the start thereof.
respondent could influence the (2) Office of the President or Sanggunian
witnesses or pose a threat to the safety concerned to render decision
and integrity of the records and other Within 30 days from end of
evidence. investigation
In writing
There is nothing improper in suspending an Stating clearly facts and reasons
officer before the charges are heard and before (3) Furnish copies to respondent and interested
he is given an opportunity to prove his parties. [Sec. 66(a), LGC]
innocence. Preventive suspension is allowed so
that respondent may not hamper the normal NOTE: Any abuse of the exercise of the power of
course of the investigation through the use of preventive suspension shall be penalized as abuse of
his influence and authority over possible authority. [Nachura]
witnesses. When a local government official
believes that he has been wrongfully Penalty of Suspension
suspended, the proper procedure is to exhaust Limitations: The penalty of suspension:
administrative remedies, i.e. seek relief from (1) shall not exceed the unexpired term of the
the DILG Secretary, and not to file a case in respondent
court. [Espiritu v. Melgar (1992)] (2) shall not exceed a period of 6 months for
every administrative offense
Piecemeal suspensions should not be issued. If (3) shall not be a bar to the candidacy of the
there are several administrative cases against a respondent so suspended as long as he
public official, these cases should be meets the qualifications required for the
consolidated for the purpose of ordering office. [Sec. 66, LGC]
preventive suspension, instead of issuing an
order of suspension for each case. Elective local When the respondent has been meted 2 or more
officials should be given the benefit of penalties of suspension for 2 or more administrative
simultaneous service of suspension. [Ganzon v. offenses, such penalties shall be served successively
CA (1991)] [AO No. 159, Amending AO 23, Prescribing the Rules
and Procedures on the Investigation of
NOTE: The ruling in this case as to simultaneous Administrative Disciplinary Cases Against Elective
service of suspension is more of an exception Local Officials, 1994]
than the rule, because of the following
circumstances: Removal
Three separate orders of 60-day
preventive suspension were issued An elective local official may be removed by order of
against Ganzon the proper court. [Sec. 60, LGC]
Another order of preventive suspension
was issued before the SC promulgated The penalty of removal from office as a result of
the decision ruling that suspension administrative investigation shall be considered a
should not be issued piecemeal bar to the candidacy of the respondent for any
The simultaneous service of suspension elective position. [Sec. 66(c), LGC]
will lessen the harsh effects of
whatever ill motive may be behind the [cf. effect of penalty of suspension]
successive suspension orders issued
Proper court order
Rights of the Respondent Official: Full opportunity Local legislative bodies and/or the Office of the
to: President cannot validly impose the penalty of
(1) Appear and defend himself in person or by dismissal or removal from service on erring local
counsel elective officials. It is clear from Sec. 60 of LGC that
an elective local official may be removed from office
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
on the grounds enumerated above only by order of An appeal shall not prevent a decision from
the proper court. becoming final or executory.
Art. 124 (b), Rule XIX of the Rules and Regulations If respondent wins the appeal, he shall be 202
Implementing the LGC, which states that ―an considered as having been placed under preventive
elective local official may be removed from office by suspension during the pendency of the appeal.
order of the proper court or the Disciplining
Authority whichever first acquires jurisdiction to If the appeal results in an exoneration, he shall be
the exclusion of the other‖ is void for being paid his salary and other emoluments during the
repugnant to Sec. 60, LGC. pendency of appeal. [Sec. 68, LGC]
But if it‘s appointive, the OP may remove. [Pablico
v. Villapando (2002)] Sec. 68 of the LGC merely provides that an ―appeal
shall not prevent a decision from becoming final or
Petitioners contest the administrative action as executory.‖ As worded, there is room to construe
being violative of Sec. 60, which mandates that an the provision as giving discretion to the reviewing
elective local official may be removed from office officials to stay the execution of the appealed
only by order of the court, since the duration of the decision. [Berces v. Guingona (1995)]
suspension being 12-20 months exceeded their
remaining terms. The suspension was allegedly The phrase ―final or executory‖ in Secs. 67 and 68
tantamount to a removal. simply means that administrative appeal will not
prevent the enforcement of the decision. [Mendoza
An administrative offense means every act or vs Lacsina (2003)]
conduct or omission which amounts to, or
constitutes, any of the grounds for disciplinary Effect of Re-election (Asked in 2000)
action. The offenses for which suspension may be Re-election renders the administrative complaint
imposed are enumerated in Section 60. against the local official moot and academic. A
public official cannot be removed for administrative
Assuming for the moment that the Office of the misconduct committed during a prior term, since the
President is correct in its decisions in each of the re-election to office operates as a condonation of
subject four administrative cases: the officer‘s previous misconduct to the extent of
cutting off the right to remove him therefore. But
It committed no grave abuse of discretion in this rule is applicable only to administrative cases,
imposing the penalty of suspension, although the not to criminal cases. [Aguinaldo v. Santos (1992)]
aggregate thereof exceeded six months and the
unexpired portion of the petitioners‘ term of office. Doctrine of Condonation
What is important is that the suspension imposed for When re-election considered a condonation: if the
each administrative offense did not exceed six proceedings are abated due to elections. In this
months. [Salalima v. Guingona (1996)] case, there is no final determination of misconduct
[Malinao v. Reyes (1996)]
Administrative Appeal
Subsequent re-election cannot be deemed a
Within 30 days from receipt of decisions: condonation if there was already a final
determination of his guilt before the re-election
Decisions of: May be appealed [Reyes v. COMELEC (1996)]
before:
Sangguniang Sangguniang Appointive Officials
Panlungsod of Panlalawigan
component cities The appointing authority is generally the disciplining
Sangguniang Bayan authority.
Sangguniang Office of the President
Panlalawigan Disciplinary Jurisdiction [Sec. 87, LGC]
Sangguniang Except as otherwise provided by law, the local chief
Panlungsod of: executive may impose:
- highly urbanized (1) Removal from service (cf. elective officials)
cities (2) Demotion in rank
- independent (3) Suspension for not more than 1 year w/o
component cities pay
Office of the President final and executory; may If not more than 30 days—not
not be appealed [Sec. appealable
67, LGC] If more than 30 days—appealable to the
CSC
(4) Fine not exceeding 6 months‘ salary
(5) Reprimand
(6) Or otherwise discipline subordinate officials
and employees under his jurisdiction.
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
No remedy of appeal if the decision of the on recall. Thus, if the official sought to be recalled
administrative case exonerated the office or receives the highest number of votes, confidence in
employee. ―Party adversely affected‖ in PD 807 or him is affirmed and he shall continue in office. [Sec.
―The Philippine Civil Service Law‖ only refers to the 72, LGC] 203
government employee against which the case is
filed. [Mendez vs. CSC (1991)] Prohibition on resignation: An Elective local official
sought to be recalled is not allowed to resign while
The City Treasurer has authority to discipline his the recall process is in progress. [Sec. 73, LGC]
subordinates.
Expenses: The Annual General Appropriations Act
The power to discipline is specifically granted by the contains a provision for a contingency fund at the
Revised Administrative Code to heads of disposal of the COMELEC. [Sec. 75, LGC]
departments, agencies and instrumentalities,
provinces and cities. RA 9244: An Act Eliminating the Preparatory Recall
Assembly as a Mode of Instituting Recall of Elective
The power to commence administrative proceedings Local Government Officials, Amending for the
against subordinate officers is granted by the Purpose sec. 70-71 of the LGC of 1991.
Omnibus Rules to the secretary of department, head
of office, head of LGU, chief of agency, regional Sec. 70. Initiation of the Recall Process (PCPVA)
director, or person with sworn written complaint.
The City Treasurer may also motu proprio institute Petition of a registered voter in the LGU concerned,
disciplinary proceedings against subordinates. supported by a percentage of registered voters
during the election in which the local official sought
These rules must be reconciled with the LGC, which to be recalled was elected.
gives the mayor the authority to institute
administrative and judicial proceedings against any (Percentage decreases as population of people in
official or employee of the city. In cases involving area increases. Also, the supporting voters must all
employees of the city treasurer‘s office, the mayor sign the petition)
must file his complaint with the treasurer‘s office or
with the DOF. [Garcia vs. Pajaro (2002)] Within 15 days after filing, the COMELEC must
certify the sufficiency of the required number of
[Sangguniang Bayan of San Andres v. CA (1998)]: signatures. Failure to obtain the required number
(Asked in 2000) automatically nullifies the petition.
Requisites to constitute Essential elements of
resignation: abandonment: Within 3 days from certification of sufficiency,
(1) Intention to relinquish (1) Intent to abandon COMELEC provides the official with a copy of the
a part of the term (2) Overt act by which petition and causes its publication for 3 weeks (once
(2) Act of relinquishment the intention is to a week) in a national newspaper and a local
(3) Acceptance by the be carried into newspaper of general circulation. Petition must also
proper authority effect be posted for 10 to 20 days at conspicuous places.
PROTEST SHOULD BE FILED AT THIS POINT and ruled
with finality 15 days after filing.
Removal
In interpreting its own rules as it did, the CSC was
acting within its constitutionally delegated power to COMELEC verifies and authenticates the signatures.
interpret its own rules. The CSC, by ruling that the
employee took an automatic leave of absence, was COMELEC announces acceptance of candidates
merely interpreting its own rule on requirement of
approved leave. [City Government of Makati City v. Election on Recall
CSC (2002)] COMELEC sets election within 30 days upon
completion of previous section in
11. Recall barangay/city/municipality proceedings (45 days in
case of provinces).
(Asked in 2002)
Officials sought to be recalled are automatically
Recall is a mode of removal of a public official by candidate. [Sec. 71, LGC]
the people before the end of his term of office.
[Garcia v. COMELEC, (1993)] Jurisprudence
A petition for recall that is signed only by the
Who has the power of recall: Power of recall for petitioner but does not bear the names of the
loss of confidence is exercised by the registered citizens who have allegedly lost confidence in the
voters of the LGU. [Sec. 69, LGC] official should be dismissed. [Angobung vs Comelec
(1997)]
Effectivity: Upon the election and proclamation of a
successor in the person of the candidate receiving Whether or not the electorate of the municipality
the highest number of votes cast during the election has lost confidence in their incumbent mayor is a
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
(2) Within 1 year immediately preceding a Vacancy in the offices occupied by incumbent
regular local election elected officials or resulting from expiration of their
Rationale: a recall election is potentially terms of office in case of a negative vote in the
disruptive of the normal working of the LGU plebiscite results:
necessitating additional expenses [Sec. 74, by appointment of the President;
LGC] appointees shall hold office until their
successors are elected in the regular local
Note: elections following the plebiscite
―Recall‖, as used in par. b, sec. 74 prescribing the 1-
After conversion of the newly-created province,
year limitation, refers to the ―election‖ itself (not
President shall appoint:
the process of initiating the recall proceedings). The
purpose of the 1-year limitation from assumption is (1) Governor
to prevent premature action without having (2) Vice-governor
sufficient time to evaluate the official‘s (3) Members of the sangguniang panlalawigan
performance.
who shall hold office until their successors are
As long as the election is held outside the 1-year elected in the next regular local elections and
period, the preliminary proceedings to initiate recall qualified. [Sec. 462 LGC]
can be held even before the end of 1 year from
assumption. Qualified appointive officials and employees in the
career service of the subprovinces at the time of
their conversion into regular provinces shall continue
The 1-year period before regular local election does
in office in accordance with civil service law, rules
not include the campaign period. [Claudio v.
COMELEC (2000)] and regulations.
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
RA 9164: Synchronized Barangay and Sangguniang from engaging in any partisan political activity or
Kabataan Elections (2002) take part in any election except to vote. Under the
same provision, elective officials, or officers or
Term of office of barangay and sangguniang employees holding political offices, are obviously 205
kabataan officials: 3 years expressly allowed to take part in political and
electoral activities.
No barangay elective official shall serve for more
than 3 consecutive terms in the same position By repealing Section 67 but retaining Section 66 of
Reckoned from the 1994 barangay elections the Omnibus Election Code, the legislators deemed
Voluntary renunciation of office for any length it proper to treat these two classes of officials
of time shall not be considered as an differently with respect to the effect on their tenure
interruption [Sec. 2] in the office of the filing of the certificates of
candidacy for any position other than those occupied
RA 9006 Fair Election Act (2001) by them.
An elective official running for any office other than Since the classification justifying Section 14 of Rep.
the one which he is holding in a permanent capacity, Act No. 9006, i.e., elected officials vis-a-
is no longer considered ipso facto resigned from his vis appointive officials, is anchored upon material
office upon the filing of his certificate of candidacy. and significant distinctions and all the persons
[Sec. 14] belonging under the same classification are similarly
treated, the equal protection clause of the
Note: Sec. 14 of RA 9006 expressly repealed Sec. 67 Constitution is, thus, not infringed. [Fariñas v.
of BP 881 or the Omnibus Election Code which states Executive Secretary (2003)]
that ―any elective official, whether national or local,
running for any office other than the one which he is What constitutes term of office?
holding in a permanent capacity, except for The Constitution contemplates service by local
President and Vice-President, shall be considered officials for three consecutive terms as a result of an
ipso facto resigned from his office upon the filing of election. The term limits for elective local officials
his certificate of candidacy.‖ must be taken to refer to:
(1) the right to be elected and
Section 14 of RA 9006 did not repeal Section 66 of (2) the right to serve in the same elective
the Omnibus election Code, leaving intact Section 66 position.
thereof which imposes a limitation to appointive
officials and considers them ipso facto resigned from Consequently, it is not enough that an individual has
office upon filing of their certificate of candidacy fully served three consecutive terms in an elective
local office.
By the repeal of Section 67, an elective official who
runs for office other than the one which he is He must also have been elected to the same position
holding is no longer considered ipso facto resigned for the same number of times before the
therefrom upon filing his certificate of disqualification can apply. [Borja v. COMELEC
candidacy. Elective officials continue in public (1998)]
office even as they campaign for reelection or
election for another elective position. On the other Effect of judicial declaration that the official’s
hand, Section 66 has been retained; thus, the proclamation is void: His assumption of office in
limitation on appointive officials remains - they are 1995 cannot be deemed to have been by reason of a
still considered ipso facto resigned from their offices valid election. Also, he did not fully serve the 1995-
upon the filing of their certificates of candidacy. 98 mayoral term by reason of involuntary
relinquishment of office as he was ordered to vacate
Substantial distinctions clearly exist between his post before the expiration of the term. Although
elective officials and appointive officials. The he served the greater portion of the said term, he
former occupy their office by virtue of the mandate should not be considered disqualified because he did
of the electorate. They are elected to an office for not serve three full consecutive terms. [Lonzanida
a definite term and may be removed therefrom only v. COMELEC (1999)]
upon stringent conditions. On the other hand,
appointive officials hold their office by virtue of Effect of Recall Elections: An official has served for
their designation thereto by an appointing three consecutive terms. He was elected in the
authority. Some appointive officials hold their office recall election for the term of his predecessor.
in a permanent capacity and are entitled to security There was no violation of the 3-term rule.
of tenure while others serve at the pleasure of the
appointing authority. The Constitution does not require that the
interruption be a full term of 3 years. The clear
Another substantial distinction between the two sets intent of the framers of the law is that interruption
of officials is that under Section 55, Chapter 8, Title for any length of time is sufficient to break an
I, Subsection A. Civil Service Commission, Book V of elective local official‘s continuity of service.
the Administrative Code of 1987 (Executive Order [Socrates v. COMELEC (2002)]
No. 292), appointive officials, as officers and
employees in the civil service, are strictly prohibited
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
Annex A
Requirements Province City Municipality Barangay 207
LGC 460-461 RA 9009 (2001) LGC 441-442 LGC 385-386
Income Average annual Average annual Average annual No minimum
income, as certified income, as certified income, as certified requirement for
by the DOF, of not by the DOF, of at by the provincial income
less than P20,000,000 least P100,000,000 for treasurer, of at least
based on 1991 the last 2 consecutive P2,500,000 for the
constant prices years based on 2000 last two consecutive
constant prices years based on 1991
constant prices
Population 250,000 inhabitants 150,000 inhabitants 25,000 inhabitants 2,000 inhabitants
5,000 inhabitants, in
cities and
municipalities within
MM and other
metropolitan political
subdivisions or highly
urbanized cities
Territory contiguous territory contiguous territory contiguous territory No minimum
of at least 2,000km2 of at least 100km2 of at least 50km2 requirement for area
territory need not be requirement on land Same as CITY. Territory need not be
contiguous if it area shall not apply contiguous if it
comprises 2 or more where the city comprises 2 or more
islands or is separated proposed to be islands
by a chartered city or created is composed
cities which do not of 1 or more islands;
contribute to the the territory need not
income of the be contiguous if it
province comprises 2 or more
islands
Manner of By an Act of Congress By an Act of Congress By an Act of Congress By law or by an
Creation ordinance of the
sangguniang
panlalawigan or
panlungsod; In case of
the creation of
barangays by the
sangguniang
panlalawigan, the
recommendation of
the sangguniang
bayan concerned shall
be necessary
By an Act of Congress,
to enhance the
delivery of basic
services in indigenous
cultural communities
Plebiscite Approval must be by Approval must be by Approval must be by Approval must be by
(in LGUs majority of the votes majority of the votes majority of the votes majority of the votes
directly cast; except cast; except cast; except cast; plebiscite shall
affected) otherwise provided in otherwise provided in otherwise provided in be held within such
the Act of Congress, the Act of Congress, the Act of Congress, period of time as may
the plebiscite shall be the plebiscite shall be the plebiscite shall be be determined by the
held within 120 days held within 120 days held within 120 days law or ordinance
from effectivity of the from effectivity of the from effectivity of the creating said
law or ordinance law or ordinance law or ordinance barangay.
effecting such action effecting such action effecting such action
LOCAL GOVERNMENTS POLITICAL LAW REVIEWER
Annex B
Component City or Municipality Barangay Ordinances 208
Ordinances and Resolutions
Reviewed by Sangguniang panlalawigan Sangguniang panlungsod or
sangguniang bayan
Furnish copies of ordinances 3 days after approval of ordinance or 10 days after enactment of ALL
or resolution within resolution approving the local development ordinances
plans and public investment programs
formulated by the local development
councils
Period to examine 30 days after receipt of copies, after which 30 days after receipt of copies,
documents the ordinance or resolution is presumed after which ordinance is presumed
valid if no action is taken. valid if no action is taken
Within 30 days, it may also be transmitted
to the provincial attorney or prosecutor for
examination; said atty. or prosecutor shall
give his written recommendations within 10
days from receipt of document
Ground to invalidate Ordinance or resolution is beyond the power Ordinance is inconsistent with law
ordinance or resolution conferred upon the Sanggunian concerned and city or municipal ordinances
In such case, the sangguniang
barangay may adjust, amend or
modify the ordinance within 30
days from receipt from the
sangguniang panlungsod or
sangguniang bayan
2012 UP LAW
BAR REVIEWER
POLITICAL
Public International Law LAW
POLITICAL LAW TEAM 2012
Faculty Editor | Florin T. Hilbay
Subject Heads| Rogelio
BAR OPERATIONS COMMISSION 2012 Benjamin Redoble • Moises
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Barbie Kaye Perez |Secretary
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Monique Morales • Katleya Kate Belderol • Kathleen Mae Tuason (D) • Rachel
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Lex ferenda – what jurists think the law should be or This may mean simply that the Court may reach fair
will become compromise in balancing the interests of the parties.
they follow under a sense of legal obligation. For Custom may be:
custom to exist, it requires the concurrence of 2 General binding upon all or most
elements: states or
(1) State Practice and Particular binding between 212
(2) Opinio juris. only two or among a few states.
Unlike treaties, customary norms are legally binding In cases it has decided, the ICJ has indeed
upon states regardless of whether they consent, recognized the possibility of regional custom
subject to the Persistent Objector rule. (Asylum Case) and of bilateral custom. [Right of
Passage over Indian Territory Case]
Elements
No particular length of time is required for the
State Practice formation of customary norms. What becomes
necessary is such length of time as to make manifest
For custom to exist, the customary practice must be the existence of the two elements of custom.
both consistent and general. [Magallona]
process of formation, by such persistent objection questioning Annex I thereof, which showed
the norm will not be applicable as against that that the Temple of Preah Vihear was within
State. [Magallona] Cambodian territory [Temple of Preah
Vihear Case] 213
The ten-mile rule [in the delimitation of territorial
waters cross bays] would appear to be inapplicable Procedural Rules – the use of
as against Norway, inasmuch as she has always circumstantial evidence, hearsay evidence
opposed any attempt to apply it to the Norwegian (press reports).
coast. [Anglo-Norwegian Fisheries Case]
Press reports can be used to corroborate the
Duality of Norms existence of a fact; and, when they demonstrate
matters of public knowledge which have received
It is possible for a norm of international law to exist extensive press coverage, they can be used to prove
both as a customary norm and a conventional norm a fact to the satisfaction of the court [Nicaragua vs.
(ex. The Prohibition against the Use of Force). Such US Case, ¶62-63]
norms are said to be of dual character.
Circumstantial evidence is admitted as indirect
Norms of dual character come into being through any evidence in all systems of law and its use is
of the following ways: recognized by international decisions. Such
(1) A treaty provision may simply restate a circumstantial evidence, however, must consist of a
customary norm (as is true of many of the series of facts or events that lead to a single
provisions in the VCLOT; conclusion. [Corfu Channel Case]
(2) A treaty provision may constitute evidence
of custom; Substantive – duty to make reparations,
(3) A treaty provision may crystallize into a principle of reciprocity, pacta sunt
customary norm. servanda, separate corporate personality
[Barcelona Traction Case]
For a treaty provision to crystallize into custom, the
provision must be norm-creating. The treaty must be The Standard of ―Full‖ Reparations: Every breach
law-making, creating legal obligations which are not of an engagement (international obligation) entails
dissolved by their fulfillment. the obligation to make reparation. The amount of
reparation required is that amount which is
The number of parties, the explicit acceptance of necessary to bring the injured party back to the
rules of law, and, in some cases, the declaratory situation had the wrong not occurred [Chorzow
nature of the provisions produce a strong law- Factory Case]
creating effect at least as great as the general
practice considered sufficient to support a
Jurisdictional Principles – The power of a
customary rule. [Brownlie]
tribunal to determine the extent of its own
jurisdiction (competence de la
The customary norm retains a separate identity even
competence).
if its content is identical with that of a treaty norm.
Thus, a state that cannot hold a state responsibility
for a breach of a treaty obligation can still hold the Note: International tribunals have not been
erring state responsible for the breach of the consistent in their manner of determining whether a
identical customary norm. [Nicaragua vs. US Case] principle in municipal law constitutes a general
principle. In some instances they have examined
different legal systems; in others, they merely
3. General Principles of Law declared a principle in municipal law as constituting
a general principle of international law.
Refer to those general principles in municipal law
(particularly those of private law) that may be
appropriated to apply to the relations of states.
4. Subsidiary Source: Judicial
[Oppenheim] Decisions
Unlike custom, it does not require to be supported Preliminary note: International law does not follow
by state practice that is consistent and virtually the rule on stare decisis. Art. 59 of the ICJ State
uniform; it being sufficient that such principle is (which Art.38(1)(d) makes reference to) expressly
found in a number of legal jurisdictions. [Roque] limits the effect of a decision only to the parties to
the case.
Illustrations
Principles in Roman Law – estoppel, res Be that as it may, decisions of international tribunals
judicata, res inter alios acta, prescription. exercise considerable influence as impartial and
well-considered statements of the law by (qualified)
When Thailand did not object to, and has in jurists made in light of actual problems. Decisions of
fact benefited from, the Treaty of 1904 for international tribunals constitute evidence of the
50 years, it is deemed to have accepted state of the law. [Brownlie]
said treaty. It is thereby precluded from
PUBLIC INTERNATIONAL LAW POLITICAL LAW REVIEWER
Nothing in the nature of a quid pro quo, nor States remain the most important actors in
any subsequent acceptance, nor even any international law. It possesses objective or erga
reaction from other states is required for omnes personality, not merely by virtue of
such declaration to take effect. recognition on the part of particular states.
Objective (general) international
Verily, unilateral declarations bind the personality – exists wherever the rights and
State that makes them. obligations of an entity are conferred by
general international law, e.g. states
Eastern Greenland case: The ICJ held that Denmark Special (particular) international
not only had a superior claim over the contested personality – exists where an entity is
territory, but that Norway was further bound by the established by particular States for special
Ihlen Declaration not to oppose Denmark‘s claim. purposes
The Ihlen Declaration is a statement made by the
Norwegian Foreign Minister, Nils Claus Ihlen, on the A state is defined as a group of people, more or less
topic of Denmark's sovereignty over Greenland, numerous, permanently living in a definite territory,
which Mr. Ihlen declared verbally to the Danish under an independent government organized for
Minister that ―the plans of the Royal [Danish] political ends and capable of entering into legal
Government respecting Danish sovereignty over the relations with other states [Art. 1, Montevideo
whole of Greenland would be met with no Convention on the Rights and Duties of States
difficulties on the part of Norway." (1933)]
Also in the Nuclear Test cases, France declared that Requisite Elements
it would cease atmospheric nuclear tests. This
signaled that there had ceased to be a dispute, since a. People
it had bound itself to do what Australia and New The term ―people‖ refers to an aggregate of
Zealand wanted. individuals of both sexes who live together as a
community despite racial or cultural differences.
Although no minimum number is provided, they
D. Subjects should be permanent, and sufficient to maintain and
1. States perpetuate themselves.
2. International Organizations
3. Individuals b. Territory
State territory is that defined portion of the surface
Subjects of International Law refer to entities: of the globe which is subjected to the sovereignty of
(1) capable of possessing international rights the State. [Oppenheim]
and duties; and
(2) having the capacity to maintain these rights A state must exercise control over a certain area. It
by bringing international claims need not be exactly defined by metes and bounds,
[Reparations for Injuries Advisory Opinion so long as there exists a reasonable certainty of
(1949)] identifying it. No minimum land area is required.
PUBLIC INTERNATIONAL LAW POLITICAL LAW REVIEWER
Refers to the capacity to enter into relations with government established as a result of external
other states. A state must be free from outside aggression [US Sec. of State Henry Stimson
control in conducting foreign and internal affairs. (1932)]
Estrada Doctrine (Asked 1 time in the Bar) – 216
It has, however, been advanced that the fact that a dealing or not dealing with the government
State ―may be acting under the direction of another established through a political upheaval is not a
State‖ is not of concern to international law. judgment on the legitimacy of the said
[Salonga] government [Mexican Minister Genaro Estrada
(1930)]
The practice of states has been to ignore—so far as
the issue of statehood is concerned—various forms of Effects of recognition:
political and emotional blackmail and interference (1) Diplomatic relations
directed against the weaker members of the (2) Right to sue in courts of recognizing state
community." (3) Right to possession of properties of
predecessor in the recognizing state
Thus, it is sufficient for a State to possess external (4) All acts of the recognized state or
appearance of capacity to enter into international government are validated retroactively,
relation. [Brownlie] preventing the recognizing state from
passing upon their legality in its own court.
Recognition
2. International Organizations
Act by which a state acknowledges the existence of
another state, government or belligerent community
and indicates willingness to deal with the entity as The status and powers of an IO is determined by
such under international law. agreement and not by general or customary
international law.
As a public act of state, recognition is an optional
and political act and there is no legal duty in this IO‘s are considered subjects of international law ―if
regard. their legal personality is established by their
constituent instrument (charter).‖
Legal functions of recognition
The typical act of recognition has 2 legal functions: Further, its constituent rights and duties, or
(1) The determination of statehood as a capacities and immunities, are limited to those set
question of law which may have evidential forth in the treaty creating the international
effect before a tribunal, and organization. Thus, legal personality in this context
(2) A condition of the establishment of formal, is a relative concept. [Magallona]
optional, and bilateral relations, including
diplomatic relations and the conclusion of Preconditions for International Personality
treaties; also described by some jurists as
constitutive (1) It must constitute a permanent association
of states, with lawful objects, equipped
Declaratory View vs. Constitutive View (Asked 1 with organs;
time in the Bar). (2) There must be a distinction, in terms of
legal powers and purposes, between the
The Declaratory View (Prevailing View) posits that organization [and] its member states; and
recognition is a mere declaration or (3) It must have legal powers that it may
acknowledgement of an existing state of law and exercise on the international plane and not
fact, legal personality having been previously solely within the national systems of one or
conferred by operation of law. more states.
The Constitutive View (Minority View) posits that Capacity to Bring a Claim for Reparation
the political act of recognition is a precondition to
the existence of legal rights of a state. In its logical An IO such as the United Nations (UN) must be
extreme, this is to say that the very personality of a deemed to have such powers which, though not
state depends on the political decision of other expressly granted in its Charter, are conferred upon
states. [Brownlie] it by necessary implication as being essential to the
performance of its duties.
Important Doctrines:
Wilson/Tobar Doctrine (Asked 1 time in the Thus, though the UN Charter did not expressly clothe
Bar) – precludes recognition of government the UN with the capacity to bring an international
established by revolution, civil war, coup d’etat claim for reparations, the UN nevertheless possessed
or other forms of internal violence until freely functional personality. [Reparations for Injuries
elected representatives of the people have Advisory Opinion, ¶147]
organized a constitutional government [US
President Woodrow Wilson, 1913 and Ecuadorian IO‘s are deemed to have powers not expressly
FM, 1907] granted in their charters where these unstated
Stimson Doctrine – precludes recognition of any powers are either
PUBLIC INTERNATIONAL LAW POLITICAL LAW REVIEWER
(1) implicitly bestowed in their charters or his physical safety and the preservation of his honor
(2) necessary to effect powers expressly and reputation.
granted.
Upon the principle of exterritoriality, his quarters, 217
3. Individuals archives, property and means of transportation are
inviolate.
While States are have traditionally been deemed to
He is immune from criminal and civil jurisdiction,
be subject of international law, individuals have
except when he himself is the plaintiff, and is not
likewise become in some degree subjects of that subject to tax or exchange or currency restrictions.
law. However, individuals may assume the status of
subjects of international law only on the basis of
The Foreign Office
agreement by states and in specific context, not in
accordance with general or customary IL.
The body entrusted with the conduct of actual day-
to-day foreign affairs.
Illustrations
Art. 187(c), (d) and (e), UNCLOS: The
It is headed by a Secretary or a Minister who, in
jurisdiction of the Sea-Bed Disputes
proper cases, may make binding declarations on
Chamber of the ITLOS extends to disputes
behalf of his government. [Legal Status of Eastern
between parties to contracts relating to the
Greenland Case]
exploitation of the Area. Parties to such
contracts may be natural or juridical
persons. The Diplomatic Corps
Claims Settlement Declaration of 1981
between US and Iran: Direct access to the Refers to the collectivity of all diplomatic envoys
Iran-US Claims Tribunal is given to accredited to a State.
individuals for the settlement of their
claims involving more than $250,000 either It is composed of:
against Iran or the US. (1) Head of Mission – classified into: (a)
Mixed Claims Tribunals established in the Ambassadors or nuncios – accredited to
Treaties of Peace concluded at the end of Heads of State, and other heads of mission
WW I: Individuals enjoyed locus standi in of equivalent rank; (b) Envoys, Ministers
actions against States relating to contracts, and Internuncios – accredited to Heads of
debts, and property adversely affected by State; (c) Charges d’affaires – accredited to
the war. Ministers of Foreign Affairs.
London Agreement of the International (2) Diplomatic Staff – those engaged in
Military Tribunal at Nuremberg: In crimes diplomatic activities and are accorded
against peace, war crimes and crimes diplomatic rank.
against humanity, international law imposes (3) Administrative and Technical Staff – those
duties and liabilities upon individuals as employed in the administrative and
well as upon States. technical service of the mission.
Art. VI of the Convention on the Prevention (4) Service Staff – those engaged in the
and Punishment of the Crime of Genocide: domestic service of the mission [Nachura]
―Parties charged with genocide‖ refers to
individuals whose responsibility is thus In the Philippines, the President appoints (Sec. 16,
under international law. Art.VII, Constitution), sends and instructs the
diplomatic and consular representatives.
(Please refer to the Chapter on Human Rights)
Functions and Duties
The main functions of a diplomatic mission are the
E. Diplomatic and Consular Law following:
1. Agents of Diplomatic Intercourse (1) Represent the sending State in the receiving
2. Diplomatic Immunities and Privileges State;
3. Consular Relations (2) Protect in the receiving State the interests
of the sending State and its nationals,
Diplomatic Intercourse, also referred to as the within the limits allowed by international
Right of Legation, is the right of the State to send law;
and receive diplomatic missions, which enables (3) Negotiate with the government of the
States to carry on friendly intercourse. receiving State;
(4) Ascertain, by all lawful means, the
1. Agents of Diplomatic Intercourse conditions and developments in the
receiving State and reporting the same to
the sending State;
Head of State
(5) Promote friendly relations between the
sending State and receiving State, and
The head of State represents the sovereignty of the
developing their economic, cultural and
State, and enjoys the right to special protection for
scientific relations [Art. 3(1), VCDR]
PUBLIC INTERNATIONAL LAW POLITICAL LAW REVIEWER
(6) If diplomatic relation is severed, entrust the Note: The principle of inviolability continues to
protection of its nationals to the diplomatic apply even if diplomatic relations are broken off, or
mission of a third State acceptable to the if a mission is permanently or temporarily recalled.
receiving State [Art. 45, VCDR] In that case, the receiving state must respect and 218
(7) May protect the interest of a third State by protect the premises of the mission, together with
agreement with the receiving State, if there its property and archives. [Art. 45, VCDR]
is no diplomatic relations between the third
State and the receiving State [Art. 46, What does the ―premises of the mission‖ include?
VCDR] In the first place, it means ―the buildings or parts of
the buildings and the land ancillary thereto,
2. Diplomatic Immunities and irrespective of ownership, used for the purposes of
the mission including the residence of the head of
Privileges the mission.
(Asked 9 times in the Bar)
The mission need not be the owner of the
Theoretical basis of diplomatic privileges and premises – The expression ―premises of the mission‖
immunities includes the buildings for the purposes of the
(1) Extraterritoriality theory – the premises of mission, whether they are owned by the Sending
the diplomatic mission represent a sort of state or by a third party acting for its account or are
extension of the territory of the sending leased and are rented. [ILC Yearbook, vol II, p.95,
State 1958]
(2) Representational theory – the diplomatic
mission personifies the sending State The premises occupied by a diplomatic mission,
(3) Functional necessity theory – privileges and including the private residence of the diplomatic
immunities are necessary to enable the agent, are inviolable. [Art. 30, VCDR]
diplomatic mission to perform its functions
Such premises cannot be entered or searched, and
Personal Inviolability neither can the goods, records and archives be
detained by local authorities even under lawful
Personal inviolability consist of 2 aspects: process.
(1) The duty of the receiving State to refrain
from exercising its sovereign rights, in The envoy must consent to such entry, except in
particular law enforcement rights against extreme cases of necessity (ex. When there is
the diplomat; and imminent danger that a crime of violence is to be
(2) The duty to treat him with due respect and perpetrated in the premises; when the premises are
protect his person, freedom or dignity from on fire).
physical interference by other persons.
The service of writs, summons, orders or processes
The receiving State shall treat him with due respect within the premises of mission or residence of the
and take all steps to prevent any attack on his envoy is prohibited.
person, freedom or dignity. [Art. 29, VCDR]
Even if a criminal takes refuge within the premises,
The diplomatic representative shall not be liable to the peace officers cannot break into such premises
any form of arrest or detention. to apprehend the same.
In the Hostage Case, however the ICJ held the The fugitive should, however, be surrendered upon
diplomatic envoy, however, may be arrested demand by local authorities, except when the right
temporarily in case of urgent danger, such as when of asylum exists.
he commits an act of violence which makes it
necessary to put him under restraint for the purpose Right of Official Communication
of preventing similar acts [Case Concerning the US
Diplomatic and Consular Staff in Tehran, ICJ The envoy is entitled to fully and freely
Reports, 1980] communicate with his government.
Inviolability of Premises and Archives (1) The receiving state shall permit and protect
free communication on the part of the
Consist of 2 elements: mission for all official purposes.
(1) The duty of the receiving State to refrain (2) The mission may employ all appropriate
from entering the premises, except with the means to send and receive messages by any
consent of the head of the mission; and of the usual modes of communication or by
(2) The ―special duty of the receiving state to diplomatic courier, which shall enjoy
protect the premises against any intrusion inviolability;
or damage and to prevent any disturbance (3) The official correspondence of the mission
of the peace of the mission or impairment is inviolable; and
of its dignity. (4) The diplomatic bag shall not be opened or
detained. [Art. 27, VCDR]
PUBLIC INTERNATIONAL LAW POLITICAL LAW REVIEWER
Immunity from Local Jurisdiction Exemption from Taxes and Customs Duties
As to criminal jurisdiction - A diplomatic agent Exemption from taxation has 2 aspects, one,
enjoys immunity from criminal jurisdiction of the pertaining to the sending state and another, 219
receiving State. [Art. 31, VCDR] pertaining to the diplomatic agent.
He may not be arrested, prosecuted, prosecuted or (1) As to the sending state – exemption applies
punished for any offense he may commit, unless his to ―premises of the mission‖ whether owned
immunity is waived. or leased, with respect to ―all national,
regional or municipal dues and taxes‖. [Art
This privilege, however, only exempts a diplomatic 23, VCDR]
agent from local jurisdiction; it does not import
immunity from legal liability. (2) As to Diplomatic agents - are exempt from
all dues and taxes, whether personal or
As to civil and administrative jurisdiction - The real, national, regional or municipal. [Art.
diplomatic agent also enjoys immunity from the civil 34, VCDR]
and administrative jurisdiction of the receiving
State, even with respect to his private life. [Art. 31, He is also exempt from all customs duties
VCDR] of articles for the official use of the
mission and those for the personal use of
BUT there are exceptions: the envoy or members of the family
(1) A real action relating to private immovable forming part of his household, including
property situated in the territory of the articles intended for his establishment.
receiving state, unless he holds it in behalf
of the sending state for the purposes of the Baggage and effects are entitled to free
mission. entry and are usually exempt from
(2) An action relating to succession in which inspection.
the diplomatic agent involved as executor,
administrator, heir or legatee as a private Exception to Tax Exemption:
person and not on behalf of the sending As to sending state: Exemption does NOT include
state. dues or taxes which represent payment for specific
(3) An action relating to any professional or services rendered. [Art. 23(1), VCDR]
commercial activity exercised by the
diplomatic agent in the receiving state As to diplomatic agents:
outside his official functions. [Art. 31(1), (1) Indirect taxes incorporated in the price of
VCDR] goods purchased or services availed
(2) Dues and taxes on private immovable
His properties are not subject to garnishment, property situated in the receiving State
seizure for debt, execution and the like. (3) Estate, succession or inheritance taxes
levied by the receiving State
The diplomatic agent also cannot be compelled to (4) Dues and taxes on private income sourced
testify, not even by deposition, before any judicial within the receiving State
or administrative tribunal in the receiving State (5) Capital taxes on investments in commercial
without the consent of his government. ventures in the receiving State
(6) Charges levied for specific services
Who are the persons entitled to immunity from rendered
jurisdiction? (7) Registration, court or record fees, mortgage
(1) diplomatic agent dues and stamp duty, with respect to
(2) Members of the family of the diplomatic immovable property. [Art. 34, VCDR}
agent forming part of his household, who
are not nationals of the receiving State Who are entitled to exemption from taxation in
(3) As to criminal jurisdiction, members of the addition to the diplomatic agent?
administrative and technical staff of the (1) Members of the family of the diplomatic
diplomatic mission, as well as members of agent forming part of his household, who
their families forming part of their are not nationals of the receiving State
respective households, who are not (2) Members of the administrative and
nationals of or permanent residents in the technical staff of the diplomatic mission, as
receiving state. But as to civil and well as members of their families forming
administrative jurisdiction, immunity shall part of their respective households, who are
not extend to ―acts performed outside the not nationals of or permanent residents in
course of their duties‘; and the receiving state.
(4) Members of the service staff of the (3) Members of the service staff of the
diplomatic mission, who are not nationals of diplomatic mission, who are not nationals of
or permanent residents in the receiving or permanent residents in the receiving
state, with respect to ‗acts performed in state, with respect to ‗emoluments they
the course of their duties‘. [Art. 37, VCDR] receive by reason of their employment‘
PUBLIC INTERNATIONAL LAW POLITICAL LAW REVIEWER
(4) Private servants of members of the mission (5) Issuing passports and travel documents to
if they are not nationals or permanent nationals of the sending state and visas and
residents of the receiving state, with travel documents to persons wishing to
respect to ‗emoluments they receive by travel to the sending state; 220
reason of their employment‘. [Art. 37, (6) Acting as notary, civil registrar and similar
VCDR] administrative capacities; and
(7) Exercising rights of supervision and
Duration of Immunities and Privileges inspection pertaining to the sending state as
These privileges are enjoyed by the envoy from the flag state and state of registry of aircraft.
moment he enters the territory of the receiving
State, and shall cease when he leaves the country. Necessary Documents
With respect to official acts, immunity shall continue The following documents are necessary for the
indefinitely. assumption of Consular functions:
(1) Letters Patent(letter de provision) – the
Waiver of Immunities letter of appointment or commission which
Diplomatic privileges may be waived. Such waiver is transmitted by the sending state to the
may be made only by the government of the sending Secretary of Foreign Affairs of the country
State if it concerns the immunities of the head of where the consul is to serve.
the mission. In other cases, the waiver may be made (2) Exequatur – the authorization given to the
either by the government or by the chief of the consul by the sovereign of the receiving
mission. State, allowing him to exercise his function
within the territory.
Consuls are State agents residing abroad for various (1) Freedom of communication;
purposes but mainly (a) The receiving state shall permit and
(1) in the interest of commerce and navigation, protect freedom of information on the
(2) issuance of visa (permit to visit his part of the consular post for all official
country), and purposes;
(3) such other functions as are designed to (b) In communicating with the
protect nationals of the appointing State. government, the diplomatic missions
and other consular posts of the sending
Ranks state, the consular post may employ
all appropriate means, including
Consul General: heads several consular districts, or diplomatic or consular bags and
one exceptionally large consular district. messages in code or cipher;
(c) The official correspondence of the
Consul: in charge of a small district or town or port. consular post shall be inviolable;
(d) The consular bag shall neither be
Vice Consul: assists the consul. opened nor detained.
Consular agent: one entrusted with the performance BUT, may the receiving state request that
of certain functions by the consul. the consular bag be opened?
(4) Exemption from local jurisdiction for Under the VCLOT, the term ―treaty‖ includes all
offenses committed in the discharge of agreements between states, regardless of how they
official functions, but not for other offense are called. Thus, for purposes of international law,
except for minor infractions; treaties, executive agreements, exchanges of notes,
etc. are all treaties. Note, however, that Philippine
(5) Exemption from testifying on official law makes a distinction between treaties and
communications or on matters pertaining to executive agreements. Both are equally binding,
consular functions; but only treaties require the concurrence of the
Senate to be effective.
(6) Exemption from taxes, customs duties,
military or jury service. Treaty Executive
Agreements
(7) Personal inviolability of consular officials 1. Political 1. Transitory
Issues effectivity
Scope of personal inviolability of consular 2. Changes in 2. Adjusts details
officials Subject national to carry out
(a) They are not liable to arrest or Matter policy well-
detention pending trial, except in case 3. Involves established
of a grave crime and pursuant to a international national
decision of a competent judicial agreements policies and
authority. of a traditions
(b) They shall not be committed to prison permanent 3. Temporary
nor be subject to any other form of character 4. Implements
restriction to personal freedom, treaties,
except in the case of grave crime statutes,
pursuant to a decision of competent
PUBLIC INTERNATIONAL LAW POLITICAL LAW REVIEWER
Treaty Executive It means that the stage where the definitive text of
Agreements the treaty is established as the correct and authentic
policies one.
Requires Does not require 222
ratification by concurrence by Expression of Consent to be bound by the
Ratification the 2/3 of the Senate to be Treaty (Article 11, VCLOT)
Senate to be binding
valid and Consent to be bound by the terms of a treaty may be
effective (Art. expressed through:
VII, Sec. 21)
(1) Signature, when the negotiator is
2. Requisites for Validity authorized to sign the treaty;
(5) Approval
Negotiation
(6) Accession - The method by which a State,
State representatives discuss the terms and under certain conditions, becomes a party
provisions of the treaty. to a treaty of which it is not a signatory and
in the negotiation of which it did not take
Adoption (Article 9, VCLOT) part
It means that the form and content have been (7) By any other means agreed by the parties
settled by the negotiating States. It is preparatory to
the authentication of the text of the treaty and to Doctrine of Transformation
its signature. In Philippine Law, treaties have to be transformed in
order to be part of Philippine law.
Authentication of the Text (Article 10,
VCLOT) A treaty is ―transformed‖ when a treaty is ratified
after it has been concurred in by the Senate [Sec.
21, Art.VII, Constitution]
PUBLIC INTERNATIONAL LAW POLITICAL LAW REVIEWER
After ratification, a treaty shall be deemed as if prior to the representative expressing such
legislated by our Legislature. consent;
(7) If consent was given in violation of provisions of
La Chemise Lacoste v. Fernandez: Lacoste, a internal law regarding competence to conclude 223
French corporation, sued local counterfeiters before treaties that is manifest and of fundamental
Philippine courts. When the counterfeiters importance.
challenged its legal personality to sue before
Philippine courts, the Court held that the Philippines 5. Grounds for Termination
has ratified international conventions for the
protection of intellectual property, and it would
(1) Expiration of the term, or withdrawal of a party
frustrate the object of these conventions if Lacoste
in accordance with the treaty;
is barred from filing its claims directly in Philippine
(2) Extinction of a party to the treaty, when the
courts. treaty rights and obligations would not devolve
upon the successor-state;
Registration with the UN (3) Mutual agreement of parties;
(4) Denunciation or desistance by a party;
Philippine Law (5) Supervening impossibility of performance;
In the Philippines, the negotiation of treaties and (6) Conclusion of a subsequent inconsistent treaty;
their ratification are executive functions, subject to (7) Loss of subject matter;
concurrence of the Senate. Under Sec. 21, Art. VII, (8) Material breach or violation of treaty
(Treaty Clause) of the Constitution, treaties must (9) Fundamental Change of Circumstance (Rebus
receive the concurrence of the Senate before they sic stantibus) [Art.62, VCLOT]
may be effective.
A contracting state may unilaterally withdraw
Amendment or Modification of Treaty from a treaty when a vital or fundamental
GENERAL RULE: Consent of all parties is required. change of circumstance occurs such that the
foundation upon which its consent to be bound
EXCEPTION: If the treaty itself so allows, two States initially rested has disappeared.
may modify a provision only insofar as their
relationship inter se.
Requisites:
(a) Change is so substantial that the foundation
Reservations
of the treaty has altogether disappeared
Definition: A unilateral statement made by a state
(b) Change was unforeseen or unforeseeable at
upon entering a treaty whereby it purports to
the time of the treaty‘s perfection
exclude or modify the legal effect of certain
(c) Change was not caused by the party
provision/s of the treaty in their application to the
invoking the doctrine
reserving state (Art.19. VCLOT).
(d) Doctrine was invoked within a reasonable
time
Exceptions: A reservation shall not operate to
(e) Treaty‘s duration is indefinite
modify or exclude the provisions of a treaty:
(f) Doctrine cannot operate retroactively (it
(1) Where the treaty expressly prohibits
must not adversely affect provisions which
reservations in general;
have already been complied with prior to
(2) Where the treaty expressly prohibits that
the vital change)
specific reservation being made; or
(3) Where the reservation is incompatible with
(10) Outbreak of war between the parties, unless
treaty‘s object and purpose [Reservation to
the treaty relates to the conduct of war (ex.
the Genocide Conventions Advisory
The Four Geneva Conventions).
Opinion]
(11) Severance of diplomatic relations (if such
relationship is indispensable for the treaty‘s
4. Invalid Treaties application).
(12) Jus Cogens Application: Emergence of a new
(1) If the treaty violates a jus cogens norm of peremptory norm of general international law
international law (void); which renders void any existing, conflicting
(2) If the conclusion of a treaty is procured by treaty.
threat or use of force (void);
(3) Error of fact, provided that such fact formed an G. Nationality and Statelessness
essential basis of a state‘s consent to be bound;
1. Nationality
(4) If the representative of a state was corrupted to
2. Statelessness
consent by another negotiating state;
(5) If consent was obtained through fraudulent
conduct of another negotiating state; 1. Nationality
(6) If the representative consented in violation of
specific restrictions on authority, provided: Definition (Cruz): The tie that binds an individual to
the restriction was notified to the other his state, from which he can claim protection and
negotiating States whose laws he is obliged to obey.
PUBLIC INTERNATIONAL LAW POLITICAL LAW REVIEWER
Membership in a political community with all its A state conferring honorary citizenship upon
concomitant rights and obligations. an individual
Why important in international law: An individual Hague Convention of 1930 on Conflict of 224
ordinarily can participate in international relations Nationality Laws: Any question as to whether a
only through the instrumentality of the state to person possesses the nationality of a particular state
which he belongs, as when his government asserts a shall be determined in accordance with the law of
claim on his behalf for injuries suffered by him in a that state. These laws shall be recognized by other
foreign jurisdiction. This remedy would not be states so long as they are consistent with
available to a stateless individual. international conventions, international customs and
the principles of law generally recognized with
Acquisition regard to nationality.
Doctrine of State Responsibility: A state may be Any person extradited, whether he be a national of
held responsible for the requesting state, of the state of refuge or of
(1) an international delinquency another state.
(2) directly or indirectly imputable to it 225
(3) which causes injury to the national of Political and religious offenders are generally not
another state subject to extradition.
Liability will attach to the state where its treatment In the absence of special agreement, the offense
of the alien falls below the international standard of must have been committed within the territory or
justice or where it is remiss in according him the against the interests of the demanding state.
protection or redress that is warranted by the
circumstances. Rule of double criminality: The act for which the
extradition is sought must be punishable in both the
Conditions for the enforcement of the doctrine of requesting and requested states.
state responsibility:
(1) Exhaustion of local administrative remedies Procedure
(2) Must be represented in the international
claim for damages by his own state If the surrender of a fugitive is sought, a request for
his extradition is presented through diplomatic
Calvo clause – a stipulation by virtue of which an channels to the state of refuge, with the necessary
alien waives or restricts his right to appeal to his papers for identification.
own state in connection with any claim arising from
a contract with a foreign state and limits himself to Upon a receipt of the request, the state of refuge
the remedies available under the laws of that state will conduct a judicial investigation to ascertain if
the crime is covered by the extradition treaty and if
The propriety of governmental acts should be put to there is a prima facie case against the fugitive
the test of international standards. The treatment of according to its own laws.
an alien, in order to constitute an international
delinquency, should amount to an outrage, to bad If there is, a warrant of surrender will be drawn and
faith, to willful neglect of duty, or to an the fugitive will be delivered to the state of origin.
insufficiency of governmental action so far short of
international standards that every reasonable and The evaluation process partakes of the nature of a
impartial man would readily recognize its criminal investigation, having consequences which
insufficiency. [Neer Claim (1926)] will result in deprivation of liberty of the
prospective extradite. A favorable action in an
1. Extradition extradition request exposes a person to eventual
extradition to a foreign country, thus exhibiting the
penal aspect of the process.
Definition (Cruz): The surrender of a person by one
state to another state where he is wanted for
The evaluation process itself is like a preliminary
prosecution or, if already convicted, for punishment.
investigation since both procedures may have the
same result – the arrest and imprisonment of the
PD 1086: The removal of an accused from the
respondent. The basic rights of notice and hearing
Philippines with the object of placing him at the
are applicable in criminal, civil and administrative
disposal of foreign authorities to enable the
proceedings. Non-observance of these rights will
requesting state or government to hold him in
invalidate the proceedings. Individuals are entitled
connection with any criminal investigation directed
to be notified of any pending case affecting their
against him in connection with any criminal
interests, and upon notice, may claim the right to
investigation directed against him or the execution
appear therein and present their side. [Secretary of
of a penalty imposed on him under the penal or
Justice vs. Lantion]
criminal law of the requesting state or government.
(1) Under the ICCPR, State Parties undertake to (IHL) and Neutrality
respect and to ensure to all individuals
within their territory the rights enumerated 1. Categories of Armed Conflicts
therein, without distinction of any kind, 2. Core International Obligations of States in IHL 227
such as race, color, sec, language, religion, 3. Principles of IHL
political or other opinion, national or social 4. Law on Neutrality
origin, birth or other status.
(2) State Parties are required to take the IHL is the branch of public international law which
necessary steps to adopt legislative or other governs armed conflicts to the end that the use of
measures that are necessary to give effect violence is limited and that human suffering is
to the rights recognized in the ICCPR. mitigated or reduced by regulating or limiting the
(3) State Parties must ensure that any person means of military operations and by protecting those
whose rights or freedoms are violate have who do not or no longer participate in the hostilities.
an effective remedy, notwithstanding that
the violation has been committed by IHL has Two Branches: (1) Law of The Hague, which
persons action in an official capacity. establishes the rights and obligations of belligerents
(4) State Parties must ensure that any person in the conduct of military operations, and limits the
claiming such remedy shall have his right means of harming the enemy; and the (2) Law of
thereto determined by competent judicial, Geneva, which is designed to safeguard military
administrative or legislative authority, and personnel who are no longer taking par in the
that they shall enforce the remedy when fighting and people not actively engaged in
granted. hostilities (i.e. civilians) (INTERNATIONAL
COMMITTEE OF THE RED CROSS [―ICRC‖]).
3. International Covenant on Note: The two branches draw their names from the
Economic, Social and Cultural Rights cities where each was initially codified. With the
(ICESCR) adoption of the Additional Protocols of 1977, which
combine both branches, that distinction is now of
merely historical and instructive value (ICRC).
The ICESCR, like the ICCPR, is an international
covenant and is binding on the respective State
Parties. 1. Categories of Armed Conflicts
The application of provisions above does not affect Article 2 common to the four Geneva conventions
the legal status of the parties to the conflict. Hence, provides that ―all cases of declared war or any other
an insurgent or a rebel group does not assume armed conflict which may arise between two or
belligerency status. more of the High Contracting Parties, even if the
state of war is not recognized by one of them.‖
Article 3 is indifferent to the legal character of such
group. Hence, the Geneva conventions and Protocol I
govern wars of national liberation.
It must be noted that Article 3 is to be applied as a
minimum. Wars by peoples against racist, colonial and alien
domination "for the implementation of their right to
Common Article 3 and Protocol II self-determination and independence is legitimate
and in full accord with principles of international
Protocol II develops and supplements common law," and that any attempt to suppress such struggle
Article 3 (Art. 1, Protocol II). is unlawful (Resolution 3103 [XXVIII]).
In fact, only combatants are allowed to engage in (3) Persons hors de combat are those who have
hostilities. been injured in the course of hostile battle
action and are no longer able to directly
According to one commentator, a combatant is take part in hostilities. They shall be 229
allowed to use force, even to kill, and will not be protected and treated humanely without
held personally responsible for his acts, as he would any adverse distinction. Their right to life
be where he to the same as a normal citizen and physical and moral integrity shall be
[Gasser] respected.
1. Coastal – situated close to a mainland and may Thus, conversion from internal waters under the
be considered part thereof, i.e. Norway Constitution into archipelagic waters under the
2. Mid-ocean– situated in the ocean at such UNCLOS gravely derogates the sovereignty of the
distance from the coasts of firm land, i.e. Philippine state. Remember that sovereignty over 231
Indonesia (note: The Archipelagic State internal waters precludes the right of innocent
provisions apply only to mid-ocean archipelagos passage and other rights pertaining to archipelagic
composed of islands, and NOT to a partly waters under the UNCLOS.
continental state.)
3. Internal Waters
Territorial sea and other maritime zones – the (Asked 1 time in the Bar)
breadth of the territorial sea, the contiguous zone,
and the EEZ is measured from the straight Definition
archipelagic baselines. These are waters of lakes, rivers, and bays landward
of the baseline of the territorial sea.
Archipelagic Waters
However, in case of archipelagic states, waters
Archipelagic waters– these are the waters enclosed landward of the baseline other than those rivers,
by the straight archipelagic baselines, regardless of bays and lakes, are archipelagic waters.
their depth or distance from the coast.
Internal waters are treated as part of a State's land
It is subject to the sovereignty of the archipelagic territory, and is subject to the full exercise of
state, but subject to the right of innocent passage sovereignty. Thus, the coastal state may designate
for the ships of all states. which waters to open and which to close to foreign
shipping.
Archipelagic Sea Lanes Passage
4. Territorial Sea
Other Rights with Respect to Archipelagic Waters
(1) Rights under existing agreement on the (Asked 1 time in the Bar)
part of third states should be respected by
the archipelagic state. Definition
(2) Within its archipelagic waters, the These waters stretch up to 12 miles from the
archipelagic state shall recognize baseline on the seaward direction.
traditional fishing rights and other
legitimate activities of immediately They are subject to the jurisdiction of the coastal
adjacent neighboring states. state, which jurisdiction almost approximates that
(3) The archipelagic state shall respect existing which is exercised over land territory.
submarine cables laid by other states and
―passing through its waters without making Except that the coastal state must respect the rights
a landfall‖. to (1) innocent passage and, in the case of certain
(4) Right of archipelagic sea lanes passage: It straits, to (2) transit passage. (Asked 1 time in the
is the right of foreign ships and aircraft to Bar)
have continuous, expeditious, and
unobstructed passage in sea lanes and air Innocent passage navigation through the
routes through or over archipelagic waters territorial sea w/o entering internal waters, going to
and the adjacent territorial sea of the internal waters, or coming from internal waters and
archipelagic state. making for the high seas.
A coastal state may establish an EEZ that may Note: In detention of foreign vessels, the coastal
stretch up to 200 miles from its baselines. state has the duty to promptly notify the flag state
of the action taken.
Within this zone, a State may regulate nonliving and
living resources, other economic resources, artificial Conflicts regarding the attribution of rights and
installations, scientific research, and pollution jurisdiction in the EEZ must be resolved on the basis
control. of equity and in the light of all relevant
circumstances, taking into account the respective
Under the UNCLOS, states have the sovereign right importance of the interests involved to the parties
to exploit the resources of this zone, but shall share as well as to the international community as a
that part of the catch that is beyond its capacity to whole. [Art. 59, UNCLOS]
harvest.
6. Continental Shelf
Resources covered by sovereign rights of coastal
states in the EEZ include living and non-living Extended Continental Shelf
resources in the waters of the seabed and its subsoil.
Definition
Coastal states have the primary responsibility to
It is the seabed and subsoil of the submarine areas
utilize, manage and conserve the living resources
extending beyond the territorial sea of the coastal
within their EEZ, i.e. ensuring that living resources
state throughout the natural prolongation of its
are not endangered by overexploitation, and the
lands territory up to
duty to promote optimum utilization of living
(1) the outer edge of the continental margin,
resources by determining allowable catch.
or
(2) a distance of 200 nautical miles from the
If after determining the maximum allowable catch,
baselines of the territorial sea where the
the coastal state does not have the capacity to
outer edge of the continental margin does
harvest the entire catch, it shall give other states
not extend up to that distance.
access to the surplus by means of arrangements
allowable under the UNCLOS.
Continental margin the submerged prolongation
of the land mass of the continental state, consisting
Note however that the UNLCOS does not specify the
of the continental shelf proper, the continental
method for determining ―allowable catch.‖ Hence,
slope, and the continental rise
states may establish illusory levels.
It only has sovereign rights with respect to the Where no successful settlement can be achieved, or
exploration and exploitation of its natural resources, if the parties are unable to agree on the means of
including the mineral and other non-living resources settlement of a dispute concerning the application
of the seabed and subsoil together with living of UNCLOS, such dispute may be governed by the
organisms belonging to the sedentary species.* principle of compulsory settlement, where
procedures entail binding decisions.
For example, the coastal state has the exclusive
right to authorize and regulate oil-drilling on its Compulsory Procedures that States Parties Can
continental shelf. Choose From:
(1) International Tribunal for the Law of the
These rights are exclusive in the sense that when Sea*;
the coastal state does not explore its continental (2) International Court of Justice;
shelf or exploit its resources, no one may undertake (3) Arbitral Tribunal*;
these activities without the coastal state‘s consent. (4) Special Arbitral Tribunal*;
Note: In instances where the continental margin is The choice of the State Parties must be expressed in
more than 200 nautical miles from the baselines, and a written declaration, which is revocable and
hence extends beyond the EEZ, the coastal state has replaceable.
the exclusive right to exploit mineral and non-living
resources in the ―excess area‖. Jurisdiction of Court or Tribunal
Its jurisdiction covers all disputes submitted to it in by States according to their capabilities. Where
accordance with the UNCLOS. It also includes there are threats of serious or irreversible damage,
matters submitted to it under any other agreement. lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to 234
Applicable Laws in Settlement of Disputes by prevent environmental degradation.
the ITLOS
Definition (Magallona)
The branch of public international law comprising
those substantive, procedural, and institutional rules
which have as their primary objective the protection
of the environment