2021 Blue Notes Political Law

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THE ATENEO CENTRAL BAR OPERATIONS 2020-2021
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Ad maiorem Dei gloriam.

GRACE ANN Q. BAJO
TIMOTHY JACOB J. PALAFOX
20 21 C H AI R PER S O N S
KATHLEEN KAE Z. ENDOZO MEG V. BUENSALIDO

ARISTEO RAPHAEL T. MARBELLA III MARIE KAYLA C. GALIT
20 21 AD MI NI ST RA TI V E CO M MI T TE E HE A D S 20 21 A C AD E MI C C O M MI T TEE HE AD S
CARLOS ROSAURO N. MANALO

MA. CRISTINA ASUNCION
20 21 A C AD E MI C C O M MI T TEE U N D ER ST U D I ES
DEAN SEDFREY M. CANDELARIA ATTY. MARIA LUISA ISABEL l. ROSALES

ATTY. BLESSILDA B. ABAD-GAMO ATTY. MARK LEINAD ENOJO
ATTY. DIANNA LOUISE R. WILWAYCO- ATTY. EUGENE T. KAW
DELA GUERRA
20 21 P OLI TI C AL L A W F A CU L TY A D V I S E RS
KIM ABBYGALE C.RIBO CHEY ABUEG

MARK DAVID Q. VERGARA BAI SHARIA L. TAMBUANG
TIMOTHY K. ILOG LUMINA ALINEA O. AQUINO
DATU AMIR E. WAGAS GRACELLE TREASURE A. SAMSON
BRIAN EARL LESHEN THEA RUTH FRANCES GONZALES
JOHN JOSHUA R. CARILLO HAROLD BRYANT V. PASION
MARY STEPHANIE C. CRUZ
20 21 P OLI TI C AL L A W SU BJE CT HE AD S 20 21 P OLI TI C AL L A W U ND E RS TU D I E S
JEFFREY ABRAZALDO SHAULA FLORESTA AIMIEL MARIAN F. REYES

CARLO ALIVIA PATRICIA JOY IGNACIO MIKKO RINGIA
CAMILLE BULATAO RAYMIELLE MAGCALAS ISABELLA SABIO
JOSE LORENZO ANGELES III JETHRO VERA CRUZ NORBERTO SARIGUMBA III
LORIEDEL FAJARDO ROSEANNE REALUBIN JONATHAN TORRES
NADINE ONG VERA DE VERA
20 21 P OLI TI C AL L A W V OLU NTE ER S
JONATHAN DF. TORRES
GAEL PAULINE R. MORALES
RIA ALEXANDRA D. CASTILLO
NICOLE ANN C. PAGLICAWAN
JULIANNE BEATRICE N. ROSARIO
20 21 C R E ATI V E S
JOSEPH BILL P. QUINTOS STEFI MONIKA S. SUERO

SAMANTHA J. MAGAOAY KATHLEEN C. ROMINA
FREEDOM JUSTIN B. HERNANDEZ SERMAE ANGELA G. PASCUAL
20 21 TE C H NI CA L 2 02 1 FI N AN CE
AINA RAE L. CORTEZ CHRISTIAN GIO R. SENARLO

LUMINA ALINEA O. AQUINO MAEDEN M. BORCELANGO
ANNA MARIE GRACE M. ANTONIO IMI LIZA B. ESPINA
MARY STEPHANIE CABRERA CRUZ FRANCIS SABIN BELTRAN
CLARISSE MAE D. ZAPLAN ANTHONY JEFFERSON Y. JULIO
20 21 S PE CI AL P R OJ E C TS 20 21 LO GI STI C S
DONN MARIE ISABELLE BALINA MELISSA GABRIELLE P. REMULLA

ALISHA BEATRICE A. VERGARA GRACIELLA RACHEL D. ROBLES
PRISHA LEIGH D. CRUZ DANELLA DIANE D. DIMAPILIS
ALITHEA C. SORIANO REYNALDO M. REVECHE
AARON C. CHENG CZAREANA JOUSCH T. PARRA
20 21 M AR K E TI N G 20 21 PU BLI C R E L A TI ON S
JUSTIN LUIGI V. HERNANDEZ
20 2 0 C HAI R P ER SO N
YVES PETER CARLO D. MEDINA THERESE ANNE C. ESPINOSA

KATRINA ISABELLE G. PIMENTEL HAZEL VIANCA I. ORTEGA
GENICA GALE F. LAHOZ VINCE ZYRENCE T. BARLONGAY
20 2 0 AD MI NI S TR ATI V E CO M MI T TE E HE A D S 20 2 0 HO TEL C O M MI TTEE HEA D S
HE AD S
EUNICE A. MALAYO MEG V. BUENSALIDO

FRANCES CHRISTINE P. SAYSON MARIE KAYLA C. GALIT
20 2 0 A CAD E MI C CO M MI T TE E HE AD S 2 02 0 A CA D E M I C CO M MIT T E E U ND E R S T U DI E S
DEAN SEDFREY M. CANDELARIA

DEAN MAITA CHAN-GONZAGA
ATTY. DIANNA LOUISE R. WILWAYCO-DELA GUERRA
ATTY. FRANCIS TOM TEMPROSA
20 2 0 POLI TI CA L L A W F A CU L TY A D V I S E RS
ANDREA FAUSTINE R. DE VERA KIM ABBYGALE C.RIBO

MARK DAVID Q. VERGARA LUMINA ALINEA O. AQUINO
ALIJA ROWIE SCHAILEY M. PANDAPATAN TIMOTHY K. ILOG
GERARD ANDRE P. BARRON DATU AMIR E. WAGAS
JUSTIN MARK C. CHAN BRIAN EARL LESHEN
ISABELLE NICOLE VELANDRES JOHN JOSHUA R. CARILLO
20 2 0 POLI TI CA L L A W SU BJE CT HE AD S 20 2 0 POLI TI CA L L A W U ND E RS TU D I E S
JOSIAH M. LIM ANNA BEATRICE L. SALAZAR FONSO RAMOS

STEPHANIE A. SERAPIO VERA DE VERA JOANNAH MARIE V. SALAMAT
MIA GATO RENEE DESIREE R. NAVARRA NORLENE ANDAYA
JONATHAN DF. TORRES MICHELLE TIU AINA RAE L. CORTEZ
RANDO TORREGOSA MA. KATRINA RAFALLE M. ORTIZ RAYM MAGCALAS
GAEL PAULINE R. MORALES MA. VERONICA S. PINE RACHEL MEGAN AGLAUA
20 2 0 POLI TI CA L L A W V OLU NTE ER S
ATENEO CENTRAL
BAR OPERATIONS 2020/21 POLITICAL LAW
TABLE OF CONTENTS
I. THE 1987 CONSTITUTION ................................................................................................................ 2

A. NATURE AND CONCEPT OF A CONSTITUTION ...................................................................... 2
B. PARTS OF A CONSTITUTION..................................................................................................... 3
C. AMENDMENTS AND REVISIONS (PHIL CONST., ART. XVII.) ................................................. 4
D. METHODS OF INTERPRETING THE CONSTITUTION .............................................................. 8
II. BASIC CONCEPTS ......................................................................................................................... 13
A. DECLARATION OF PRINCIPLES AND STATE POLICIES ...................................................... 13
B. SOVEREIGNTY ........................................................................................................................... 15
C. STATE IMMUNITY ...................................................................................................................... 15
D. SEPARATION OF POWERS ...................................................................................................... 20
E. CHECKS AND BALANCES ........................................................................................................ 20
F. DELEGATION OF POWERS ...................................................................................................... 20
G. FUNDAMENTAL POWERS OF THE STATE ............................................................................ 22
1. POLICE POWER ...................................................................................................................... 24
2. EMINENT DOMAIN .................................................................................................................. 24
3.TAXATION................................................................................................................................. 25
III. NATIONAL TERRITORY................................................................................................................ 27
IV. CITIZENSHIP ................................................................................................................................. 31
A. KINDS OF CITIZENSHIP ............................................................................................................ 31
B. WHO ARE CITIZENS .................................................................................................................. 34
C. WHO CAN BE CITIZENS ........................................................................................................... 34
D. MODES OF ACQUIRING CITIZENSHIP .................................................................................... 34
E. MODES OF LOSING & REACQUIRING CITIZENSHIP............................................................. 37
1. LOSING CITIZENSHIP ............................................................................................................ 37
2. REACQUIRING CITIZENSHIP ................................................................................................ 37
F. DUAL CITIZENSHIP AND DUAL ALLEGIANCE ....................................................................... 38
V. LEGISLATIVE DEPARTMENT ....................................................................................................... 41
A. LEGISLATIVE POWER .............................................................................................................. 41
1. SCOPE AND LIMITATIONS .................................................................................................... 41
2. PRINCIPLE OF NON-DELEGABILITY; EXCEPTIONS ........................................................... 45
B. CHAMBERS OF CONGRESS; COMPOSITION; QUALIFICATIONS....................................... 45
1. SENATE ................................................................................................................................... 45
2. HOUSE OF REPRESENTATIVES........................................................................................... 45
A. DISTRICT REPRESENTATIVES AND QUESTIONS OF APPORTIONMENT .................. 46
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B. PARTY-LIST SYSTEM......................................................................................................... 49
C. LEGISLATIVE PRIVILEGES, INHIBITIONS, AND DISQUALIFICATIONS .............................. 55
D. QUORUM AND VOTING MAJORITIES ..................................................................................... 57
E. DISCIPLINE OF MEMBERS ....................................................................................................... 59
F. PROCESS OF LAW-MAKING .................................................................................................... 60
G. ELECTORAL TRIBUNALS AND THE COMMISSION ON APPOINTMENTS .......................... 63
ELECTORAL TRIBUNALS ........................................................................................................... 63
1. NATURE ................................................................................................................................... 63
2. POWERS.................................................................................................................................. 64
COMMISSION ON APPOINTMENTS .......................................................................................... 66
1. NATURE ................................................................................................................................... 66
2. POWERS.................................................................................................................................. 66
H. POWERS OF CONGRESS ......................................................................................................... 67
1. LEGISLATIVE INQUIRIES AND OVERSIGHT FUNCTIONS ................................................. 67
2. NON-LEGISLATIVE ................................................................................................................. 71
A. INFORMING FUNCTION ..................................................................................................... 71
B. POWER OF IMPEACHMENT .............................................................................................. 71
I. INITIATIVE AND REFERENDUM ................................................................................................ 72
VI. EXECUTIVE DEPARTMENT ......................................................................................................... 74
A. QUALIFICATIONS, ELECTION, AND TERM OF PRESIDENT AND VICE-PRESIDENT ........ 74
B. PRIVILEGES, INHIBITIIONS, AND DISQUALIFICATIONS ...................................................... 75
1. PRESIDENTIAL IMMUNITY .................................................................................................... 76
2. PRESIDENTIAL PRIVILEGE ................................................................................................... 77
C. POWERS OF THE PRESIDENT................................................................................................. 79
1. GENERAL EXECUTIVE AND ADMINISTRATIVE POWERS ................................................. 79
2. POWERS OF APPOINTMENT ................................................................................................ 79
A. IN GENERAL........................................................................................................................ 79
B. LIMITATIONS ON THE EXERCISE/POWER ...................................................................... 79
C. TYPES OF APPOINTMENT ................................................................................................ 80
3. POWER OF CONTROL AND SUPERVISION......................................................................... 83
A. DOCTRINE OF QUALIFIED POLITICAL AGENCY ............................................................ 84
B. EXECUTIVE DEPARTMENTS AND OFFICES ................................................................... 84
C. LOCAL GOVERNMENT UNITS .......................................................................................... 85
4. EMERGENCY POWERS ......................................................................................................... 85
5. COMMANDER-IN-CHIEF POWERS ....................................................................................... 85
A. CALLING OUT POWERS .................................................................................................... 86
B. DECLARATION OF MARTIAL LAW AND SUSPENSION OF THE PRIVILEGE OF THE
WRIT OF HABEAS CORPUS; EXTENSION ........................................................................... 87
6. EXECUTIVE CLEMENCY ........................................................................................................ 90
A. NATURE AND LIMITATION ................................................................................................ 90
B. FORMS OF EXECUTIVE CLEMENCY ............................................................................... 90
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7. DIPLOMATIC POWER ............................................................................................................. 91

8. POWERS RELATIVE TO APPROPRIATION MEASURES .................................................... 93
9. DELEGATED POWERS........................................................................................................... 93
10. RESIDUAL POWERS ............................................................................................................ 94
11. VETO POWERS ..................................................................................................................... 94
D. RULES OF SUCCESSION ......................................................................................................... 95
VII. JUDICIAL DEPARTMENT ............................................................................................................ 99
A. CONCEPTS ................................................................................................................................. 99
1. JUDICIAL POWER ................................................................................................................... 99
2. JUDICIAL REVIEW ................................................................................................................ 100
A. REQUISITES...................................................................................................................... 100
B. OPERATIVE FACT DOCTRINE ........................................................................................ 104
C. POLITICAL QUESTION DOCTRINE ................................................................................. 104
B. JUDICIAL INDEPENDENCE AND AUTONOMY ..................................................................... 105
C. APPOINTMENTS TO THE JUDICIARY ................................................................................... 107
1. QUALIFICATIONS OF MEMBERS OF THE JUDICIARY ..................................................... 107
2. JUDICIAL AND BAR COUNCIL ............................................................................................. 108
A. COMPOSITION .................................................................................................................. 108
B. POWERS ........................................................................................................................... 109
D. THE SUPREME COURT ........................................................................................................... 110
1. COMPOSITION ...................................................................................................................... 110
2. POWERS AND FUNCTIONS ................................................................................................. 110
VIII. CONSTITUTIONAL COMMISSIONS ........................................................................................ 119
A. COMMON PROVISIONS .......................................................................................................... 119
B. INSTITUTIONAL INDEPENDENCE SAFEGUARDS ............................................................... 120
C. POWERS AND FUNCTIONS .................................................................................................... 122
D. COMPOSITION AND QUALIFICATION OF MEMBERS ......................................................... 130
F. PROHIBITED OFFICES AND INTERESTS .............................................................................. 133
IX. BILL OF RIGHTS ......................................................................................................................... 135
A. CONCEPT OF BILL OF RIGHTS ............................................................................................. 136
1. PRIVACY AND AUTONOMY ................................................................................................. 136
2. RELATION TO HUMAN RIGHTS .......................................................................................... 137
B. DUE PROCESS OF LAW ......................................................................................................... 137
1. CONCEPT OF RIGHT TO LIFE, LIBERTY, AND PROPERTY ............................................. 138
2. KINDS OF DUE PROCESS ................................................................................................... 138
A. SUBSTANTIVE DUE PROCESS ....................................................................................... 138
B. PROCEDURAL DUE PROCESS ....................................................................................... 139
C. LEVELS OF SCRUTINY ........................................................................................................... 145
1. STRICT SCRUTINY TEST ..................................................................................................... 145
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2. HEIGHTENED OR INTERMEDIATE SCRUTINY TEST ....................................................... 146

3. RATIONAL BASIS TEST........................................................................................................ 146
C. EQUAL PROTECTION OF LAWS............................................................................................ 147
1. CONCEPT AND PURPOSE .................................................................................................. 147
2. REQUISITES FOR VALID CLASSIFICATION....................................................................... 148
3. LEVELS OF SCRUTINY ........................................................................................................ 151
A. STRICT SCRUTINY TEST ................................................................................................ 151
B. INTERMEDIATE SCRUTINY TEST .................................................................................. 151
C. RATIONAL BASIS TEST ................................................................................................... 151
D. RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES ..................................... 151
1. CONCEPT OF PRIVACY ....................................................................................................... 152
2. CONCEPT OF A SEARCH .................................................................................................... 153
3. REQUISITES OF A VALID SEARCH WARRANT ................................................................. 153
A. PROBABLE CAUSE .......................................................................................................... 153
B. PERSONAL DETERMINATION BY THE JUDGE ............................................................. 154
C. PERSONAL EXAMINATION OF THE COMPLAINANT AND THE WITNESSES ............ 154
D. FACTS PERSONALLY KNOWN TO THE APPLICANT AND THE WITNESSES ............ 155
E. PARTICULARITY OF DESCRIPTION ............................................................................... 155
4. WARRANTLESS SEARCHES ............................................................................................... 158
A. WAIVER OF RIGHT ........................................................................................................... 158
B. SEARCH INCIDENTAL TO A LAWFUL ARREST ............................................................. 159
C. SEIZURE OF EVIDENCE IN PLAIN VIEW ....................................................................... 160
D. EXIGENT AND EMERGENCY CIRCUMSTANCES ......................................................... 161
E. SEARCH OF A MOVING VEHICLE .................................................................................. 162
F. STOP AND FRISK RULE (TERRY SEARCH) ................................................................... 162
G. CUSTOMS SEARCH ......................................................................................................... 163
H. AIRPORT SEARCHES ...................................................................................................... 164
I. CHECKPOINT SEARCH ..................................................................................................... 165
J. WARRANTLESS SEARCH BY A PRIVATE INDIVIDUAL ................................................. 166
5. CONCEPT OF AN ARREST .................................................................................................. 167
A. PROBABLE CAUSE .......................................................................................................... 167
B. PERSONAL DETERMINATION OF PROBABLE CAUSE ................................................ 168
C. PERSONAL EVALUATION OF THE REPORT AND THE SUPPORTING DOCUMENTS
................................................................................................................................................ 168
D. PARTICULARITY OF DESCRIPTION ............................................................................... 169
6. WARRANTLESS ARRESTS AND DETENTION ................................................................... 170
A. IN FLAGRANTE DELICTO ................................................................................................ 170
B. HOT PURSUIT ARREST ................................................................................................... 171
C. WAIVER OF RIGHT........................................................................................................... 172
7. EXCLUSIONARY RULE......................................................................................................... 173
8. EFFECTS OF UNREASONABLE SEARCHES AND SEIZURES ......................................... 174
9. EFFECTS OF ILLEGAL DETENTION ................................................................................... 174
E. PRIVACY OF COMMUNICATION AND CORRESPONDENCE .............................................. 175
1. CONCEPT OF COMMUNICATION AND CORRESPONDENCE ......................................... 175
2. INTRUSION, WHEN AND HOW ALLOWED ......................................................................... 176
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A. UPON LAWFUL ORDER OF THE COURT ....................................................................... 176

B. WHEN PUBLIC SAFETY OR ORDER REQUIRES OTHERWISE AS PRESCRIBED BY
LAW ........................................................................................................................................ 177
3. EXCLUSIONARY RULE......................................................................................................... 177
F. FREEDOM OF SPEECH AND EXPRESSION.......................................................................... 179
1. CONCEPT .............................................................................................................................. 179
A. CONTINUUM OF THOUGHT, SPEECH, EXPRESSION, AND SPEECH ACTS ............. 180
B. PURPOSES OF FREE SPEECH DOCTRINES ................................................................ 180
C. BALANCE BETWEEN UNBRIDLED EXPRESSION AND LIBERTY ................................ 181
2. TYPES OF REGULATION ..................................................................................................... 181
A. PRIOR RESTRAINT AND SUBSEQUENT PUNISHMENT .............................................. 181
B. CONTENT BASED AND CONTENT NEUTRAL ............................................................... 183
C. INCITEMENT AND ADVOCACY ....................................................................................... 184
D. SPECIFICITY OF REGULATION AND OVERBREADTH DOCTRINE ............................. 184
E. SPEECH REGULATION IN RELATION TO ELECTION ................................................... 186
F. SPEECH REGULATION IN RELATION TO MEDIA.......................................................... 189
3. JUDICIAL ANALYSIS, PRESUMPTIONS AND LEVELS AND TYPES OF SCRUTINY ....... 191
A. CLEAR AND PRESENT DANGER TEST.......................................................................... 192
B. DANGEROUS TENDENCY RULE .................................................................................... 192
C. BALANCING OF INTERESTS TEST ................................................................................ 193
4. SPECIAL TOPICS IN FREE EXPRESSION CASES ............................................................ 194
A. HATE SPEECH AND FIGHTING WORDS ........................................................................ 194
B. DEFAMATION AND LIBEL ................................................................................................ 195
C. SEDITION AND SPEECH IN RELATION TO REBELLION .............................................. 198
D. OBSCENITY/PORNOGRAPHY......................................................................................... 199
E. COMMERCIAL SPEECH ................................................................................................... 200
F. NATIONAL EMERGENCIES .............................................................................................. 200
G. SPEECH OF PUBLIC OFFICERS..................................................................................... 201
H. HECKLER’S VETO ............................................................................................................ 202
5. COGNATE RIGHTS ............................................................................................................... 202
A. FREEDOM OF ASSEMBLY AND PETITION .................................................................... 202
B. FREEDOM OF ASSOCIATION ......................................................................................... 205
C. FREEDOM OF INFORMATION......................................................................................... 207
G. FREEDOM OF RELIGION ........................................................................................................ 210
1. BASIC PRINCIPLES .............................................................................................................. 210
A. PURPOSE .......................................................................................................................... 210
B. CONCEPT OF RELIGION ................................................................................................. 210
2. PRINCIPLE OF SEPARATION OF CHURCH AND STATE .................................................. 211
3. NON-ESTABLISHMENT CLAUSE......................................................................................... 211
4. FREE EXERCISE CLAUSE ................................................................................................... 216
H. LIBERTY OF ABODE AND FREEDOM OF MOVEMENT ....................................................... 221
1. SCOPE AND LIMITATIONS .................................................................................................. 221
2. WATCH-LIST AND HOLD DEPARTURE ORDERS .............................................................. 222
I. EMINENT DOMAIN .................................................................................................................... 222
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1. CONCEPT .............................................................................................................................. 222

2. JUST COMPENSATION ........................................................................................................ 225
3. ABANDONMENT OF INTENDED USE AND RIGHT OF REPURCHASE ............................ 228
4. EXPROPRIATION BY LOCAL GOVERNMENT UNITS ........................................................ 229
J. NON-IMPAIRMENT OF CONTRACTS ..................................................................................... 231
K. ADEQUATE LEGAL ASSISTANCE AND FREE ACCESS TO COURTS .............................. 233
L. RIGHT AGAINST SELF INCRIMINATION ............................................................................... 233
1. SCOPE AND COVERAGE ..................................................................................................... 234
2. APPLICATION ........................................................................................................................ 237
3. IMMUNITY STATUTES .......................................................................................................... 237
M. RIGHTS OF PERSONS UNDER CUSTODIAL INVESTIGATION .......................................... 238
1. AVAILABILITY ........................................................................................................................ 240
2. REQUISITES .......................................................................................................................... 242
3. WAIVER ................................................................................................................................. 242
N. RIGHTS OF THE ACCUSED .................................................................................................... 244
1. CRIMINAL DUE PROCESS ................................................................................................... 244
2. BAIL ........................................................................................................................................ 245
3. PRESUMPTION OF INNOCENCE ........................................................................................ 248
4. RIGHT TO BE HEARD ........................................................................................................... 249
5. ASSISTANCE OF COUNSEL ................................................................................................ 249
6. RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF ACCUSATION ................ 249
7. RIGHT TO SPEEDY, IMPARTIAL, AND PUBLIC TRIAL ...................................................... 250
A. RIGHT TO SPEEDY TRIAL ............................................................................................... 250
B. RIGHT TO IMPARTIAL TRIAL........................................................................................... 251
C. RIGHT TO PUBLIC TRIAL ................................................................................................ 251
8. RIGHT OF CONFRONTATION.............................................................................................. 251
9. COMPULSORY PROCESS ................................................................................................... 252
10. TRIALS IN ABSENTIA ......................................................................................................... 252
O. RIGHT TO THE SPEEDY DISPOSITION OF CASES ............................................................. 253
P. RIGHT AGAINST EXCESSIVE FINES AND CRUEL, DEGRADING, AND INHUMAN
PUNISHMENTS ............................................................................................................................. 254
Q. NON-IMPRISONMENT FOR DEBTS ....................................................................................... 256
R. RIGHT AGAINST DOUBLE JEOPARDY ................................................................................. 256
1. REQUISITES TO RAISE THE DEFENSE OF DOUBLE JEOPARDY: ................................. 256
A. A FIRST JEOPARDY ATTACHED PRIOR TO THE SECOND ......................................... 256
B. THE FIRST JEOPARDY HAS BEEN VALIDLY TERMINATED ........................................ 257
C. A SECOND JEOPARDY IS FOR THE SAME OFFENSE AS IN THE FIRST .................. 258
2. LIMITATIONS ......................................................................................................................... 259
A. MOTIONS FOR RECONSIDERATION AND APPEALS ................................................... 259
B. DISMISSAL WITH CONSENT OF ACCUSED .................................................................. 260
C. CYBERCRIME PREVENTION ACT .................................................................................. 260
S. RIGHT AGAINST INVOLUNTARY SERVITUDE ..................................................................... 261
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T. EX POST FACTO LAWS AND BILLS OF ATTAINDER .......................................................... 261

1. EX POST FACTO LAW .......................................................................................................... 261
2. BILL OF ATTAINDER............................................................................................................. 262
J. PRIVILEGE OF THE WRIT OF HABEAS CORPUS ................................................................ 263
X. LAW ON PUBLIC OFFICERS ...................................................................................................... 268
A. GENERAL PRINCIPLES .......................................................................................................... 268
B. MODES OF ACQUIRING TITLE TO PUBLIC OFFICE............................................................ 270
C. MODES AND KINDS OF APPOINTMENTS ............................................................................ 273
D. ELIGIBILITY AND QUALIFICATION REQUIREMENTS ......................................................... 275
E. DISABILITIES AND INHIBITIONS OF PUBLIC OFFICERS ................................................... 278
F. POWERS AND DUTIES OF PUBLIC OFFICERS .................................................................... 283
G. RIGHTS OF PUBLIC OFFICERS ............................................................................................. 285
H. LIABILITIES OF PUBLIC OFFICERS ...................................................................................... 287
1. PREVENTIVE SUSPENSION AND BACK SALARIES ......................................................... 288
2. ILLEGAL DISMISSAL, REINSTATEMENT AND BACK SALARIES ..................................... 290
I. IMMUNITY OF PUBLIC OFFICERS........................................................................................... 291
J. DE FACTO V DE JURE OFFICERS ......................................................................................... 292
K. TERMINATION OF OFFICIAL RELATIONS ............................................................................ 294
L. THE CIVIL SERVICE ................................................................................................................. 299
1. SCOPE ................................................................................................................................... 299
2. APPOINTMENTS TO THE CIVIL SERVICE.......................................................................... 299
3. PERSONNEL ACTIONS ........................................................................................................ 301
M. ACCOUNTABILITY OF PUBLIC OFFICERS .......................................................................... 303
1. TYPES OF ACCOUNTABILITY ............................................................................................. 303
A. ADMINISTRATIVE LIABILITY ........................................................................................... 303
B. CRIMINAL ACCOUNTABILITY.......................................................................................... 305
2. THE OMBUDSMAN AND THE OFFICE OF THE SPECIAL PROSECUTOR ..................... 307
3. THE SANDIGANBAYAN ....................................................................................................... 315
N. TERM LIMITS ........................................................................................................................... 318
XI. ADMINISTRATIVE LAW .............................................................................................................. 323
B. ADMINISTRATIVE AGENCIES ................................................................................................ 324
C. POWERS OF ADMINISTRATIVE AGENCIES ......................................................................... 327
1. QUASI-LEGISLATIVE OR RULE-MAKING POWER ............................................................ 330
A. KINDS OF ADMINISTRATIVE RULES AND REGULATIONS .......................................... 333
B. REQUISITES OF A VALID ADMINISTRATIVE ISSUANCE, RULE, OR REGULATION . 334
2.QUASI-JUDICIAL OR ADJUDICATORY POWER ................................................................. 336
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A. ADMINISTRATIVE DUE PROCESS: (HIP DESK) ............................................................ 339

B. ADMINISTRATIVE APPEAL AND REVIEW APPEAL....................................................... 343
C. ADMINISTRATIVE RES JUDICATA ................................................................................. 344
D. JUDICIAL REVIEW OF ADMINISTRATIVE DECISIONS ........................................................ 345
1. DOCTRINE OF PRIMARY (ADMINISTRATIVE) JURISDICTION......................................... 346
2. DOCTRINE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES .................................... 347
3. DOCTRINE OF FINALITY OF (ADMINISTRATIVE) ACTION ............................................... 350
XII. ELECTION LAW ......................................................................................................................... 355
A. GENERAL PRINCIPLES ON SUFFRAGE ............................................................................... 355
B. COMMISSION ON ELECTIONS (COMELEC) ......................................................................... 357
C. VOTERS AND VOTING ............................................................................................................ 361
1. QUALIFICATION AND DISQUALIFICATION OF VOTERS .................................................. 361
2. REGISTRATION AND DEACTIVATION OF VOTERS .......................................................... 362
3. INCLUSION AND EXCLUSION PROCEEDINGS ................................................................. 365
4. OVERSEAS AND LOCAL ABSENTEE VOTING ................................................................... 365
D. CANDIDATES ........................................................................................................................... 368
1. DEFINITION ........................................................................................................................... 368
2. QUALIFICATIONS OF CANDIDATES ................................................................................... 369
3. FILING OF CERTIFICATES OF CANDIDACY (COC)........................................................... 371
E. CAMPAIGN ............................................................................................................................... 387
1. ELECTION CAMPAIGN OR PARTISAN POLITICAL ACTIVITY .......................................... 387
2. ELECTION CAMPAIGN ACTS .............................................................................................. 388
3. ELECTION PROPAGANDA ................................................................................................... 388
4. CONTRIBUTIONS AND EXPENDITURES............................................................................ 392
F. ELECTION CONTROVERSIES AND REMEDIES ................................................................... 396
1. CONTROVERSIES AND REMEDIES BEFORE PROCLAMATION .................................... 396
A. POSTPONEMENT OF ELECTION .................................................................................... 396
B. FAILURE OF ELECTION ................................................................................................... 396
C. DISQUALIFICATION PETITIONS ..................................................................................... 397
D. PRE-PROCLAMATION CONTROVERSIES ..................................................................... 402
E. BOARD OF ELECTION INSPECTORS AND BOARD OF CANVASSERS ...................... 406
2. CONTROVERSIES AND REMEDIES AFTER PROCLAMATION (ELECTION CONTESTS)
.................................................................................................................................................... 408
A. ELECTION PROTESTS ..................................................................................................... 409
B. QUO WARRANTO ............................................................................................................. 411
G. ELECTION OFFENSES ............................................................................................................ 412
XIII. PUBLIC CORPORATIONS AND LOCAL GOVERNMENT ...................................................... 415
1. CORPORATION AND CLASSES OF CORPORATION ........................................................ 415
2. GOVERNMENT OWNED OR CONTROLLED CORPORATIONS (GOCC) ......................... 416
3. MUNICIPAL CORPORATIONS ............................................................................................. 419
viii
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B. PRINCIPLES OF LOCAL AUTONOMY ................................................................................... 421

C. TERRITORIAL AND POLITICAL SUBDIVISIONS .................................................................. 428
1. PROVINCE, CITY, MUNICIPALITY, BARANGAY, SPECIAL METROPOLITAN POLITICAL
SUBDIVISION ............................................................................................................................ 428
2. SETTLEMENT OF BOUNDARY DISPUTES ......................................................................... 434
D. POWERS OF LOCAL GOVERNMENT UNITS ........................................................................ 434
1. POLICE POWER (GENERAL WELFARE CLAUSE)............................................................. 435
A. LOCAL LEGISLATIVE POWER......................................................................................... 438
2. POWER OF EMINENT DOMAIN (EXPROPRIATION).......................................................... 442
3. POWER OF TAXATION (POWER TO GENERATE AND APPLY RESOURCES) .............. 446
4. CORPORATE POWERS AND OTHER POWERS ................................................................ 456
A. MUNICIPAL LIABILITY ...................................................................................................... 457
B. RECLASSIFICATION OF LANDS ..................................................................................... 461
C. CLOSURE AND OPENING OF ROADS ........................................................................... 462
E. LOCAL ELECTIVE OFFICIALS................................................................................................ 463
1. QUALIFICATIONS ................................................................................................................. 463
2. DISQUALIFICATIONS ........................................................................................................... 464
3. DISCIPLINE............................................................................................................................ 464
4. RECALL.................................................................................................................................. 469
5. VACANCIES AND SUCCESSION ......................................................................................... 471
6. TERM LIMITS ......................................................................................................................... 473
XIV. NATIONAL ECONOMY AND PATRIMONY ............................................................................. 477
A. EXPLORATION, DEVELOPMENT, AND UTILIZATION OF NATURAL RESOURCES ........ 481
B. FRANCHISES, AUTHORITIES, AND CERTIFICATES FOR PUBLIC UTILITY ..................... 482
C. ACQUISITION, OWNERSHIP, AND TRANSFER OF PUBLIC AND PRIVATE LANDS ........ 484
D. PRACTICE OF PROFESSIONS ............................................................................................... 486
E. ORGANIZATIONS AND REGULATION OF PRIVATE AND PUBLIC CORPORATIONS ..... 486
F. MONOPOLIES, RETRAINT OF TRADE, AND UNFAIR COMPETITION ................................ 486
XV. SOCIAL JUSTICE AND HUMAN RIGHTS ................................................................................ 488
A. CONCEPT OF SOCIAL JUSTICE ............................................................................................ 488
B. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS .................................................................. 489
1. LABOR ................................................................................................................................... 489
2. AGRARIAN AND NATURAL RESOURCES REFORM ......................................................... 490
A. COMPREHENSIVE AGRARIAN REFORM LAW .............................................................. 491
B. OTHER PROVISIONS ....................................................................................................... 492
3. URBAN LAND REFORM AND HOUSING ............................................................................. 493
4. HEALTH ................................................................................................................................. 493
5. WOMEN ................................................................................................................................. 493
6. PEOPLE’S ORGANIZATION ................................................................................................. 494
C. COMMISSION ON HUMAN RIGHTS ....................................................................................... 494
ix
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1. POWERS................................................................................................................................ 494
2. COMPOSITION AND QUALIFICATION OF MEMBERS ....................................................... 494
XVI. EDUCATION, SCIENCE, TECHNOLOGY, ARTS, CULTURE AND SPORTS ........................ 496
A. ACADEMIC FREEDOM ............................................................................................................ 499
XVII. PUBLIC INTERNATIONAL LAW ............................................................................................. 504
A. CONCEPTS ............................................................................................................................... 505
B. RELATIONSHIP BETWEEN INTERNATIONAL AND PHILIPPINES DOMESTIC LAW ........ 507
C. SOURCES OF OBLIGATIONS INTERNATIONAL LAW ........................................................ 510
1. ARTICLE 38. INTERNATIONAL COURT OF JUSTICE STATUTE ..................................... 510
2. EFFECT OF UNITED NATIONS DECLARATIONS, SECURITY COUNCIL RESOLUTIONS,
GENERAL ASSEMBLY RESOLUTIONS ................................................................................... 515
3. EFFECT OF ACTIONS OF ORGANS OF INTERNATIONAL ORGANIZATIONS CREATED
BY TREATY ................................................................................................................................ 515
D. SUBJECTS OF INTERNATIONAL LAW ................................................................................. 515
1. STATES.................................................................................................................................. 516
2. INTERNATIONAL ORGANIZATIONS ................................................................................... 519
3. INDIVIDUALS ......................................................................................................................... 520
4. OTHERS................................................................................................................................. 520
E. JURISDICTION OF STATES .................................................................................................... 522
1. BASIS OF JURISDICTION..................................................................................................... 522
A. WHAT IS TERRITORIALITY PRINCIPLE? ....................................................................... 522
B. WHAT IS NATIONALITY PRINCIPLE? ............................................................................. 523
C. WHAT IS THE PROTECTIVE PRINCIPLE? ..................................................................... 523
D. WHAT IS THE UNIVERSALITY PRINCIPLE? .................................................................. 523
E. WHAT IS THE PASSIVE PERSONALITY PRINCIPLE? .................................................. 523
2. EXEMPTION FROM JURISDICTION .................................................................................... 524
A. WHAT IS THE ACT OF STATE DOCTRINE? ................................................................... 524
B. WHAT ARE THE IMMUNITIES OF INTERNATIONAL ORGANIZATIONS AND ITS
OFFICERS?............................................................................................................................ 524
F. DIPLOMATIC AND CONSULAR LAW ..................................................................................... 526
G. NATIONALITY AND STATELESSNESS NATIONALITY ....................................................... 528
H. GENERAL PRINCIPLES OF TREATY LAW ........................................................................... 530
I. DOCTRINE OF STATE RESPONSIBILITY ............................................................................... 535
ELEMENTS ................................................................................................................................ 535
THERE IS AN INTERNATIONALLY WRONGFUL ACT OF A STATE WHEN CONDUCT
CONSISTING OF AN ACTION OR OMISSION:........................................................................ 535
A. IS ATTRIBUTABLE TO THE STATE UNDER INTERNATIONAL LAW; AND ................... 535
B. CONSTITUTES A BREACH OF AN INTERNATIONAL OBLIGATION OF THE STATE.
(ASR, ART. 2)............................................................................................................................. 535
J. REFUGEES................................................................................................................................ 540
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K. TREATMENT OF ALIENS ........................................................................................................ 542

1. EXTRADITION ....................................................................................................................... 542
A. FUNDAMENTAL PRINCIPLES.......................................................................................... 542
B. NOTICE AND HEARING ................................................................................................... 543
C. DISTINGUISHED FROM DEPORTATION ........................................................................ 544
2. EXPROPRIATION .................................................................................................................. 544
L. INTERNATIONAL HUMAN RIGHTS LAW ............................................................................... 545
1. UNIVERSAL DECLARATION OF HUMAN RIGHTS (“UDHR”)............................................. 545
2. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS (ICCPR) ................... 546
3. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL, AND CULTURAL RIGHTS
(ICESCR) .................................................................................................................................... 548
M. INTERNATIONAL HUMANITARIAN LAW .............................................................................. 548
1. CATEGORIES OF ARMED CONFLICT ................................................................................ 550
TYPES OF ARMED CONFLICT............................................................................................. 550
A. INTERNATIONAL ARMED CONFLICTS (IAC) ................................................................. 550
B. INTERNAL OR NON-INTERNATIONAL ARMED CONFLICT (NIAC) .............................. 551
C. WARS OF NATIONAL LIBERATION ................................................................................ 552
2. CORE INTERNATIONAL OBLIGATIONS OF STATES IN INTERNATIONAL
HUMANITARIAN LAW ............................................................................................................... 552
3. PRINCIPLES ON INTERNATIONAL HUMANITARIAN LAW ................................................ 553
4. LAW ON NEUTRALITY .......................................................................................................... 557
N. LAW OF THE SEA .................................................................................................................... 558
1. BASELINES............................................................................................................................ 558
2. ARCHIPELAGIC STATES ..................................................................................................... 559
A. STRAIGHT ARCHIPELAGIC BASELINES ........................................................................ 559
B. ARCHIPELAGIC WATERS ................................................................................................ 559
C. ARCHIPELAGIC SEA LANES PASSAGE......................................................................... 559
D. REGIME OF ISLANDS ...................................................................................................... 561
3. INTERNAL WATERS ............................................................................................................. 561
4. TERRITORIAL SEA ............................................................................................................... 562
5. CONTIGUOUS ZONE ............................................................................................................ 562
6. EXCLUSIVE ECONOMIC ZONE ........................................................................................... 562
7. CONTINENTAL SHELF ......................................................................................................... 563
8. INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA ............................................... 565
O. INTERNATIONAL ENVIRONMENTAL LAW ........................................................................... 566
xi
THE 1987
CONSTITUTION
Political Law
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I. THE 1987 CONSTITUTION A. NATURE AND CONCEPT OF A

CONSTITUTION
TOPIC OUTLINE UNDER THE SYLLABUS:
Political Law
I. THE 1987 CONSTITUTION Political law – branch of public law which deals with
the organization and operations of the
A. NATURE AND CONCEPT OF A governmental organs of the State and defines the
CONSTITUTION relations of the State with the inhabitants of its
territory. (People v. Perfecto, G.R. No. L-18463,
B. PARTS OF A CONSTITUTION Oct. 4, 1922)
C. AMENDMENTS AND REVISIONS Subjects covered by Philippine Political Law

1. Constitutional Law - guaranties of the
D. METHODS OF INTERPRETING THE constitution to individual rights and the
CONSTITUTION limitations on governmental action
2. Administrative Law - exercise of
executive power in the making of rules and
the decision of questions affecting private
rights
3. Election Law - the study of the laws, rules,
and procedures involving the conduct of
the election of all public officials who will
exercise the powers of government as
allocated to and within their functions and
responsibilities
4. Law of Public Corporations -
governmental agencies for local
government or for other special purposes
5. Law of Public Officers - study of the
creation, modification, and dissolution of
public office as well as the eligibility of
public officers, the manner of their election
or appointment and assumption of office,
their rights, duties, powers, inhibitions and
liabilities, and the modes of terminating
official relations.
Constitutional Law
Designates the law embodied in the Constitution
and the legal principles growing out of the
interpretation and application of its provisions by
the courts in specific cases. It is the study of the
maintenance of the proper balance between the
authority as represented by the three inherent
powers of the State and liberty as guaranteed by
the Bill of Rights.
Page 2 of 568
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Definition of Constitution
1. A written instrument enacted by direct 2. Enacted (Conventional) and Evolved
action of the people by which the (Cumulative)
fundamental powers of government are a. A conventional constitution is
established, limited, and defined, and by enacted formally at a definite time
which these powers are distributed among and place following a conscious or
several departments, for their more safe deliberate effort taken by a
and useful exercise, for the benefit of the constituent body or ruler.
body politic (Bernas, 1987 Philippine b. A cumulative body is the result of
Constitution, 2009). political evolution, not inaugurated
2. The written instrument agreed upon by the at any specific time but changing
people … as the absolute rule of action by accretion rather than by any
and decision for all departments and systematic method. (Cruz, id., at
officers of the government … and in 5)
opposition to which any act or rule of any
department or officer of the government, or 3. Rigid and Flexible
even of the people themselves, will be a. A constitution is classified as rigid
altogether void (Cooley, III Constitutional when it may not be amended
Limitations, 1868). except through a special process
3. The Constitution both creates the distinct from and more involved
structures of government and limits their than the method of changing
powers. ordinary laws. It is supposed that
4. It is the document which serves as the by such a special procedure, the
fundamental law of the state; that written constitution is rendered difficult to
instrument enacted by the direct action of change and thereby acquires a
the people by which the fundamental greater degree of stability.
powers of the government are established, b. A constitution is classified as
limited and defined, and by which those flexible when it may be changed
powers are distributed among the several in the same manner and through
departments for their safe and useful the same body that enacts
exercise, for the benefit of the body politic. ordinary legislation. The
(Malcolm, Phil. Constitutional Law) Constitution of the UK is flexible.
Classes of Constitution Note: The Philippine Constitution is written,

1. Written and Unwritten conventional and rigid.
a. A written constitution’s precepts
are embodied in one document or Philippine Constitution and Effectivity Dates
set of documents. 1. 1935 Constitution: May 14, 1935
b. An unwritten constitution consists 2. 1973 Constitution: Jan. 17, 1973
of rules which have not been 3. 1986 Freedom Constitution: Mar. 25, 1986
integrated into a single, concrete 4. 1987 Constitution: Feb. 2, 1987
form but are scattered in various
sources, such as statutes of B. PARTS OF A CONSTITUTION
fundamental character, judicial
Essential Parts of a Written Constitution
decisions, commentaries of
1. Constitution of Liberty – sets forth the
publicists, customs and traditions.
fundamental civil and political rights of
(Cruz, Constitutional Law 4-5;
citizens, and imposing limitations on the
Nachura, Outline Reviewer in
powers of government as a means of
Political Law 2)
Page 3 of 568
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securing the enjoyment of those rights. Constitutional Rights and Social Demands,
(PHIL. CONST., art. III.) 1, 2010).
2. Constitution of Government – outlines
the organization of government, Exceptions to the Exceptions:
enumerating its powers, laying down rules 1. Article II, Sec. 16 - The right to a balanced
regarding its administration, and defining and healthful ecology is self-executory and
the electorate. (PHIL. CONST., art. VI-IX.) does not need an implementing legislation
3. Constitution of Sovereignty – the mode (Oposa v. Factoran, G.R. No. 101083, July
or procedure with which formal changes in 30, 1993).
the fundamental law may be made. (PHIL. 2. Article II, Sec. 28 – The duty of full public
CONST., art. XVII.) disclosure is self-executory (Province of
North Cotabato v. GRP, G.R. No. 183591,
Preamble Oct. 14, 2008).
An introduction that identifies: 3. Article II, Sec. 15 - The right to health is
● the authors of the Constitution (i.e. also self-executing (Imbong v. Ochoa,
sovereign Filipino people) G.R. No. 204819, Apr. 8, 2014).
● their intentions, and
● its purpose(s) of the document. NOTE: Whether or not a provision is self-executing
depends on the language of the provision. Most of
Self-Executing and Non-Self Executing the provisions in Article II are couched in non-self-
Provisions executing language.
1. Self-Executing - provisions which are
complete in itself and become operative C. AMENDMENTS AND REVISIONS (PHIL
without the aid of supplementary or CONST., ART. XVII.)
enabling legislation, or that which supplies
Amendment
a sufficient rule by means of which the right
it grants may be enjoyed or protected. • An alteration of one or a few specific
(Manila Prince Hotel v GSIS, G.R. No. separable provisions of the Constitution.
122156, Feb. 3, 1997) The changes brought about by
2. Non-Self-Executing - provisions which amendments will not affect the other
lay down a general principle provisions of the Constitution (Bernas,
1987 Philippine Constitution: A
General Rule: The provisions of the Constitution Commentary, 1345, 2009).
are considered self-executing, and do not require • An addition or change within the lines of
future legislation for their enforcement. the original constitution as will effect an
improvement, or better carry out the
Exceptions: purpose for which it was framed; a change
1. The principles found in Article II are not that adds, reduces or deletes without
intended to be self-executing principles altering the basic principles involved;
ready for enforcement through the courts. affects only the specific provision being
They are used by the judiciary as aids or amended. (Lambino v. COMELEC, G.R.
as guides in the exercise of its power of No. 174153, Oct. 25, 2006)
judicial review, and by the legislature in its
enactment of laws (Tondo Medical v. Court Examples:
of Appeals, G.R. No. 167324, July 17, • a change reducing the voting age from 18
2007). years to 15 years;
2. The social and economic rights • a change reducing Filipino ownership of
guaranteed in Article XIII are also non-self- mass media companies from 100% to
executing provisions. (Bernas, 60%; a change requiring a college degree
Page 4 of 568
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as an additional qualification for election to revision” (Lambino v. COMELEC, G.R. No.

the Presidency (Lambino v. COMELEC, 174153, Oct. 25, 2006).
G.R. No. 174153, Oct. 25, 2006).
Necessary Steps to Give Effect to Amendments
Revision or Revisions (PSR)
• A re-examination of the entire 1. Proposal of amendments or revisions by
Constitution or of provisions which have the proper constituent assembly
over-all implications for the entire 2. Submission of the proposed amendments
Constitution to determine how and to what or revisions to the people
extent it should be altered. A revision 3. Ratification
implies substantive change, affecting the
Constitution as a whole (Bernas, 1987 Ways of Proposing Amendments (CCP)
Philippine Constitution: A Commentary,
1345, 2009). 1. Constituent Assembly (ConAss)
• A change that alters a basic principle in the • Acting as a Constituent Assembly, the
constitution, like altering the principle of Congress by itself may propose
separation of powers or the system of amendments by 3/4 vote of all its
checks-and-balances; alters the members.
substantial entirety of the constitution, as
when the change affects substantial Notes:
provisions of the constitution. • The power of Congress to propose
amendments is NOT part of its ordinary
Examples: legislative power. Congress possesses
• altering the principle of separation of constituent power only because it has
powers or the system of checks-and- been specifically given that power by and
balances; under the conditions of Article XVII
• a switch from the presidential system to a (Bernas, The 1987 Philippine Constitution:
parliamentary system; A Comprehensive Reviewer, 544, 2011,
• a switch from a bicameral system to a citing Gonzales v. COMELEC, G.R. No. L-
unicameral system (Lambino v. 28196, Nov. 9, 1967).
COMELEC, G.R. No. 174153, Oct. 25, • Each House may separately formulate
2006). amendments by a vote of 3/4 of all its
members, and then pass it on to the other
Two-part test in determining whether a house for similar process. Nothing is said
proposal involves an amendment or revision. about joint sessions (Bernas, The 1987
1. Quantitative test — The court examines Philippine Constitution: A Comprehensive
only the number of provisions affected and Reviewer, 544, 2011).
does not consider the degree of the • Even in a joint session, they must still vote
change. Whether the proposed change is separately because Congress is
so extensive in its provision as to change bicameral.
directly the “substance entirety” of the
Constitution by the deletion or alteration of 2. Constitutional Convention (ConCon)
numerous provisions. • Congress may call a ConCon by a 2/3 vote
2. Qualitative test — Inquires into the of all its members, or
qualitative effects of the proposed change • By a majority vote of all its members,
in the Constitution. The main inquiry is Congress may submit to the electorate the
whether the change will “accomplish such question of calling a ConCon.
far-reaching changes in the nature of our
basic governmental plan as to amount to a Notes:
Page 5 of 568
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• The choice of either a ConAss or ConCon accordance with the Constitution, for
for the purpose of initiating amendments or example:
revisions is left to the discretion of o Whether a proposal was approved
Congress. In other words, it is a political by the required number of votes in
question. Congress (acting as a constituent
• The manner of calling a ConCon is subject assembly).
to judicial review, because the Constitution o Whether the approved proposals
has provided for voting requirements. were properly submitted to the
• If Congress, acting as a ConAss, calls for people for ratification.
a ConCon but does not provide the details
for the calling of such ConCon, Congress Notes:
— exercising its ordinary legislative power • The electorate can propose through
— may supply such details. But in so initiative ONLY amendments, since it
doing, Congress (as legislature) should not would be practically impossible to have an
transgress the resolution of Congress over-all review of the Constitution through
acting as a constituent assembly (Bernas, action by the entire electoral population.
The 1987 Philippine Constitution: A • No amendment through a People’s
Comprehensive Reviewer, 544-545, Initiative shall be authorized within 5 years
2011). following the ratification of the 1987
• Congress, as a ConAss and the ConCon, Constitution (Feb. 2, 1987) nor more often
has no power to appropriate money for than once every 5 years. Congress shall
their expenses. Money may be spent from provide for the implementation of the
the treasury only pursuant to an exercise of this right. (Art. XVII, Sec.2)
appropriation made by law. However, the • Revision of the Constitution cannot be
constitutional convention is free to dispose effected through initiative and referendum.
the funds appropriated by Congress for the Formulation of provisions revising the
Convention’s operation (Bernas, The 1987 Constitution requires both cooperation and
Philippine Constitution: A Comprehensive debate which can only be done through a
Reviewer, 545, 2011). collegial body. (BERNAS)
3. People’s Initiative Ways of Proposing Revisions

1. By Congress, upon a vote of 3/4 of its
For a valid People’s Initiative, there must be: members
1. Petition to propose such amendments 2. By a Constitutional Convention
must be signed by at least 12% of all
registered voters.
2. Every legislative district must be Doctrine of Proper Submission
represented by at least 3% of the A plebiscite may be held on the same day as a
registered voters therein. regular election (Gonzales v. COMELEC, G.R. No.
L-28196, Nov. 9, 1967). The entire Constitution
• While the substance of the proposals must be submitted for ratification at one plebiscite
made by each type of ConAss is not only. The people must have a proper “frame of
subject to judicial review, the manner the reference”. (Tolentino v. COMELEC, G.R. No. L-
proposals were made is subject to judicial 34150, Oct. 16, 1971). No “piecemeal submission,”
review. e.g. submission of age amendment ahead of other
• Since a ConAss owes their existence to proposed amendments. (Lambino v. COMELEC,
the Constitution, the courts may determine G.R. No.174153, Oct. 25, 2006)
whether the assembly has acted in
Page 6 of 568
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N.B. The process of revision is the same in all

respects except that it cannot be proposed via a The determination of the conditions under which
People’s Initiative. [Id.] proposed amendments/revisions are submitted to
the people falls within the legislative sphere. That
Judicial Review of Amendments Congress could have done better does not make
The validity of the process of amendment is not a the steps taken invalid.
political question because the Court must review if
constitutional processes were followed. [Id.] All the proposed amendments or revisions made by
the constituent assemblies must be submitted for
Ratification of Proposal if made through ratification in one single plebiscite. There cannot
ConAss or ConCon be a piece-meal ratification of
• Amendments and revisions are valid when amendments/revisions.
ratified by a majority of votes cast in a
plebiscite. All the amendments to be proposed by the same
• Plebiscite is held not earlier than 60 days Convention must be submitted to the people in a
nor later than 90 days from the approval of single "election" or plebiscite (Tolentino v.
such amendments or revisions. COMELEC, G.R. No. L-34150, Oct. 16, 1971).
Ratification of Proposal if made through Presidential proclamation is NOT required for

People’s Initiative effectivity of amendments/revisions.
• Valid when ratified by a majority of votes • Exception: When the proposed
cast in a plebiscite. amendments or revisions so provide
• Plebiscite is held not earlier than 60 days (Bernas, The 1987 Philippine Constitution:
nor later than 90 days after the certification A Comprehensive Reviewer, 550, 2011).
by COMELEC of the petition's sufficiency.
Date of Effectivity of an Amendment or
Requisites for Valid Ratification: (PCR) Revision
1. Held in a Plebiscite conducted under the Since Section 4 of Article XVII, says that any
election law. amendment or revision ‘shall be valid when
2. Supervised by the COMELEC. ratified’, the date of effectivity of any amendment or
3. Where only franchised (Registered) voters revision should be the same as that of the date of
take part. ratification, that is, the day on which the votes are
cast. However, the amendments themselves might
The Constitution does not require that specify otherwise. (BERNAS)
amendments and revisions be submitted to the
people in a special election. Thus, they may be
submitted for ratification simultaneously with a
general election.
Page 7 of 568
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Amendments v. Revisions
AMENDMENTS REVISIONS
Change in the Constitution
Purpose is to improve specific parts Purpose is to examine entirety
Affects only the specific provision amended Affects several provisions
Adds, reduces, deletes without altering basic Affects basic principles
principle Affects substantial entirety
E.g. lowering the voting age E.g. shift from presidential to parliamentary system
CAN BE DONE BY: HOW RATIFICATION

Amendments 1. Congress By a vote of 3/4 of all its members
(Constituent
Assembly/ConAss)
2. Constitutional By a vote of 2/3 of all the members
Convention (ConCon) of Congress; or
By a majority vote of all its

members, Congress may submit to
the electorate the question of
calling a ConCon
3. People’s Initiative Petition must be signed by at least
12% of all registered voters; and Through a plebiscite,
60-90 days after
Every legislative district must be submission of the
represented by at least 3% of the amendments
registered voters therein.
Revisions 1. Congress By a vote of 3/4 of all its members
(Constituent
Assembly/ConAss)
2. Constitutional By a vote of 2/3 of all the members
Convention (ConCon) of Congress; or
By a majority vote of all its

members, Congress may submit to
the electorate the question of
calling a ConCon
D. METHODS OF INTERPRETING THE should be interpreted in accordance with

CONSTITUTION the intent of the framers;
3. Ut magis valeat quam pereat – the
Basic Principles of Constitutional Construction Constitution should be interpreted as a
1. Verba legis – whenever possible, the whole (Francisco v. House of
words used in the Constitution must be Representatives, G.R. No. 160261, Nov.
given their ordinary meaning except where 10, 2003)
technical terms are employed; Ordinary Meaning
2. Ratio legis est anima – where there is To the extent possible, words must be given their
ambiguity, the words of the Constitution ordinary meaning; this is consistent with the basic
Page 8 of 568
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precept of verba legis. The Constitution is truly a The Philippine Flag (§ 1.)
public document in that it was ratified and approved • Red, white, and blue with a sun and 3 stars
by a direct act of the People exercising their right • The design may be changed only by
of suffrage, they approved of it through a plebiscite. constitutional amendment.
The preeminent consideration in reading the
Constitution, therefore, is the People's Congress may, by law, adopt a new: (§ 2.)
consciousness: that is, popular, rather than • Name for the country
technical-legal, understanding. (LEONEN - David • National anthem
v. SET, G.R. No. 221538, Sept. 20, 2016) • National seal
Ascertainment of Intent The law takes effect upon ratification by the people
One fundamental principle of constitutional in a national referendum.
construction is that the intent of the framers of the
organic law and of the people adopting it should be The Armed Forces of the Philippines (§ 4 & 5.)
given effect. The primary task in constitutional • Military men cannot engage, directly or
construction is to ascertain and thereafter assure indirectly, in any partisan political activity,
the realization of the purpose of the framers and of except to vote.
the people in the adoption of the Constitution, it • Members of the AFP in active service
may also be safely assumed that the people in cannot be appointed to a civilian position in
ratifying the Constitution were guided mainly by the the government, including GOCCs or their
explanation offered by the framers. (Nitafan v. CIR, subsidiaries.
G.R. No. 78780, July 23, 1987)
The Police Force (§ 6.)
In case of doubt, the provisions should be The State shall establish and maintain one police
considered: force, national in scope and civilian in character.
1. self-executing (Manila Prince Hotel v The national police is now governed by R.A. No.
GSIS, G.R. No. 122156, Feb. 3, 1997); 6975 which took effect on January 1, 1991.
2. mandatory rather than directory (Tanada v
Cuenco, G.R. No. L-10250, Feb. 28, 1957) Consumer Protection (§ 9.)
and The State shall protect consumers from trade
3. prospective rather than retroactive (Peralta malpractices and from substandard or hazardous
v Director of Prisons, G.R. No. L-49, Nov. products. The protection is intended, not only
12, 1945) against traders, but also to manufacturers who
dump defective products in the market.
Doctrine of Constitutional Supremacy
If a law or a contract violates any norm of the Mass Media and Advertising (§ 11.)
Constitution, that law or contract, whether The ownership and management of mass media
promulgated by the legislative or executive branch shall be limited to citizens of the Philippines, or to
of the government or entered into by private corporations, cooperatives or associations, wholly-
persons for private purposes, is null and void, and owned and managed by citizens.
without any force and effect. Since the Constitution
is the fundamental and supreme law of the land, it Only Filipino citizens or corporations or
is deemed written in every statute and every associations at least 70% of the capital of which is
contract. (NACHURA) owned by Filipino citizens shall be allowed to
engage in the advertising industry.
GENERAL PROVISIONS GOVERNMENT

(PHIL CONST., art. XVI.)
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GOVERNMENT who rise in Insurrection against the parent

An element of a state; that institution through which state.
the State exercises power; the aggregate of • Government established and maintained
institutions by which an independent society makes by military forces which invade or occupy a
and carries out rules of action which are necessary territory of the enemy in the course of war;
to enable men and women to live in a social state, a government of Paramount force.
or which are imposed upon the people forming that
society by those who possess the power or Common Forms of Democratic Government
authority of prescribing them. (Bacani v. NACOCO,
G.R. L- 9657, Nov. 29, 1956) Presidential
• Government is characterized by a
ADMINISTRATION separation of powers among the
Set of people currently running the government Legislative, Executive, and Judiciary.
institution. • This system embodies “interdependence
by separation and coordination.”
Unitary v. Federal Form of Government • The head of State is the President, who
UNITARY FEDERAL likewise presides over the Executive
Powers are The central authority Department.
concentrated in one and constituent
central authority and political units divide Parliamentary
some of which are and share the power, • Government characterized by
merely delegated to where the central “interdependence by integration.” Here,
other units (e.g. government is focused the ministers of the executive branch get
delegated legislative on more specific their democratic legitimacy from the
power to LGUs) functions such as legislature and are accountable to that
national defense and body, such that the executive and
foreign policy. The legislative branches are intertwined.
constituent units are
given more powers to Essential Features of a Parliamentary System
develop their of Government (SCRePS)
territories without • Members of government, or the cabinet, or
much intervention by the executive are as a rule, simultaneously
the central members of the legislature.
government • The government or cabinet is in effect a
committee of the legislature.
Classification According to Legitimacy of • Both government and legislature possess
Government control devices with which each can
• De Jure – Legitimate; possessing all the demand of the other immediate political
legal requisites of government. responsibility.
• De facto – Lacking one or more of the • The government or cabinet has a
legal requisites of government. pyramidal structure at the apex of which is
the Prime Minister or his equivalent.
Types Of De Facto Governments: (VIP) • Government or cabinet stays in power only
• Government that usurps government and so long as it enjoys the support of the
maintains itself against the will of the majority of the legislature.
majority by force or by Violence.
• Government established as an
independent government by inhabitants
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LEGISLATURE – power to exercise a “vote of no unrealistic, not to say obsolete. The areas which
confidence” (censure) whereby government may used to be left to private enterprise and initiative
be ousted. and which the government was called upon to enter
optionally, and only "because it was better
EXECUTIVE – power to dissolve the legislature equipped to administer for the public welfare than
and call for new elections. is any private individual or group of individuals,"
continue to lose their well-defined boundaries and
Traditional Classification of Government to be absorbed within activities that the government
Functions must undertake in its sovereign capacity if it is to
1. Constituent — Compulsory functions which meet the increasing social challenges of the times.
constitute the very bonds of society. (ACCFA v. CUGCO, G.R. No. L-21484, Nov. 29,
1969)
Examples: ————- end of topic ————-
• Keeping order and providing protection to
persons and property
• Fixing of legal relations between husband
and wife, parents and children
• Regulation of the holding, transmission,
interchange of property; determination of
liabilities for debt or crime Determination of
contract rights between individuals
Definition and punishment of crime
• Administration of justice in civil cases
• Determination of political duties, privileges,
and relations of citizens
• Dealings of the State with foreign powers:
preservation of the State from external
danger or encroachment and
advancement of international interest
2. Ministrant — Discretionary or optional functions

intended to achieve a better life for the community.
Principles to Determine Whether or Not

Government Should Exercise Ministrant
Functions:
• Government should do for the public
welfare those things which private capital
would not naturally undertake.
• Government should do those things which
by its nature it is better equipped to
administer for the public welfare than is
any private individual or group of
individuals.
The growing complexities of modern society,

however, have rendered this traditional
classification of the functions of government quite
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BASIC CONCEPTS
Political Law
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II. BASIC CONCEPTS A. DECLARATION OF PRINCIPLES AND

STATE POLICIES
Principles
II. BASIC CONCEPTS Binding rules which must be observed in the
conduct of government
A. DECLARATION OF PRINCIPLES AND
STATE POLICIES Policies
Guidelines for the orientation of the state
B. SOVEREIGNTY
Generally Accepted Principles of International
C. STATE IMMUNITY Law
Principles based on natural justice common to
D. SEPARATION OF POWERS most national systems of law
E. CHECKS AND BALANCES Examples:

1. The right of an alien to be released on bail
F. DELEGATION OF POWERS while awaiting deportation when his failure
to leave the country is due to the fact that
G. FUNDAMENTAL POWERS OF THE
no country will accept him (Mejoff v.
STATE
Director of Prisons, G.R. No. L-4254, Sept.
1. POLICE POWER
26, 1951).
2. EMINENT DOMAIN
2. The right of a country to establish military
3. TAXATION
commissions to try war criminals (Kuroda
v. Jalandoni, G.R. No. L-2662, Mar. 26,
1949).
3. The Vienna Convention on Road Signs
and Signals (Agustin v. Edu, G.R. No. L-
49112, Feb. 2, 1979).
4. Duty to protect the premises of embassies
and legations (Reyes v. Bagatsing, G.R.
No. L-65366, Nov. 9, 1983).
5. Pacta sunt servanda – international
agreements must be performed in good
faith (Tañada v. Angara, G.R. No. 118295,
May 2, 1997).
The Philippines renounces aggressive war as an

instrument of national policy, but allows for a
defensive war.
Civilian Authority
Article II, Section 3 of the Constitution states that
“[c]ivilian authority is, at all times, supreme over the
military. The Armed Forces of the Philippines is the
protector of the People and the State. Its goal is to
secure the sovereignty of the State and the integrity
of the national territory.”
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Civilian Authority - The head of the armed forces Right to a Balance and Healthful Ecology
is a civilian president and the primary purpose of The right to a balanced and healthful ecology is not
AFP is to serve and protect the people. less important than any of the civil and political
rights enumerated in the Bill of Rights. The right to
Mark of Sovereignty - Positively, the military is the a balanced and healthful ecology carries with it an
guardian of the people and of the integrity of the intergenerational responsibility to care for and
national territory and therefore ultimately of the protect the environment (Oposa v. Factoran, G.R.
majesty of the law. Negatively, it is an expression No. 101083, Jul. 30, 1993).
against military abuses.
In environmental cases, the precautionary
Freedom from Nuclear Weapons principle is used when there is a lack of full
DOES NOT scientific certainty in establishing a causal link
PROHIBITS
PROHIBIT between human activity and environmental effect.
Possession, control Peaceful use of The precautionary principle, as a principle of last
and manufacture of nuclear energy resort, shifts the burden of evidence of harm away
nuclear weapons; from those likely to suffer harm and onto those
nuclear arms tests desiring to change the status quo. (International
Service for the Acquisition of Agri-Biotech v.
Exception to policy against nuclear weapons may Greenpeace, G.R. No. 209271, Dec. 8, 2015)
be made by political departments, but must be
justified by demands of national interest. Elements for the Application of Precautionary
Principle: (UPP)
Social Justice • Uncertainty
The State shall promote social justice in all phases • Possibility of irreversible harm
of national development. • Possibility of serious harm
(International Service for the Acquisition of Agri-
Social Justice has been defined as the Biotech v. Greenpeace, G.R. No. 209271, Dec. 8,
humanization of laws and the equalization of social 2015)
and economic forces by the State so that justice in
its rational and objectively secular conception may Standing to file an action for violation of
at least be approximated (Calalang v. Williams, environmental laws
G.R. No. 47800, Dec. 2, 1940). The enactment of the Rules of Procedure for
Environmental Cases enabled litigants enforcing
Protection of the Life of the Unborn environmental rights to file their cases as citizen
It is not an assertion that the unborn is a legal suits. It liberalized standing for all cases filed
person. It is not an assertion that the life of the enforcing environmental laws and collapses the
unborn is placed exactly on the same level of the traditional rule on personal and direct interest,
life of the mother. Hence, when it is necessary to based on the principle that humans are stewards of
save the life of the mother, the lie of the unborn may nature. The need to give animals legal standing in
be sacrificed. environmental cases has been eliminated by the
Rules since any Filipino citizen, as a steward of
The Roe v. Wade doctrine allowing abortion up to nature, is allowed to bring a suit to enforce
the 6th month of pregnancy cannot be adopted in environmental laws. (Resident Marine Mammals v.
the Philippines human lives are sacred from the Reyes, G.R. No. 180771, Apr. 21, 2015)
moment of conception, and that destroying those
new lives is never licit, no matter what the Requisites for the Issuance of Writ of Kalikasan
purported good outcome would be. (Imbong vs. (CPE)
Ochoa, G.R. No. 204819, April 8, 2014)
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1. There is an actual or threatened violation

of the Constitutional right to a balance and Auto-Limitation
healthful ecology; “It is to be admitted that any state may, by its
2. The actual or threatened violation arises consent, express or implied, submit to a restriction
from an unlawful act or omission of a of its sovereign rights. There may thus be a
Public official or employee, or private curtailment of what otherwise is a power plenary in
individual or entity; character. That is the concept of sovereignty as
3. The actual or threatened violation involves auto-limitation, which, in the succinct language of
or will lead to an Environmental damage of Jellinek, "is the property of a state-force due to
such magnitude as to prejudice the life, which it has the exclusive capacity of legal self-
health or property of inhabitants in two or determination and self-restriction." A state then, if it
more cities of provinces. (LNL Archipelago chooses to, may refrain from the exercise of what
Minerals Inc v. Agham Party List, GR otherwise is illimitable competence.” (People v.
209165, Apr. 12, 2016) Gozo, G.R. No. L-36409, Oct. 26, 1973)
B. SOVEREIGNTY Note: Even though the country allows a foreign

power to participate in the exercise of jurisdictional
Elements of a State (GSPoT)
right over certain portions of its territory, such areas
• Government - institution or aggregate of
do not become impressed with alien character but
institutions by which an independent
rather, it retains its status as native soil. (Id)
society makes and carries out those rules
of action which are necessary to enable
Limited by International Law and Treaties
men to live in a social state, or which are
“By their inherent nature, treaties really limit or
imposed upon the people forming that
restrict the absoluteness of sovereignty. By their
society by those who possess the power or
voluntary act, nations may surrender some aspects
authority of prescribing them
of their state power in exchange for greater benefits
• Sovereignty - power of the State to granted by or derived from a convention or pact.”
regulate matters within its own territory (Tanada v. Angara, G.R. 118295, May 2, 1997).
• Population - community of persons
sufficient in number and capable of C. STATE IMMUNITY
maintaining the continued existence of the
community and held together by a BASIS: Art. XVI, Sec. 3: “The state may not be
common bond of law. sued without its consent.” This is based on the
• Territory - a definite area over which the principle of equality of states — par in parem non
State exercises sovereign jurisdiction habet imperium.
Definition of Sovereignty Doctrine of State Immunity

The supreme and uncontrollable power inherent in It refers to a principle by which a state, its agents,
a State by which that State is governed. (Nachura, and property are immune from the jurisdiction of
Outline Reviewer in Political Law, 2015) another state (MAGALLONA).
Two types of Sovereignty Principle of Equality of States

1. Political Sovereignty - the supreme This principle is premised on the juridical equality
power to make laws of states, according to which a state may not
2. Legal Sovereignty - the sum total of all impose its authority or extend its jurisdiction to
the influences in a state, legal and non- another state without the consent of the latter
legal, which determine the course of law. through a waiver of immunity. Thus, domestic
(Bernas, The 1987 Constitution of the Republic of courts must decline to hear cases against foreign
the Philippines: A commentary, 2009 )
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sovereigns out of deference to their role as A party who feels transgressed by anyone claiming
sovereigns. immunity may ask his own government to espouse
his cause through diplomatic channels.
Kinds of Immunity
Absolute sovereign immunity - where a state Extent of Immunity
cannot be sued in a foreign court no matter what Immunity from jurisdiction is enjoyed by both the
the act it is sued for; head of State and by the State itself. The State's
diplomatic agents, including consuls to a certain
Restrictive sovereign immunity - where a state extent, are also exempt from the jurisdiction of local
is immune from suits involving governmental courts and administrative tribunals.
actions (jure imperii), but not from those arising
from commercial or non-governmental activity (jure Restrictive Application of State Immunity
gestionis). This traditional rule of State immunity which
exempts a State from being sued in the courts of
Summary another State without the former's consent or
General rule – The State cannot be sued. waiver has evolved into a restrictive doctrine which
Exception – The State consents to be sued. distinguishes sovereign and governmental acts
(Jure imperii) from private, commercial and
How a State gives its consent proprietary acts (Jure gestionis). Under the
1. Express consent restrictive rule of State immunity, State immunity
a. General Law extends only to acts jure imperii. The restrictive
b. Special Law application of State immunity is proper only when
2. Implied consent the proceedings arise out of commercial
a. When the State commences transactions of the foreign sovereign, its
litigation, it becomes vulnerable to commercial activities or economic affairs (Arigo v.
a counterclaim; (US v. Guinto, Swift, G.R. No. 206510, Sept. 16, 2014).
G.R. No. 76590, Feb. 26, 1990)
b. State enters into a business Scope of State Immunity
contract (thus exercising Jure Imperii - Immunity is granted only with
proprietary functions); (Id.) respect to their governmental acts
c. When it would be inequitable for
the State to invoke immunity; Jure Gestionis - Immunity is not granted with
d. In eminent domain cases. respect to their commercial acts
State's Business Contracts Difference between Jure Gestionis and Jure

A State’s commercial activity is a descent to the Imperii
level of individuals and there is a form of tacit JURE GESTIONIS JURE IMPERII
consent to be sued when it enters into business By right of economic or By right of sovereign
contracts with others. business relation power, in the exercise
of sovereign functions
However, not every contract entered into is a form May be sued May not be sued
of tacit consent to be sued. It depends upon
whether the foreign state is engaged in the activity Two Conflicting Concepts of Sovereign
in the regular course of business. If not, or if it is in Immunity:
pursuit of a sovereign activity, it falls within the 1. Classical or absolute theory – sovereign
exemption of acts jure imperii especially when not cannot, without its consent, be made a
intended for gain or profit. respondent in the courts of another
sovereign.
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2. Newer or restrictive theory – the Test to Determine if Suit is against the State
immunity of the sovereign is recognized Will the enforcement thereof (decisions rendered
only with regard to public acts or acts jure against the public officer or agency impleaded)
imperii of a state but not with regard to require an affirmative act from the State, such as
private acts or acts jure gestionis. the appropriation of the needed amount to satisfy
the judgment? If so, then it is a suit against the
A certification executed by the Economic State. (Sanders v Verdiano, G.R. No. L-46930,
Commercial Office of the Embassy of the People’s June 10, 1988)
Republic of China stating that a project is in pursuit
of a sovereign activity is not the kind of certification Duration of Immunity of Head of State
that can establish entitlement to immunity from suit. Immunity of head of state for private acts lasts
It unequivocally refers to the determination of the while a person is still in office; for public acts, even
Foreign Office of the state where it is used (China after office.
National Machinery Equipment v. Santa Maria,
G.R. No. 185572, Feb. 7, 2012). Consent to be Sued is Given by the State either
EXPRESSLY or IMPLIEDLY
When Suit is Considered against the State:
(NUO) EXPRESS
• The Republic is sued by Name The law expressly grants the authority to sue the
• Suits against an Unincorporated State or any of its agencies.
government agency a. General Law: Authorizes any person who
• Suit is against a government Official, but is meets the conditions stated in the law to sue
such that ultimate liability shall devolve on the government in accordance with the
the government procedure in the law (e.g. money claims
arising from contract express or implied,
It produces adverse consequences to the public liability of local government units for torts)
treasury in terms of disbursement of public funds b. Special Law: may come in the form of a
and loss of government property. private bill authorizing a named individual to
bring a suit on a special claim.
It cannot prosper unless the State has given its
consent. IMPLIED (C BIP)
a. When the State Commences litigation, it
When Not against the State becomes vulnerable to counterclaim
It was held that the suit is not against the State: b. When the State enters into a Business
1. When the purpose of the suit is to compel an contract (in jure gestionis or proprietary
officer charged with the duty of making functions)
payments pursuant to an appropriation made c. When it would be Inequitable for the State
by law in favor of the plaintiff to make such to invoke its immunity
payment, since the suit is intended to compel d. In instances when the State takes private
performance of a ministerial duty (Begosa v. property for Public use or purpose
PVA, G.R. No. L-25916, Apr. 30, 1970); (Eminent Domain)
2. When from the allegations in the complaint, it
is clear that the respondent is a public officer Specific Rules
sued in a private capacity; a. When State Commences Litigation
3. When the action is not in personam with the Exception: When the State intervenes not for
government as the named defendant, but an the purpose of asking for any affirmative relief,
action in rem that does not name the but only for the purpose of resisting the claim
government in particular precisely because of immunity from suit (Lim
v Brownell, GR No. L-8587, Mar 24 1960)
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3. Ultra Vires Act: Where a public officer has

b. When State enters a Business Contract committed an ultra vires act, or where there
Types of Capacity of the State in entering into is showing of bad faith, malice, or gross
contracts: negligence, the officer can be held
1. Acta jure gestionis - by right of economic personally accountable even if such acts
or business relations; commercial or were claimed to have been performed in
proprietary acts. The State may be sued connection with official duties (Wylie v.
(US v. Guinto, GR. No. 76607, Feb. 26, Rarang, G.R. No. 74135, May 28, 1992).
1990)
2. Acta jure imperii - by right of sovereign Suits against Government Agencies
power and in the exercise of sovereign 1. Incorporated: If the charter provides that the
functions; there is no implied consent to be agency can sue and be sued, then suit will
sued (US v. Ruiz, GR No. 35645, May 22, lie, including one for tort. The provision in the
1985) charter constitutes express consent on the
party of the State to be sued (PNB v. CIR,
c. When State Executes and Enters Private G.R. No. L-32667, Jan 31, 1978)
Contracts 2. Unincorporated:
● General Rule: The State may be sued if a a. Performs governmental functions: Cannot
private contract is entered into by the proper be without State consent even if
office and within the scope of his authority. performing proprietary function
● Exception: When the private contract is incidentally. Thus, even in the exercise of
incidental to the performance of a proprietary functions, an unincorporated
government function agency still cannot be sued without its
consent
Suits against Public Officers b. Performs proprietary functions: Can be
General Rule: The doctrine of state immunity also sued except when the proprietary
applies to complaints filed against officials of the functions are indispensable in the
State for acts performed by them in the discharge discharge of its governmental functions
of their duties within the scope of their authority. (Mobil PHL Exploration v. Customs
Arrastre Service, GR No. 23139, Dec 17,
Exception: The doctrine of immunity from suit will 1966)
not apply and may not be invoked where the public
official is being sued in his: Case Law Exceptions when State/Public Officer
1. private and personal capacity as an May Be Sued without Prior Consent (RUPJuG)
ordinary citizen 1. To compel him to do an act Required by law;
2. for acts without authority or in excess of the 2. To restrain him from enforcing an act claimed
powers vested in him. (Lansang v. CA, to be Unconstitutional
G.R. 102667, Feb. 23, 2000) 3. To compel the Payment of damages from an
already appropriated assurance fund or to
Rule on Liability of Public Officers (SGU) refund tax overpayments from a fund already
1. Acting beyond Scope of Authority: When available for the purpose;
a public officer acts in bad faith, or beyond 4. To secure a Judgement that the officer
the scope of his authority, he can be held impleaded may satisfy by himself without the
personally liable for damages. State having to do a positive act to assist
2. Acting in Good Faith: If a public officer him;
acted pursuant to his official duties, without 5. Where the Government itself has violated its
malice, negligence, or bad faith, he is not own laws.
personally liable, and the suit is really one (Sanders v Verdiano, G.R. No. L-46930, Jun 10,
against the State 1988)
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Payment of interest by the Government in

Rules regarding Garnishment of Government Money Judgment Against it:
Funds General Rule: Government cannot be made to pay
General Rule: Garnishment of government funds interests
is not allowed. Whether the money is deposited by
way of general or special deposit, they remain Exceptions (EEG):
government funds and are not subject to 1. Eminent domain
garnishment. 2. Erroneous collection of tax
3. Government agrees to pay interest pursuant
Exceptions: to law
1. Where a law or ordinance has been enacted
appropriating a specific amount to pay a valid Immunity from Jurisdiction
government obligation, then the money can General rule: The jurisdiction of a state within its
be garnished territory is complete and absolute
2. If the funds belong to a public corporation or
a GOCC which is clothed with a personality Exceptions (SDH):
of its own, then the funds are not exempt 1. Sovereign immunity
from garnishment (NHA v. Guivelando, G.R. 2. Diplomatic immunity
No. 154411, Jun 19, 2003) 3. Hostis Humanis Generis - enemy of all
mankind or crimes justiciable by any state
To enforce monetary decisions against the anywhere e.g. piracy (Filartiga v. Pena-Irala,
Government, a person may file a claim with the 630 F.2d 876, 1980)
Commission on Audit. It is settled jurisprudence
that upon determination of State liability, the Acts of State Immunity
prosecution, enforcement, or satisfaction thereof Every state is bound to respect the independence
must still be pursued in accordance with the rules of every other sovereign state, and the courts of
and procedures laid down in P.D. No 1445 one country will not sit in judgment on the acts of
(Government Auditing Code of the Philippines). All the government of another, done within its own
money claims against the Government must first be territory. Redress of grievances by reason of such
filed with the Commission on Audit, which must act acts must be obtained through the means open to
upon it within 60 days. Rejection of the claim will be availed of by sovereign powers as between
authorize the claimant to elevate the matter to the themselves
Supreme Court on certiorari and in effect, sue the
State thereby (Department of Agriculture v NLRC, This immunity is for the benefit of the State. Thus,
G.R. No 104269, Nov. 11, 1993; PD 1445, § 49-50) only the state may waive it.
Consent to be Sued is Not Equivalent to Nothing in the complaint would require a court to
Consent to Liability pass judgment on any official act of the Philippine
- The fact that the State consented to being government. Just as raising the specter of political
sued does not mean that the State will issues cannot sustain dismissal under the political
ultimately be held liable (US v. Guinto, G.R. question doctrine, neither does a general
76607, Feb. 26, 1990) invocation of international law or foreign relations
- Even if the case is decided against the State, mean that an act of state is an essential element of
an award cannot be satisfied by writs of a claim. It cannot be thought that every case
execution or garnishment against public touching foreign relations lies beyond judicial
funds. No money shall be paid out of the cognizance. (Provincial Government of
public treasury unless pursuant to an Marinduque v. Placer Dome, Inc G.R. No. 07-1630,
appropriation made by law 2009)
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The commission of a crime by a state official, which preventing one from invading the domain of the
is an international crime against humanity and jus others, but the separation is not total.
cogens, is NOT an act done in an official capacity
on behalf of the state. As a matter of general The principle of separation of powers ordains that
customary international law, a head of state will each of the three great government branches has
PERSONALLY be liable to account if there is exclusive cognizance of and is supreme in
sufficient evidence that he authorized or concerns falling within its own constitutionally
perpetrated serious international crimes. allocated sphere; e.g., the judiciary as Justice
Individuals who commit international crimes are Laurel emphatically asserted “will neither direct nor
internationally accountable for them. restrain executive [or legislative] action” (Republic
v. Bayao, G.R. No. 179492, Jun 5, 2013).
General Rule: Any person who in performing an
act of the state, commits a criminal offense is E. CHECKS AND BALANCES
immune from prosecution. This applies not only to
A system operating between and among the three
ex-heads of state and ex-ambassadors but to all
branches of government the net effect of which is
state officials who have been involved in carrying
that no one department is able to act without the
out the functions of the state (Immunity Ratione
cooperation of at least one of the other
Materiae/Functional Immunity - “Immunity of the
departments.
official”)
Examples:
Exception: Functional Immunity of state officials of
- Legislation in the form of an enrolled bill
the foreing state could no longer be invoked in
needs final approval from the President to
cases of international crimes (Regina v. Bartle and
become a law;
the Commissioner of Police, “Pinochet Case”)
- President must obtain the concurrence of
Congress to complete certain acts (e.g.
Exception to the Exception: When the case is
granting of amnesty);
brought against the State itself for liability to
- Money can be released from the Treasury
damages (e.g. civil proceedings against a state),
only by authority of Congress;
the rationale for the judgment in the Pinochet case
- Appropriation, revenue, tariff, increases in
has no bearing.
public debt and private bills originate in House
of Representatives;
Note:
- SC can declare acts of Congress or the
A state is not deprived of immunity by reason of the
Executive unconstitutional.
fact that it is accused of serious violations of
international human rights law or the international
F. DELEGATION OF POWERS
law of armed conflict. The court distinguished
between immunity and substantive jus cogens General Rule: Legislative power is vested in
rules of international law and held that a finding of Congress which consists of the Senate and the
immunity does not equal a finding that a state did House of Representatives by the sovereign Filipino
not owe reparations (Jurisdictional Immunities of people. Congress cannot delegate its legislative
the State: Germany v. Italy, 2012). power under the maxim delegata potestas non
potest delegari (delegated power may not be
D. SEPARATION OF POWERS delegated).
An allocation of the three great powers of
government in the following manner: legislation to Exceptions: (PLATE)
Congress, execution of laws to the Executive, and 1. Delegation to the People – To the extent
settlement of legal controversies to the Judiciary. It reserved to the people by the provision on
is also an implicit limitation on their powers, initiative and referendum.
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2. Delegation to Local Government Units –

Local legislative bodies are allowed by our - If there was a valid delegation,
Constitution to legislate on purely public administrative rules and regulations are
matters. Since what was given to local just binding as if it was written in the law.
legislative bodies are not power to make rules - Administrative agencies may not issue
and regulations but legislative power, the rules regulations that contravene the law
on valid delegation do not apply. However, (Solicitor General v. Metro Manila
when what is given to local legislative body is Authority, G.R. No. 102782, Dec 11, 1991)
executive power, the rules applicable to the nor may they add to the standards set by
empowerment of administrative agencies also law (Tatad v. Secretary of Energy, G.R.
become applicable (Rubi v. Provincial Board, No. 124360, Nov. 5, 1997).
G.R. No. L-14078, March 7, 1919). - Administrative rules and regulations may
be penal in nature provided that:
- The BPO issued by the Punong Barangay - such a violation is made a crime by
is not an undue delegation of legislative the delegating law;
power for it merely orders the perpetrator - penalty of such is provided in the
to desist from (a) causing physical harm to statutes
the woman or her child; and (2) threatening - the regulation is published.
to cause the woman or her child physical
harm. Such function of the Punong - Powers of Congress which are not to be
Barangay is purely executive in nature, in delegated are those that are strictly or
pursuance of his duty under the LGC to inherently legislative. Purely legislative
“enforce all laws and ordinances,” and to power is the authority to make a complete
“maintain public order in the barangay.” law - complete as to the time it shall take
(Garcia v. Drilon, G.R. No. 179267, June effect or to whom it shall be applicable and
25, 2013) to determine the expediency of the
enactment
3. Delegation of Rule-Making Power to
Administrative Bodies – power to issue 4. Tariff Powers
supplementing rules and regulations provided - Art. VI, § 28(2) authorizes Congress to
that the delegation must be complete and must delegate to the President the power to fix
prescribe sufficient standards. It also includes tariff rates, import and export quotas,
the determination of the presence of the tonnage, wharfage dues, and other duties
conditions for the law to take effect. and impost.
- Rationale:
o Increasing complexity of the task of 5. Emergency Powers
government - Art. VI, § 23(2) authorizes Congress to give
o Lack of technical competence on the part the President the power necessary and
of Congress to provide for specific proper to carry out a declared national
details of implementation policy in times of war or other national
o Administrative agencies may fill up emergency pursuant to law.
details of the statute for implementation
o Legislature may pass “contingent Test of Valid Delegation
legislation “which leaves to another 1. Completeness Test — The law must state the
body the business of ascertaining facts policy that must be carried out or implemented
necessary to bring the law into action and leave no room for the delegate to legislate;
(ABAKADA v. Ermita, G.R. No. 168056, nor allow discretion on their part to say what
Sept 1, 2005).
Page 21 of 568
ATENEO CENTRAL
the law is; there must be nothing left for the law execution. This involves either of two tasks for
delegate to do but to enforce the law. the administrative agencies:
2. Sufficiency of Standard — The limits are - Subordinate Legislation: Filling up the
sufficiently determinate and determinable to details of an otherwise complete statute; or
which the delegate must conform in the - Contingent Legislation: Ascertaining the
performance of his actions. fact necessary to bring a “contingent” law
or provision into actual operation.
Examples:
i. Public interest (People v. Rosenthal, Any post-enactment congressional measure
G.R. Nos. L-46076 and L-46077, Jun. should be limited to scrutiny and investigation. In
12, 1939). particular, congressional oversight must be
ii. Fair and equitable employment practices confined to the following: (SAHM)
(Eastern Shipping Lines v. POEA, supra) · Scrutiny based primarily on Congress’
iii. Justice and equity power of appropriation and the budget
iv. Public convenience and welfare hearings conducted in connection with it
v. Simplicity, economy, and efficiency. · Its power to ask heads of departments to
Appear before and be Heard by either of its
Houses on any matter pertaining to their
Note:
departments and its power of confirmation
Standards may be expressed or implied from the
and investigation
law taken as a whole (Edu v. Ericta, G.R. No. L-
32096, Oct. 24, 1970). They can even be gathered · Monitoring of the implementation of laws
in another statute of the same subject matter pursuant to the power of Congress to
(Chongbian v. Orbos, G.R. No. 96754, June 6, conduct inquiries in aid of legislation
1995).
Any action or step beyond that will undermine the
separation of powers guaranteed by the
A law allowing a judge to inflict punishment of
Constitution. Legislative vetoes fall in this class
imprisonment in its discretion without any
(Abakada v. Purisima, G.R. No. 166715, Aug. 14,
designated limits is invalid. (People v. Dacuycoy,
G.R. No. L-45127, May 5, 1989). 2008).
Reorganization “involves the reduction of

Section 8 of PD 910 regarding the Malampaya
personnel, consolidation of offices, or abolition
funds provides: “all fees, revenues and
thereof by reason of economy or redundancy of
receipt…under the Petroleum Act of 1949; as well
functions.” The general rule has always been that
as the government share…shall form part of a
special fund to be used to finance energy resource the power to abolish a public office is lodged with
development and exploitation programs and the legislature. The exception, however, is that as
far as bureaus, agencies or offices in the executive
projects of the government and for such other
department are concerned, the President’s power
purposes as may be hereafter provided by the
of control may justify him to inactivate the functions
President.” This is not a valid delegation of
legislative power. The provision constitutes an of a particular office, or certain laws may grant him
undue delegation of legislative power insofar as it the broad authority to carry out reorganization
measures (Malaria Employees v. Romulo, G.R.
does not lay down a sufficient standard to
160093, Jul 31, 2007).
adequately determine the limits of the President‘s
authority (Belgica v. Ochoa, G.R. No. 208566, Nov.
G. FUNDAMENTAL POWERS OF THE
19, 2013).
STATE
Congress can only delegate, usually to Concept, Application, and Limits
administrative agencies, rule-making power or
Page 22 of 568
ATENEO CENTRAL
The totality of governmental power is contained in use of the of the public to a lesser
three great powers: police power, power of eminent property funds right (e.g.
domain and power of taxation. These belong to the possession)
very essence of government, without which no Benefit
government can exist. A constitution does not grant The person Person The person
such powers to government; a constitution can only affected affected affected
define and delimit them and allocate their exercise receives no receives the receives the
among various government agencies. (Bernas, direct and equivalent of full and fair
The 1987 Constitution of the Republic of the immediate the tax in the market value
Philippines, 2009) benefit but form of of the
only such as protection, property
POLICE EMINENT may arise public taken from
TAXATION
POWER DOMAIN from the improvements, him
Authority which exercises the power maintenance and benefits
May be exercised only by the May be of a healthy he receives
government or its political granted to economic from the
subdivisions public service standard of government as
companies or society and such.
public utilities is often Therefore,
Purpose referred to as taxation may
The use of The property The property damnum be used as an
the property (generally in is “taken” for absque implementatio
is “regulated” the form of public benefit, injuria i.e. n of police
for the money) is hence, it must “damage power (Lutz v.
purpose of taken for the be without Araneta, 1955)
promoting support of compensated injury”
the general government . Imposition
welfare, The amount There is There is no
hence it is imposed generally no amount
not should not limit to the imposed but
compensabl be more than amount that rather the
e sufficient to may be owner is paid
Persons affected cover the imposed the market
Usually - Operates on cost of the value of the
operates an entity or an license and property
upon a individual as the taken
community the owner of a necessary
of a class of particular expense of
entities or property police
individuals surveillance
and
inspection,
Effect examination,
There is no The money There is a or regulation
transfer of contributed in transfer of the as nearly as
title. At most, the concept of right to can be
there is a taxes property estimated
restraint on becomes part whether it be Extent
the injurious ownership or
Page 23 of 568
ATENEO CENTRAL
Regulates Affect only property rights (Bernas, The 1987 Constitution of the Republic of
both liberty the Philippines, 2009)
and property
The State has a paramount interest in exercising
1. POLICE POWER its power of eminent domain for the general welfare
and that the superior right of the State to
Police Power in General
expropriate private property always takes
- Based on public necessity and the right of the
precedence over the interest of private owners,
State and of the public to self-protection. For
provided that:
this reason, its scope expands and contracts
• the expropriation is for public use
with changing needs. (Baseco v. PCGG, G.R.
• the exercise of the right to eminent domain
No. 75885, May 27, 1987)
complies with the guarantees of due
- It is the power of the State to enacts
process (Estate of JBL Reyes v. City of
regulations to promote the health, morals,
Manila, G.R. Nos 132431 & 137146, Feb.
peace and order, and welfare of the society
13, 2004).
(Ermita-Malate Hotel and Motel Operators v.
City of Manila, G.R. No. L-24693, Oct. 23,
The matter is legislative, however, “once authority
1967). These fall under “public necessity”
is given to exercise the power, the matter ceases
- Police power has been properly characterized
to be wholly legislative. The executive authorities
as the most essential, insistent and the least
may then decide whether the power will be invoked
limitable of powers, extending as it does to all
and to what extent (Republic v. Juan, G.R. No. L-
great public needs. (Id.)
24740, Jul 30, 1979).
Requisites
It may be delegated to LGUs, other public entities
1. Reasonable Subject - The subject of the
and public utilities. The scope is narrower and may
measure is within the scope of police, i.e.
be exercised only when authorized by Congress,
that the activity or property sought to be
subject to its control and restraints imposed
regulated affects the public welfare. The
through the law conferring the power or in other
interest of the public, generally as
legislations. Thus, the power of eminent domain
compared to a particular class requires
delegated to an LGU is in reality not eminent but
interference by the state.
“inferior.” The national legislature is still the
2. Reasonable Means - The means
principal of the LGUs, the latter cannot go beyond
employed are reasonably necessary for
the principal’s will or modify the same (Beluso v.
the accomplishment of the purpose, and
Municipality of Panay, G.R. 153974, Aug. 7, 2006).
not unduly oppressive on individuals. Both
the end and the means must be legitimate
Requisites
(US v. Toribio, G.R. No. L-5060, Jan. 1,
1. Public Use — It means public usefulness,
1910)
utility, or advantage or what is productive of
general benefit, so that any appropriation of
Nature
private property by the state under its right of
Legislative but may be delegated to the following:
eminent domain, for purposes of great
- President
advantage to the community, is a taking for
- Administrative Bodies
public use. (Bernas, The 1987 Constitution of
- Legislative Bodies of Local Government
the Republic of the Philippines, 2009 citing
Units
Gohl Realty Co. v. Hartford, 104 A.2d 365,
2. EMINENT DOMAIN 368-9 Conn,. 1954). What has emerged is a
concept of public use which is as broad as
The purpose of the taking must be public use. Just public welfare. The scope of the power of
compensation must be given to the private owner. eminent domain has become as broad as the
Page 24 of 568
ATENEO CENTRAL
expansive and ever expanding scope of General Rule: The power to tax is purely
police power itself (Bernas, The 1987 legislative and it cannot be delegated
Constitution of the Republic of the Philippines, Exceptions:
2009) I. As to the President — Congress may, by
2. “Taking” requires: EPAP-D law, authorize the President to fix within
a. Expropriator must Enter the private specific limits, and subject to such
property limitations and restrictions as it may
b. Entrance must not be for a momentary impose, tariff rates, import and export
period, must be Permanent quotas, tonnage and wharfage dues, and
c. Entry must be under warrant or color of other duties or imposts within the
legal Authority framework of the national development
d. Property must be devoted to a Pubic use program of the Government. (PHIL.
e. Utilization of property must Deprive owner CONST., art. VI, § 28, ¶ 2. )
of all beneficial enjoyment of the property
(Republic v. Vda Castellvi, G.R. No. L- II. As to Local Government — Under the
20620, Aug. 15, 1974) present Constitution, each local
3. Just Compensation — This includes not only government unit is now expressly given the
the determination of the amount to be paid power to create its own sources of revenue
(market value) to the owner of the land but and to levy taxes, subject to such
also the payment of the and within a guidelines and limitations as the Congress
reasonable period of time from its taking may provide, consistent with the basic
(Municipality of Makati v. Court of Appeals, policy of local autonomy (PHIL. CONST., art.
G.R. No. 89898-99, Oct. 1, 1990). It also X, § 5.)
includes interest in case of delay. (Republic v.
Court of Appeals, G.R. No. 146587, Jul 2, A. A municipal corporation has no
2002). inherent right to impose taxes Its
power to tax must always yield to
3.TAXATION a legislative act which is superior
having been passed by the State
The power of taxation is essentially a legislative
itself which has the inherent power
function. Taxation is an attribute of sovereignty. It
to tax (Basco v. PAGCOR, G.R.
is the strongest of all powers of the government.
No. 91649, May 14, 1991).
There is a presumption in favor of legislative
determination. Public policy decrees that since
III. As to Administrative Agencies —
upon the prompt collection of revenue depends the
When the delegation relates merely to
very existence of government itself, whatever
administrative implementation which may
determination shall be arrived at by the legislature
call for some degree of discretionary
should not be interfered with, unless there be a
powers under a set of sufficient standards
clear violation of some constitutional inhibition
expressed by law (Maceda v. Macaraig,
(Sarasola v. Trinidad, G.R. No. 14595, Oct. 11,
G.R. No. 88291, May 31, 1993)
1919).
————- end of topic ————-
The legislature is free to select the subjects of
taxation and it may determine within reasonable
bounds what is necessary for its protection and
expedients for its promotion (Lutz v. Araneta, G.R.
No. L -7859, Dec. 22, 1955).
Page 25 of 568
NATIONAL
TERRITORY
Political Law
ATENEO CENTRAL
III. NATIONAL TERRITORY breadth and dimensions, form part of the internal
waters of the Philippines. (PHIL. CONST., art. I, § 1)
Provision on National Territory
Treaty limits of the Philippine archipelago
The National Territory comprises the Philippine
Archipelago, with all the islands and waters (1) Treaty of Paris of 10 December 1898:
embraced therein, and all other territories over “Spain cedes to the United States the
which the Philippines has sovereignty or archipelago known as the Philippines
jurisdiction, consisting of its terrestrial, fluvial, and Islands, and comprehending the islands
aerial domains, including its territorial sea, the lying within the following line” Article 3 of the
seabed, the subsoil, the insular shelves, and other said treaty defines the metes and bounds of
submarine areas. The waters around, between, the archipelago by longitude and latitude,
and connecting the islands of the archipelago, degrees and seconds. Technical
regardless of their breadth and dimension, form descriptions are made of the scope of the
part of the internal waters of the Philippines (PHIL. archipelago as this may be found on the
CONST., art. I, § 1) surface of the earth.
(2) Treaty of Washington of 7 November 1900
Purpose of Article I between the United States and Spain:
a) Initially it was to prevent the US from Ceding Cagayan, Sibuto and Sulu.
dismembering the Philippines, an acceptance by (3) Treaty of 12 January 1930 between the
the US President of the Constitution would oblige United States and Great Britain: Ceding the
the US to keep the integrity of the Philippine Turtle and Mangsee Islands. [BERNAS
territory. (2003), cited in Justice Velasco’s
b) Now, it is to determine the State’s jurisdiction concurring opinion in Magallona v. Ermita
over which it can exercise its sovereignty. The (2011)].
government can exercise its power over those
areas included in the national territory and citizens
Composition of National Territory
must respect that. At the same time, citizens could
1. Philippine Archipelago, with all the
demand its rights from the government under those
islands and waters embraced therein;
areas.
2. Internal Waters: waters around, between
Note: It is only a municipal or local law. The
and connecting the islands of the
constitution is not definitive to claims of other
archipelago, regardless of breadth and
states. But it has value, if in history, no one
dimension; and
questions it, we can rely on the fact that it has not
3. All other territories over which the
been challenged but it does not stop others from
Philippines has sovereignty or jurisdiction
claiming it.
It consists of:
Archipelagic Doctrine
1. Territorial sea, seabed, subsoil, insular
A body of water studded with islands, or the islands shelves, and other submarine areas
surrounded with water, is viewed as a unity of 2. Terrestrial, fluvial, and aerial domains
islands and waters together forming one integrated
unit. [N.B. Embodied in Art. II, specifically by the
Concept of Innocent Passage
mention of the “Philippine archipelago” and the
specification on “internal waters.”]
Passage through territorial waters which is
neither prejudicial to the interests of the
Application to the Philippines coastal state nor contrary to recognized
The waters around, between, and connecting the principles of international law. Example: Entry
islands of the archipelago, regardless of their into territorial waters by a cruise ship.
Page 27 of 568
ATENEO CENTRAL
Future Acquisitions included in National miles by establishing the foot of the continental
Territory slope, by meeting the requirements of Article 76,
The clause includes any territory presently paragraphs 4-7, of the UNCLOS.
belonging or those that might in the future belong
to the Philippines through any of the accepted The Philippine archipelago and all other territories
international modes of acquiring territory. consist of the following domains: (TAFA)
1. Terrestrial
Territories belonging to Philippines by historic 2. Aerial
right or title 3. Fluvial
4. All other territories outside archipelago over
The clause also includes what was referred to
which RP has sovereignty or jurisdiction
under the 1973 Constitution as territories
“belonging to the Philippines by historic right or
legal title,” that is, territories which, depending on Normal Baseline Method
available evidence, might belong to the Philippines The baseline is drawn following the low-water line
(e.g., Sabah, the Marianas, Freedomland) (Bernas, along the coasts as marked on large-scale charts
Constitutional Rights and Social Demands, 8, officially recognized by the coastal State. This line
2010). follows the sinuosities of the coast and therefore
would normally not consist of straight lines (Section
5, 1982 LOS; Bernas, 1987 Philippine Constitution:
Under Article 3 of the UNCLOS, “every state has
A Commentary, 23, 2009).
the right to establish the breadth of its territorial sea
up to a limit not exceeding 12 nautical miles,
measured from the baselines” Straight Baseline Method
Consists of drawing straight lines connecting
Contiguous Zone appropriate points on the coast without departing
It is an area of water which extends up to 24 to any appreciable extent from the general direction
nautical miles from the baseline (12 nautical miles of the coast, in order to delineate the internal
from the Territorial Sea). Although not part of the waters from the territorial waters of an archipelago.
territory, the coastal State may exercise jurisdiction
to prevent infringement of customs, fiscal, The Baseline Law (R.A. 9522, 2009)
immigration, or sanitary laws. R.A. No. 9522–amended R.A. No. 3046, entitled
"An Act to Define the Baselines of the Territorial
Exclusive Economic Zone Sea of the Philippines;" specified that baselines of
This refers to the body of water extending up to 200 Kalayaan Group of Islands and Bajo de Masinloc
nautical miles beyond the baseline, within which (Scarborough Shoal) shall be determined as
the state may exercise sovereign rights to explore, “Regime of Islands” under the Republic of the
exploit, conserve, and manage the natural Philippines, consistent with the UNCLOS.
resources.
R.A. No. 9522 is constitutional:
Extended Continental Shelf (a) It is a statutory tool to demarcate the
maritime zone and continental shelf of the
Portion of the continental shelf that lies beyond the
Philippines under UNCLOS III, and does
200 nautical mile limit. A coastal state may
not alter the national territory. Baselines
establish a continental shelf beyond the 200
laws are nothing but statutory mechanisms
nautical miles from its coastline.
for UNCLOS III state parties to delimit with
precision the extent of their maritime zones
The coastal State may establish the outer limits of
and continental shelves. The law has
its juridical continental shelf wherever the
nothing to do with acquisition, enlargement,
continental margin extends beyond 200 nautical
or diminution of territory, as States may
Page 28 of 568
ATENEO CENTRAL
only acquire (or lose) territory through the CONTINENTAL Submerged Sovereign
following modes: (CAPO) Cession, SHELF prolongation rights of
Accretion, Prescription, and Occupation of the land exploration
(Magallona v. Ermita, G.R. No. 187167, territory and
2011). exploitation
(b) The law also does not abandon the of living and
country’s claim to Sabah, as it does not non-living
expressly repeal the entirety of R.A. No. resources of
5446. (Magallona v. Ermita, G.R. No. the seabed
187167, Jul. 16, 2011)
Regime of Islands
The law also does not convert internal waters into
Under Article 121 of the UNCLOS III, any naturally
archipelagic waters (which allow the right of formed area of land surrounded by water, which is
innocent passage). The Philippines still exercises
above water at high tides, qualifies under the
sovereignty over the body of water lying landward
category of “regime of islands” whose islands
of the baselines including the air space over it and
generate their own applicable maritime zones (e.g.,
the submarine areas underneath. The political Kalayaan Islands and Scarborough Shoal).
branches of the Philippine government, in the - Kalayaan Islands has its own Territorial
competent discharge of their constitutional powers,
Sea, Contiguous Zone, and Exclusive
may pass legislation designating routes within the
Economic Zone.
archipelagic waters to regulate innocent and sea
- BUT Scarborough Shoal ONLY has a
lanes passage (Magallona v. Ermita, G.R. No. Territorial Sea and Contiguous Zone.
187167, Jul. 16, 2011). - There can be a Continental Shelf without an
EEZ, but not an EEZ without a Continental
The Baselines Law does not abandon the Shelf.
Philippines’ claim over Sabah under RA 5446. The
definition of the baselines of the territorial sea of the
Philippine Archipelago is without prejudice to the ————- end of topic ————-
delineation of the baselines of the territorial sea
around the territory of Sabah, situated in North
Borneo, over which the Philippines has acquired
dominion and sovereignty (R.A. No. 556, § 2).
Maritime Zones
TERRITORIAL 12 nautical Absolute
SEA miles from Sovereignty
baselines
CONTIGUOUS 24 nautical Enforcement
ZONE miles from of customs,
baselines fiscal,
immigration,
sanitation
laws
EXCLUSIVE 200 nautical Exploitation
ECONOMIC miles from of living and
ZONE baselines non-living
resources
Page 29 of 568
CITIZENSHIP
Political Law
ATENEO CENTRAL
IV. CITIZENSHIP A. KINDS OF CITIZENSHIP
TOPIC OUTLINE UNDER THE SYLLABUS

1. Natural born citizens
2. Naturalized citizens
IV. CITIZENSHIP
Who are Natural Born Citizens
A. KINDS OF CITIZENSHIP, PURPOSE OF 1. Those who are citizens of the Philippines from
DISTINGUISHING CITIZENSHIP AND birth without having to perform any act to
KINDS OF CITIZENSHIP acquire or perfect their Philippine citizenship
(PHIL CONST., art. IV, § 2)
B. WHO ARE CITIZENS
“Having to perform an act” means that the act
C. WHO CAN BE CITIZENS must be personally done by the citizen. (Poe-
Llamanzares v. COMELEC, G.R. No. 221697,
D. MODES OF ACQUIRING CITIZENSHIP March 8, 2016)
E. MODES OF LOSING AND REACQUIRING 2. Those born before January 17, 1973, of Filipino
CITIZENSHIP mothers, who elect Philippine citizenship upon
1. LOSING CITIZENSHIP reaching the age of majority (PHIL CONST., art.
2. REACQUIRING CITIZENSHIP IV, § 2)
F. DUAL CITIZENSHIP AND DUAL
3. Those who were repatriated and were originally
ALLEGIANCE
natural born citizens (Bengzon v. HRET, G.R.
No. 142840, May 7, 2001)
Who are Naturalized Citizens

Foreigners adopted into the political body of a
nation and clothed with the privileges of a citizen.
(So v. Republic, G.R. No. 170603, Jan. 29, 2007)
Natural Born Citizens v. Naturalized Citizens

In general, the law cannot treat Natural Born
Citizens and those who were naturalized differently
except in the instances where the Constitution itself
makes a distinction. Otherwise there would be a
violation of the equal protection clause. (Bernas,
The 1987 Constitution of the Republic of the
Philippines, 2009)
Page 31 of 568
ATENEO CENTRAL
Natural born citizens v. Naturalized Citizens 3. Members of Congress (PHIL CONST., art. VI §
NATURAL BORN NATURALIZED 3 & 6)
CITIZENS CITIZENS 4. Justices of SC and lower collegiate courts
Article IV, Section 2 One who is not (PHIL CONST., art. VIII, § 7(1))
natural-born citizen 5. Ombudsman and his deputies (PHIL CONST.,
As one who is a art. XI, § 8)
citizen of the They are former aliens 6. Members of Constitutional Commissions:
Philippines "from birth or foreigners who had a. CSC (PHIL CONST., art. IX-B, §1(1))
without having to to undergo a rigid b. COMELEC (PHIL CONST., art. IX-C, §1)
perform any act to procedure, in which c. COA (PHIL CONST., art. IX-D, § 1(1))
acquire or perfect they had to adduce 7. Members of the central monetary authority
Philippine sufficient evidence to (PHIL CONST., art. XII, § 20)
citizenship." (i .e., did prove that they 8. Members of the Commission on Human
not have to undergo possessed all the Rights (PHIL CONST., art. XIII, § 17(2))
the process of qualifications and
naturalization to none of the Former Filipino Citizens Running for Public
obtain Philippine disqualifications Office
citizenship) provided by law in Natural-born Filipinos who have been naturalized
order to become elsewhere and wish to run for elective public office
Filipino citizens. must comply with all of the following requirements:
1. Taking the oath of allegiance to the Republic.
Requirements: This effects the retention or reacquisition of
Generally required to one's status as a natural-born Filipino. This also
file a verified petition. enables the enjoyment of full civil and political
He or she must rights, subject to all attendant liabilities and
establish, among responsibilities under existing laws, provided
others, that he or she the solemnities recited in Section 5 of Republic
is of legal age, is of Act No. 9225 are satisfied.
good moral character, 2. Making a personal and sworn renunciation of
and has the capacity any and all foreign citizenship before any public
to adapt to Filipino officer authorized to administer an oath. This,
culture, tradition, and along with satisfying the other qualification
principles, or requirements under relevant laws, makes one
otherwise has resided eligible for elective public office.
in the Philippines for a
significant period of FOUNDLINGS
time. Further, the
applicant must show Natural Born Citizens
that he or she will not As a matter of law, foundlings are as a class,
be a threat to the natural-born citizens. While the 1935 Constitution’s
state, to the public, enumeration is silent as to foundlings, there is no
and to the Filipinos' restrictive language which would definitely exclude
core beliefs. foundlings either. No such intent or language
permits discrimination against foundlings. On the
contrary, all three Constitutions (1935, 1973, 1987)
Natural Born Citizens & Public Office guarantee the basic right to equal protection of the
Under the Constitution, the following must be laws. All exhort the State to render social justice.
natural-born citizens: (Poe-Llamanzares v. COMELEC, G.R. No.
1. President (PHIL CONST., art. VII, § 2) 221697, March 8, 2016)
2. Vice-President (PHIL CONST., art. VII, § 3)
Page 32 of 568
ATENEO CENTRAL
The Constitution provides for only two types of Section 4 (b) of the Republic Act No. 9344 defines
citizens: (1) natural-born, and (2) naturalized. the "best interest of the child" as the "totality of the
Petitioner never had to go through the circumstances and conditions which are most
naturalization processes and has been treated as congenial to the survival, protection and feelings of
a Filipino citizen upon birth. A natural-born citizen security of the child and most encouraging to the
can be identified under two approaches: (1) as a child's physical, psychological and emotional
matter of constitutional interpretation that all development."
foundlings found in the Philippines, being
presumptively born to either a Filipino biological Consistent with this statute is our ratification of the
father or a Filipina biological mother, are natural- United Nations Convention on the Rights of the
born, unless there is substantial proof to the Child. This specifically requires the states-parties'
contrary, and (2) is the definition under Art. 6, § 1(2) protection of: first, children's rights to immediate
of the 1987 Constitution which requires that the registration and nationality after birth; second,
father or the mother is a Filipino citizen. against statelessness; and third, against
discrimination on account of their birth status. The
Furthermore, the Philippines has obligated itself to Philippines likewise ratified the 1966 International
defend the People against statelessness and Covenant on Civil and Political Rights. As with the
protect and ensure the status and nationality of Convention on the Rights of the Child, this treaty
children immediately upon birth. Therefore, any requires that children be allowed immediate
interpretation that excludes foundlings from registration after birth and to acquire a nationality.
natural-born citizens is inconsistent with Philippine (David v. SET, G.R. No. 221538, Sept. 20, 2016)
laws and treaty obligations.
Presumption that Foundlings Are Natural Born
However, the circumstances of and during her birth The presumption that all foundlings found in the
lead to her parent/s’ Filipino citizenship as the most Philippines are born to at least either a Filipino
probable inference. Aside from her being left in father or a Filipino mother (and are thus natural-
front of a Catholic church in a place which was born, unless there is substantial proof otherwise)
populated mainly of Filipinos, Petitioner’s physical arises when one reads the Constitution as a whole,
features are consistent with the physical features so as to "effectuate its whole purpose. Article II,
of many Filipinos and that the latest statistic show Section 13 and Article XV, Section 3 of the 1987
that in the year she was born, Petitioner had a Constitution require the state to enhance children's
99.8% chance of being born a Filipino. well-being and to protect them from conditions
prejudicial to or that may undermine their
The conclusion that Petitioner is a natural-born development.
Filipina is based on fair and reasonable reading of
constitutional provisions, statutes, and The assumption should be that foundlings are
international norms having the effect of law, and on natural-born unless there is substantial evidence to
the evidence presented before the COMELEC. the contrary. This is necessarily engendered by a
(Poe-Llamanzares v. COMELEC, G.R. No. complete consideration of the whole Constitution,
221697, 221698-70, March 6, 2018; Leonen, J., not just its provisions on citizenship. (David v. SET,
Concurring Opinion) G.R. No. 221538, Sept. 20, 2016)
Treaties & Status of Foundlings Foundlings v. Natural Born Citizens

Congress has enacted statutes founded on the Concluding that foundlings are not natural-born
premise that foundlings are Filipino citizens at birth. Filipino citizens is tantamount to permanently
It has adopted mechanisms to effect the discriminating against our foundling citizens. Art II,
constitutional mandate to protect children. Sec. 26 and Art III Sec. 1 guarantees equal
Likewise, the Senate has ratified treaties that put protection of the laws and equal access to
this mandate into effect. opportunities for public service, respectively. Other
than the anonymity of their biological parents, no
substantial distinction differentiates foundlings
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from children with known Filipino parents. They are 18069, May 26, 1962; Cabiling v. Commissioner
both entitled to the full extent of the state's Fernandez Jr., G.R. No. 183133, July 26, 2010,
protection from the moment of their birth. (David v. Bernas, The 1987 Philippine Constitution: A
SET, G.R. No. 221538, Sept. 20, 2016) Comprehensive Reviewer, 2011)
B. WHO ARE CITIZENS C. WHO CAN BE CITIZENS
The following are citizens of the Philippines: &

1. Those who are citizens of the Philippines at the
time of the adoption of the 1987 Constitution. D. MODES OF ACQUIRING CITIZENSHIP
2. Those whose fathers or mothers are citizens of
1. Jus sanguinis – acquisition of citizenship on
the Philippines.
the basis of blood relationship
3. Those born before January 17, 1973, of Filipino
2. Jus soli – acquisition of citizenship on the basis
mothers, who elect Philippine citizenship upon
of place of birth
reaching the age of majority.
3. Naturalization – the legal act of adopting an
4. Those who are naturalized in accordance with
alien and clothing him with the privilege of a
law. (PHIL CONST., art. IV, § 1)
native-born citizen
(Tecson v. COMELEC, G.R. No. 161434,
Illegitimate Child of a Foreign Mother
March 3, 2004; Bernas, The 1987 Philippine
• If the father is unknown, follow the mother's
Constitution: A Comprehensive Reviewer,
citizenship.
2011)
• If the father is known and is Filipino, the
illegitimate child is considered Filipino after
The Philippines follows jus sanguinis and
proving the paternity. (Tecson v. COMELEC,
naturalization. Naturalization is a mode for both
G.R. No. 161434, March 3, 2004)
acquisition (governed by CA 473) and reacquisition
(governed by CA 63) of Philippine citizenship.
Election of Philippine Citizenship
1. Prior to the 1973 Constitution - If a Filipina
Principle of Jus Sanguinis in the 1987
married an alien, she loses her Filipino
Constitution
citizenship. Hence, her child would have to elect
If a child is born under the 1973 or 1987
Filipino citizenship upon reaching the age of
Constitution and either his father or mother is a
majority.
Filipino citizen at the time the child is born, the child
2. Under the 1973 Constitution - Children born of
is a Filipino citizen no matter where he may be
Filipino mothers were already considered
born.
Filipinos.
3. Therefore, the provision on election of
citizenship under the 1987 Constitution only
NATURALIZATION
applies to those persons who were born under
What is naturalization
the 1935 Constitution.
Naturalization signifies the act of formally adopting
4. In order for the children to elect Filipino
a foreigner into the political body of a nation by
citizenship, the mother must have been
clothing him or her with the privileges of a citizen.
Filipinos at the time of their marriage (Cu v.
(So v. Republic, G.R. No. 170603, Jan. 29, 2007)
Republic, G.R. No. L-3018, July 18, 1951;
Villahermosa v. Commissioner of Immigration,
Three Modes of Naturalization
G.R. No. L-1663, Mar. 31, 1948)
1. Administrative Naturalization (R.A. No. 9139)
5. The election must be made within a reasonable
2. Judicial Naturalization (C.A. No. 473)
period after reaching the age of majority. The
3. Legislative Naturalization in the form of a law
phrase "reasonable time" has been interpreted
enacted by Congress granting Philippine
to mean that the elections should be made
citizenship to an alien
within three (3) years from reaching the age of
majority. (Cuenco v. Sec. of Justice, G.R. No. L-
C.A. No. 473 v. R.A. No. 9139
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C.A. No. 473 and R.A. No. 9139 are separate and race, in any of the branches of education or
distinct laws—the former covers all aliens industry for a period of 2 years or more; or
regardless of class while the latter covers native- 5. Born in the Philippines (C.A. 473, § 3)
born aliens who lived here in the Philippines all
their lives, who never saw any other country and all Denaturalization: Cancellation of Certificate of
along thought that they were Filipinos; who have Naturalization
demonstrated love and loyalty to the Philippines 1. If it is shown that said naturalization certificate
and affinity to the customs and traditions. (So v. was obtained fraudulently or illegally.
Republic, G.R. No. 170603, Jan. 29, 2007) 2. If the person naturalized shall, within the five
years next following the issuance of said
a. C.A. No. 473 naturalization certificate, return to his native
country or to some foreign country and establish
Qualifications his permanent residence there: Provided, That
1. Not less than twenty-one years of age on the the fact of the person naturalized remaining for
day of the hearing of the petition; more than one year in his native country or the
2. Resided in the Philippines for a continuous country of his former nationality, or two years in
period of 10 years or more; any other foreign country, shall be considered
3. Of good moral character; believes in the as prima facie evidence of his intention of taking
principles underlying the Philippine up his permanent residence in the same.
Constitution; conducted himself in a proper and 3. If the petition was made on an invalid
irreproachable manner during the entire period declaration of intention.
of his residence towards the government and 4. If it is shown that the minor children of the
community person naturalized failed to graduate from a
4. Must own real estate in the Philippines worth public or private high schools recognized by the
P5,000 or more OR must have lucrative trade, Office of Private Education of the Philippines,
profession, or lawful occupation; where Philippine history, government and civics
5. Able to speak or write English or Spanish or are taught as part of the school curriculum,
anyone of the principal languages; and through the fault of their parents either by
6. Enrolled his minor children of school age in any neglecting to support them or by transferring
of the recognized schools where Philippine them to another school or schools. A certified
history, government and civics are taught or copy of the decree cancelling the naturalization
prescribed as part of the school curriculum, certificate shall be forwarded by the clerk of the
during the entire period of the residence in the Court to the Department of the Interior and the
Philippines required of him. (C.A. 473, § 2) Bureau of Justice.
5. If it is shown that the naturalized citizen has
Special Qualifications allowed himself to be used as a dummy
(ANY will result to reduction of the 10-year period requiring Philippine citizenship as a requisite for
of continuous residency requirement to 5 years the exercise, use or enjoyment of a right,
under no. 2 above) franchise or privilege (C.A. No. 473, § 18)
1. Having honorably held office under the
Government of the Philippines or under that of b. R.A. No. 9139
any of the provinces, cities, municipalities, or
political subdivisions thereof; Qualifications
2. Established a new industry or introduced a 1. The applicant must be born in the Philippines
useful invention in the Philippines; and residing therein since birth;
3. Married to a Filipino woman; 2. The applicant must not be less than eighteen
4. Engaged as a teacher in the Philippines in a (18) years of age, at the time of filing of his/her
public or recognized private school not petition;
established for the exclusive instruction of 3. The applicant must be of good moral character
children of persons of a particular nationality or and believes in the underlying principles of the
Constitution, and must have conducted
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himself/herself in a proper and irreproachable with Filipinos, or who have not evinced a
manner during his/her entire period of residence sincere desire to learn and embrace the
in the Philippines in his relation with the duly customs, traditions and ideals of the Filipinos;
constituted government as well as with the 7. Citizens or subjects with whom the Philippines
community in which he/she is living; is at war, during the period of such war; and
4. The applicant must have received his/her 8. Citizens or subjects of a foreign country whose
primary and secondary education in any public laws do not grant Filipinos the right to be
school or private educational institution dully naturalized citizens or subjects thereof. (R.A.
recognized by the Department of Education, No. 9139, § 4)
Culture and Sports, where Philippine history,
government and civics are taught and c. Effects of Judicial Naturalization
prescribed as part of the school curriculum and
where enrollment is not limited to any race or Effects
nationality: Provided, That should he/she have 1. The legitimate minor children of the naturalized
minor children of school age, he/she must have father become Filipinos as well.
enrolled them in similar schools; 2. The wife also becomes a Filipino citizen,
5. The applicant must have a known trade, provided that she does not have any
business, profession or lawful occupation, from disqualification which would bar her from being
which he/she derives income sufficient for naturalized. (C.A. No. 473, § 15, Tuang v.
his/her support and if he/she is married and/or Galang, G.R. No. L-18775, Nov. 30, 1963)
has dependents, also that of his/her
family: Provided, however, That this shall not Naturalization & Res Judicata
apply to applicants who are college degree A naturalization proceeding not being a judicial
holders but are unable to practice their adversary proceeding, the decision rendered
profession because they are disqualified to do therein is not res judicata as to any of the reasons
so by reason of their citizenship; or matters which would support a judgment
6. The applicant must be able to read, write and cancelling the certificate of naturalization for illegal
speak Filipino or any of the dialects of the or fraudulent procurement (Republic v. Go Bon
Philippines; and Lee, G.R. No. L-11499, Apr. 29, 1966)
7. The applicant must have mingled with the
Filipinos and evinced a sincere desire to learn Pursuant to P.D. No. 836 and 923, naturalization
and embrace the customs, traditions and ideals extends to the alien wife and minor children of the
of the Filipino people (R.A No. 9139, § 3) person naturalized upon the wife's showing that
she does not suffer from any of the disqualifications
Disqualifications under Letter of Instructions No. 270, and that she
1. Those opposed to organized government or and her minor children reside permanently in the
affiliated with any association of group of Philippines at the time of her husband's
persons who uphold and teach doctrines naturalization. In other words, the only persons to
opposing all organized governments; undergo the proceeding before the Special
2. Those defending or teaching the necessity of or Committee on Naturalization will only be the person
propriety of violence, personal assault or naturalized and his wife. The minor children, in the
assassination for the success or predominance words of Letter of Presidential Decree No. 836,
of their ideas; follow the acquired Filipino citizenship of their
3. Polygamists or believers in the practice of mother. (Republic v. Lao, G.R. Nos. 205218 &
polygamy; 207075, Feb. 10, 2020)
4. Those convicted of crimes involving moral
turpitude; When Res Judicata Applies
5. Those suffering from mental alienation or Res judicata may only be applied in cases of
incurable contagious diseases; citizenship when the following concur:
6. Those who, during the period of their residence
in the Philippines, have not mingled socially
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1. A person's citizenship must be raised as a 4. Marriage by a Filipino woman to an alien, if by

material issue in a controversy where said the laws of her husband’s country, she
person is a party; becomes a citizen thereof.
2. The Solicitor General or his authorized 5. Accepting a commission and serving in the
representative took active part in the resolution armed forces of another country, unless there
thereof; is an offensive/defensive pact with the country,
3. The finding on citizenship is affirmed by the or it maintains armed forces in RP with RP’s
Supreme Court. (Go v. Bureau of Immigration consent;
and Deportation, G.R. No. 191810, June 22, 6. Denaturalization;
2015) 7. Being found by final judgment to be a deserter
of the AFP
Direct Naturalization v. Derivative
Naturalization 2. REACQUIRING CITIZENSHIP
Derivative
Direct Naturalization Citizenship may be Reacquired by:
Naturalization
1. Repatriation
Citizenship is acquired by Citizenship
2. Naturalization
an alien through: conferred on:
3. Legislative Act
1. Judicial naturalization 1. Wife of
Repatriation
under CA 473 naturalized
Repatriation results in the recovery of the original
2. Administrative husband
nationality. This means that a naturalized Filipino
naturalization under 2. Minor children
who lost his citizenship will be restored to his prior
RA 9139 of naturalized
status as a naturalized Filipino citizen. On the other
3. Legislative person
hand, if he was originally a natural-born citizen
naturalization in the 3. Alien woman
before he lost his Philippine citizenship, he will be
form of a law enacted upon marriage
restored to his former status as a natural-born
by Congress, to a national
Filipino. (Bengzon v. HRET, G.R. No. 142840, May
bestowing Philippine
7, 2001)
citizenship to an alien
E. MODES OF LOSING & REACQUIRING Natural-born Filipinos who are deemed to have lost
their citizenship may re-acquire the same via
CITIZENSHIP
repatriation proceedings. This involves taking an
Philippine citizenship may be lost or reacquired in oath of allegiance and filing the same with the civil
the manner provided by law (PHIL CONST., art. IV, § registry. (C.A. No. 63, sec. 4)
3)
Repatriation Not a Matter of Right
Citizens of the Philippines who marry aliens shall Repatriation is not a matter of right, but it is a
retain their citizenship, unless by their act or privilege granted by the State. The State has the
omission they are deemed, under the law, to have power to prescribe by law the qualifications,
renounced it. (PHIL CONST., art. IV, § 4) procedure, and requirements for repatriation. It has
the power to determine if an applicant for
1. LOSING CITIZENSHIP repatriation meets the requirements of the law for it
is an inherent power of the State to choose who will
1. Naturalization in a foreign country (C.A. 63, § be its citizens, and who can reacquire citizenship
1(1)) once it is lost. (Tabasa v. CA, G.R. No. 125793,
2. Express renunciation or expatriation (CA 63, Aug. 29, 2006)
§1(2))
3. Taking an oath of allegiance to another country As distinguished from the lengthy process of
upon reaching the age of majority; naturalization, repatriation simply consists of the
taking of an oath of allegiance to the Republic of
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the Philippines and registering said oath in the This reacquisition works to restore natural-born
Local Civil Registry of the place where the person status as though it was never lost at all.
concerned resides or last resided. He would not
even need to file a petition in court. (Bengson III v. Reacquisition v. Retention
HRET, G.R. No.142840, May 7, 2001) Natural-born Filipinos who have lost their
citizenship by naturalization in a foreign country
Who May be Repatriated: shall re-acquire their Philippine citizenship upon
1. Filipino women who have lost their Philippine taking the oath of allegiance to the Republic of the
citizenship by marriage to aliens Philippines.
2. Natural-born Filipinos who have lost their
Philippine citizenship, including their minor Natural-born Filipinos who became foreign citizens
children, on account of political or economic after R.A. 9225 took effect, shall retain their
necessity (R.A. No. 8171, § 1) Philippine citizenship upon taking the same oath.
The taking of oath of allegiance is required for both
How is Repatriation Effected categories of natural-born Filipino citizens who
1. By taking the necessary oath of allegiance to became citizens of a foreign country. (David v.
the Republic of the Philippines. Agbay, G.R. No, 199113, March 18, 2015)
2. Registration in the proper civil registry and in the
Bureau of Immigration. Repatriation and Domicile
3. The Bureau of Immigration shall thereupon To reacquire domicile he must provide proof of
cancel the pertinent alien certificate of intent to stay in the Philippines. After he does that,
registration and issue the certificate of his occasional absence from the recovered
identification as Filipino citizen to the repatriated domicile does not have the effect of removing him
citizen (R.A. No. 8171, § 2) from the domicile for as long as he manifests
animus manendi et revertendi.
Who Cannot be Repatriated (OVM2)
1. Person Opposed to organized government or The domicile is not established strictly from the
affiliated with any association or group of time that a person was repatriated under R.A. No.
persons who uphold and teach doctrines 9225. The Court said that other evidence may be
opposing organized government; admitted to determine the time that domicile is
2. Person defending or teaching the necessity or established. Also, issue of residence could be
propriety of Violence, personal assault, or decided particularly on the facts-of-the-case basis,
association for the predominance of their ideas; as what would a series of jurisprudence would also
3. Person convicted of crimes involving Moral dictate. Hence, domicile cannot strictly be
turpitude; or established only from a person’s repatriation. (Poe-
4. Person suffering from Mental alienation or Llamanzares v. Comelec et al., G.R. Nos. 221697
incurable contagious diseases. (R.A. No. 8171, & 221698-700, March 8, 2016)
§ 1)
F. DUAL CITIZENSHIP AND DUAL
Effective Date of Repatriation ALLEGIANCE
The effective date is the date of application for
repatriation not the date when repatriation was Dual allegiance of citizens is inimical to the national
approved (Lee v. Commission on Elections & interest and shall be dealt with by law. (PHIL
Frivaldo, G.R. No. 120295, June 28, 1996) CONST., art. 4, § 5)
Repatriation under R.A. No. 9225 Dual Citizenship v. Dual Allegiance

Citizens who lost their citizenship by reason of DUAL CITIZENSHIP DUAL ALLEGIANCE
their naturalization as citizens of a foreign country
Involuntary and legal Voluntary and illegal
are deemed to have reacquired their Philippine
citizenship upon taking the oath of allegiance.
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As a result of the Refers to the situation R.A. 9225

concurrent application in which a person R.A. 9225 provides that a Filipino who has
of the different laws of simultaneously owes, previously renounced his Filipino citizenship can
two or more states, a by some positive act, reacquire it without renouncing his foreign
person is loyalty to two or more citizenship. Likewise, a Filipino who acquires
simultaneously states. While dual foreign citizenship after the effectivity of R.A. 9225
considered a national citizenship is retains his Filipino citizenship. R.A. 9225 is a law
by the said states. For involuntary, dual about dual citizenship not dual allegiance. (AASJS
instance, such a allegiance is the result v. Datumanong, G.R. No. 160869, May 11, 2007)
situation may arise of an individual’s
when a person whose volition. (Mercado v. R.A. 9225, however, requires that those who
parents are citizens of Manzano, G.R. No. acquired dual citizenship must specifically
a state which adheres 135083, May 26, renounce foreign citizenship upon filing of
to the principle of jus 1999) candidacy. (R.A. 9225 § 5[2])
sanguinis is born in a
state which follows the The continued use of foreign passport render the
doctrine of jus renunciation of foreign citizenship nugatory. The
soli. Such a renunciation of foreign citizenship must be
person, ipso facto and complete and unequivocal. The requirement that
without any voluntary the renunciation must be made through an oath
act on his part, is emphasizes the solemn duty of the one making the
concurrently oath of renunciation to remain true to what he has
considered a citizen of sworn to. Allowing the subsequent use of a foreign
both states. (Mercado passport because it is convenient for the person to
v. Manzano, G.R. No. do so is rendering the oath a hollow act. It devalues
135083, May 26, the act of taking of an oath, reducing it to a mere
1999) ceremonial formality. (Maquiling v. COMELEC,
G.R. No. 195649, April 16, 2013)
Dual Allegiance and the Constitution
The specific target of this new provision is not dual Derivative Citizenship
citizenship but dual allegiance arising from e.g., The unmarried child, whether legitimate,
mixed marriages or birth in foreign soil. This was illegitimate or adopted, below eighteen (18) years
seen as more insidious than dual citizenship of age, of those who re-acquire Philippine
citizenship upon effectivity of this Act shall be
To the extent, however, that dual citizenship also deemed citizenship of the Philippines. (R.A. 9225
imports dual allegiance, then it must also be "dealt § 4)
with by law." In other words, the Constitution leaves
the disposition of the problem of dual citizenship ————- end of topic ————-
and dual allegiance to ordinary legislation.
Unlike those with dual allegiance, who must,

therefore, be subject to strict process with respect
to the termination of their status, for candidates
with dual citizenship, it should suffice if, upon the
filing of their certificates of candidacy, they elect
Philippine citizenship to terminate their status as
persons with dual citizenship considering that their
condition is the unavoidable consequence of
conflicting laws of different states. (Mercado v.
Manzano, G.R. No. 135083, May 26, 1999)
Page 39 of 568
LEGISLATIVE
DEPARTMENT
Political Law
ATENEO CENTRAL
V. LEGISLATIVE DEPARTMENT A. LEGISLATIVE POWER

1. SCOPE AND LIMITATIONS
Nature of Legislative Power

V. LEGISLATIVE DEPARTMENT
Legislative power is the authority to make, alter and
repeal laws. (PHIL. CONST., art. VI, § 1.)
A. LEGISLATIVE POWER
1. Scope and limitations
Classification of Legislative Power (COrODe):
2. Principle of non-delegability; exceptions
1. Constituent - the power to propose
B. CHAMBERS OF CONGRESS; amendments to the Constitution
COMPOSITION; QUALIFICATIONS 2. Ordinary - the power to pass ordinary laws
1. Senate 3. Original - possessed by the people in their
2. House of Representatives sovereign capacity, exercised via initiative
a. District representatives and and referendum.
questions of apportionment 4. Delegated - possessed by Congress and
b. Party-list system other legislative bodies by virtue of the
Constitution; subordinate to the original
C. LEGISLATIVE PRIVILEGES; power of the people who delegated the
INHIBITIONS; DISQUALIFICATIONS same
D. QUORUM AND VOTING MAJORITIES Who Exercises Legislative Power (CoLoPeP)
E. DISCIPLINE OF MEMBERS 1. Congress

Legislative power is vested in Congress, which
F. PROCESS OF LAW-MAKING
consists of the Senate and the House of
Representatives.
G. ELECTORAL TRIBUNALS AND THE
COMMISSION ON APPOINTMENTS
General Plenary Power
a. Nature
b. Powers The grant of legislative power to Congress is broad,
general and comprehensive. The legislative body
H. POWERS OF CONGRESS possesses plenary power for all purposes of civil
1. Legislative inquiries and oversight government. Any power, deemed to be legislative
functions by usage and tradition, is necessarily possessed by
2. Non-legislative Congress, unless the Constitution has lodged it
a. Informing function elsewhere. Except as limited by the Constitution,
b. Power of impeachment either expressly or impliedly, legislative power
embraces all subjects and extends to matters of
I. INITIATIVE AND REFERENDUM general concern or common interest. (Ople v.
Torres, G.R. No. 127685, July 23, 1998)
2. Local Legislative Body

Local legislative bodies are allowed by the
Constitution to legislate on purely public matters.
Since what was given to local legislative bodies is
not power to make rules and regulations but
legislative power, the rules on valid delegation do
not apply. However, when what is given to a local
legislative body is executive power, the rules
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applicable to the empowerment of administrative

LGU NOT LESS THAN:
agencies also becomes applicable (Rubi v.
Provincial Board, G.R. No. L-14078. March 8, Autonomous region 2000
1919).
Province or city 1000
Requisites of A Valid Ordinance: (Must NOT
CUPPU, Must be GC) Municipality 100
1. Must not Contravene the Constitution or
any statute Barangay 50
2. Must not be Unfair or oppressive
3. Must not be Partial or discriminatory Limitations on the Power of Local Initiative
4. Must not Prohibit, but may regulate trade 1. Should not be exercised more than once a
5. Must not be Unreasonable year;
6. Must be General and Consistent with 2. Extended only to subjects or matters which
public policy (Magtajas v. Pryce are within the legal powers of local
Properties, G.R. No. 111097, July 20, legislative bodies to enact;
1994). 3. If the local legislative body adopts the
proposition in toto before the initiative is
3. People’s Initiative on Statutes held, the initiative shall be cancelled.
Those against such action may apply for
Initiative initiative. (R.A. No. 6735, § 15)
The power of the people to propose amendments
to the Constitution or to propose and enact Limitation on Local Legislative Body vis-a-vis
legislation called for the purpose (R.A. No. 6735, § Local Initiative
3(a)) Any proposition, ordinance, or resolution approved
through an initiative and referendum
Three Types of Initiative (CSL) ● Shall not be repealed, modified or
1. Initiative on the Constitution - A petition amended by the local legislative body
proposing amendments to the concerned within 6 months from its date of
Constitution. approval
2. Initiative on Statutes - A petition proposing ● May be amended, modified, repealed
to enact a national legislation. within 3 years thereafter by a vote of 3/4 of
3. Initiative on Local Legislation - A petition all its members.
proposing to enact a regional, provincial, ○ In case of barangays, the period
city, municipal, or barangay law, resolution shall be 18 months after approval.
or ordinance (R.A. No. 6735, § 3(a)) (R.A. No. 6735, § 16; Local
Government Code, § 125.)
Local Initiative
Registered voters within a local government unit Indirect Initiative
may file a petition with the Regional Assembly or Exercise of initiative by the people through a
local legislative body, respectively, proposing the proposition sent to the Congress or the local
adoption, enactment, repeal or amendment of any legislative body for action (R.A. No. 6735, § 3(b))
law, ordinance or resolution. (R.A. No. 6735, §
13(a)) Referendum
The power of the electorate to approve or reject
MINIMUM NUMBER OF REGISTERED legislation through an election called for the
VOTERS REQUIRED PER LGU purpose (R.A. No. 6735, § 3(c))
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Two Classes of Referendum (R.A. No. 6735, §

Entirely the work of Begun and consented
3(c); Local Government Code, § 126.)
the electorate to by the law-making
1. Referendum on statutes - petition to
body
approve or reject an act or law, or part
thereof, passed by Congress A process of law- Consists merely of the
2. Referendum on local laws - legal making by the people electorate approving
processes whereby the registered voters of themselves without or rejecting what has
the local government units may approve, the participation and been drawn up or
amend or reject any ordinance enacted by against the wishes of enacted by a
the Sanggunian their elected legislative body
representatives
Required Petition
1. Petition should be registered with the
Commission on Elections 4. The President under a Martial Law Rule or in
2. Should be signed by at least 10% of the a Revolutionary Government
total number of registered voters
3. Every legislative district must be Martial Law
represented by at least 3% of the registered During the period from 1972 to 1987, the laws of
voters thereof the Philippines did recognize the legislative power
lodged in the presidency. Today, the 1987
The petition to be signed by the people should Constitution has not disturbed this fact and still
contain a definite proposal of the amendment of the recognizes the legitimate exercise of legislative
Constitution; not merely a general question power by then President Ferdinand Marcos
whether they approve of the amendment or not (Bernas, 1987 Philippine Constitution: A
(Lambino v. COMELEC, G.R. No. 174153, October Commentary, 681, 2009).
25, 2006).
a. Martial Law Powers and Article XVII of the
Matters Which May Not Be the Subject of 1973 Constitution
Initiative or Referendum (R.A. No. 6735, § 10.) Shortly after martial law and the birth of the 1973
1. A petition embracing more than one Constitution the legislative power in the President,
subject. as flowing from his martial law powers and Article
2. Statutes involving emergency measures XVII, Section 3(2) of the 1973 Constitution, was
recognized as extraordinary legislative power
Initiative v. Referendum (SBMA v. COMELEC, given to the President to enable him to cope with
G.R. No. 125416, Sept. 26, 1996) an extraordinary situation especially at a time when
there was no operating legislative body (Aquino, Jr.
INITIATIVE REFERENDUM v. COMELEC, G.R. No. L-40004, January 31,
1975).
Power of the people to Right reserved to the
propose bills and people to adopt or
b. Amendment No. 6
laws, and to enact or reject any act or
In 1976, Amendment No. 6 clarified the legislative
reject them at the polls measure which has
power of the President: “Whenever in the judgment
independent of the been passed by a
of the President (Prime Minister), there exists a
legislative assembly legislative body and
grave emergency or threat or imminence thereof,
which in most cases
or whenever the interim Batasang Pambansa or
would without action
the regular National Assembly fails or is unable to
on the part of electors
act adequately on any matter for any reason that in
become a law
his judgment requires immediate action, he may, in
order to meet the exigency, issue the necessary
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decrees, orders or letters of instruction, which shall Limitations on Legislative Power

form part of the law of the land.” (A) Substantive - limitations on the content of laws
The legislative power given in Amendment no. 6 is Express limitations

also concurrent with that of the regular Batasang 1. Bill of Rights
Pambansa (Legaspi v. Minister of Finance, G.R. a. No law shall be passed abridging
No. L-58289, July 24, 1982). freedom of speech, of expression,
etc.
Notes: b. No law shall be made respecting
1. The 1973 Constitution provided for two an establishment of religion or
concurrent legislative agencies: prohibiting the free exercise
a. Batasang Pambansa thereof
b. President c. No law impairing the obligation of
2. The legislative power of Batasan was contracts shall be passed
ordinary, while the legislative power of the d. No ex post facto law or bill of
President was extraordinary. Hence, the attainder shall be enacted
President in his judgment may undo what 2. On appropriation
the legislature might have done not to his a. The procedure in approving
satisfaction (Bernas, 1987 Philippine appropriations for Congress shall
Constitution: A Commentary, 684, 2009). strictly follow the procedure for
approving appropriations for other
Revolutionary Government departments or agencies
a. Proclamation No. 3 b. Prohibition against use of public
After the 1986 revolution, President Corazon money or property for a religious
Aquino assumed revolutionary legislative power purpose
and, on March 25, 1986 issued Proclamation No. c. No specific funds shall be
3, the Provisional Freedom Constitution. Article II, appropriated or paid for use or
Section 1 vested legislative power in the President benefit of any religion, sect, etc.,
until a legislature is elected and convened under a except for priests, etc. assigned to
new Constitution. AFP, penal institutions, etc.
3. On taxation
b. 1987 Constitution a. No law granting any tax exemption
Section 6 of the Transitory Provisions of the 1987 shall be passed without the
Constitution provides that “The incumbent concurrence of a majority of all
President shall continue to exercise legislative Members of Congress
powers until the first Congress is convened.” b. All money collected on any tax
levied for a special purpose shall
President Corazon Aquino exercised legislative be treated as a special fund and
power alone while President Ferdinand Marcos paid out for such purpose only
exercised legislative power concurrently first with c. All revenues and assets of non-
the interim Batasang Pamabansa and then with the stock, non-profit educational
regular Batasang Pambansa (Bernas, 1987 institutions
Philippine Constitution: A Commentary, 685, 4. On the Supreme Court’s jurisdiction. No
2009). law shall be passed increasing the
appellate jurisdiction of the Supreme Court
President Corazon Aquino lost her legislative as provided in the Constitution without its
power on July 26, 1987 when Congress was advice and concurrence
convened. 5. On nobility. No law granting title of royalty
or nobility shall be passed
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Implied limitations Principle of Non-Delegability

1. Prohibition against irrepealable laws General Rule: Congress cannot delegate its
2. Non-delegation of powers legislative power under the principle of non-
delegation (delegata potestas non potest delegari
Jurisprudence or delegated power may not be delegated).
1. Power to provide holdover: Congress
cannot provide for the holdover of elective Exceptions: (PLATE)
officers if the same would go beyond their 1. To the extent reserved to the People by the
terms fixed by the Constitution (Abas Kida provision on initiative and referendum.
v. Senate, G.R. No. 196271, 2011) 2. Delegation to Local government
2. Power to create new term and appoint the 3. Delegation of rule-making power to
occupant of the position: Congress cannot Administrative bodies
create a new term and effectively appoint 4. Congress may delegate Tariff powers to
the occupant of the position for the new the President
term. (Id.) 5. Emergency powers delegated by
3. Power to grant franchise for public utilities: Congress to the President
Congress cannot grant legislative
franchises for the operation of public For an exhaustive discussion of this topic, see
utilities which shall be exclusive in page 20, II (F) [Delegation of Powers] of this
character and which shall not be subject to Reviewer.
amendment, alteration or repeal when
common good requires. (Tawang B. CHAMBERS OF CONGRESS;
Multipurpose v. La Trinidad Water District, COMPOSITION; QUALIFICATIONS
G.R. No. 166471, 2011)
1. SENATE
(B) Procedural - limitations on the manner of
Composition
passing laws 24 who are elected at large by the qualified voters
1. There must only be one subject to be of the Philippines. (PHIL. CONST., art. VI, § 2.)
stated in the title of the bill to prevent
hodgepodge or log-rolling legislation.
Term of Office
2. Three readings on separate days, printed
6 years commencing at noon on the 30th day of
copies of the final bill in its final form to be June following their election (PHIL. CONST., art. VI,
distributed to members three days before § 4.)
its passage, except if the President
certifies to its immediate enactment to
Term Limit
meet a public calamity or emergency; upon
No Senator shall serve for more than 2 consecutive
its last reading, no amendment is allowed terms. Voluntary renunciation of the office for any
and the vote thereon taken immediately length of time shall not be considered as an
and the yeas and nays entered into the
interruption in the continuity of his service for the
Journal.
full term for which he was elected (PHIL. CONST.,
3. Appropriation, revenue, tariff, bills
art. VI, § 4.)
authorizing the increase of public debts,
bills of local application, and private bills 2. HOUSE OF REPRESENTATIVES
shall originate exclusively in the House of
Representatives. Composition
Not more than 250 members, unless otherwise
2. PRINCIPLE OF NON-DELEGABILITY; fixed by law, consisting of:
EXCEPTIONS 1. District Representatives: elected from
legislative districts apportioned among the
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provinces, cities and the Metropolitan

Resident of the Resident of the said
Manila area Philippines for at district for at least 1
2. Party-list Representatives: shall
least 2 years year immediately
constitute 20% of the total number of the
immediately preceding election
members of the House of Representatives
preceding the (except party-list
including those under the party-list.
election representative)
Term of Office Term of 6 years Term of 3 years

3 years, commencing at noon on the 30th day of commencing at noon commencing at noon
June next following their election on June 30, on June 30, next
next following their following their election
Term Limit election
No member of the HOR shall serve for more than
3 consecutive terms. Voluntary renunciation of the Term limit: no more Term limit: no more
office for any length of time shall not be considered than 2 consecutive than 3 consecutive
as an interruption in the continuity of his service for terms terms
the full term for which he was elected.
a. District representatives and questions of
List of Qualifications for both Senators and
apportionment
Members of the House
The qualifications of both Senators and Members District Representative (PHIL. CONST., art. VI, §
of the House are LIMITED to those provided by the 5.)
Constitution. Congress cannot, by law, add or Elected from legislative districts that are
subtract from these qualifications (PHIL. CONST., apportioned in accordance with the number of
art. VI, § 3 & 6; Pimentel v. COMELEC, G.R. No. inhabitants in each area and on the basis of a
161658, Nov. 3, 2008). uniform and progressive ratio.
Qualifications for Senate and House of Qualifications

Representatives: 1. Natural born citizen
SENATOR REPRESENTATIVE 2. At least 25 years of age on the day of the
election
Natural-born citizen of the Philippines 3. Able to read and write
4. Registered voter in the district in which he
Able to read and write shall be elected
5. A resident of the Philippines for a period of
At least 35 years old At least 25 years old on
not less than 1 year immediately preceding
on the DAY OF THE the DAY OF THE
the day of the election
ELECTION ELECTION
Registered voter Registered voter in the Residence Requirement

district in which he shall ● The term "residence" has been understood
be elected (except as synonymous with domicile not only
party-list under the previous Constitutions but also
representatives) under the 1987 Constitution. (Co v. HRET,
G.R. Nos. 92191-92, July 30, 1991)
● Domicile denotes a fixed permanent
residence to which when absent for
business or pleasure, one intends to
return.
○ The absence of a person from said
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permanent residence, no matter misinform, or hide a fact which would

how long, notwithstanding, it otherwise render a candidate ineligible.
continues to be the domicile of that (Romualdez-Marcos, G.R. No. 119976,
person. Sept. 18, 1995)
○ In other words, domicile is
characterized by animus Creation of Legislative Districts
revertendi. (Id.) The rules on legislative apportionment or creation
● The manifest intent of the law in fixing a of legislative districts are found in Art. VI, Section 5
residence qualification is to exclude a (1), (3) and (4). (Bagabuyo v. COMELEC, G.R. No.
stranger or newcomer, unacquainted with 176970, Dec. 8, 2008)
the conditions and needs of a community
and not identified with the latter, from an
LEGISLATIVE REAPPORTIONMENT
elective office to serve that community.
APPORTIONMENT
(Gallego v. Verra, G.R. No. L-48641, Nov.
24, 1941) The determination of The realignment or
● Domicile of origin is not easily lost. To the number of change in legislative
successfully effect a change of domicile, representatives districts brought about
the following must be proven: (AID) which a State, county by changes in
○ an Actual removal or an actual or other subdivision population and
change of domicile may send to a mandated by the
○ a bona fide Intention of legislative body constitutional
abandoning the former place of requirement of equality
residence and establishing a new It is the allocation of of representation
one seats in a legislative
○ Definite acts which correspond body in proportion to
with the purpose (Aquino v. the population; the
COMELEC, G.R. No. 120265, drawing of voting
Sept. 18, 1995) district lines so as to
● Therefore, in order to acquire a domicile by equalize population
choice, there must be an animus non and voting power
revertendi and an animus manendi. among the districts
(Gallego v. Verra, G.R. No. L-48641, Nov.
24, 1941)
● While voting is not conclusive of residence, Only Congress can create provinces and cities
it does give rise to a strong presumption of because the creation of provinces and cities
residence. The fact that one has necessarily includes the creation of legislative
continuously voted in a particular locality is districts, a power only Congress can exercise
a strong factor in assisting to determine the under Section 5, Article VI of the Constitution and
status of his domicile. (Domino v. Section 3 of the Ordinance appended to the
COMELEC, G.R. No. 134015, July 29, Constitution. The ARMM Regional Assembly
1999) cannot create a province without a legislative
● It is the fact of residence, not a statement district because the Constitution mandates that
in a certificate of candidacy which ought to every province shall have a legislative district
be decisive in determining whether or not (Sema v. COMELEC, G.R. No. 177597, July 16,
an individual has satisfied the 2008).
constitution's residency qualification
requirement. The said statement becomes The COMELEC cannot correct the imbalance
material only when there is or appears to resulting from the increase of districts by
be a deliberate attempt to mislead, transferring districts. The COMELEC must wait for
Page 47 of 568
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a legislative enactment. (Montejo v. COMELEC, 250,000 minimum population only for a city
G.R. No. 118702, March 16, 1995) to be entitled to a representative, but not
so for a province. (Aquino v. COMELEC,
Rules on apportionment of legislative districts G.R. No. 189793, April 7, 2010)
Under the Constitution ● 250,000 only to create an initial
1. Legislative districts shall be made in legislative district: The requirement for
accordance with the number of respective cities applies only to its initial legislative
inhabitants and on the basis of a uniform district. The Constitution does not require
and progressive ratio a city to increase its population by another
2. Each district shall comprise, as far as 250,000 to be entitled to an additional
practicable, Contiguous, Compact and district (Id.)
Adjacent territory. (CCA) ● Necessity of confirmation by plebiscite:
3. Each city with at least 250,000 inhabitants ○ The creation of legislative districts
will be entitled to at least one does not need confirmation by
representative while each province will plebiscite if it does not involve the
have at least one representative. creation of a local government
4. Each province, irrespective of the number unit. (Bagabuyo v. COMELEC,
of inhabitants, is entitled to at least 1 G.R. No. 176970, Dec. 8, 2008)
representative ○ When a municipality is converted
5. Legislative districts shall be re-apportioned into a city large enough to entitle it
by Congress within 3 years after the return to one district, the incidental effect
of each census. is splitting the district into two.
This does not need a consensus.
Gerrymandering There is no need for plebiscite
Formation of one legislative district out of separate under Art. X of the Constitution
territories for the purpose of favoring a candidate when one district is split into two,
or a party. This is the reason why the Constitution because there is no creation of
requires that Legislative Districts be continuous, new juridical personalities nor
compact, and adjacent. division of territory per se. There
is only a need for plebiscite if you
The formation of one legislative district out of are creating a new Local
separate territories for the purpose of favoring a Government Unit. (Tobias v.
candidate or a party (Navarro v. Executive Abalos, G.R. No. L-114783, Dec.
Secretary, G.R. No. 180050, Feb. 10, 2010). 8, 1994).
● Reapportionment either through a
The Constitutional standards used to determine the special law or general reapportionment
apportionment of legislative districts, i.e. that each law: The reapportionment of legislative
legislative district is to comprise, as far as districts may be made through a special
practicable, a contiguous, compact, and adjacent law, such as the charter of a new city. The
territory, is meant to prevent ‘gerrymandering.’ Constitution clearly provides that
(Id.) Congress shall be composed of not more
than two hundred fifty (250) members,
Jurisprudence unless otherwise fixed by law. As thus
● 250,000 minimum population NOT a worded, the Constitution did not preclude
requirement for provinces: There is no Congress from increasing its membership
specific provision in the Constitution that by passing a law, other than a general
fixes a 250,000 minimum population that reapportionment law. (Mariano v.
must compose of every legislative district. COMELEC, G.R. No. 118577, Mar. 7,
What the Constitution provides is a 1995)
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nominees by the respective sectors the seats

Difference of Reapportionment in Sec. 5(10), reserved for sectoral representation.
Art. VI and the Creation of LGU in Sec. 10, Art.
X. R.A. No. 7941, the Party-List System Act was
In the former, the purpose is to ensure better approved on March 3, 1995. This law put into place
access to one’s district representative in Congress. the mechanics for a party-list system of
No political or corporate unit is created. Thus, there representation based on election and ended the
is no need for a plebiscite in the creation, appointment of sectoral representatives by the
dissolution, or any other similar action on a President as provided in the Transitory Provisions.
legislative district.
For the purposes of the May 1998 elections, the
In the latter, political and corporate units are first 5 major political parties on the basis of party
created or altered. These possess legal personality representation in the House of Representatives at
and are considered “instrumentalities of the State the start of the Tenth Congress of the Philippines
in carrying out the functions of government”. They shall not be entitled to participate in the party-list
exercise special functions for the sole benefit of system.
constituents. Thus, the need for a plebiscite to
expressly secure the consent of the people Mechanics (R.A. No. 7941, § 8.)
affected by the creation, division, merger, abolition 1. Registered party-lists, organizations, or
or alteration of boundaries of local government coalitions shall submit to the COMELEC a
units through a plebiscite. (Bagabuyo v. list of not less than five (5) nominees in
COMELEC, G.R. No. 176970, Dec. 8, 2008). order of priority.
a. A person may be nominated in one
b. Party-list system (1) list only.
b. Only persons who have given their
Party-List Representatives (Sec. 5 (2))
consent in writing may be named
Constitute 20% of the total number of
in the list.
representatives (the total includes the party-list
c. Candidates for any elective office
representatives). The maximum number of House
in the immediately preceding
of Representative members is set at 250, which
election shall be disqualified from
means a maximum of 50 party-list members are
becoming a nominee.
allowed. But this number can be increased through
d. No change of names or alteration
a passage of a law (Banat v. COMELEC, G.R. Nos.
of the order of nominees shall be
179271 & 179295, July 8, 2009).
allowed after the same shall have
been submitted to the COMELEC
However, for 3 consecutive terms after the
ratification of the 1987 Constitution (1987-1992,
Exceptions:
1992-1995 and 1995-1998) from February 2, 1987
1. when the nominee dies
until 1998, one half of the seats allocated to party-
2. withdraws in writing his nomination
list representatives shall be filled as provided by
3. becomes incapacitated in which case the
law, by selection or election from the labor,
name of the substitute nominee shall be
peasant, urban poor, indigenous cultural
placed last in the list.
communities, women, youth, and such other
○ Incumbent sectoral
sectors as may be provided by law, except the
representatives in the House of
religious sector (PHIL. CONST., art. VI, § 5(2).).
Representatives who are
nominated in the party-list system
Under Art. XVIII, Sec. 7, until a law is passed, the
shall not be considered resigned.
President may fill by appointment from a list of
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2. The parties, organizations, and coalitions no violation of the Constitution because the
shall be ranked from the highest to the 1987 Constitution does not require
lowest based on the number of votes absolute proportionality for the party-list
garnered during elections. (R.A. No. 7941, system. The well-settled rule is that courts
§ 11.) will not question the wisdom of the
Legislature as long as it is not violative of
Formula: the Constitution (Banat v. COMELEC, G.
a) If the number of District Seats is given. R. No. 179271, July 8, 2009).
Total House Seats = District Seats / 0.8
Party-List Seats = District Seats x 0.25 Seat Allocation for the Party-list
b) If the total number of House Seats is given. Representatives
Party-List Seats = Total House Seats x 0.2 1. Determine the number of seats available to
District Seats = Total House Seats x 0.8 party-list representatives through the
c) If the total number of Party-List Seats is given. following formula:
Total House Seats = Party-List Seats / 0.2 ○ (Number of seats available to
District Seats = Party-List Seats / .25 legislative districts ÷ 0.80) x 0.20
2. Rank all party-lists according to votes
Parameters in Party-List Elections received.
● 20% of the total number of the membership 3. Determine the 2% qualifiers through the
of the House of Representatives is the formula below. These party-lists are
maximum number of seats available to guaranteed one seat in the House
party-list organizations, such that there is (“guaranteed seats” or the number of seats
automatically one party-list seat for every allocated to the 2% qualifiers).
four existing legislative districts. ○ Number of votes received by the
● Garnering 2% of the total votes cast in the party-list ÷ the total number of
party-list elections guarantees a party-list votes cast for the party-list system
organization one seat. The guaranteed (divisor)
seats shall be distributed in a first round of ○ LEONEN: The divisor to be used
seat allocation to parties receiving at least in interpreting the formula used in
two percent of the total party-list votes. BANAT is the total votes cast for
● The additional seats, i.e. the remaining the party-list system. This should
seats after allocation of the guaranteed not include the invalid votes.
seats, shall be distributed to the party-list However, so as not to
organizations including those that received disenfranchise a substantial
less than 2% of the total votes. The portion of the electorate, total
additional seats shall be distributed to the votes cast for the party-list
parties in a second round of seat allocation system should mean all the
according to the two-step procedure laid votes validly cast for all the
down in the BANAT Decision of 21 April candidates listed in the ballot,
2009. The continued operation of the 2% [even those] that are
threshold as it applies to the allocation of subsequently disqualified, so
the additional seats is unconstitutional long as they were presented as
because this threshold mathematically and a choice to the electorate. The
physically prevents the filling up of the voter relies on the ballot when
available party-list seats. making his or her choices.
● The three-seat cap is constitutional. The (ARARO v. COMELEC, G.R. No.
three-seat cap is intended by the 192803, Dec. 10, 2013)
Legislature to prevent any party from 4. Determine the “additional seats” through
dominating the party-list system. There is the following formula:
Page 50 of 568
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○ Maximum number of seats (result ● Groups must comply with the

of #1) - guaranteed seats Constitution and other applicable laws:
5. Divide the number of votes received by all The enumeration of marginalized and
parties (2% qualifiers and non-qualifiers) under-represented sectors is not
by the total number of votes cast, as in #3) exclusive. The crucial element is not
and multiply the result to the number whether a sector is specifically
available seats, as in #4 enumerated, but whether a particular
6. Distribute the additional seats (rounded organization complies with the
down) in accordance to the ranking. requirements of the Constitution and RA
7. Take note of the three seat cap. (BANAT 7941. Moral disapproval, without more, is
v. COMELEC, G.R. No. 179271, 2009) not a sufficient governmental interest to
justify exclusion of homosexuals from
Qualifications of Party List Representatives participation in the party-list system (Ang
(R.A. No. 7941, § 9.) Ladlad v. COMELEC, G.R. No. 190582,
1. Natural born citizen of the Philippines; April 8, 2010).
2. Registered voter; ● Three different groups may participate in
3. Resident of the Philippines for a period of the party-list system:
not less than 1 year immediately preceding ○ national parties or organizations,
the day of the election; ○ regional parties or organizations,
4. At least 25 years of age on the day of the and
election (youth sector nominee must be at ○ sectoral parties or organizations.
least 25 years old but not more than 30 ● Rule on National and Regional
years old on day of election); Parties/Organizations: The national and
5. Able to read and write; regional organizations need not be
6. A bona fide member of the party or economically marginalized and do not
organization he seeks to represent for at need to organize along sectoral lines but
least 90 days before the day of the they must be politically or ideologically
election. disadvantaged or marginalized.
7. A nominee who changes his sectoral ● Rule on Sectoral Parties: Sectoral
affiliation within the same party will only be parties or organizations may either be
eligible for nomination under the new 'marginalized and underrepresented' or
sectoral affiliation if the change has been lacking in 'well-defined political
effected at least six months before the constituencies'. It is enough that their
elections (Amores v. HRET, G.R. No. principal advocacy pertains to the special
189600, June 29, 2010). interest and concerns of their sector.
○ Marginalized and
Rules on Party-Lists Underrepresented sectors: (HI
● Principle of Social Justice: The FLOW PUV)
inspiration of the system is social justice i. Handicapped
understood in both the economic and ii. Indigenous Cultural
political sense. Communities
● Participation not Limited to Sectoral iii. Fisher Folk
Groups: Participation in the system is not iv. Labor
limited to the sectors enumerated by the v. Overseas Workers
Constitution or law. The framers of the vi. Peasant
1987 Constitution did not intend to leave vii. Urban Poor
out non-sectoral parties in the party-list viii. Veterans
system and exclusively limit it to sectoral ○ Sectors that lack 'well defined
groups. political constituencies’ (PWEY)
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i. Professionals his or her sector, is below

ii. Women the middle class
iii. Elderly ○ Have a track record of advocacy
iv. Youth for their respective sectors
● Rule on Political Party Participation: ● The nominees of national and regional
Political parties can participate in party-list parties or organizations must be bona-
elections provided they register under the fide members of such parties or
party-list system and do not field organizations.
candidates in legislative district elections. ● National, regional, and sectoral parties or
○ A political party, whether major or organizations shall not be disqualified if
not, that fields candidates in some of their nominees are disqualified,
legislative district elections can provided that they have at least one
participate in party-list elections nominee who remains qualified. (Atong
only through its sectoral wing that Paglaum v. COMELEC, G.R. No. 203766,
can separately register under the April 2, 2013)
party-list system. ○ The proviso does not authorize a
○ The sectoral wing is by itself an party-list from not complying with
independent sectoral party, and is the submission of at least five
linked to a political party through a nominees upon its manifestation
coalition. (Atong Paglaum v. to participate in the party-list
COMELEC, G.R. No. 203766, elections. (COCOFED v.
April 2, 2013) COMELEC, G.R. No. 207026,
Aug. 6, 2013)
Rules on Members of Sectoral Parties or
Organizations Disqualifications of Parties or Organizations
● A majority of the members of both types (R.A. No. 7941, § 6.)
of sectoral parties or organizations must 1. religious sector;
belong to the sector they represent, i.e. 2. advocates of violence or unlawful means of
majority must: seeking its goal;
○ Be marginalized and 3. foreign party or organization;
underrepresented or 4. receiving support from any foreign
○ Lack well-defined political government, foreign political party,
constituencies foundation, organization, whether directly
or through any of its officers or
Rules on Nominees of Party-Lists 5. members or indirectly through third parties
● The nominees of sectoral parties or for partisan election purposes;
organizations that represent the 6. fails to comply with laws, rules or
"marginalized and underrepresented" or regulations relating to elections;
that represent those who lack "well-defined 7. declares untruthful statements in its
political constituencies," must either: petition;
○ Belong to their respective sectors 8. ceased to exist for at least 1 year; or fails
or to participate in the last 2 preceding
■ To “belong” in the elections or, fails to obtain at least 2% of
marginalized and the votes cast under the party-list system
underrepresented sector in the 2 preceding elections for the
does not mean one must constituency in which it has registered.
"wallow in poverty,
destitution or infirmity." Note: The word “or” is a disjunctive term signifying
■ It is sufficient that one, or disassociation and independence of one thing from
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the other things enumerated; it should, as a rule, ○ Mere filing of a certificate of

be construed in the sense in which it ordinarily candidacy during one’s term is
implies, as a disjunctive word. Thus, the plain, clear considered voluntary renunciation
and unmistakable language of the law provides for since the law deems such act as a
two (2) separate reasons for delisting. (Philippine resignation. (Dimaporo v Mitra,
Guardians Brotherhood Inc. v. COMELEC, G.R. G.R. No. 96859, Oct. 15, 1991)
No. 190529, Apr. 29, 2010) 3. Expulsion as a disciplinary action for
disorderly behavior (PHIL. CONST., art. VI,
Who determines whether a party represents a § 16, ¶ 3).
marginalized sector? 4. Disqualification as determined by
COMELEC has jurisdiction to determine whether resolution of the electoral tribunal in an
an organization applying for the party list system election contest (PHIL. CONST., art. VI, §
represents a marginalized sector. It cannot be 17.).
challenged by certiorari because the decision is
based on facts and the SC does not try facts (V.C. Vacancy and Special Election
Cadangen v. COMELEC, G.R. No. 177179, June In case of vacancy in the Senate or in the House of
5, 2009). Representatives, a special election may be called
to fill such vacancy in the manner prescribed by
Sectoral parties are not required to adduce law, but the Senator or Member of the House of
evidence showing their track record that they have Representatives thus elected shall serve only for
undertaken to further the cause of the sector they the unexpired term.
represent. It is sufficient that their ideals are geared
towards the cause of the sector they represent Special Election (R.A. No. 6645, as amended by
(Abang-Lingkod v. COMELEC, G.R. No. 206952, R.A. No. 7166)
Oct. 22, 2013). 1. Special election will be called if vacancy
occurs:
Term vs. Tenure a. At least 18 months before the next
regular election for the members
TERM TENURE
of the Senate;
The period during The period during b. At least 1 year before the next
which the elected which such officer regular election for members of
officer is legally actually holds the the House of Representatives
authorized to assume position 2. The particular House of Congress where
his office and exercise vacancy occurs must pass either a
the powers thereof resolution if Congress is in session, or the
Senate President or the Speaker must
Cannot be reduced May be limited by law sign a certification, if Congress is not in
session
a. Declaring the existence of
Ways by Which Tenure of Members of
vacancy
Congress May Be Shortened: (FRED)
b. Calling for a special election to be
1. Forfeiture of his seat by holding any other
held within 45 to 90 days from the
office or employment in the government or
date of the resolution or
any subdivision, agency, or instrumentality
certification
thereof, including government-owned or
3. The Senator or representative elected
controlled corporations or subsidiaries
shall serve only for the unexpired term.
(PHIL. CONST., art. VI, § 13.);
2. Voluntary Renunciation of office (PHIL.
COMELEC’s Role in a Special Election (R.A. No.
CONST., art. VI, § 4, ¶ 3.).
6645, as amended by R.A. No. 7166)
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In case a permanent vacancy shall occur in the permanent vacancy in the Senate under
Senate or House of Representatives at least one R.A. 7166 does not nullify the election held
(1) year before the expiration of the term, since the statute already fixes the date.
COMELEC is required: However, the failure of the COMELEC to
1. to call a special election by fixing the date do so in case of a permanent vacancy in
of the special election: the House of Representatives would
a. House of Representatives - the produce the opposite result. (Tolentino v.
date shall not be earlier than sixty COMELEC, G.R. No. 148334, Jan. 21,
(60) days nor later than ninety (90) 2004)
after the occurrence of the
vacancy District v. Party List Representatives
b. Senate - the special election shall
DISTRICT PARTY-LIST
be held simultaneously with the
REPRESENTATIVE REPRESENTATIVE
next succeeding regular election
2. to give notice to the voters of, among other As to election or selection
things, the office or offices to be voted for.
Elected according to Elected nationally,
The calling of an election, that is, the giving notice legislative district by with party-list
of the time and place of its occurrence, whether the constituents of organizations
made by the legislature directly or by the body with such district garnering at least 2%
the duty to give such call, is indispensable to the of all the votes cast for
election’s validity. the party-list system
● In a special election to fill a vacancy, the entitled to 1 seat,
rule is that a statute that expressly which is increased
provides that an election to fill a according to
vacancy shall be held at the next proportional
general elections fixes the date at which representation, but is
the special election is to be held and in no way to exceed 3
operates as the call for that election. seats per organization
● Consequently, an election held at the time
thus prescribed is not invalidated by the As to Residency Requirement
fact that the body charged by law with the
Must be a resident of No special residency
duty of calling the election failed to do so.
his legislative district requirement in a
This is because the right and duty to hold
for at least 1 year legislative district
the election emanate from the statute and
immediately before
not from any call for the election by some
the election
authority and the law thus charges voters
with knowledge of the time and place of the As to manner of candidate’s election
election.
● Conversely, where the law does not fix Elected personally Voted upon by party
the time and place for holding a special (i.e. by name of or organization; it is
election but empowers some authority candidate) the party who
to fix the time and place after the designates who will sit
happening of a condition precedent, the as its representative.
statutory provision on the giving of notice
is considered mandatory, and failure to do As to effect of change of affiliation during
so will render the election a nullity. the term
● Thus, the failure of the COMELEC to
Does not lose seat if If she/he changes
properly call for a special election to fill a
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he/she changed party party or affiliation,

C. LEGISLATIVE PRIVILEGES,
or affiliation loses his seat, in INHIBITIONS, AND DISQUALIFICATIONS
which case he/she will
Privileges (PHIL. CONST., art. VI, § 11.)
be substituted by
Immunity from Arrest — Legislators are
another qualified
privileged from arrest while Congress is in session
person in the
only (whether regular or special) with respect to
party/organization
offenses punishable by not more than 6 years of
based on the list
imprisonment. The immunity does not extend to the
submitted to the
prosecution of criminal offenses.
COMELEC.
● Right of Members to Attend
Congressional Sessions: A Senator,
As to manner of filling vacancies
who remains in detention, cannot be
A special election may A substitution will be allowed to go to the Senate to attend all its
be held provided that made within the party, official functions. All prisoners whether
the vacancy takes based on the list under preventive detention or serving final
place at least 1 year submitted to the sentence cannot practice their profession
before the next COMELEC nor engage in any business or occupation,
election or hold office, elective or appointive, while
in detention. This is a necessary
As to effect of losing in the previous consequence of arrest and detention. The
election presumption of innocence does not carry
with it the full enjoyment of civil and
A district A party-list
political rights (Trillanes v. Judge Pimentel,
representative is not representative cannot
G.R. No 179817, June 27, 2008).
prevented from sit if he ran and lost in
running again as a the previous election.
Privileged Speech — No member shall be
district representative
questioned or held liable in any forum other than
if he/she lost during
his/her respective Congressional body for any
the previous election.
speech or debate in Congress or in any Committee
As to effect of change of affiliation prior to thereof.
election
“Speech or debate” includes:
A change in affiliation A change in affiliation ● Utterances made by Congressmen in the
within months prior to within 6 months prior performance of their official functions, such
election does not to election prohibits as speeches delivered, statements made,
prevent a district the party-list or votes cast in the halls of Congress, while
representative from representative from the same is in session
running under his new sitting as ● Bills introduced in Congress, whether the
party. representative under same is in session or not
his new ● Other acts performed by Congressmen,
party/organization. either in Congress or outside the premises
housing its offices, in the official discharge
of their duties as members of Congress
and of Congressional Committees duly
authorized to perform its functions as such,
at the time of the performance of the acts
in question. (Jimenez v. Cabangbang,
G.R. No. L-15905, Aug. 3, 1966)
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The privilege arises not because the statement is 2. That they must be made in connection with
made by a lawmaker, but because it is uttered in the discharge of official duties
furtherance of legislation. It cannot be invoked
when the lawmaker's speech or utterance is Inhibitions (PHIL. CONST., art. VI, § 12.)
extraneous to the due functioning of the legislative All Members of the Senate and the House of
process. (Trillianes v. Castillo-Marigomen, G.R. Representatives shall, upon assumption of office,
No. 223451, March 14, 2018) make a full disclosure of their financial and
business interests. They shall notify the House
To participate in or respond to media interviews is concerned of a potential conflict of interest that may
not an official function of any lawmaker; it is not arise from the filing of a proposed legislation of
demanded by his sworn duty nor is it a component which they are authors.
of the process of enacting laws. A lawmaker may
discharge his duties and legislate without having to Therefore, senators and representatives are not
communicate with the press. A lawmaker's prohibited from introducing bills that have conflicts
participation in media interviews is not a legislative with their interest, as long as they disclose.
act, but is "political in nature,” outside the ambit of
the immunity conferred under the Speech or Disqualifications (PHIL. CONST., art. VI, § 13 &
Debate Clause. (Trillianes v. Castillo-Marigomen, 14.)
G.R. No. 223451, March 14, 2018)
DISQUALIFICATION WHEN APPLICABLE
A complaint for disbarment or disciplinary action Cannot hold any other During his term. If he
based on disparaging remarks made by an office or employment does so, he forfeits his
incumbent Senator against the Chief Justice will in the Government or seat in Congress.
not prosper because of the Speech and Debate any subdivision,
clause. (Pobre v. Defensor-Santiago, A.C. No. agency or
7399, Aug. 25, 2009) instrumentality
thereof, including
Limitations: GOCCS or their
1. Protection is only against prosecution in subsidiaries.
any forum other than Congress itself.
Hence, the Senate or the House may Cannot be appointed During the term for
discipline their respective members. to any office which which he was elected
2. The ‘speech or debate’ must be made in was created or the
performance of their duties as members of emoluments thereof
Congress. increased
3. Congress need not be in session when the Cannot personally During his term of
utterance is made, as long as it forms part appear as counsel office
of legislative action (e.g. part of the before any court of
deliberative and communicative process justice, electoral
used to participate in legislative tribunal, quasi-judicial
proceedings in consideration of proposed and administrative
legislation or with respect to other matters body.
with Congress’ jurisdiction)
Cannot be financially During his term of
Requirements to Avail of the Privilege of interested directly or office
Speech and Debate Clause indirectly in any
1. That the remarks must be made while the contract, franchise, or
legislature or the legislative committee is special privilege
functioning, that is, in session; and
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granted by the
Government, or any
subdivision, agency or
D. QUORUM AND VOTING MAJORITIES
instrumentality Sessions (PHIL. CONST., art. VI, § 15.)
thereof, including any Regular sessions - Congress convenes once
GOCC or its every year on the 4th Monday of July (unless
subsidiary. otherwise provided for by law). It continues in
Cannot intervene in During his term of session for as long as it may determine, until 30
any matter before any office days before the opening of the next regular
office of the session, excluding Saturdays, Sundays, and legal
government when it is holidays.
for his pecuniary
benefit or where he Special Sessions - called by the President at any
may be called upon to time when Congress is not in session i.e. when the
act on account of his legislature is in recess
office.
Regular v. Special Session
● Under the 1935 Constitution, the
A Senator who is likewise the Chairman of the distinction between regular and special
National Red Cross does not forfeit his seat in the sessions was significant because during a
Senate because the National Red Cross is a special session, the legislature could
private corporation performing a public function. consider only the subject matter
(Liban v. Gordon, G.R. No. 175352, Aug. 15, 2009) designated by the President.
● Under the present law, which leaves
A congressman cannot buy nominal shares in a discretion to Congress as to the number of
corporation and appear in “intervention” before the regular session days, the distinction is no
SEC. This is a circumvention of the constitutional longer significant for the purpose of
policy. (Puyat v. De Guzman, G.R. No. L-51122, determining what the legislature may
Mar. 25, 1982). consider. (Bernas, The 1987 Philippine
Rules on Increase in Salaries (PHIL. CONST., art. 2011)
VI, § 10.)
No increase in their salaries shall take effect until Kinds of Recess
after the expiration of the full term (not tenure) of all ● Voluntary Recess - takes place before the
the members of the Senate and the House of adjournment of Congress like Christmas
Representatives approving such increase. recess
● Compulsory Recess - takes place when
Since the Constitution provides for rules on the Congress adjourns
“salaries” and not “emoluments”, members of the
House may appropriate for themselves other sums Quorum to do business - Majority of each House
of money such as travel allowances, as well as shall constitute a quorum.
other benefits. ● A smaller number may adjourn from day
to day and may compel the attendance
A new senator or representative elected through a of absent members.
special election is not entitled to the new salary rate ● In computing a quorum, members who are
because the new members are serving the terms outside the country and thus outside of
of those who approved the increase. Thus, they each House’s coercive jurisdiction are not
are not entitled to the increase. included.
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● Majority in Senate: The basis in Nature of Required Basis

determining the existence of a quorum in Proceeding Votes
the Senate is the total number of Senators
who are in the country and within the Discipline 2/3 of All Sec. 16(3)
coercive jurisdiction of the Senate (Avelino Members
v. Cuenco, G.R. No. L-2821, March 4,
Election of Majority of All Sec. 16(1)
1949).
Officers
● Majority of the House: means 1/2 +1 of
the actual membership of the House who Declare the 2/3 of Both Sec. 23
are within the coercive jurisdiction of the Existence of a Houses,
Congress (within the Philippines). State of War voting
● Majority of all members of Congress: separately
means majority of the entire composition of
Congress regardless of the number of Override 2/3 of All in Sec. 27(1)
members present or absent during time the President's the House of
question is brought to the floor as long as Veto Origin
there is quorum (e.g. (24/2) +1 for the Quorum to do Majority w/in Sec. 16(2);
Senate and (250/2) +1 for the HOR) business Compulsive Avelino v.
Power of the Cuenco
Voting Majorities of Congress House
SENATE
Yeas and 1/5 of Sec. 16(4)
Nature of Required Basis Nays in the Members
Proceeding Votes Journal present of
each house
For the 2/3 of All Sec. 21, Art.
Tax Majority of All Sec. 28(4)
effectivity of VII
Exemption
treaty or
international Confirmation Majority of Art. VII, Sec. 9
agreement of new VP Both Houses,
nominated by voting
Conviction in 2/3 of All Sec. 3(6), Art. President separately
impeachment XI
Determination 2/3 of Both Art. VII, Sec.
that Pres. Houses, 11
HOUSE OF REPRESENTATIVES unable to voting
discharge separately
Nature of Required Basis powers &
Proceeding Votes duties
Affirm or 1/3 of All Sec. 3(3), Art. To break a tie Majority of All, Art. VII, Sec. 4
Override XI in presidential voting
Resolution to election separately
Impeach
Revocation of Majority of All, Art. VII, Sec.
Proc. of voting jointly 18
Martial Law/
Suspension of
COMMON TO BOTH
Priv. of Writ of
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Habeas ● Congress has the sole prerogative in

Corpus choosing its officers and the manner by
which they are chosen. (Defensor-
Extension of Majority of All, Art. VII, Sec. Santiago v. Guingona, G.R. No. 134577,
Proc. of voting jointly 18 Nov. 18, 1988)
ML/Suspensio ● While the Constitution mandates that the
n. of Priv. of President of the Senate must be elected by
WHC a number constituting more than one half
of all the members thereof, it does not
To Concur w/ Majority of All Art. VII, Sec.
provide that the members who will not vote
President in 19
for him shall ipso facto constitute the
granting
"minority," who could thereby elect the
amnesty
minority leader. Verily, no law or regulation
states that the defeated candidate shall
Instances when Congress is Voting Separately automatically become the minority leader.
1. Determining the winning candidate for (Id.)
President or Vice President in case two or ● The Senate President or Speaker of the
more candidates have an equal and HOR is elected through a majority vote of
highest number of votes (PHIL. CONST., art. all its respective Members, and such other
VII, § 4.) officers as may deem necessary. (PHIL.
2. Determine President’s disability (PHIL. CONST., art. VI, § 16.)
CONST., art. VII, § 11.)
3. Declaring existence of a state of war in E. DISCIPLINE OF MEMBERS
joint session (PHIL. CONST., art. VI, §
23(1).) Suspension v. Expulsion
4. Confirming the President’s nomination of a 1. SUSPENSION - shall not exceed 60 days,
Vice-President from Congress whenever with the concurrence of 2/3 of all its
there is a vacancy in the Office of the Vice members.
President (PHIL. CONST., art. VII, § 0.) 2. EXPULSION - concurrence of 2/3 of all its
5. Proposing Constitutional amendments members.
(PHIL. CONST., art. XVII, § 1.)
Nature of Disciplining Authority
Each House may determine the rules of its
Instances when Congress is Voting Jointly
proceedings, punish its Members for disorderly
1. Revoking or extending proclamation
behavior, and, with the concurrence of 2/3 of all its
suspending the privilege of writ of habeas
members, suspend or expel a Member. A penalty
corpus (PHIL. CONST., art. VII, § 18.)
of suspension, when imposed, shall not exceed 60
2. Revoking or extending declaration of
days. (PHIL. CONST., art. VI, § 16(3).)
martial law (PHIL. CONST., art. VII, § 18.)
The disciplinary action taken by Congress against

Officers of Congress (PHIL. CONST., art. VI, § 16.)
a member is not subject to judicial review because
1. Senate President
each House is the sole judge of what disorderly
2. Speaker of the House
conduct is (Osmeña v. Pendatun, G.R. No. L-
3. Such other officers as it may deem
17144, Oct. 28, 1960).
necessary.
The parliamentary immunity of members of
Election of Officers
Congress is not absolute. While parliamentary
● By a majority vote of all respective
immunity guarantees the legislator complete
members
freedom of expression without fear of being made
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responsible before the courts or any other forum has been charged, it applies to any office which he
outside of Congressional Hall, it does NOT protect may be holding (Santiago v. Sandiganbayan, G.R.
him (her) from responsibility before the legislative No. 128055, April 18, 2001).
body itself whenever words and conduct are
considered disorderly or unbecoming a member
thereof.
For unparliamentary conduct, members of

F. PROCESS OF LAW-MAKING
Congress can be:
• censured, Bills that must originate in the House (PuP-TL)
• committed to prison, (PHIL. CONST., art. VI, § 24.) Note: While these bills
• suspended, and must originate from the House, the Senate may
• even expelled by the votes of their introduce amendments and pass a completely
colleagues (Osmeña v. Pendatun, G.R. different bill from the original one from the house.
No. L-17144, Oct. 28, 1960). What is required only is that the bill originate in the
House.
Is preventive suspension considered an
interruption of a term? 1. Bills authorizing the increase of Public debt
Preventive suspension is not considered • One which creates public indebtedness
“interruption” of a term under Sec. 8, Art. X and such as bills for the issuance of bonds and
Sec. 43 (b) of R.A. No. 7160. A preventive other forms of obligations
suspension cannot simply be considered an
interruption because the suspended official 2. Private bills
continues to stay in office although barred from • One affecting purely private interest, such
exercising the functions and prerogatives of the as one granting a franchise.
office within the suspension period. The best
indicator of the suspended official’s continuity in 3. Tariff bills
office is the absence of a permanent replacement • One that specifies the rates or duties to be
and the lack of the authority to appoint one since imposed on imported articles
no vacancy exists (Aldovino v. COMELEC, G.R.
No. 184836, Dec. 23, 2009). 4. Bills of Local application
• A bill of local application, such as one
Authority of Sandiganbayan to Suspend asking for the conversion of a municipality
A Congressman can be preventively suspended by into a city, is deemed to have originated
the Sandiganbayan for violation of Anti-Graft Law from the House provided that the bill of the
notwithstanding the exclusive power of Congress House was filed prior to the filing of the bill
to discipline its members. in the Senate; even if in the end, the
Senate approved its own version
The suspension contemplated in Article VI, Section (Tolentino v. Secretary of Finance, G.R.
16(3) of the Constitution is a punishment that is No. 115455, Oct. 30, 1995).
imposed by the Senate or House of
Representatives upon an erring member. It is Revenue Bills
distinct from the suspension under Section 13 of One specifically designed to raise money or
the Anti-Graft and Corrupt Practices Act, which is revenue through imposition or levy.
not a penalty but a preventive measure. Since • For example, registration fees used for the
Section 13 of the Act does not state that the public construction and maintenance of
officer must be suspended only in the office where highways. (PAL vs. Edu, G.R. No. L-
he is alleged to have committed the acts which he 41383, Aug. 15, 1988).
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• The Videogram Regulatory Board Law • When the offices of the President and
imposing a tax on video rentals does not Vice-President are both vacant, the bill
make the law a revenue bill because the calling for a special election to elect a
purpose is primarily regulation, and not to President and Vice-President is deemed
raise revenue. (Tio v. Videogram certified. (PHIL. CONST., art. VII, § 10.)
Regulatory Board, G.R. No. L-75697, June
18, 1987) See Part V(1) on the Substantive and Procedural
Limitations on Congress’ Law-Making Powers.
General Limitations (PHIL. CONST., art. VI, § 26.) BICAMERAL CONFERENCE COMMITTEE – an
Every bill shall embrace only one (1) subject, as extra-constitutional creation which is intended to
expressed in the title thereof, which does not have resolve conflicts between House and Senate
to be a complete catalogue of everything stated in versions of bills. (Bernas, 1987 Philippine
the bill. Constitution: A Commentary, 790, 2009).
An Act creating the Videogram Regulatory Board Scope Of The Bicameral Conference
including 30% tax on gross receipts on video Committee’s Powers (A2R2P)
transactions was held to be valid. Taxation is • Adopt the Bill entirely; or
sufficiently related to regulation of the video • Amend; or
industry (Tio v. Videogram Regulatory Board, G.R. • Revise; or
No. L-75697, June 18, 1987). • Reconcile the House Bill and the Senate
Bills;
It is sufficient that the title expressing the general • Propose entirely new provisions not found
subject of the bill and all the provisions of the in either the House Bill or the Senate Bill.
statute are germane to such general subject (Amendments in the nature of a substitute)
(Sumulong v. COMELEC, G.R. No. L-48609, Oct.
10, 1941). Limitation: So long as the amendment is germane
to the subject of the bill before the Committee.
Bills passed by either House must pass 3 readings
on separate days, and printed copies thereof in its In a bicameral system, bills are independently
final form distributed to its members 3 days before processed by both Houses of Congress. It is not
its passage. unusual that the final version approved by one
House differs from what has been approved by the
FIRST READING - Only the title is read; the bill is other. The “conference committee,” consisting of
passed to the proper committee members nominated from both Houses, is an
extra-constitutional creation of Congress whose
SECOND READING - Entire text is read and function is to propose to Congress ways of
debates are held; amendments introduced. reconciling conflicting provisions found in the
Senate version and in the House version of a bill.
THIRD READING - Only the title is read, no
amendments are allowed. Vote shall be taken It is within the power of a conference committee to
immediately thereafter and the yeas and nays include in its report an entirely new provision that is
entered in the journal. not found either in the House bill or in the Senate
bill. If the committee can propose an amendment
Exceptions: consisting of one or two provisions, there is no
• When the President certifies to the reason why it cannot propose several provisions,
necessity of the bill’s immediate enactment collectively considered as an "amendment in the
to meet a public calamity or emergency, nature of a substitute," so long as such amendment
the three readings can be held on the is germane to the subject of the bills before the
same day. (PHIL. CONST., art. VI, § 26(2).) committee. After all, its report was not final but
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needed the approval of both houses of Congress EXECUTIVE IMPOUNDMENT - Refusal of the
to become valid as an act of the legislative President to spend funds already allocated by
department (Tolentino v. Secretary of Finance, Congress for a specific purpose. It is in effect, an
G.R. No. 115455, Aug. 25, 1994). “impoundment” of the law allocating such
expenditure of funds.
Note: There is no doctrine for or against executive

impoundment. It has not been judicially
Presidential Veto questioned.
Every bill passed by Congress shall be presented Type of Item Bill
to the President before it becomes law. To TYPE OF BILL ITEM
approve, he shall sign it. Otherwise, he shall veto Revenue/tax bill Subject of the tax, and
the bill. (PHIL. CONST., art. VI, § 27(1).) tax rate imposed
thereon
Overriding a Veto Appropriations bill Indivisible sum
The President shall transmit to House where the bill dedicated to a stated
originated. If, after such reconsideration, 2/3 of all purpose
the members of such House shall agree to pass the
bill, it shall be sent, together with the objections, to VETO OF RIDER - A rider is a provision that does
the other House by which it shall likewise be not relate to a particular appropriation stated in an
reconsidered, and if approved by 2/3 of all the appropriation bill. Being an invalid provision under
members of that House, it shall become law. Section 25 (2), the President may exercise item
veto.
To override the veto, at least 2/3 of all the members
of each House must agree to pass the bill. In such Internal Rules
case, the veto is overridden and becomes a law As part of their inherent power, each House may
without need of presidential approval. (PHIL. determine its own rules. Hence, the courts cannot
CONST., art. VI, § 27(1).) intervene in the implementation of these rules
insofar as they affect the members of Congress.
Item Veto (Arroyo v. De Venecia, G.R. No. 127255, Aug. 14,
General Rule: As a general rule, if the President 1997)
disapproves of a provision in a bill approved by ● The only limitation to the power of
congress, he must veto the entire bill. Congress to promulgate its own rules is the
observance of quorum, voting, and
Exception: As an exception, the President is publication when required. As long as
allowed to item-veto in these types of bills: (ART) these requirements are complied with, the
1. Appropriation Court will not interfere with the right of
2. Revenue, and Congress to amend its own rules.
3. Tariff (Sec. 27 (2)). (Pimentel v. Senate Committee, G.R. No.
187714, March 8, 2011)
Exceptions to the Exception:
DOCTRINE OF INAPPROPRIATE PROVISIONS - Congressional Journals and Records (PHIL.
A provision that is constitutionally inappropriate for CONST., art. VI, § 16.)
an appropriation bill may be subject to veto even if
it is not an appropriation or revenue “item”. General Rule: The Journal is conclusive upon the
(Gonzalez v. Macaraig, Jr., G.R. No. 87636, Nov. courts.
19, 1990). • Exception: An enrolled bill prevails over
the contents of the Journal.
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ENROLLED BILL - The official copy of approved 1. Day to day

legislation and bears the certifications of the 2. Yearly
presiding officers of each House. Thus, where the 3. Sine die — with no appointed date for
certifications are valid and are not withdrawn, the resumption
contents of the enrolled bill are conclusive upon the
courts as regards the provision of that particular ‘Place’
bill. Refers not to the building but to the political unit
where the Houses may be sitting.
ENROLLED BILL DOCTRINE – The signing of a
bill by the Speaker of the House and the President G. ELECTORAL TRIBUNALS AND THE
of the Senate and its certification by the secretaries COMMISSION ON APPOINTMENTS
of both Houses of Congress that such bill was
passed are conclusive of its due enactment (Arroyo ELECTORAL TRIBUNALS
v. De Venecia, G.R. No.127255, Aug. 14, 1997).
1. NATURE
ENROLLED JOURNAL RECORD The Senate and the House of Representatives

BILL shall each have an Electoral Tribunal (SET and
Official copy Abbreviated Word for word HRET). (PHIL. CONST., art. VI, § 17.)
of approved account of transcript of
legislation, daily deliberations Composition – Nine (9) members
with proceedings in Congress 1. Three (3) Supreme Court Justices to be
certifications in Congress designated by the Chief Justice.
of presiding o The senior Justice in the Electoral
officers Tribunal shall be its Chairman.
Submitted to Provides Provides 2. Six (6) Members of the Senate or House,
the President proof of what detailed proof as the case may be. They shall be chosen
for signature, transpired of what on the basis of proportional representation
indicating during transpired from the political parties and party-list
approval deliberations during organizations.
deliberations
Insures Supports the The presence of the three Justices, as against six
publicity of journal entry members of [each House], was intended as an
legislative additional guarantee to ensure impartiality in the
proceedings judgment of cases before it. As such, there should
always be one member of the Tribunal who is a
Cases When the Constitution Requires Yeas Justice. If all three Justice-members inhibit
And Nays To Be Recorded themselves in a case, the Supreme Court will
1. Last and third readings of a bill designate another Justice to chair the Electoral
2. Upon 1/5 members’ request Tribunal. (Reyes v. HRET, G.R. No. 221103, Oct.
3. Re-passing a bill over Presidential veto 16, 2018)
Adjournment Nature of Tribunals

Neither House during the sessions of the The tribunal was created to function as a
Congress, shall without the consent of the other, nonpartisan court although two-thirds of its
adjourn for more than 3 days, nor to any other members are politicians. It is a non-political body in
place than that in which the two Houses shall be a sea of politicians. As judges, the members of the
sitting. (PHIL. CONST., art. VI, § 16.) tribunal must be non-partisan. They must
discharge their functions with complete
Types of Adjournment detachment, impartiality, and independence —
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even independence from the political party to which 3. assumed office as a Member of the House
they belong. Hence, "disloyalty to party" and of Representatives. (Aggabao v.
"breach of party discipline," are not valid grounds COMELEC, G.R. No. 163756, Jan. 26,
for the expulsion of a member of the tribunal. 2005)
(Bondoc v. Pineda, G.R. No. 97710, Sept. 26,
1991) Thus, in an electoral contest where the validity of
the proclamation of a winning candidate who has
LEONEN: An Electoral Tribunal is a quasi-judicial taken his oath of office and assumed his post as
body. Therefore, the degree of proof required is Congressman is raised, that issue is best
only substantial evidence or that amount of addressed to the HRET. (Guerrero v. COMELEC,
relevant evidence which a reasonable mind might G.R. No. 137004, July 26, 2000)
accept as adequate to justify a conclusion. (David
v. SET, G.R. No. 221538, Sept. 20, 2016) Once COMELEC loses its jurisdiction, the proper
remedy is to file a petition for quo warranto
Security of Tenure before the HRET and not a petition for certiorari
Membership in the HRET may not be terminated before the Supreme Court. (Señeres v.
except for a just cause, such as the expiration of COMELEC, G.R. No. 178678, Apr. 16, 2009)
the member's congressional term of office, his
death, permanent disability, resignation from the Note: The Constitution provides that a person
political party he represents in the tribunal, formal assumes office “at noon on the 30th day of June”.
affiliation with another political party, or removal for The Oath of Office the petitioner presented is not
other valid cause. A member may not be expelled valid. As far as the court is concerned, she took her
by the HOR for ‘party disloyalty’ short of proof that oath on 5th of June which is not the one prescribe
he has formally affiliated with another political by the Constitution. Therefore, the COMELEC still
group. (Bondoc v. Pineda, G.R. No. 97710, Sept. has jurisdiction. Before there is a valid taking of
26, 1991) the oath, it must be made:
1. before the Speaker of the House of
2. POWERS Representatives, and
2. in open session. (Reyes v. COMELEC,
Jurisdiction
G.R. No. 207264, June 25, 2013)
Each Electoral Tribunal shall be the sole judge of
all contests relating to the (ERQ) Election,
Does the HRET have jurisdiction over pre-
Returns and Qualifications of their respective
proclaimed controversies?
members. This includes determining the validity or
No, the COMELEC has exclusive jurisdiction over
invalidity of a proclamation declaring a particular
pre-proclaimed controversies. (Omnibus Election
candidate as the winner.
Code, § 242)
• “Qualifications” are not limited to the
qualifications prescribed by the
Is jurisdiction lost upon withdrawal or protest?
Constitution for a Member of Congress
No. Jurisdiction once acquired, is not lost upon the
under Art. VI, Sec. 6. (Guerrero v.
instance of the parties, but continues until the case
COMELEC, G.R. No. 137004, July 26,
is terminated. Mere filing of a motion to withdraw
2000)
protest, without any action on the part of the
tribunal, does not divest it of jurisdiction. An
The COMELEC’s jurisdiction over election contests
election protest is impressed with public interest in
relating to election, returns, and qualifications
the sense that the public is interested in knowing
ends, and the HRET's own jurisdiction begins once
what happened in the elections. Thus, private
a winning candidate is:
interest must yield to the common good. (Robles v
1. proclaimed
HRET, G.R. No. 86647, Feb. 5, 1990)
2. taken his oath, and
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Election Contest – where a defeated candidate not warrant the disqualification of all the
receiving the second highest number of votes members of the Electoral Tribunal. (Abbas
challenges the qualifications of a winning v. SET, G.R. No. 83767, Oct. 27, 1988)
candidate and claims for himself the seat of a • Judicial review of decisions of the Electoral
proclaimed winner. Tribunals may be had with the Supreme
• In the absence of an election contest, the Court only on the ground of grave abuse of
Electoral Tribunal is without jurisdiction. discretion, the decision or resolution
However, each House can expel its own having been rendered without or in excess
members or even defer their oath taking of jurisdiction. (Pimentel v. HRET, G.R. No.
until their qualifications are determined. 141489, Nov. 29, 2002)
This may be exercised even without an o E.g. A final vote tally made by an
election contest. Electoral Tribunal without
• The power of the HRET to determine the supporting evidence has been
citizenship of a winning candidate does not struck down by the Court. (Lerias
include looking at the grant of citizenship v. COMELEC, G.R. No. 97105,
to the candidate’s ascendant. That would Oct. 15, 1991)
be a prohibited collateral attack (Vilando v.
HRET, G.R. Nos. 192147 & 192149, Aug. Jurisprudence (LEONEN)
23, 2011). When the names of the parents of a foundling
cannot be discovered despite a diligent search, but
An Electoral Tribunal may annul election results if sufficient evidence is presented to sustain a
in its determination, fraud, terrorism or other reasonable inference that satisfies the quantum of
electoral irregularities existed to warrant the proof required to conclude that at least one or both
annulment. Because in doing so, it is merely of his or her parents is Filipino, then this should be
exercising its constitutional duty to ascertain who sufficient to establish that he or she is a natural-
among the candidates received the majority of the born citizen. When these inferences are made by
valid votes cast. (Abayon v. HRET, G.R. No. the SET in the exercise of its sole and exclusive
222236, May 3, 2016) prerogative to decide the qualifications of the
members of the Senate, then there is no grave
Since the Electoral Tribunals are independent abuse of discretion. (David v. SET, G.R. No.
constitutional bodies: 221538, Sept. 20, 2016)
• Neither Congress nor the Courts may
interfere with procedural matters relating to The cardinal objective in ballot appreciation is to
the functions of the Electoral Tribunals. discover and give effect to, rather than frustrate,
(Angara v. Electoral Commission, G.R. No. the intention of the voter. Extreme caution is
L-45081, July 15, 1936) observed before any ballot is invalidated and
• Its members may not be arbitrarily doubts are resolved in favor of the ballot’s validity.
removed from their positions in the tribunal This Court finds no grave abuse of discretion by the
by the parties that they represent. Neither HRET in its findings after its careful review of the
may they be removed for not voting objected ballots and guided by existing principles,
according to party lines, since they are rules and rulings on its appreciation. (Locsin v.
acting independently of Congress. HRET, G.R. No. 204123, March 19,2013)
(Bondoc v. Pineda, G.R. No. 97710, Sept.
26, 1991) Rule Making Power
• The mere fact that the members of either The power of the HRET, as the sole judge of all
the Senate or the House sitting on the contests relating to the election, returns and
Electoral Tribunal are themselves the ones qualifications of the Members of the House of
sought to be disqualified (due to the filing Representatives, to promulgate rules and
of an election contest against them) does regulations relative to matters within its jurisdiction,
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including the period of filing election protests before The two Houses have primary jurisdiction on who
it, is beyond dispute. It’s rule-making power should sit in the CA. This includes determination
necessarily flows from the general power granted it of party affiliation and number of party members for
by the Constitution. (Lazatin v HRET, G.R. No. purpose of determining proportional representation
84297, 1998) (Drilon v. De Venecia, G.R. No. 180055, July 31,
2009).
COMMISSION ON APPOINTMENTS
Voting
1. NATURE 1. The Commission shall rule by a majority
vote of all the Members. (PHIL. CONST., art.
Composition VI, § 18.)
1. Senate President as ex-officio chairman 2. The chairman shall only vote in case of a
2. 12 Senators tie. (Id.)
3. 12 Members of the House 3. The Commission shall act on all
appointments submitted to it within 30
The Commission on Appointments (CA) acts as a session days. (Id.)
legislative check on the appointing authority of the 4. The Commission shall meet only while
President. For the effectivity of the appointment of Congress is in session, at the call of its
certain key officials enumerated in the Constitution, Chairman or a majority of all its members.
the consent of the CA is needed. (Bernas) (PHIL. CONST., art. VI, § 19.)
Manner of Constitution 2. POWERS

Elected on the basis of proportional representation
Jurisdiction (PHIL. CONST., art. VII, § 16.)
from the political parties and party-list
The Commission on Appointments shall confirm
organizations within 30 days after the Senate and
the appointments by the President with respect to
the House of Representatives shall have organized
the following positions: (E-MA²-C)
with the election of the Senate President and the
1. Heads of the Executive Departments
Speaker of the House (PHIL. CONST., art. VI, § 19.)
o Exception: Appointment of Vice
• The Constitution does not require that the
President as a member of the
“political parties” be registered before the
Cabinet needs no confirmation
COMELEC. (Daza v. Singson, G.R. No.
(PHIL. CONST., art. VII, § 15.)
86344, Dec. 21, 1989)
2. Ambassadors,
3. Other public Ministers or consuls
The minimum required number of elected senators
4. Officers of the AFP from the rank of
belonging to the same political party in order for the
Colonel or Naval Captain and above; and
party to qualify for a seat in the CA is at least two
5. Other officers whose appointments are
(2) elected senators for every seat in the CA.
vested in him by the Constitution (e.g.
(Guingona v. Gonzales, G.R. No. 106971, March
COMELEC members)
1, 1993).
o Examples: Chairmen and
commissioners of the CSC,
The Constitution does not require that the full
COMELEC, and COA; regular
complement of 12 senators be elected to the
members of the Judicial Bar
membership in the CA before it can discharge its
Council (JBC)
functions and that it is not mandatory to elect 12
senators to the CA (Guingona vs. Gonzales, G.R.
Note: The consent of Commission on
No. 106791, March 1, 1993).
Appointments is required only in the 1st sentence
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enumeration of Art. VII, Section 16. (Sarmiento v. assertion that he is able to

Mison, G.R. No L-79974, Dec. 17, 1987) discharge his duties
j. Revoke or extend proclamation of
Limitations suspension of privilege of writ of
• Congress cannot by law prescribe that the habeas corpus or declaration of
appointment of a person to an office martial law
created by such law shall be subject to k. Power with regard to utilization of
confirmation by the CA. natural resources
• Appointments extended by the President
to the enumerated positions while 1. LEGISLATIVE INQUIRIES AND
Congress is not in session shall only be OVERSIGHT FUNCTIONS
effective until disapproval by the CA, or
LEGISLATIVE INQUIRIES (PHIL. CONST., art.
until the next adjournment of Congress.
VI, § 21.)
• Since the Commission on Appointments is
an independent constitutional body, its
Scope
rules of procedure are outside the scope of
The power of legislative investigation includes:
congressional powers as well as that of the
1. Power to issue summons and notices;
judiciary.
2. Power to punish or declare a person in
contempt
For further discussion on this topic, see page 79 VI
3. The power to determine the rules of its
(C)(2) [Powers of the President: Power of
proceedings
Appointment] of this Reviewer.
H. POWERS OF CONGRESS Limitations: (ADR)

1. The inquiry must be in Aid of legislation.
General Classification 2. The inquiry must be conducted in
1. Legislative accordance with the ‘Duly published rules
a. General plenary power of procedure’ of the House conducting the
b. Specific power of appropriation inquiry; and
c. Taxation 3. The rights of persons appearing in or
d. Expropriation affected by such inquiries shall be
e. Legislative investigation Respected. (e.g., right to due process,
f. Question hour right against self- incrimination) (Bernas,
2. Non-legislative 1987 Philippine Constitution: A
a. Canvass presidential elections Commentary, 761, 2009).
b. Declare the existence of a state of
war Nature and Purpose
c. Delegation of emergency powers The power of inquiry — with process to enforce it
d. Call a special election for — is an essential and appropriate auxiliary to the
President and Vice President legislative function. A legislative body cannot
e. Concur to treaties and amnesties legislate wisely or effectively in the absence of
f. Propose constitutional information respecting the conditions which the
amendments legislation is intended to effect or change; and
g. Confirm certain appointments where the legislative body does not itself possess
h. Impeach the requisite information — which is not
i. Decide the disability of the infrequently true — recourse must be had to others
President in cases where majority who do possess it. (Arnault v. Nazareno, G.R. No.
of the Cabinet dispute his L-3820, July 18, 1950)
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Legislative inquiries must be conducted “in aid of asked of them. (Sabio v. Gordon, G.R. No. 174340,
legislation” which does not necessarily mean that Oct. 17, 2006).
there is pending legislation regarding the subject of
the inquiry. Hence, the materiality of a question is Non-Applicability of the Sub Judice Rule to
determined not by its connection to any pending Inquiries in Aid of Legislation
legislation, but by its connection to the general The mere filing of a criminal or an administrative
scope of the inquiry. (Bengzon v. Senate Blue complaint before a court or a quasi-judicial body
Ribbon Committee, G.R. No. 89914, Nov. 20, should not automatically bar the conduct of
1991) legislative investigation. Otherwise, it would be
extremely easy to subvert any intended inquiry by
If the investigation is no longer “in aid of legislation” Congress through the convenient ploy of instituting
but, “in aid of prosecution” where the stated a criminal or an administrative complaint. Surely,
purpose of the investigation is, to determine the the exercise of sovereign legislative authority, of
existence of violations of the law, it is beyond the which the power of legislative inquiry is an essential
scope of congressional powers. component, cannot be made subordinate to a
criminal or an administrative investigation.
Compulsory Process (Standard Chartered v. Senate, G.R. No. 167173,
The power of legislative investigation includes the Dec. 27, 2007).
power to compel the attendance of witnesses.
Corollary to the power to compel the attendance of A legislative investigation in aid of legislation
witnesses is the power to ensure that said and court proceedings have different
witnesses would be available to testify in the purposes. On one hand, courts conduct hearings
legislative investigation. (Standard Chartered v. or like adjudicative procedures to settle, through
Senate, G.R. No. 167173, Dec. 27, 2007). the application of a law, actual controversies
arising between adverse litigants and involving
Duly Published Rules of Procedure demandable rights. On the other hand, inquiries in
It is incumbent upon the Senate to publish the rules aid of legislation are, inter alia, undertaken as tools
for its legislative inquiries in each Congress or to enable the legislative body to gather information
otherwise make the published rules clearly state and, thus, legislate wisely and effectively; and to
that the same shall be effective in subsequent determine whether there is a need to improve
Congresses or until they are amended or repealed existing laws or enact new or remedial legislation,
to sufficiently put the public on notice. If it was the albeit the inquiry need not result in any potential
intention of the Senate for its present rules on legislation. On-going judicial proceedings do not
legislative inquiries to be effective even in the next preclude congressional hearings in aid of
Congress, it could have easily adopted the same legislation. (Romero v. Estrada, G.R. No. 174105,
language it had used in its main rules regarding April 2, 2009)
effectivity. Publication in the internet does not
satisfy the requirement of publication as provided Power to Punish for Contempt
in the Constitution (Garcillano v. House of The power to punish contempt must be considered
Representatives, G.R. No. 170338, Dec. 23, 2008). implied or incidental to the exercise of legislative
power. How could a legislative body obtain the
Right against Self-Incrimination knowledge and information on which to base
A subpoenaed witness cannot refuse to attend a intended legislation if it cannot require and compel
legislative inquiry by invoking his or her right the disclosure of such knowledge and information,
against self-incrimination. Such right may be if it is impotent to punish a defiance of its power and
invoked only when the incriminating question is authority? (Standard Chartered v. Senate, G.R.
being asked, since they have no way of knowing in No. 167173, Dec. 27, 2007).
advance the nature or effect of the questions to be
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The exercise by Congress or by any of its If Congress decides to extend the period of
committees of its contempt power is based on the imprisonment for the contempt committed by a
principle of self-preservation (i.e. preserving its witness beyond the duration of the legislative
authority and dignity). As the branch of the inquiry, then it may file a criminal case under
government vested with the legislative power, existing statute (Art. 150 of the Revised Penal
independently of the judicial branch, it can assert Code penalizes the refusal of a witness to answer
its authority and punish contumacious acts against any legal inquiry before Congress), amend existing
it. Such power is sui generis, as it attaches not to law, or enact a new law to increase the definite
the discharge of legislative functions per se, but to period of imprisonment. Augmenting its power of
the sovereign character of the legislature as one of contempt and extending the period of
the three independent and coordinate branches of imprisonment shall be in the sole discretion of
government. (Id.) Congress. This constitutes as a statutory power
of contempt, which is different from the inherent
Period of Detention for Contempt (Balag v. power of contempt. (Id.)
Senate, G.R. No. 234608, July 3, 2018)
HOUSE OF OVERSIGHT FUNCTIONS (PHIL. CONST., art.
SENATE
REPRESENTATIVES VI, § 22.)
Can last only until the Can last only until the
final adjournment of termination of the Section 22 pertains to the power to conduct
the last session of legislative inquiry a question hour, the objective of which is to obtain
such Congress (even during recess) information in pursuit of Congress' oversight
under which the said function.
power is invoked
Question Hour – Appearance of department
The legislative inquiry heads before Congress to give account of their
of the Senate stewardship (Bernas, 1987 Philippine Constitution:
terminates on two A Commentary, 769, 2009).
instances:
1. Upon the Under Section 22, department heads (members of
approval or the Executive Department) cannot be compelled to
disapproval of appear before Congress. Neither may department
the heads impose their appearance upon Congress.
Committee This is in line with the principle of separation of
Report powers.
2. Upon the
expiration of Department Heads May Appear before
such Congress in the Following Instances:
Congress • Upon their own initiative, with the consent
of the President (and that of the House
Prior to Balag, the prevailing rule was that the concerned)
Senate, as a continuing body (as opposed to the • Upon the request of either House
House of Representatives), can incarcerate a • Written questions shall be submitted to the
witness indefinitely based on Arnault v. Nazareno. President of the Senate or Speaker of the
However, the Court ruled that an indefinite and House at least 3 days before the
unspecified period of detention will amount to scheduled appearance of the department
excessive restriction and will certainly violate any heads.
person's right to liberty. (Id.) • Interpellations shall not be limited to written
questions, but may cover related matters.
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• The inquiry will be conducted in executive their appearance. Nonetheless, when the inquiry in
session when: which Congress requires their appearance is "in
o Required by the security of state, aid of legislation" under Section 21, the
or public interest, and appearance is mandatory (Senate v. Ermita, G.R.
o When the President so states in No. 169777, April 20, 2006).
writing.
LEGISLATIVE
QUESTION
There is no such thing as a ‘question hour’ in the INVESTIGATIO
HOUR
Constitution (It is a parliamentary concept and N
(SEC. 22)
practice). The distinction in legislative hearings is (SEC. 21)
between investigative function and oversight Who may Only Any person
function. (Senate v. Ermita, G.R. No. 169777, April appear department
20, 2006). heads
Who Entire body Entire body or its
Any post-enactment congressional measure conducts respective
should be limited to scrutiny and investigation, in committees
following the principle separation of powers. An Subject Matters Any matter in aid
accountability mechanism with which the proper matter or related to the of legislation
expenditure of public funds may be checked is the purpose department
power of congressional oversight, which may be only as an
performed either through: exercise of
1. Scrutiny based primarily on Congress‘ Congress’
power of appropriation and the budget oversight
hearings conducted in connection with it, function
its power to ask heads of departments to Nature Discretionar Compulsory
appear before and be heard by either of its y
Houses on any matter pertaining to their Exempted All heads of (1) President
departments and its power of confirmation; persons departments (2) Justices of the
2. Investigation and monitoring of the of the Supreme Court
implementation of laws pursuant to the Executive (3) Members of
power of Congress to conduct inquiries in Branch of the AFP, if
aid of legislation. (Belgica v. Ochoa, G.R. the prevented by the
No. 208566, Nov. 19, 2013). government President as
shall secure Commander-in-
Question Hour vs. Legislative Investigation the consent Chief (Gudani v.
Sections 21 and 22, while closely related and of the Senga, G.R. No.
complementary to each other, should not be President 170165, Aug. 15,
considered as pertaining to the same power of prior to 2006)
Congress. One specifically relates to the power to appearing
conduct inquiries in aid of legislation, the aim of before either
which is to elicit information that may be used for House of
legislation, while the other pertains to the power to Congress
conduct a question hour, the objective of which is (EO 464,
to obtain information in pursuit of Congress’ Sec.1)
oversight function. (Neri v. Senate, G.R. No. Exempted (1) Executive privilege, which
180643, March 25, 2008) informatio must be invoked by the President
n himself or through the Executive
Section 22, in keeping with the separation of Secretary by authority of the
powers, states that Congress may only request
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President (Senate v. Ermita, G.R. execute (Gudani v. Senga, G.R. No. 170165, Aug.
No. 169777, April 20, 2006) 15, 2006).
(2) Privileged information e.g.
national defense, diplomatic, When Congress merely seeks to be informed on
military secrets, etc. how department heads are implementing the
(3) Right against self- statutes which it has issued, its right to such
incrimination information is not as imperative as that of the
President to whom, as Chief Executive, such
Invocation of Executive Privilege department heads must give a report of their
Under Article VI, Section 22, the appearance of performance as a matter of duty. In such instances,
department heads in the question hour is Section 22 of Article VI, in keeping with the
discretionary on their part. However, under separation of powers, states that Congress may
Section 21, Congress is not bound to respect their only request their appearance. Nonetheless, when
refusal to appear in inquiries in aid of legislation, the inquiry in which Congress requires their
unless a valid claim of privilege is subsequently appearance is “in aid of legislation” under Section
made, either by the President herself or by the 21, Article VI, the appearance is mandatory
Executive Secretary. (Senate v. Ermita, G.R. No. (Senate v. Ermita, G.R. No. 169777, April 20,
169777, April 20, 2006) 2006).
Only the President may invoke this. If it is 2. NON-LEGISLATIVE

invoked by some other person, there must be
a. Informing function
proof that he or she has Presidential authority.
The power of Congress, when it investigates, is not
A claim of privilege, being a claim of exemption limited to oversight or in aid of legislation. Equally
from an obligation to disclose information, must, important and a fundamental power and duty of
therefore, be clearly asserted. The court itself must Congress is its informing function by way of
determine whether the circumstances are investigating for the purpose of enlightening the
appropriate for the claim of privilege, and yet do so electorate. “The informing function of Congress
without forcing a disclosure of the very thing the should be preferred even to its legislative function
privilege is designed to protect. Absent then a [for] the only really self-governing people is that
statement of the specific basis of a claim of people which discusses and interrogates its
executive privilege, there is no way of determining administration” (Akbayan v. Aquino, G.R. 170516,
whether it falls under one of the traditional July 16, 2008; J. Azcuna, Separate-Dissenting
privileges, or whether, given the circumstances in opinion citing Schlesinger, 10, 76-77 quoting
which it is made, it should be respected (Senate v. Wilson, Congressional Government, 278, 279,
Ermita, G.R. No. 169777, April 20, 2006). 299, 301, 303).
The President has constitutional authority to b. Power of impeachment

prevent any member of the Armed Forces from
testifying before a legislative inquiry by virtue of her (Phil. Const., art. XI.)
power as commander-in- chief, and that as a
consequence a military officer who defies such Exclusive Power To Initiate
injunction is liable under military justice. The only The House of Representatives shall have the
way to circumvent this is by judicial order because exclusive power to initiate all cases of
the President may be commanded by judicial order impeachment (PHIL. CONST., art. IX, § 3(1).)
to compel the attendance of the military officer. • The impeachment proceedings begin with
Final judicial orders have the force of the law of the a complaint filed with the House of
land which the President has the duty to faithfully Representatives either by a member of the
House or by any citizen supported by a
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resolution of endorsement by any member.

The complaint is referred to a Committee
which prepares a report (which can be
favorable or unfavorable). In either case,
the House by a vote of 1/3 of all its
members decides whether complaint
should be given due course. (PHIL. CONST.,
art. IX, § 3(2 & 3).)
• Referral to the Committee and decision by
the House is unnecessary if the complaint
is filed by at least 1/3 of all the members of
the house (PHIL. CONST., art. IX, § 3(4).)
Exclusive Power to Try and Decide

The Senate shall have the sole power to try and
decide all cases of impeachment. No person shall
be convicted without the concurrence of 2/3 of all
the Members of the Senate (PHIL. CONST., art. IX,
§ 3(6).)
The penalty imposable shall be limited to:

• removal from office and
• disqualification to hold any office under the
Republic of the Philippine (PHIL. CONST.,
art. IX, § 3(7).)
Officers Subject to Impeachment (PHIL. CONST.,

art. IX, § 2.) (P-VSCO)
• President
• Vice President
• Members of the Supreme Court
• Members of the Constitutional
Commissions
• Ombudsman
Grounds for Impeachment (PHIL. CONST., art. IX,

§ 2.) (BGC-T2O)
• Bribery
• Graft and Corruption
• Culpable Violation of the Constitution
• Treason
• Betrayal of Public Trust
• Other high crimes
I. INITIATIVE AND REFERENDUM
See Part V(1) for discussion.

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EXECUTIVE
DEPARTMENT
Political Law
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VI. EXECUTIVE DEPARTMENT A. QUALIFICATIONS, ELECTION, AND

TERM OF PRESIDENT AND VICE-
TOPIC OUTLINE UNDER THE SYLLABUS: PRESIDENT
VI. EXECUTIVE DEPARTMENT Qualifications of President and Vice-President

A. QUALIFICATIONS, ELECTION, AND (Secs 3-4):
TERM OF THE PRESIDENT AND VICE- PRESIDENT VICE-
PRESIDENT PRESIDENT
1. Natural-born citizen of the Philippines
B. PRIVILEGES, INHIBITIIONS, AND 2. Registered voter
DISQUALIFICATIONS 3. Able to read and write
1. Presidential Immunity 4. At least 40 years old on the day of election
2. Presidential Privilege 5. Resident of the Philippines for at least 10
years immediately preceding the election
C. POWERS OF THE PRESIDENT 6. Term of 6 years
1. General executive and administrative
7. Unless otherwise provided by law, term of
powers
office commences at noon of June 30 next
2. Powers of appointment
following the election
a. In General
Single term only; not Term limitation; 2
b. Limitations on the
Exercise/Power eligible for any successive terms
c. Types of Appointment reelection (but can run
3. Power of control and supervision if no longer incumbent
a. Doctrine of Qualified Political president, like
Agency President Estrada in
b. Executive Departments and May 2020)
Offices
c. Local Government Units Any person who has
4. Emergency Powers succeeded as
5. Commander-in-chief Powers President, and served
a. Calling out Powers as much for more than
b. Declaration of Martial Law and 4 years shall NOT be
Suspension of the Privilege of qualified for election to
the Writ of Habeas Corpus; the same office at any
Extension time
6. Executive Clemency
Voluntary renunciation of the office for any
a. Nature and Limitation
length of time shall not be considered an
b. Forms of executive Clemency
interruption in the continuity of service
7. Diplomatic Power
8. Powers Relative to Appropriation
Measures Term of Office
9. Delegated Powers The President and Vice President shall be elected
10. Residual Powers by direct vote of the people for a term of 6 years
11. Veto Powers (PHIL. CONST. art. VII, § 4).
D. RULES OF SUCCESSION The president shall not be eligible for any re-
election. No person who has succeeded as
President and has served for more than 4 years
shall be qualified for election to the same office at
any time. (PHIL. CONST., art VII, § 4, ¶ 1).
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No Vice-President shall serve for more than 2 B. PRIVILEGES, INHIBITIIONS, AND

consecutive terms. (PHIL. CONST., art. VII, § 4, ¶ 2). DISQUALIFICATIONS
Election Disqualifications
Regular: 2nd Monday of May, every 6 years SUBJECT SOURCE OF
DISQUALIFICATION
Special (Requisites) President PROHIBITED FROM:
Holding any office or
• Death, Permanent disability, removal from
Vice President employment during their tenure
office or resignation of both President and
Vice-President
Cabinet Exceptions:
• Vacancies occur more than 18 months
before the next regular presidential
Members • Otherwise provided in
election; and the Constitution (e.g.,
Deputies or Vice President
• A law passed by Congress calling for a
Assistants of appointed as a
special election to elect a President and
Cabinet member of the
Vice President to be held not earlier than
members Cabinet, Secretary of
45 days nor later than 60 days from the
Justice sits as an ex-
time of such call (PHIL. CONST., art VII, §
officio member on
10)
Judicial and Bar
Council)
Congress as Canvassing Board
The proclamation of presidential and vice • The positions are ex-
officio and they do not
presidential winners is a function of Congress and
receive any salary or
not of the COMELEC (Macalintal v COMELEC,
G.R. No. 157013, June 10, 2003) other emoluments
therefor (e.g. Sec. of
SC as the Presidential Electoral Tribunal (PET) Finance is head of
Monetary Board)
The SC, sitting en banc, shall be the sola judge of
all contests relating to the election, returns and
qualifications of the President or Vice President, • Practicing, directly or
and may promulgate its rules for the purpose. indirectly, any other
(Macalintal v. PET, G.R. No. 191618, Nov. 23, profession during their
2010) tenure
Oath of Office • Participating in any

Before they enter on the execution of their office, business
the President, Vice President or the Acting
President shall take the oath or affirmation (PHIL. • Being financially
CONST., art. VII, § 5). interested in any
contract with, or in any
franchise, or special
privilege granted by
the government or any
subdivision, agency or
instrumentality thereof,
including GOCCs or
their subsidiaries
(PHIL. CONST., art VII, §
13)
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Spouses and Cannot be appointed during thereby ousted from their positions. What is
4th degree President’s tenure as: prohibited is appointment or reappointment and not
relatives of the (a) Members of the uninterrupted continuance in office
President Constitutional
(consanguinity Commissions Inhibitions
or affinity) (b) Office of the Ombudsman • No increase in salaries until after the
(c) Department Secretaries expiration of the term of the incumbent
(d) Department Under- during which such increase was approved
secretaries (PHIL. CONST., art. VII, §6).
(e) Chairman or heads of • Shall not, during tenure, directly or
bureaus or offices indirectly, practice any other profession,
including GOCCs and their participate in any business, or be
subsidiaries financially interested in any contract with,
or in any franchise, or special privilege
If the spouse, etc., was already granted by the Government or any
in any of the above offices subdivision, agency or instrumentality
before his/her spouse became thereof, including GOCCs or their
President, he/she may subsidiaries (PHIL. CONST., art. VII, § 13).
continue in office. What is • Shall not receive any other emoluments
prohibited is appointment and from the government or any other source
reappointment, not (PHIL. CONST., art. II, § 6)
continuation in office. • Shall avoid conflict of interest in conduct of
office (PHIL. CONST., art. VII, § 13).
Spouses etc., can be
appointed to the judiciary and 1. PRESIDENTIAL IMMUNITY
as ambassadors and consuls
Immunity from suit is personal to the President and
The Chief Presidential Legal Counsel (CPLC) has may be invoked by him alone. The President may
the duty of giving independent and impartial legal waive it impliedly, as when he himself files suit
advice on the actions of the heads of various (Soliven v. Makasiar, G.R. No. 82585, Nov. 14,
executive departments and agencies and to review 1988).
investigations involving heads of executive
departments and agencies, as well as other The presidential immunity from suit remains
Presidential appointees. preserved under our system of government, albeit
not expressly reserved in the present constitution
The PCGG is charged with the responsibility, under (Rubrico, et al. v. Gloria Macapagal-Arroyo, et al.,
the President, of recovering ill-gotten wealth. The G.R. No. 183871, Feb. 18, 2010).
offices of the PCGG and CPLC are incompatible.
Without question, the PCGG is an agency under Unlawful acts of public officials are not acts of State
the Executive Department. Thus, the actions of the and the officer who acts illegally is not acting as
PCGG Chairman are subject to the review of the such but stands in the same footing as any other
CPLC (Public Interest Group v. Elma, G.R. No. trespasser. Once out of office, even before the end
138965, June 30, 2006). of the six-year term, immunity for non-official acts
is lost (Estrada v. Desierto, G.R. No. 146710-15,
March 2, 2001).
Exception to the Prohibition on the President
and His/Her Official Family from Holding Any
Even if the DECS Secretary is an alter ego of the
Other Office or Employment
President, the President’s immunity from suit
If 4th degree relatives are already in office when a
cannot be invoked because the questioned acts
President assumes office, the relatives are not
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are not the acts of the President but merely those the public officers covered by this executive order;
of a Department Secretary (Gloria v. CA, G.R. No. including:
119903, Aug. 15, 2000). (a) Conversations and correspondence
between the President and the public
Duration of Presidential Immunity official covered by this executive order
After his tenure, the Chief Executive cannot invoke (Chavez v Public Estates Authority, G.R.
immunity from suit for civil damages arising out of No. 133250, July 9, 2002)
acts done by him while he was President which (b) Military, diplomatic and other national
were not performed in the exercise of official duties. security matters which in the interest of
(Estrada v. Desierto, G.R. No. 146710, March 2, national security should not be divulged;
2001) (c) Information between inter-government
agencies prior to the conclusion of treaties
A department secretary, even if an alter ego of the and executive agreements (Chavez v.
President, cannot invoke presidential immunity in a PCGG, G.R. No. 130716, Dec. 9, 1998);
case filed against him because the questioned acts (d) Discussion in close-door Cabinet meetings
are not the acts of the President. (Gloria v CA, G.R. (Chavez v. PCGG, G.R. No. 130716, Dec.
No. 119903, Aug. 15, 2000) 9, 1998);
(e) Matters affecting national security and
2. PRESIDENTIAL PRIVILEGE public order (Chavez v. Public Estates
Authority, G.R. No. 133250, Jul. 9, 2002).
Executive Privilege is the power of the President to
withhold certain types of information from the court,
Person Covered by the Privilege
the Congress, and the public. (Neri v. Senate, G.R.
The person covered by the executive privilege is a
No. 180643, March 25 2008).
person in possession of information which is, in the
judgment of the head of office concerned,
For the presidential communications privilege
privileged
to apply, the following must concur:
(a) Communications relate to a “quintessential
Operational Proximity
and nondelegable power” of the President.
Not every person who plays a role in the
(e.g. the power to enter into an executive
development of presidential advice, no matter how
agreement with other countries without the
remote and removed from the President, can
concurrence of the Legislature has
qualify for the privilege. The privilege should apply
traditionally been recognized in Philippine
only to communications authored or solicited and
jurisprudence)
received by those members of an immediate White
(b) Communications are “received” by a close
House advisor’s staff who have broad and
advisor of the President. Under the
significant responsibility for investigation and
“operational proximity” test, Secretary Neri
formulating of the advice to be given the President
of NEDA can be considered a close
on the particular matter to which the
advisor, being a member of President
communications relate (Neri v. Senate Committee,
Arroyo’s cabinet.
G.R. No. 180643, March 25, 2008 citing In re:
(c) There is no adequate showing of a
Sealed, No. 96-3124, 121 F.3d 729,326 U.S. App.
compelling need that would justify the
D.C. 276, 1997).
limitation of the privilege and of the
unavailability of the information elsewhere
Presidential communications are presumptively
by an appropriate investigating authority.
privileged and such presumption can be overcome
only by mere showing of public need by the branch
Scope of Executive Privilege
seeking access to conversations. The oversight
Executive privilege covers all confidential or
function of Congress may be facilitated by
classified information between the President and
compulsory process ONLY to the extent that it is
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performed in pursuit of legislation” (Neri v. Senate, Difference between Presidential

G.R. No. 180643, March 25, 2008). Communications Privilege and Deliberative
Process Privilege
While the final text of the JPEPA may not be kept Presidential Deliberative Process
perpetually confidential - since there should be Communications Privilege
“ample opportunity for discussion before a treaty is Privilege
approved” – the offers exchanged by the parties Pertains to Includes advisory
during the negotiations continue to be privileged communications, opinions,
even after the JPEPA is published. Diplomatic documents or other recommendations and
negotiations privilege bears a close resemblance materials that reflect deliberations
to the deliberative process and residential presidential decision- comprising part of a
communications’ privilege. Clearly, the privilege making and process by which
accorded to diplomatic negotiations follows as a deliberations governmental
logical consequence from the privileged character decisions and policies
of the deliberative process (Akbayan v. Aquino, are formulated
G.R. No. 170516, July 16, 2008). Applies to decision- Applies to decision-
making of the making of executive
When To Apply Executive Privilege: President officials (and judiciary)
(a) Must fall within one of the above.
(b) Must be stated with sufficient particularity
so the Congress or Court can determine
the legitimacy of the claim of privilege. Rooted in the Based on common law
constitutional principle privilege
Exception to Executive Privilege: of separation of
• The President's generalized assertion of powers
privilege must yield to the demonstrated,
specific need for evidence in a pending
criminal trial. (U.S. v. Nixon, 418 U.S. 683, Requisites: Requisites:
1974). (a) It must involve a (a) Predecisional – it
• Executive privilege cannot be used to quintessential and precedes, in
conceal a crime or a possible wrongdoing. non-delegable temporal sequence,
Thus, the specific need for evidence in a power of the the decision to
pending criminal trial outweighs the President which it relates
President’s generalized interest in (b) Operational (b) Deliberative –
confidentiality (Neri v. Ermita, G.R. No. Proximity reflects the give and
169777, April 20, 2006). (c) Important and take of the
compelling need to consultative
be confidential, not process such that
merely based on disclosure would
general interest discourage candid
discussion within
the agency (In Re:
Production of Court
Records and
Documents, Feb.
14, 2012)
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C. POWERS OF THE PRESIDENT 2. POWERS OF APPOINTMENT
1. GENERAL EXECUTIVE AND a. In General

ADMINISTRATIVE POWERS
Nature of the Power to Appoint
Executive Powers, In General Executive in nature; while Congress (and the
The Constitution provides that "[t]he executive Constitution in certain cases) may prescribe the
power shall be vested in the President of the qualifications for particular offices, the
Philippines.” However, it does not define what is determination of who among those who are
meant by executive power although in the same qualified will be appointed is the President’s
article it touches on the exercise of certain powers prerogative.
by the President, i.e., the power of control over all
executive departments, bureaus and offices, the In case of vacancy in an office occupied by an alter
power to execute the laws, the appointing power, ego of the President, such as the office of a
the powers under the commander-in-chief clause, department secretary, the President must
the power to grant reprieves, commutations and necessarily appoint an alter ego of her choice as
pardons, the power to grant amnesty with the acting secretary before the permanent appointee
concurrence of Congress, the power to contract or of her choice could assume office. Congress,
guarantee foreign loans, the power to enter into through a law, cannot impose on the President the
treaties or international agreements, the power to obligation to appoint automatically the
submit the budget to Congress, and the power to undersecretary as her temporary alter ego. An alter
address Congress. ego, whether temporary or permanent, holds a
position of great trust and confidence. Congress, in
The President’s Executive powers are not limited the guise of prescribing qualifications to an office,
to those set forth in the Constitution. The President cannot impose on the President who her alter ego
has residual powers as the Chief Executive of the should be (Pimentel v. Ermita, G.R. No. 164978,
country, which powers include others not set forth Oct. 13, 2005).
in the Constitution (Marcos v. Manglapus, G.R. No.
88211, Sept. 15, 1989). May the President appoint an individual as
acting Solicitor General and acting Secretary of
Power of Administrative Reorganization Justice?
The President has the continuing authority to The President may not appoint an individual as
reorganize the national government, which acting Solicitor General and acting Secretary of
includes the power to group, consolidate bureaus Justice in a concurrent capacity. The designation
and agencies, to abolish offices, to transfer of Alberto Agra as acting Secretary of Justice
functions, to create and classify functions, services concurrently with his position as Solicitor General
and activities and to standardize salaries and is in violation of the constitutional prohibition under
materials, if effected in good faith and for the Article VII, Section 13. It is of no moment that the
purpose of economy or make the bureaucracy designation was in a temporary capacity. The
more efficient. (MEWAP v Executive Secretary, Constitution makes no reference to the nature of
G.R. No. 160093, July 31, 2007) the designation (Funa v. Agra, G.R. No. 191644,
Feb. 19, 2013).
Faithful Execution Clause
Until and unless a law is declared unconstitutional, b. Limitations on the Exercise/Power
the President has a duty to execute it regardless of
The Constitutional Limitations on the
his doubts as to its validity.
President’s appointing power
The President may not appoint his/her spouse and
relatives by consanguinity or affinity within the 4th
civil degree as members of the:
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(a) Constitutional Commissions Appointment in an Acting Capacity

(b) Ombudsman The essence of an appointment in an acting
(c) Department Secretaries capacity is its temporary nature. It is a stop-gap
(d) Undersecretaries measure intended to fill an office for a limited time
(e) Chairmen and heads of Bureaus and Offices until the appointment of a permanent occupant to
(f) GOCCs (PHIL. CONST., art. VII, § 13) the office. The law expressly allows the President
to make such acting appointment. EO 292 states
Appointments extended by an acting President that “[t]he President may temporarily designate an
shall remain effective unless revoked by the officer already in the government service or any
elected President within 90 days from assumption other competent person to perform the functions of
of office (PHIL. CONST., art. VII, § 14) an office in the executive branch.” But EO 292
also provides that acting appointments cannot
Two months immediately before the next exceed one year. The law has incorporated this
Presidential elections and up to the end of his/her safeguard to prevent abuses, like the use of acting
term, a President or Acting President shall not appointments as a way to circumvent confirmation
make appointments except temporary by the Commission on Appointments. (Pimentel v.
appointments to executive positions when Ermita, G.R. No. 164978, Oct. 13, 2005)
continued vacancies therein will prejudice public
service or endanger public safety (PHIL. CONST., Requisites for Valid Appointment
art. VII, § 15). Authority to appoint and evidence of its exercise;
Transmittal of the appointment and proof of it;
The appointment of the heads of the executive Vacant position at the time of appointment; and
departments, ambassadors, other public ministers receipt of the appointment and its acceptance by
and consuls, or officers of the armed forces from the appointee, who possesses all the qualifications
the rank of colonel or naval captain, and other and none of the disqualifications. (Velicaria-Garafil
officers whose appointments are vested in him in v. OP, G.R. No. 203372, June 16, 2015).
this Constitution require the consent of the
Commission on Appointments (PHIL. CONST., art. Exceptions to Midnight Appointments
VII, § 16). Requisites
(a) It is necessary to make such appointment
c. Types of Appointment
(b) Only temporary appointments can be
Kinds of Presidential Appointments under Art extended
VII, Sec.15 of the Constitution (c) Appointments only in the Executive
(a) Appointments made by an acting president Department
(b) Midnight appointment — appointment (PHIL. CONST., art. VII, § 15)
made by a President after the election of
his successor and up to the end of his The Court held that the rule does not apply to
term. This is prohibited by the Constitution. appointments made in the Supreme Court. (De
(c) Appointments for Partisan Political Castro v. JBC, G.R. No. 191002, April 20, 2010)
Consideration. Those made 2 months
before the next Presidential election. This Ad-Interim Appointments (PHIL. CONST., art VII,
is prohibited by the Constitution. § 16)
(d) Regular presidential appointments, with or • When Congress is in recess, the President
without confirmation by the Commission may still appoint officers to positions
on Appointments, and ‘recess’ or ‘ad- subject to CA confirmation. These
interim’ appointments. appointments are effective immediately,
but are only effective until they are
disapproved by the CA or until the next
adjournment of Congress.
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• Applies only to positions requiring Appointments By An Acting President (PHIL.

confirmation of CA Appointments to fill an CONST., art. VII, § 14)
office in an ‘acting’ capacity are NOT ad- These shall remain effective unless revoked by the
interim in nature and need no CA approval. elected President within 90 days from his
• The assumption of office on the basis of assumption or re-assumption of office.
the ad interim appointments issued by the
President does not amount to a temporary The power of the succeeding President to revoke
appointment which is prohibited by § 1 (2), appointments made by the Acting President refers
Art. IX-C. An ad interim appointment is a only to appointments in the Executive Department
permanent appointment because it takes (De Castro v. JBC, G.R. No. 191002, April 20,
effect immediately and can no longer be 2010).
withdrawn by the President once the
appointee has qualified into office. Regular Appointments Requiring Consent of
(Matibag v. Benipayo G.R. No. 149036, Commission on Appointment (CA)
April 2, 2002). The following may be appointed by the president,
subject to approval by the Commission on
What is an ad interim appointment? Appointments (CA):
An ad interim appointment is a permanent (a) Heads of executive departments
appointment unless otherwise indicated. It is an (b) Ambassadors, consuls, and other public
appointment made by the President while ministers
Congress is NOT in session or during recess. (c) Officers of AFP from the rank of colonel or
naval captain
How Ad-Interim Appointments Terminated (d) Other officers whose appointment is
(a) Disapproval of the appointment by the vested in him by the Constitution, such as:
CA; a. Chairmen and members of the
(b) Adjournment by the Congress without the COMELEC, COA, and CSC.
CA acting on the appointment b. Regular members of the JBC.
(NACHURA) c. The Ombudsman and his
deputies.
Difference between Disapproval and By- d. Sectoral representatives in
Passed Appointments Congress, as provided in
APPOINTMENTS BY-PASSED Transitory Provisions (Sec. 16).
DISAPPROVED APPOINTMENTS
When the Commission When an ad-interim Appointments With Prior Recommendation or
disapproves an ad position is by-passed Nomination By The JBC
interim appointment, because of law of time • Members of the SC and judges of the lower
the appointee can no or failure of the courts; these appointments do not need
longer be extended a Commission to CA confirmation (PHIL. CONST., art. VIII, §
new appointment, organize, there is no 9).
inasmuch as the final decision, the • Ombudsman and his Deputies (PHIL.
disapproval is a final President is free to CONST., art. VIII, § 9).
decision in the renew the ad-interim
exercise of the appointment. Regular Appointments Without Need Of CA
Commission’s Confirmation
checking power on the All other officers whose appointments are not
appointment authority otherwise provided for by law and those whom he
of the President may be authorized by law to appoint do not require
CA confirmation. This includes the Chairman and
members of the Commission on Human Rights
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(CHR), whose appointments are provided for by prohibition to the appointment of Members
law, and NOT by the Constitution. (PHIL. CONST., of the Supreme Court, they could have
Art. VII, Sec. 16) explicitly done so. The prohibition is
confined to appointments in the Executive
Congress may, by law, vest in the President alone Department. Existence of the JBC also
or in the courts, or in the heads of departments, prevents possible abuses in appointment
agencies boards or commissions the appointment (De Castro v JBC, G.R. No. 191002, April
of other officers lower in rank than those mentioned 20, 2010); overturned In re: Appointment of
above (PHIL. CONST., Art. VII, Sec 16) Valenzuela, A.M. 98-5-01-SC, Nov. 9,
1998).
However, Congress cannot, by law, require CA (b) There is no law that prohibits local elective
confirmation of the appointment of other officers for officials from making appointments during
offices created subsequent to the 1987 the last days of his or her tenure.
Constitution e.g. NLRC Commissioners, Bangko Prohibition only applies to appointments by
Sentral Governor (Calderon v. Carale, G.R. No. the President (De la Rama v. CA, G.R. No.
91636, April 23, 1992). 131136, Feb. 28, 2001).
(c) If the President is not satisfied with the list
PROCEDURE WHEN CA CONFIRMATION submitted by the JBC, he may ask for
NEEDED: another list. But once the appointment is
(a) Nomination by President issued by the President and accepted by
(b) Confirmation by CA the nominee, it needs no further
(c) Appointment by President confirmation.
(d) Acceptance by appointee. (d) President may appoint SC Justice within
a. At any time before all four steps 60 days prior to election. Article VII deals
have been complied with, the entirely with the executive department
President can withdraw the while Article VIII deals with the judiciary.
nomination or appointment. Had the framers intended to extend the 60-
day prohibition contained in Section 15,
Procedure When No CA Confirmation Needed: Article VII to the appointment of Members
(a) Appointment of the Supreme Court, they could have
(b) Acceptance explicitly done so. That such specification
was not done only reveals that the
Once appointee accepts, President can no longer prohibition against the President or Acting
withdraw the appointment President making appointments within two
months before the next presidential
Midnight Appointments elections and up to the end of the
General Rule: Two (2) months immediately before President’s or Acting President’s term
the next Presidential elections and up to the end of does not refer to the Members of the
his term, the President or Acting President shall not Supreme Court. The usage in Section 4
make appointments. This is to prevent the practice (1), Article VIII of the word shall – an
of making “midnight appointments.” (PHIL. CONST., imperative, operating to impose a duty that
art. VII, § 15). may be enforced – should not be
disregarded.
Exception: Temporary appointments to executive (e) The framers did not need to extend the
positions if continued vacancies will prejudice prohibition against midnight appointments
public service or endanger public safety. to appointments in the Judiciary, because
(a) Prohibition does not extend to the establishment of the JBC and
appointments in the Supreme Court. Had subjecting the nomination and screening of
the framers intended to extend the candidates for judicial positions to the
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unhurried and deliberate prior process of because temporary or acting appointments can
the JBC ensured that there would no only undermine the judiciary due to their being
longer be midnight appointments to the revocable at will…Prior to their mandatory
Judiciary. JBC intervention eliminates the retirement or resignation, judges of the first or
danger that appointments to the Judiciary second level courts and the Justices of the third
can be made for the purpose of buying level courts may only be removed for cause, but
votes in a coming presidential election, or the members of the Supreme Court may be
of satisfying partisan considerations. The removed only by impeachment (De Castro v. JBC,
creation of the JBC was precisely intended G.R. No. 191002, Apr. 20, 2010).
to de-politicize the Judiciary by doing away
with the intervention of the Commission on Disciplinary Powers
Appointments (De Castro v. JBC, G.R. No. The power of the President to discipline officers
191002, April 20 2010). flows from the power to appoint the officer, and
NOT from the power of control.
Prohibition against Midnight Appointments
applicable to Presidential Appointments only While the President may remove from office those
(LEONEN) who are not entitled to security of tenure, or those
The prohibition on midnight appointments under officers with no set terms, such as Department
Article VII, Sec 15 only applies to presidential Heads, the officers, and employees entitled to
appointments. It does not apply to appointments security of tenure cannot be summarily removed
made by local chief executives. Nevertheless, the from office.
Civil Service Commission has the power to
promulgate rules and regulations to professionalize 3. POWER OF CONTROL AND
the civil service. It may issue rules and regulations SUPERVISION
prohibiting local chief executives from making
Power of Control
appointments during the last days of their tenure.
The power of an officer to alter, modify, or set aside
Appointments of local chief executives must
what a subordinate officer has done in the
conform to these civil service rules and regulations
performance of his duties, and to substitute the
in order to be valid. (Provincial Government of
judgment of the officer for that of his subordinate.
Aurora v Marco, G.R. No. 202331, April 22, 2015)
The President’s power of control is a self-executing

Power of Removal
provision. The incumbent President is free to
General Rule: The express power of appointment
amend, rescind and modify any political
of the President has the corollary implied power of
agreements entered into by the previous
removal. Hence, the President may remove
Presidents (Ocampo v. Enriquez, G.R. No.
appointees.
225973, Nov. 8, 2016).
Exception: Appointments requiring certain
The appeal from the decision of a Department
methods for removal (e.g., Impeachment,
Secretary to the President can be restricted due to
appointment of judges of inferior courts (PHIL.
the President’s power of control. It may be limited
CONST., art. VIII, § 11; Gonzales III vs. Office of the
by executive order of the President, a law providing
President of the Philippines, G.R. No. 196231,
for judicial review, and a rule of procedure
Sept. 4, 2012).
promulgated by the Supreme Court. (Angeles v.
Gaite, G.R. No. 165276, Nov. 25, 2009).
The succeeding President may not revoke
appointments to the Judiciary made by an Acting
Power of Supervision
President. Sec. 14, Art. VII refers only to
The power of a superior officer to ensure that the
appointments in the Executive Department. It has
laws are faithfully executed by subordinates.
no application to appointments in the Judiciary
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The power of supervision does not include the her] cabinet members exercising control over a
power of control; but the power of control particular executive department”.
necessarily includes the power of supervision.
But the Court retains the distinction that the
The President’s power over GOCCs comes not doctrine remains limited to the President's
from the Constitution but from statute. Hence, it executive secretary and other Cabinet
may similarly be taken away by statute. secretaries. It does not extend to deputy executive
secretaries or assistant deputy secretaries.
For Administrative Proceedings, decisions of Clearly, the president cannot be expected to
Department Secretaries need not be appealed to personally exercise his or her control powers all at
the President in order to comply with the the same time. This entails the delegation of power
requirement of exhaustion of administrative to his or her Cabinet members. (Philippine Institute
remedies. for Development Studies v. Commission on Audit,
GR. No. 212022, Aug. 20, 2019)
The execution of laws is an OBLIGATION of the
President. He cannot suspend the operation of b. Executive Departments and Offices
laws.
The President may, by executive or administrative
a. Doctrine of Qualified Political Agency order, direct the reorganization of government
entities under the Executive Department. Section
QUALIFIED POLITICAL AGENCY - Acts of 17, Article VII of the 1987 Constitution, clearly
department heads, etc., performed and states: “The President shall have control of all
promulgated in the regular course of business, are executive departments, bureaus and offices.” The
presumptively acts of the President. Administrative Code also grants the President the
power to reorganize the Office of the President in
Exceptions: recognition of the recurring need of every President
If the acts are disapproved or reprobated by the to reorganize his or her office “to achieve simplicity,
President. If the President is required to act in economy and efficiency” (Tondo Medical v. Court
person by law or by the Constitution (e.g. the power of Appeals, G.R. No. 167324, July 17, 2007).
to grant pardons).
Application to Cabinet Members and Executive The President may transfer any agency under the
Secretary (LEONEN) Office of the President to any other department or
The doctrine of qualified political agency agency, subject to the policy in the Executive Office
acknowledges the multifarious executive and in order to achieve simplicity, economy and
responsibilities that demand a president's efficiency (Anak Mindanao v. Executive Secretary,
attention, such that the delegation of control power G.R. No. 166052, Aug. 29, 2007).
to his or her Cabinet becomes a necessity.
The creation of the Truth Commission does not fall
Unless the Constitution or law provides within the President’s power to reorganize. It flows
otherwise, Cabinet members have the from the faithful-execution clause of the
president's imprimatur to exercise control over Constitution under Article VII, Section 17 thereof.
the offices and departments under their One of the recognized powers of the President is
respective jurisdictions, which authority the power to create ad hoc committees. This flows
nonetheless remains subject to the president's from the need to ascertain facts and determine if
disapproval or reversal. In a long line of laws have been faithfully executed or guide the
decisions, the Court upheld the notion that "the President in performing his duties relative to the
power of the president to reorganize the National execution and enforcement of laws. The Truth
Government may validly be delegated to his [or Commission will not supplant the Ombudsman or
the Department of Justice or erode their respective
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powers. The investigative function of the

Commission will complement those of the two The President could validly declare the existence
offices (Biraogo v. The Philippine Truth of a state of national emergency even in the
Commission of 2010 / Rep. Edcel C. Lagman, et. absence of a Congressional enactment. But the
al. v. Exec. Sec. Paquito N. Ochoa, Jr., et al., G.R. exercise of emergency powers, such as the
No. 192935 & G.R. No. 193036, Dec. 7, 2010) taking over of privately owned public utility or
business affected with public interest, is a different
c. Local Government Units matter. This requires a delegation from Congress.
(Id.)
The power of the president over local government
units is only of general supervision. He can
Article XII, Section 17 of the Constitution, which
interfere with the actions of their executive heads
states that, “[i]n times of national emergency, when
only if these are contrary to law.
the public interest so requires, the State may,
during the emergency and under reasonable terms
The President exercises direct supervision over
prescribed by it, temporarily take over or direct the
autonomous regions, provinces, and independent
operation of any privately owned public utility or
cities.
business affected with public interest,” is an aspect
of the emergency powers clause (i.e. PHIL. CONST.,
To facilitate the exercise of power of general
art. VI, § 23(2)). Whether or not the President may
supervision of local government, the President may
exercise such power is dependent on whether
merge administrative regions and transfer the
Congress may delegate it to him pursuant to a law
regional center to Koronadal City from Cotabato
prescribing the reasonable terms thereof. (Id.)
City (Republic v. Bayao, G.R. No. 179492, June 5,
2013). 5. COMMANDER-IN-CHIEF POWERS
4. EMERGENCY POWERS Extraordinary/Commander-in-Chief Powers
Differentiated
Congress is the repository of emergency powers.
SUSPENDING THE
But in times of war or other national emergency, it
PRIVILEGE OF THE
may, by law, authorize the President, for a limited CALLING OUT
WRIT OF HABEAS
period and subject to such restrictions as it may POWERS
CORPUS/DECLARING
prescribe, to exercise powers necessary and
MARTIAL LAW
proper to carry out a declared national policy.
Grounds
Unless sooner withdrawn by resolution of the
May be resorted to May be exercised only
Congress, such powers shall cease upon the next
whenever it becomes when there is actual
adjournment thereof. (PHIL. CONST., art. VI, § 23(2);
necessary to prevent invasion or rebellion,
IBP v. Zamora, G.R. No. 141284, Aug. 15, 2000)
or suppress lawless and public safety
violence, invasion, or requires it
Conditions for the Exercise of the President of
rebellion
Emergency Powers (David v. Macapagal-Arroyo,
G.R. No. 171396, May 3, 2006) Action by the legislative or judicial branch
1. There must be a war or national The Court may nullify Congress may revoke
emergency; the exercise of such such proclamation or
2. There must be a law authorizing the power only when the suspension and the
President to exercise emergency powers; President acts in a Court may review the
3. Exercise must be for a limited period; manner constituting sufficiency of the factual
4. Exercise must be necessary and proper to grave abuse of basis thereof
carry out a declared national policy; and discretion
5. Must be subject to restrictions that
Congress may provide.
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(Lagman v. Medialdea, G.R. No. 231658, July 4, in a manner not constituting grave abuse of
2017; IBP v. Zamora, G.R. No. 141284, Aug. 15, discretion. In fact, the actual use to which the
2000) President puts the armed forces is not subject to
judicial review. (Lagman v. Medialdea, G.R. No.
Graduation of the Extraordinary Powers 231658, July 4, 2017)
The 1987 Constitution gives the President a
sequence of graduated power[s]. From the most to The President's calling out power is in a different
the least benign, these are: the calling out power, category from the power to suspend the privilege
the power to suspend the privilege of the writ of of the writ of habeas corpus and the power to
habeas corpus, and the power to declare martial declare martial law. In other words, the President
law. It must be stressed, however, that the may exercise the power to call out the Armed
graduation refers only to hierarchy based on scope Forces independently of the power to suspend the
and effect. It does not in any manner refer to a privilege of the writ of habeas corpus and to
sequence, arrangement, or order which the declare martial law, although, of course, it may
Commander-in-Chief must follow. This so-called also be a prelude to a possible future exercise of
"graduation of powers" does not dictate or restrict the latter powers. (Id.)
the manner by which the President decides which
power to choose. The factual necessity of calling out the armed
forces is something that is for the President to
The power to choose, initially, which among these decide. (IBP v. Zamora, G.R. No. 141284, Aug. 15,
extraordinary powers to wield in a given set of 2000)
conditions is a judgment call on the part of the
President. Judicial inquiry can go no further than to satisfy the
Court not that the President’s decision is correct
It is thus beyond doubt that the power of judicial but that the President did not act arbitrarily. Thus,
review does not extend to calibrating the the standard laid down is not correctness, but
President's decision pertaining to which arbitrariness.
extraordinary power to avail given a set of facts or
conditions. To do so would be tantamount to an PP 1017 is constitutional insofar as it constitutes a
incursion into the exclusive domain of the call by PGMA on the AFP to suppress lawless
Executive and an infringement on the prerogative violence, which pertains to a spectrum of conduct
that solely, at least initially, lies with the President. that is manifestly subject to state regulation, and
(Lagman v. Medialdea, G.R. No. 231658, July 4, not free speech.
2017)
PP 1017 is unconstitutional insofar as it grants
a. Calling out Powers PGMA the authority to promulgate “decrees.”
Legislative power is within the province of the
As Commander-in-Chief of the Armed Forces, Legislature. She can only order the military, under
whenever necessary, the President may call out PP 1017, to enforce laws pertinent to its duty to
the Armed Forces to PREVENT or SUPPRESS: suppress lawless violence (David v. Gloria
(a) Lawless violence Macapagal-Arroyo, G.R. No. 171396, May 3,
(b) Invasion 2006).
(c) Rebellion
Gen. Order No. 5 is constitutional since it provides
Among the three extraordinary powers, the calling a standard by which the AFP and the PNP should
out power is the most benign and involves ordinary implement PP 1017, that is, suppressing lawless
police action. The power to call is fully discretionary violence. However, considering that “acts of
to the President; the only limitations being that he terrorism” have not yet been defined and made
acts within permissible constitutional boundaries or punishable by the Legislature, such portion of G.O.
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No. 5 is declared unconstitutional. (David v.

Macapagal-Arroyo, G.R. No. 171396, May 3, 2006) Checks and Balances to Limit the Exercise of
the Martial Law and Suspension
Declaration of a State of Emergency Powers/Safeguards against Abuse (Lagman v.
The declaration of a state of emergency is merely Pimentel III, G.R. No. 235935, Feb. 6, 2018)
a description of a situation that authorizes (the 1. The President may declare martial law or
President) to call out the Armed Forces to help the suspend of the privilege of the writ of the
police maintain law and order. It gives no new privilege of habeas corpus only when there
power to her, or to the military, or to the police. is an invasion or rebellion and public safety
Certainly, it does not authorize warrantless arrests requires such declaration or suspension.
or control of media (David v. Ermita, G.R. No. 2. The President's proclamation or
171409, May 3, 2006). suspension shall be for a period not
exceeding 60 days.
Emergency Powers v. Calling Out Powers 3. Within 48 hours from the proclamation or
The presidential proclamation of a state of suspension, the President must submit a
emergency is NOT sufficient to allow the President Report in person or in writing to Congress.
to take over any public utility. Since it is an aspect 4. The Congress, voting jointly and by a vote
of emergency powers in accordance with § 23 (2), of at least a majority of all its Members, can
Art. VI of the Constitution, there must be a law revoke the proclamation or suspension.
delegating such power to the President (David v. 5. The President cannot set aside the
Macagapal Arroyo, G.R. No. 171396, May 3, Congress' revocation of his proclamation
2006). or suspension.
6. The President cannot, by himself, extend
b. Declaration of Martial Law and his proclamation or suspension. He should
Suspension of the Privilege of the Writ of ask the Congress' approval.
Habeas Corpus; Extension 7. Upon such initiative or request from the
President, the Congress, voting jointly and
Besides his calling out powers, the President may
by a vote of at least a majority of all its
also:
Members, can extend the proclamation or
(a) Suspend the privilege of the writ of habeas
suspension for such period as it may
corpus
determine.
(b) Proclaim a state of martial law
8. The extension of the proclamation or
suspension shall only be approved when
A state of martial law is peculiar because the
the invasion or rebellion persists and public
President, at such a time, exercises police power,
safety requires it.
which is normally a function of the Legislature. In
9. The Supreme Court may review the
particular, the President exercises police power,
sufficiency of the factual basis of the
with the military’s assistance, to ensure public
proclamation or suspension, or the
safety and in place of government agencies which
extension thereof, in an appropriate
for the time being are unable to cope with the
proceeding filed by any citizen.
condition in a locality, which remains under the
10. The Supreme Court must promulgate its
control of the State. (Lagman v. Medialdea, G.R.
decision within 30 days from the filing of
No. 231658, July 4, 2017)
the appropriate proceeding
11. Martial law does not suspend the operation
Grounds For The Suspension Of The Privilege
of the Constitution. Accordingly, the Bill of
Of The Writ Of Habeas Corpus And Declaration
Rights remains effective under a state of
Of Martial Law
martial law. Its implementers must adhere
1. Actual rebellion or invasion (not imminent)
to the principle that civilian authority is
2. Public safety requires it
supreme over the military and the armed
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forces is the protector of the people. They Congressional Check on the Exercise of Martial
must also abide by the State's policy to Law and Suspension Powers
value the dignity of every human person 1. The power to review the President's
and guarantee full respect for human proclamation of martial law or suspension
rights. of the privilege of the writ of habeas
12. Martial law does not supplant the corpus, and to revoke such proclamation
functioning of the civil courts or legislative or suspension.
assemblies, nor authorize the conferment 2. The power to approve any extension of
of jurisdiction on military courts and the proclamation or suspension, upon the
agencies over civilians where civil courts President's initiative, for such period as it
are able to function. may determine, if the invasion or rebellion
13. The suspension of the privilege of the writ persists and public safety requires it.
applies only to persons judicially charged (Lagman v. Pimentel III, G.R. No. 235935,
for rebellion or offenses inherent in or Feb. 6, 2018)
directly connected with invasion.
14. Finally, during the suspension of the Duty to Report to Congress
privilege of the writ, any person thus Section 18, Article VII, requires the President to
arrested or detained should be judicially report his actions to Congress, in person or in
charged within three days, otherwise he writing, within 48 hours of such proclamation or
should be released. suspension. In turn, the Congress is required to
convene without need of a call within 24 hours
Territorial Coverage following the Presidents proclamation or
The Constitution grants to the President the suspension. Clearly, the Constitution calls for quick
discretion to determine the territorial coverage of action on the part of the Congress. Whatever form
martial law and the suspension of the privilege of that action takes, therefore, should give the Court
the writ of habeas corpus. He may put the entire sufficient time to fulfill its own mandate to review
Philippines or only a part thereof under martial law. the factual basis of the proclamation or suspension
(Lagman v. Medialdea, G.R. No. 231658, July 4, within 30 days of its issuance. (Fortun v. Arroyo,
2017) G.R. No. 190293, March 20, 2012)
Limiting the proclamation and/or suspension to the As to what facts must be stated in the proclamation
place where there is actual rebellion would not only and the written Report is up to the President. As
defeat the purpose of declaring martial law, it will Commander-in-Chief, he has sole discretion to
make the exercise thereof ineffective and useless. determine what to include and what not to include
(e.g. martial law over Mindanao as a whole and not in the proclamation and the written Report taking
merely Marawi where actual rebellion transpired) into account the urgency of the situation as well as
• It is difficult, if not impossible, to fix the national security. (Lagman v. Medialdea, G.R. No.
territorial scope of martial law in direct 231658, July 4, 2017)
proportion to the "range" of actual rebellion
and public safety simply because rebellion Supreme Court Review
and public safety have no fixed physical (a) In an appropriate proceeding filed by any
dimensions. citizen
• Moreover, the President's duty to maintain (b) The SC may review the sufficiency of the
peace and public safety is not limited only factual basis of the proclamation or
to the place where there is actual rebellion; suspension, or the extension thereof
it extends to other areas where the present (c) Its decision must be promulgated within 30
hostilities are in danger of spilling over. days from filing
(Id.)
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Parameters of the Court for Determining the of the Commander-in-Chief to ably and properly
Sufficiency of the Factual Basis for the assess the ground conditions. (Id.)
Declaration of Martial Law and/or the
Suspension of the Privilege of the Writ of In determining the sufficiency of the factual basis
Habeas Corpus (Sufficiency of the Factual for the extension of martial law, the Court needs
Basis Test) only to assess and evaluate the written reports of
1. Actual rebellion or invasion the government agencies tasked in enforcing and
2. Public safety requires it implementing martial law in Mindanao. (Id.)
3. There is probable cause for the President
to believe that there is actual rebellion or The test of sufficiency is not accuracy nor
invasion. (Lagman v. Medialdea, G.R. No. preciseness but reasonableness of the factual
231658, July 4, 2017) basis adopted by the Executive in ascertaining the
existence of rebellion and the necessity to quell it.
The scope of the Supreme Court’s power to review (Id.)
the declaration of Martial Law or suspension of the
writ of habeas corpus is limited to a determination Manner of Approval by Congress of Extension
of the sufficiency (not accuracy) of the factual is a Political Question
basis of such declaration or suspension. (Id.) The Court cannot review the rules promulgated by
Congress (in extending martial law or the
The nature of the Supreme Court’s jurisdiction to suspension of the writ of habeas corpus) in the
determine the sufficiency of the factual basis for the absence of any constitutional violation. Legislative
declaration of martial law and the suspension of the rules, unlike statutory laws, do not have the
privilege of the writ of habeas corpus by the imprints of permanence and obligatoriness during
President is sui generis and granted by Sec. 18, their effectivity. In fact, they may be revoked,
Art. VII of the Constitution. It does not stem from modified or waived at the pleasure of the body
Sec. 1 or 5 of Art. VIII. (Id.) adopting them. (Lagman v. Pimentel III, G.R. No.
235935, Feb. 6, 2018; Lagman v. Medialdea, G.R.
Extension of Martial Law No. 243522, Feb. 19, 2019)
When approved by the Congress, the extension of
the proclamation or suspension, as described Judicial Power to Review vs. Congressional
during the deliberations on the 1987 Constitution, Power to Revoke Martial Law and Suspension
becomes a "joint executive and legislative act" of the Writ of Habeas Corpus
or a "collective judgment" between the President JUDICIAL POWER CONGRESSIONAL
and the Congress. (Lagman v. Medialdea, G.R. No. TO REVIEW POWER TO
243522, Feb. 19, 2019) REVOKE
Court can only refer Congress may take into
The Court need not make an independent to information consideration:
determination of the factual basis for the available to the (a) Data available
proclamation or extension of martial law and the President prior to or to the President
suspension of the privilege of the writ of habeas at the time of the prior to or at the
corpus. The Court is not a fact-finding body declaration time of the
required to make a determination of the declaration and
correctness of the factual basis for the declaration Court is not allowed (b) Events
or extension of martial law and suspension of the to undertake an supervening the
writ of habeas corpus. It would be impossible for independent declaration
the Court to go on the ground to conduct an investigation beyond
independent investigation or factual inquiry, since the pleadings
it is not equipped with resources comparable to that
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Does not look into Can probe further and

the absolute deeper, can delve into The President can pardon criminal offenses after
correctness of the accuracy of facts an impeachment proceeding such as what
factual basis presented before it happened in 2007 when President Arroyo
Passive Automatic pardoned former President Estrada after having
Initiated by filing of a May be activated by been convicted by the Sandiganbayan of plunder.
petition “in an Congress itself at any
appropriate time after the The exercise of the pardoning power is
proceeding” by a proclamation or discretionary in the President and may not be
citizen suspension was made interfered with by Congress or the Court, except
only when it exceeds the limits provided for by the
(Lagman v. Medialdea, G.R. No. 231658, July 4, Constitution (Risos-Vidal v. COMELEC, G.R. No.
2017) 206666, Jan. 21, 2015).
The Court can simultaneously exercise its power of (b) For violations of election laws, rules, and
review with, and independently from, the power to regulations without the favorable
revoke by Congress. Corollary, any perceived recommendation of the COMELEC in
inaction or default on the part of Congress does not cases of civil or legislative contempt
deprive or deny the Court of its power to review. (c) Granted only after conviction by final
(Id.) judgment. (People. v. Salle, G.R. No.
103567, Dec. 4, 1995)
Ways to Lift the Proclamation of Martial Law
and/or Suspension of the Privilege: As to effect:
(a) Lifting by the President himself; (a) Does not absolve civil liabilities for an
(b) Revocation by Congress; offense
(c) Nullification by the Supreme Court; and (b) Does not restore public offices already
(d) By operation of law after 60 days (PHIL. forfeited, although eligibility for the same
CONST. art. VII, § 18) may be restored (Monsanto v. Factoran,
G.R. No. 78239, Feb. 9, 1989).
6. EXECUTIVE CLEMENCY
b. Forms of executive Clemency
a. Nature and Limitation
PARDON – An act of grace, proceeding from the
The matter of executive clemency is non-delegable power entrusted of the laws, which exempts the
power and must be exercised by the President individual on whom it is bestowed, from the
personally (Villena v. Secretary of the Interior, G.R. punishment the law inflicts for a crime he has
No. L-46570, April 21, 1939). committed (United States v. Wilson, 503 U.S. 329,
1992). It is either conditional or plenary.
The power exists as an instrument for correcting
the infirmities in administration of justice and for AMNESTY - An act of grace concurred in by
mitigating whenever a strict application of the Congress, usually extended to groups of persons
provisions of the law will result in undue harshness. who commit political offenses, which puts into
(Bernas, 1987 Philippine Constitution: A oblivion the offense itself. The President alone
Commentary, 924, 2009). cannot grant amnesty for it needs the concurrence
by a majority of all the members of Congress.
Limitations When a person applies for amnesty, he must admit
Cannot be granted: his guilt of the offense that is subject to such
(a) Before conviction, in cases of amnesty. If his application is denied, he can be
impeachment convicted based on this admission of guilt.
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REPRIEVE – postpones the execution of an The President can extend it to administrative cases
offense to a day certain (People v. Vera, G.R. No. but only in the Executive Branch, not in the Judicial
L-45685, Dec. 22, 1937). or Legislative Branches of government (Llamas v.
Orbos, G.R. No. 99031, Oct. 15, 1991).
REMISSION OF FINES AND FORFEITURES –
prevents the collection of fines or the confiscation TAX AMNESTY: General pardon to impose
of forfeited property but it cannot have the effect of penalties on persons guilty of evasion or violation
returning the property which has been vested in 3rd of revenue or tax law (Republic v. IAC, G.R. No.
parties or money already in the public treasury 69344, Apr. 26, 1991).
(Bernas, 1987 Philippine Constitution: A
Commentary, 933, 2009). 7. DIPLOMATIC POWER
Power to Contract of Guarantee Foreign Loans

COMMUTATION – a remission of a part of the
(PHIL. CONST., art. VII, § 20)
punishment; it is a substitution of a lesser penalty
The President may contract or guarantee foreign
for the one originally imposed (People v. Vera, G.R.
loans on behalf of the Republic of the Philippines
No. L- 45685, Dec. 22, 1937).
with the prior concurrence of the Monetary Board;
and subject to such limitations as may be provided
Amnesty v. Pardon
by law
AMNESTY PARDON
Political Offenses Ordinary Offenses
The Monetary Board shall, within 30 days from the
To a class of persons To individuals
end of every quarter of the calendar year, submit to
Need not be accepted Must be accepted Congress a complete report on loans to be
Requires concurrence No need for contracted or guaranteed by the government of
of majority of all Congressional GOCCs the would have the effect of increasing
members of Congress Concurrence foreign debts.
A public act; subject to Private act of
judicial notice President; it must be Principle of Transformation of International
proved Law (PHIL. CONST., art. VII, § 21)
Extinguishes the Only penalties are No treaty or international agreement shall be valid
offense extinguished; May or and effective unless concurred in by at least 2/3 of
may not restore ALL the Members of the Senate
political rights;
Absolute pardon TREATIES EXECUTIVE
restores; Conditional, AGREEMENTS
does not. International International
Civil indemnity is not agreements involving agreements
extinguished political issues or embodying
May be granted before Only granted after changes of national adjustments of detail
or after conviction conviction by final policy and those carrying out well-
judgment involving international established national
arrangements of policies and traditions
EXECUTIVE CLEMENCY IN ADMINISTRATIVE permanent character and those involving
CASES: arrangements of more
The power to grant clemency includes cases or less temporary
involving administrative penalties. Where a nature
conditional pardon is granted, the determination of
whether it has been violated rests with the
President.
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Power to enter into foreign relations includes: Although municipal law makes a distinction
(a) The power to appoint ambassadors, other between international agreements and executive
public ministers, and consuls agreements, with the former requiring Senate
(b) The power to receive ambassadors and approval and the latter not needing the same,
other public ministers accredited to the under international law, there is no such distinction.
Philippines
(c) The power to contract and guarantee The President cannot, by executive agreement,
foreign loans on behalf of the Republic undertake an obligation that indirectly circumvents
(d) The power to deport aliens – this power is a legal prohibition.
vested in the President by virtue of his
office, subject only to restrictions as may The President alone without the concurrence of the
be provided by legislation as regards Senate abrogated a treaty. Assume that the other
grounds for deportation. In the absence of country party to the treaty is agreeable to the
any legislative restriction to authority, the abrogation provided it complies with the Philippine
President may exercise this power Constitution. If a case involving the validity of the
(e) The power to negotiate treaties and other treaty abrogation is brought to the SC, it should
international agreements. However, such dismiss the case. The jurisdiction of the SC (other
treaty or international agreement shall be lower courts) over a treaty is only with respect to
transmitted to the Senate, with the questions of its constitutionality of validity. It does
following options: not pertain to the termination/abrogation of a treaty
a. Approve it by 2/3 majority vote (Gonzales v. Hechanova, G.R. No. L-21897, Oct.
b. Disapprove it outrights 22, 1963).
c. Approve it conditionally, with
suggested amendments. If re- Treaty v. Executive Agreement
negotiated and the Senate’s TREATY EXECUTIVE
suggestions are incorporated, the AGREEMENT
treaty goes into effect without Involves political Involves details
need of further Senate approval. issues, national policy carrying out national
NOTE: While a treaty is re-negotiated, there is yet policy
no treaty International More or less
agreements of a temporary in character
EXECUTIVE AGREEMENTS permanent kind
Executive agreements are concluded: Must be ratified No need to be ratified
(a) to adjust the details of a treaty, e.g., EDCA
as to VFA; Rules In Case Of Conflict Between Treaty And
(b) pursuant to or upon confirmation by an act Municipal Law, Depending On Venue
of the Legislature; or Philippine court: Provided both are self-executing,
(c) in the exercise of the President's the later enactment will prevail, be it treaty or law,
independent powers under the as it is the latest expression of the will of the State.
Constitution.
International tribunal: Treaty will always prevail.
The President may enter into an executive A State cannot plead its municipal law to justify
agreement on foreign military bases, troops or noncompliance with an international obligation.
facilities only if the executive agreement is not the
instrument that allows the presence of foreign Exception: Vienna Convention on Law of Treaties
military bases, troops or facilities; or merely aims to Art. 46.
implement an existing law or treaty. (Saguisag v.
Exec. Sec., G.R. No. 212426, Jan. 12, 2016)
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Constitutional violation was: Budget – The Executive Branch proposes a

(a) Manifest – Objectively evident to any budget to Congress, which the latter considers in
State conducting itself in the matter in drafting appropriation laws.
accordance with normal practice and in
good faith Power to Augment
(b) Concerned a rule of its international law of No law shall be passed authorizing any transfer of
fundamental importance appropriations; however, /the President, /the
President of the Senate, /the Speaker of the House
An “exchange of notes” is a record of a routine of Representatives, /the Chief Justice of the
agreement that has many similarities with a private Supreme Court, and /the heads of Constitutional
law contract. The agreement consists of the Commissions may, by law, be authorized to
exchange of two documents, each of the parties augment any item in the general appropriations law
being in possession of the one signed by the for their respective offices from savings in other
representative of the other. Under the usual items of their respective appropriations. (PHIL.
procedure, the accepting State repeats the text of CONST., Art. VI, § 25(5))
the offering State to record its assent. An exchange
of notes is considered a form of an executive What are the requisites for a valid transfer of
appropriation?
agreement, which becomes binding through
There are two essential requisites in order that a
executive action without the need of a vote by the transfer of appropriation with the corresponding
Senate or Congress (Abaya vs. Edbane, G.R. No. funds may legally be effected. First, there must be
167919, Feb. 14, 2007). savings in the programmed appropriation of the
transferring agency. Second, there must be an
The Exchange of Notes between Secretary existing item, project or activity with an
appropriation in the receiving agency to which the
Romulo and the US Ambassador embodying a “No
savings will be transferred. (Sanchez v. COA, 552
Surrender Agreement” regarding citizens arrested SCRA 471)
under the Rome Treaty is valid. An exchange of
Notes is equivalent to an executive agreement Actual savings is a sine qua non to a valid transfer
and it is a valid form of international agreement. of funds from one government agency to
The categorization of agreements in Eastern Sea another. The word “actual” denotes that something
Trading, is not cast in stone. Neither a hard and fast is real or substantial, or exists presently in fact as
opposed to something which is merely theoretical,
rule on whether Senate concurrence is needed for
possible, potential or hypothetical. (Sanchez v.
executive agreements. (Bayan Muna v. Secretary COA, 552 SCRA 471)
Romulo, G.R. No. 159618, Feb. 1, 2011).
See page 60, Part V(F) for more details on item
8. POWERS RELATIVE TO APPROPRIATION veto.
MEASURES
9. DELEGATED POWERS
ITEM VETO POWER on the basis of:
Doctrine of Inappropriate Provisions - A General Rule: Legislative power is non-delegable.
provision that is constitutionally inappropriate for
an appropriation bill may be subject to veto even if Exceptions (pertinent to the President):
it is not an appropriation or revenue “item.” • The Congress may, by law, authorize the
President to fix within specified limits, and
Executive Impoundment - Refusal of the subject to such limitations and restrictions
President to spend funds already allocated by as it may impose, tariff rates, import and
Congress for a specific purpose. It is, in effect, an export quotas, tonnage and wharfage
“impoundment” of the law allocating such dues, and other duties or imposts within
expenditure of funds. the framework of the national development
program of the Government. (PHIL.
CONST., art. VI, § 28(2))
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• In times of war or other national steward of the people. To paraphrase Theodore

emergency, the Congress may, by law, Roosevelt, it is not only the power of the President
authorize the President, for a limited period but also his duty to do anything not forbidden by the
and subject to such restrictions as it may Constitution or the laws that the needs of the nation
prescribe, to exercise powers necessary demand. It is a power borne by the President's duty
and proper to carry out a declared national to preserve and defend the Constitution. It also
policy. Unless sooner withdrawn by may be viewed as a power implicit in the
resolution of the Congress, such powers President's duty to take care that the laws are
shall cease upon the next adjournment faithfully executed (Marcos v Manglapus, G. R. No.
thereof. (PHIL. CONST., art. VI, § 23(2)) 88211, Sept. 15, 1989).
Malampaya and Presidential Social Fund 11. VETO POWERS

Violates the Non-Delegability of Legislative
Power The President must communicate his decision to
Malampaya fund - The phrase "and for such other veto within 30 days from the date of receipt thereof.
purposes as may be hereafter directed by the If he fails to do so, the bill shall become law as if he
President" under Section 8 of PD 910 constitutes signed it. This rule eliminates the possibility of a
an undue delegation of legislative power insofar as ‘pocket veto’ whereby the President simply refuses
it does not lay down a sufficient standard to to act on the bill.
adequately determine the limits of the President‘s
authority with respect to the purpose for which the In exercising the veto power, the bill is rejected and
Malampaya Funds may be used. (Belgica v. Hon. returned with his objections to the House from
Ochoa, G.R. No. 208566, Nov. 19, 2013)
which it originated. The House shall enter the
objections in the journal and proceed to reconsider
Presidential Social Fund - "to finance the priority
it. (See earlier comment)
infrastructure development projects" under Section
12 of Presidential Decree No. 1869, as amended
by Presidential Decree No. 1993, for both failing Pocket Veto vs. Item Veto
the sufficient standard test in violation of the POCKET VETO ITEM VETO
principle of non-delegability of legislative power as When the president is Power of a president to
it gives the President the unlimited discretion to considered to have nullify or cancel
determine which projects are considered “priority”. rejected a bull specific provisions of a
(Belgica v. Hon. Ochoa, G.R. No. 208566, Nov. 19, submitted to him for his bill, usually a budget
2013) approval when appropriations bill,
Congress adjourns without vetoing the
10. RESIDUAL POWERS during the period given entire legislative
to the president to package
The President shall exercise such other powers
approve or reject a bill
and functions vested in the President which are
provided for under the laws and which are not
Congressional pork barrel violates the
specifically enumerated above, or which are not
President’s power to item-veto
delegated by the President in accordance with law.
The President cannot exercise his item-veto power
because the purpose of the lump-sum
The textual justification for this under the
discretionary budget is still uncertain. Furthermore,
Constitution is Article VII, Section 17 – to ensure
it cannot be considered an item because an item is
that the laws are faithfully executed – called the
defined in the field of appropriations as the
Faithful Execution Clause.
particulars, details, distinct and severable parts of
the appropriation or of thevbill. (Belgica v. Hon.
The power involved is the President's residual
Ochoa, G.R. No. 208566, Nov. 19, 2013)
power to protect the general welfare of the people.
It is founded on the duty of the President, as
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See page 60, Part V(F) for more details on item The Congress, after determining the authenticity
veto. and due execution of the certificates, shall canvass
the votes.
Non-Delegable Powers of the President
• Commander-in-Chief powers; The person having the highest number of votes
• Appointment and removal power; shall be proclaimed elected.
• The power to grant pardons and reprieves;
• The authority to receive ambassadors and In case of a tie between 2 or more candidates, one
other public officials; and shall be chosen by a majority of ALL the members
• The power to negotiate treaties. (Neri v. of both Houses, voting separately.
Senate, G.R. No.180643, Mar. 25, 2008)
The Supreme Court en banc shall act as the sole
Other Powers judge over all contests relating to the election,
(a) Borrowing Power: The President may returns, and qualifications of the President or Vice-
contract or guarantee foreign loans on President and may promulgate its rules for the
behalf of the Republic with the purpose.
concurrence of the Monetary Board,
subject to such limitations as may be Congress may delegate counting to a committee
provided by law. provided it approves it as a body (considered as a
(b) Deportation Power non-legislative function of Congress).
(c) Power to Receive Ambassadors and
other public ministers duly accredited Proclamation of President-Elect & VP-Elect is the
to the Philippines function of Congress not the COMELEC’s.
(d) Informing Power: The President shall
address Congress at the opening of its Limitations
regular session. He may also appear (a) Salaries and emoluments of the President
before it at any time. and Vice-President shall be determined by
(e) Call Congress to a special session law
(f) Power to Classify and Reclassify lands (b) Shall not be decreased during the tenure
of the President and the Vice-President
D. RULES OF SUCCESSION (c) Increases take effect only after the
expiration of the term of the incumbent
Manner Of Election (PHIL. CONST., art. VII, § 4) during which the increase was approved.
The President and Vice-President shall be elected (d) No other emolument from the government
by the direct vote of the people. or any other source during their tenure may
be received.
Election returns for President and Vice-President,
duly certified by the Board of Canvassers of each Succession of President-Elect and Vice-
province or city, shall be transmitted to Congress, President Elect at the Start of the Term (PHIL.
directed to the Senate President. CONST., art. VII, § 7)
VACANCY SUCCESSOR
Upon receipt of the certificates of canvass, the President-elect fails to VP-elect will be Acting
Senate President shall, not later than 30 days after qualify or to be chosen President until a
the day of the election, open all the certificates in President is
the presence of both houses of Congress, qualified/chosen
assembled in joint public session. President-elect dies or VP becomes
permanently disabled President
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Both President and Senate President, or in Nominee shall assume office upon confirmation by
VP-Elect are not case of his inability, majority vote of ALL members of both Houses,
chosen, or do not Speaker of the House voting separately. (In effect, nominee forfeits his
qualify, or both die, or shall act as President seat in Congress.)
both become until a President or a
permanently disabled VP shall have been Election of President and Vice-President after
chosen and qualified. vacancy (PHIL. CONST., art. VII, § 10)
Death, permanent Procedure
disability, or inability of Congress shall Congress shall convene 3 days after the vacancy
Senate President and determine, by law, who in the offices of both the President and the VP,
Speaker of the house will be the Acting without need of a call. The convening of Congress
as Acting President President until a cannot be suspended.
President or VP shall
have qualified. Within 7 days after convening, Congress shall
enact a law calling for a special election to elect a
Succession of President and Vice-President President and a VP. The special election cannot be
During Mid-Term (PHIL. CONST., art. VII, § 8) postponed.
VACANCY SUCCESSOR
President VP becomes The requirement of three readings on separate
dies/permanently President for the days under Sec. 26(2), Art VI shall not apply to a
disabled/impeached or unexpired term bill calling for a special election. The law shall be
resigns deemed enacted upon its approval on third
Both President and VP Senate President, or in reading.
die/ permanently case of his inability,
disabled/ impeached Speaker of the House The special election shall be held within 45-60 days
or resign shall act as president from the time of the enactment of the law.
until the President or
Death, permanent VP shall have been Limitation: No special election shall be called if the
disability, or inability of elected and qualified. vacancy occurs within 18 months before the date
Senate President and of the next presidential election.
Speaker of the house Congress shall
as Acting President determine, by law, who Temporary Disability of the President to
will be the Acting discharge his duties (PHIL. CONST. art. VII, Sec.
President until a 11) may be raised in either of two ways:
President or VP shall (a) By the President himself, when he sends a
have been elected and written declaration to the Senate President
qualified, subject to and the Speaker of the House. In this case,
the same restrictions the Vice-President will be Acting President
of powers and until the President transmits a written
disqualifications as the declaration to the contrary.
Acting President (b) When a majority of all Cabinet members
transmit to the Senate President and the
Vacancy in the Office of the Vice-President Speaker of the House their written
(PHIL. CONST., art. VII, § 9) declaration. The VP will immediately
Procedure To Fill Up Vacancy assume the powers and duties of the office
as Acting President.
President will nominate new VP from among the
members of either House of Congress.
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Scenarios After Disability is Relayed in the

Congress:
If the President transmits a written declaration that
he is not disabled, he reassumes his position.
If within 5 days after the President re-assumes his

position, the majority of the Cabinet transmits their
written declaration to the contrary, Congress shall
decide the issue. In this event, Congress shall
convene within 48 hours if it is not in session,
without heed of a call
Within 10 days after Congress is required to

assemble, or 12 days if Congress is not in session,
a 2/3 majority of both Houses, voting separately, is
needed to find the President temporarily disabled,
in which case, the VP will be Acting President.
Presidential Illness (Sec. 12)

General Rules:
If the President is seriously ill, the public must be
informed thereof.
During such illness, the following shall not be

denied access to the President:
(a) National Security Adviser
(b) Secretary of Foreign Affairs
(c) Chief of Staff of the AFP
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JUDICIAL
DEPARTMENT
Political Law
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VII. JUDICIAL DEPARTMENT A. CONCEPTS

1. JUDICIAL POWER
Judicial Power
VII. JUDICIAL DEPARTMENT The authority to settle justiciable controversies or
A. CONCEPTS
disputes involving rights that are enforceable and
1. Judicial power
demandable before the courts of justice or the
2. Judicial review
redress of wrongs for violations of such rights and
a. Requisites
to determine whether or not there has been grave
b. Operative fact doctrine
abuse of discretion amounting to lack or excess of
c. Political question doctrine
jurisdiction on the part of any branch or
instrumentality of the government. (Lopez v.
B. JUDICIAL INDEPENDENCE AND
Roxas, G.R. No. L-25716, July 28, 1966).
AUTONOMY
Where Vested
C. APPOINTMENTS TO THE JUDICIARY
Vested in the Supreme Court and such lower
1. Qualifications of members of the
courts as may be established by law. (PHIL.
judiciary
CONST., art. VIII, § 1.)
2. Judicial and Bar council
a. Composition
Hence, they may neither attempt to assume or be
b. Powers
compelled to perform non-judicial functions. They
may not be charged with administrative functions,
D. THE SUPREME COURT
except when reasonably incidental to the fulfillment
1. Composition
of their duties (Meralco v. Pasay Transportation
2. Powers and functions
Co., G.R. No. L-37878, Nov. 25, 1932).
Judicial Power includes the duty of the courts:

(PHIL. CONST., art. VIII, § 1.)
• To settle actual controversies involving
rights which are legally demandable and
enforceable;
• To determine whether or not there has
been a grave abuse of discretion
amounting to lack or excess of jurisdiction
on the part of any branch or instrumentality
of the government.
Necessity of Applicable Law

Before a tribunal, board, or officer may exercise
judicial or quasi-judicial acts, it is necessary that
there be a law that give rise to some specific rights
of persons or property under which adverse claims
to such rights are made, and the controversy
ensuing therefrom is brought, in turn, before the
tribunal, board or officer clothed with power and
authority to determine what that law is and
thereupon adjudicate the respective rights of the
contending parties. (Santiago Jr. v. Bautista, G.R.
No. L-25024, March 30, 1970).
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Thus, an award of honors to a student by a board Electric Co. v Pasay Transportation, G.R.
of teachers may not be reversed by a court where No. 37878, Nov. 25, 1932)
the awards are governed by no applicable law. (Id) 3. Not the function of the judiciary to give
advisory opinion: The function of the
The court has no authority to entertain an action for courts is to determine controversies
judicial declaration of citizenship because there between litigants. They do not give
was no law authorizing such proceeding (Channie advisory opinions. (Director of Prisons v
Tan v. Republic, G.R. No. L-14159, April 18, 1960). Ang Cho Kio, G.R. No. 30001, June 23,
1970)
Courts cannot reverse the award of a board of
judges in an oratorical contest (Felipe v. Leuterio, Expanded Jurisdiction and Authority of the
G.R. No. L-4606, May 30, 1952). Supreme Court
Art. VIII, Sec.1, par. 2, of the Constitution expanded
Jurisdiction the power, authority and jurisdiction of the courts of
The power to hear and decide a case. justice, particularly the Supreme Court, to
• Who Defines: Congress shall have the determine whether any branch of the government
power to define, prescribe and apportion has committed grave abuse of discretion
the jurisdiction of the various courts, but amounting to lack or excess of jurisdiction.
may not deprive the Supreme Court of its
jurisdiction over cases enumerated in Sec. Under this expanded jurisdiction conferred to the
5, Art. VIII [PHIL. CONST., art. VIII, § 2.], Supreme Court, the political question doctrine is no
• No law shall be passed increasing the longer the insurmountable obstacle to the exercise
appellate jurisdiction of the Supreme Court of judicial power or the impenetrable shield that
as provided in the Constitution without its protects executive and legislative actions from
advice and concurrence (PHIL. CONST., art. judicial inquiry or review (Oposa v. Factoran, Jr.
VI, § 30.) G.R. No. 101083, July 30, 1993)
Scope of Jurisdiction 2. JUDICIAL REVIEW

The power to control the execution of its decision
a. Requisites
is an essential aspect of jurisdiction. It cannot be
the subject of substantial subtraction, for out Judicial Review
Constitution vests the entirety of judicial power in
• The power of the Supreme Court to
one Supreme Court and in such lower courts as
declare a law, treaty, ordinance, etc.
may be established by law. (Echegaray v. SOJ,
unconstitutional (PHIL. CONST., art. VIII, §
G.R. No. 132601, Jan. 19, 1999)
4(2).)
• Lower courts may also exercise the power
Limitations of Judicial Power
of judicial review, subject to the appellate
1. Political Questions: A question, the
jurisdiction of the SC. (PHIL. CONST., art.
resolution of which has been vested by the
VIII, § 5(2).)
Constitution exclusively In the people, in
• Only Supreme Court decisions set
the exercise of their sovereign capacity, or
precedents. As thus, only SC decisions are
In which full discretionary authority has
binding on all.
been delegated to a co-equal branch of the
Government (Tanada v. Cuenco, G.R. No.
Requisites of Judicial Review: (EARLS)
L-10520, Feb. 28, 1957).
• The question of constitutionality must be
2. Separation of Powers: The Supreme
raised in the first instance, or at the Earliest
Court and its members should not and
opportunity.
cannot be required to exercise any power
or to perform any trust or to assume any • The question involved must be Ripe for
duty not pertaining to or connected with the adjudication, e.g. the challenged
administering of judicial functions. (Manila
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government act must have had an adverse 3. That the matter in controversy be capable
effect on the person challenging it. of being adjudicated by judicial power; and
• An Actual case calling for the exercise of 4. That the determination of the controversy
judicial power. will result in practical relief to the
• Resolution of the issue of constitutionality complainant.
is unavoidable or is the very Lis mota of the
case. Actual Case/Controversy
• The person challenging the governmental • An actual case or controversy involves a
act must have ‘Standing’ (Locus Standi) conflict of legal rights, an assertion of
opposite legal claims, susceptible of
Exception: The Court can waive the procedural judicial resolution as distinguished from a
rule on standing in cases that raise issues of hypothetical or abstract difference or
transcendental importance. dispute. (PHILCONSA v Philippine
Government, G.R. No. 218406, Nov. 29,
Functions of Judicial Review 2016)
1. Checking — invalidating a law or • There must be a contrast of legal rights
executive act that is found to be contrary to that can be interpreted and enforced on the
the Constitution basis of existing law and jurisprudence.
2. Legitimating — upholding the validity of (Id.)
the law that results from a mere dismissal • LEONEN: It is the parties' duty to
of a case challenging the validity of the law demonstrate actual cases or controversies
3. Symbolic — to educate the bench and bar worthy of judicial resolution. Pleadings
as to the controlling principles and must show a violation of an existing legal
concepts on matters of grave public right or a controversy that is ripe for judicial
importance for the guidance of and determination. (Falcis v. Civil Registrar
restraint upon the future (Salonga v. Cruz General, G.R. No. 217910, Sept. 3, 2019)
Paño, G.R. No. 59524, Feb. 18, 1985) • Facts are the basis of an actual case or
controversy. There must be sufficient facts
Doctrine of Judicial Supremacy to enable the Court to intelligently
When the judiciary allocates constitutional adjudicate the issues. (Id.)
boundaries, it neither asserts superiority nor
nullifies an act of the Legislature. It only asserts the Advisory Opinions
solemn and sacred obligation assigned to it by the • Even the expanded jurisdiction of this
Constitution to determine conflicting claims of Court under Article VIII, Section 1 does not
authority under the Constitution and to establish for provide license to provide advisory
the parties in an actual controversy the rights which opinions. An advisory opinion is one
that instrument secures and guarantees to them. where the factual setting is conjectural or
hypothetical. (LEONEN, PBOAP v. DOLE,
Justiciable Controversy G.R. No. 202275, July 17, 2018)
A definite and concrete dispute touching on the o In such cases, the conflict will not
legal relations of parties having adverse legal have sufficient concreteness or
interests, which may be resolved by a court of law adversariness so as to constrain
through the application of a law (Cutaran v. DENR, the discretion of this Court. After
G.R. No 134958, Jan. 31, 2001) all, legal arguments from
concretely lived facts are chosen
Requirements for Justiciability narrowly by the parties. Those
1. That there be an actual controversy who bring theoretical cases will
between or among the parties to the have no such limits. (Id.)
dispute; • The Court generally declines to issue
2. That the interests of the parties be advisory opinions or to resolve
adverse; hypothetical or feigned problems, or mere
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academic questions. The limitation of the o there is a grave violation of the

power of judicial review to actual cases Constitution;
and controversies assures that the courts o the situation is of exceptional
will not intrude into areas specifically character and paramount public
confined to the other branches of interest is involved;
government. (PHILCONSA v Philippine o the constitutional issue raised
Government, G.R. No. 218406, Nov. 29, requires formulation of controlling
2016) principles to guide the bench, the
bar, and the public; and
Ripe for Adjudication o the case is capable of repetition
• A constitutional question is ripe for yet evading review. (Narra Nickel
adjudication when the governmental act Mining and Development Corp. v.
being challenged has had a direct adverse Redmont Consolidation Mines
effect on the individual challenging it. It is Corp., G.R. No. 195580, Jan. 28,
also necessary that there be a law that 2015)
gives rise to some specific rights of
persons or property, under which adverse Locus Standi/Legal Standing
claims are made. (Santiago Jr. v. Bautista, • Definition: a personal and substantial
GR No. 25024, March 30, 1970) interest in the case such that the party has
• For a case to be considered ripe for sustained or will sustain direct injury as
adjudication, it is a prerequisite that: a result of the governmental act that is
o an act had then been being challenged. (Francisco v. HOR, G.R.
accomplished or performed by No. 160261, Nov. 10, 2003)
either branch of government • The term "interest" is material interest, an
before a court may interfere, and interest in issue and to be affected by the
o the petitioner must allege the decree, as distinguished from mere
existence of an immediate or interest in the question involved, or a mere
threatened injury to himself as a incidental interest. (Joya v. PCGG, G.R.
result of the challenged action. No. 96541, Aug. 24, 1993)
(PHILCONSA v. Philippine o Moreover, the interest of the party
Government, G.R. No. 218406, plaintiff must be personal and not
Nov. 29, 2016) one based on a desire to vindicate
the constitutional right of some
Moot Questions third and related party. (Id.)
• An action is considered moot when it no • Test: whether a party alleges such
longer presents a justiciable controversy personal stake in the outcome of the
because the issues involved have become controversy as to assure that concrete
academic or dead or when the matter has adverseness which sharpens the
already been resolved. There is nothing for presentation of issues upon which the
the court to resolve as the determination court depends for illumination of difficult
thereof has been overtaken by subsequent constitutional questions. (Id.)
events (Atty. Evillo C. Pormento v. Estrada • Elements (ITR)
and COMELEC, G.R. No. 191988, Aug. o The petitioner must have
31, 2010). personally suffered some actual or
• However, the “moot and academic” threatened Injury which can be
principle is not a magical formula that legal, economic, or environmental;
automatically dissuades courts in resolving o The injury is fairly Traceable to the
a case. The Court may still take challenged action; and
cognizance of an otherwise moot case, o The injury is likely to be Redressed
if it finds that: by a favorable action (TELEBAP v.
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COMELEC, GR No. 132922, April (David v. Arroyo, G.R. No.

21, 1998) 171396, May 3, 2006)
Concerned There must be a showing that the
Requisites for Third Party Standing (jus tertii) citizens issues raised are of
(IRH) transcendental importance which
1. The litigant must have suffered an injury- must be settled early (Id.)
in-fact, thus giving him or her a "sufficiently Legislators There must be a claim that the
concrete interest" in the outcome of the official action complained of
issue in dispute; infringes upon their prerogatives
2. The litigant must have a close Relation to as legislators (Biraogo v.
the third party; and Philippine Truth Commission,
3. There must exist some Hindrance to the G.R. No. 192935, Dec. 7, 2010)
third party's ability to protect his or her own
interests. (White Light v. City of Manila, Standing in Environmental Cases
G.R. No. 122846, Jan. 20, 2009) The Rules of Procedure for Environmental Cases
liberalized the requirements on standing, allowing
Rules on the Liberal Approach on Locus Standi the filing of a citizen's suit by any Filipino citizen
Taxpayer Allowed to sue where there is a in representation of others, including minors or
claim of any of the following: generations yet unborn, may file an action to
• public funds are illegally enforce rights or obligations under environmental
disbursed (Information laws. (Resident Marine Mammals v. Reyes, G.R.
Technology v. No. 180771, April 21, 2015; Segovia v. The Climate
COMELEC, G.R. No. Change Commission, G.R. No. 211010, March 7,
159139, Jan. 13, 2004) 2017)
• public money is being
deflected to any improper Guidelines in determining whether or not a
purpose (Id.) matter is of transcendental importance:
• there is a wastage of • The character of the funds or other assets
public funds through the involved in the case;
enforcement of an invalid • The presence of a clear case of disregard
or unconstitutional law of a constitutional or statutory prohibition
(Id.) by the public respondent agency or
• the tax measure is instrumentality of the government; and
unconstitutional (David v. • The lack of any other party with a more
Arroyo, G.R. No. 171396, direct and specific interest in the questions
May 3, 2006) being raised (Chamber of Real Estate and
Builders’ Association, Inc. v. Energy
Before he can invoke the power of Regulatory Commission, et al., G.R. No.
judicial power, he must 174697, July 8, 2010).
specifically prove that he has
sufficient interest in preventing Rule on Raising at the Earliest Opportunity
the illegal expenditure of money General Rule: The earliest opportunity to raise a
raised by taxation and that he constitutional issue is to raise it in the pleadings
would sustain a direct injury as a before a competent court that can resolve the
result of the enforcement of the same. (Matibag v. Benipayo, G.R. No. 149036,
questioned statute or contract. April 2, 2002)
(Francisco v. HOR, G.R. No.
160261, Nov. 10, 2003) Exceptions:
Voters There must be a showing of 1. In criminal cases — at any time at the
obvious interest in the validity of discretion of the court
the election law in question
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2. In civil cases — at any stage of the c. Political question doctrine

proceedings if necessary for the
determination of the case itself; or Political Question
3. In every case (Except where there is A question, the resolution of which has been vested
estoppel) — at any stage if it involves the by the Constitution exclusively:
jurisdiction of the court (People v. Vera, 1. In the people, in the exercise of their
G.R. No. 45685, Nov. 16, 1937) sovereign capacity, or
2. In which full discretionary authority has
b. Operative fact doctrine been delegated to a co-equal branch of the
Government (Tanada v. Cuenco, G.R. No.
Effect of a Declaration of Unconstitutionality L-10520, Feb. 28, 1957).
An unconstitutional act is not a law; it confers no
rights; it imposes no duties; it affords no protection; The judiciary is NOT precluded from reviewing
it creates no office; it is inoperative as if it has not “political questions”. Under the second clause of
been passed at all. (Film Development Council of Sec. 1, Art. VIII (the power to determine whether or
the Philippines v. Colon Heritage Realty Corp., not there has been a grave abuse of discretion) the
G.R. Nos. 203754 & 204418, Oct. 15, 2019) Courts may now determine whether there has been
grave abuse of discretion amounting to lack or
The exception is the doctrine of operative fact, excess of jurisdiction on the part of any branch or
which applies as a matter of equity and fair play. instrumentality of government.
(Id.)
• This doctrine nullifies the effects of an LEONEN: A political question arises in
unconstitutional law or an executive act by constitutional issues relating to the powers or
recognizing that the existence of a statute competence of different agencies and departments
of the executive or those of the legislature. The
prior to a determination of
political question doctrine is used as a defense
unconstitutionality is an operative fact
when the petition asks this court to nullify certain
and may have consequences that cannot
acts that are exclusively within the domain of their
always be ignored. (Id.)
respective competencies, as provided by the
• Hence, it legitimizes otherwise invalid acts Constitution or the law. In such situation,
done pursuant thereto because of presumptively, this court should act with deference.
considerations of practicality and fairness. It will decline to void an act unless the exercise of
In this regard, certain acts done pursuant that power was so capricious and arbitrary so as to
to a legal provision which was just recently amount to grave abuse of discretion.
declared as unconstitutional cannot be • The existence of constitutionally
anymore undone because not only would imposed limits justifies subjecting the
it be highly impractical to do so, but more official actions of the body to the scrutiny
so, unfair to those who have, in good faith, and review of the Court.
relied on the said legal provision prior to • Furthermore, the concept of a political
the time it was struck down. (Id.) question never precludes judicial review
• It applies only to cases where when the act of a constitutional organ
extraordinary circumstances exist, infringes upon a fundamental individual
AND only when the extraordinary or collective right. (The Diocese of
circumstances have met the stringent Bacolod v. Commission on Elections, G.R.
conditions that will permit its No. 205728, Jan. 21, 2015)
application. (Araullo v. Aquino III, G.R.
No. 209287, July 1, 2014) While courts can determine questions of legality
with respect to governmental action, they cannot
review government policies and the wisdom
behind such policies. These questions are
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vested by the Constitution in the Executive and B. JUDICIAL INDEPENDENCE AND

Legislative Departments. AUTONOMY
Examples of political questions in Concepts of Judicial Independence

jurisprudence Decisional
Institutional
Interpretation of the meaning of “disorderly Independence or
(Judicial)
behavior” and the legislature’s power to suspend a Individual Judicial
Independence
member (there is no procedure for the imposition Independence
of the penalty of suspension nor did the 1935 Refers to a judge's Describes the
Constitution define what “disorderly behavior is). ability to render separation of the
The matter is left to the discretion of the legislature decisions free from judicial branch from
(Osmeña, Jr. v. Pendatun, G.R. No. L-17144, Oct. political or popular the executive and
28, 1960). influence based solely legislative branches of
on the individual facts government
Whether the court could intervene in a case where and applicable law
the House of Representatives was said to have
disregarded its own rule. The court was held to Focuses on each Focuses on the
have been without authority to intervene (Arroyo v. particular judge and independence of the
De Venecia, G.R. No. 127255, Aug. 14, 1997). seeks to insure his or judiciary as a branch
her ability to decide of government and
Recognition of diplomatic immunity (ICMC v. Hon. cases with autonomy protects judges as a
Calleja, G.R. No. 85750, Sept. 28, 1990). within the constraints class
of the law
The determination of what constitutes “betrayal of
public trust” or “other high crimes” is a political A judge has this kind Refers to the collective
question. A determination of what constitutes an of independence independence of the
impeachable offense is a purely political question, when he can do his job judiciary as a body
which the Constitution has left to the sound without having to hear
discretion of the legislature (Gutierrez v. The — or at least without
House of Representatives Committee on Justice, having to take it
et al., G.R. No. 193459, Feb. 15, 2011). seriously if he does
hear — criticisms of
Examples of cases in jurisprudence where the his personal morality
Court held that there was no political question and fitness for judicial
involved. office
Apportionment of representative districts (because
there are constitutional rules governing
apportionment) (Bagabuyo v. COMELEC, G.R. No. A truly independent judiciary is possible only when
176970, Dec. 8, 2008). both concepts of independence are preserved —
wherein public confidence in the competence and
Suspension of the privilege of the writ of habeas integrity of the judiciary is maintained, and the
corpus because the Constitution sets limits to public accepts the legitimacy of judicial authority.
executive discretion on the matter (Montenegro v. (Re: COA Opinion on Computation of Appraised
Castañeda, G.R. No. L-4221, Aug. 30, 1952). Value of Properties Purchased by SC Justices,
A.M. No. 11-7-10-SC, July 31, 2012; In the Matter
Manner of forming the Commission on of the Allegations Contained in the Columns of Mr.
Appointments Amado P. Macasaet, A.M. No. 07-09-13-SC, Aug.
(Daza v. Singson, G.R. No. 86344, Dec. 21, 1989; 8, 2008)
Coseteng v. Mitra, G.R. No. 86649, July 12, 1990;
Guingona v. Gonzales, G.R. No. 106971, Oct. 20,
1992).
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Constitutional Safeguards to Secure Judicial payment of such income tax does

Independence not fall within the constitutional
protection against decrease of
Judiciary in General their salaries during their
• Creation and abolition of courts continuance in office. (Nitafan v.
o Congress’ power to create courts CIR, G.R. No. 78780, July 23,
implies the power to abolish and 1987).
even re-organize courts. But this • The right to criticize the courts and judicial
power cannot be exercised in a officers must be balanced against the
manner that would undermine the equally primordial concern that the
security of tenure of the judiciary. independence of the Judiciary be
If the abolition or re-organization is protected from due influence or
done in good faith and not for interference. (In re Letter of UP Law
political or personal reasons, it Faculty, A.M. No. 10-10-4-C, March 8,
is valid. (De La Llana v. Alba, G.R. 2011)
No. L-57883, March 12 1982) • The Judiciary shall enjoy fiscal
o Congress may enact laws autonomy. Appropriations for the
prohibiting courts from issuing Judiciary may not be reduced by the
restraining orders against legislature below the amount appropriated
administrative acts in for the previous year and, after approval,
controversies involving facts or the shall be automatically and regularly
exercise of discretion. However, released. (PHIL. CONST., art. VIII, § 3.)
on issues involving questions of o The grant of fiscal autonomy to the
law, courts cannot be prohibited Judiciary is more extensive than
from exercising their power to the mere automatic and regular
restrain such acts. (Malaga v. release of its approved annual
Penachos, Jr., G.R. No. 86695, appropriations. Real fiscal
Sept. 3, 1992) autonomy covers the grant to the
• Members of the judiciary enjoy security Judiciary of the authority to use
of tenure. (PHIL. CONST., art. VIII, § 2.) and dispose of its funds and
• Members of judiciary may not be properties at will, free from any
designated to any agency performing outside control or interference.
quasi-judicial or administrative (Re: COA Opinion on
functions. (PHIL. CONST., art. VIII, § 12.) Computation of Appraised Value
o The Presidential Electoral Tribunal of Properties Purchased by SC
(PET) does not exercise quasi- Justices, A.M. No. 11-7-10-SC,
judicial functions. When the July 31, 2012)
Supreme Court, as the PET, o Fiscal autonomy contemplates a
resolves a presidential or vice- guarantee on full flexibility to
presidential election contest, it allocate and utilize their resources
performs what is essentially a with the wisdom and dispatch that
judicial power (Macalintal v. PET, the Judiciary’s needs require. It
G.R. No. 191618, Nov. 23, 2010). recognizes the power and
• The salaries of Justices and judges authority to levy, assess and
shall be fixed by law and cannot be collect fees, fix rates of
decreased during their continuance in compensation not exceeding the
office. (PHIL. CONST., art. VIII, § 10.) highest rates authorized by law for
o However, their salaries are compensation and pay plans of
properly subject to a general the government and allocate and
income tax law applicable to all disburse such sums as may be
income earners and that the provided by law or prescribed by
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them in the course of the • Jurisdiction

discharge of their functions. o It may not be deprived of minimum
(Bengzon v. Drilon, G.R. No. and appellate jurisdiction
103524, April 15, 1992)  o Congress may not increase the
o Legal fees constitute not only a Supreme Court’s appellate
vital source of the Court’s financial jurisdiction without its advice or
resources but also comprise an concurrence (PHIL. CONST., art. VI,
essential element of the Court’s § 30.)
fiscal independence. Any o Congress cannot deprive the
exemption from the payment of Supreme Court of its jurisdiction
legal fees granted by Congress to over cases provided for in the
GOCCs and LGUs will necessarily Constitution (PHIL. CONST., art.
reduce the Judiciary Development VIII, § 2.) and may only do the
Fund (JDF) and the Special following:
Allowance for the Judiciary Fund ▪ Define enforceable and
(SAJF). Such situation is demandable rights;
constitutionally infirm for it impairs prescribing remedies for
the Court’s guaranteed fiscal violations of such rights
autonomy, which recognizes the ▪ Determine the court with
power and authority of the Court to jurisdiction to hear and
levy, assess and collect fees decide controversies or
including legal fees. (Re: In the disputes arising from legal
Matter of Clarification Of rights (Lopez v. Roxas,
Exemption from Payment of All G.R. No. L-25716,1966)
Court and Sheriff's Fees of • It has administrative supervision over all
Cooperatives, A.M. No. 12-2-03-0, inferior courts and personnel. (PHIL.
March 13, 2012) CONST., art. VIII, § 6.)
• It has exclusive power to discipline or
Supreme Court in General dismiss judges/ justices of inferior courts.
• Being a Constitutional body, it may not (PHIL. CONST., art. VIII, § 11.)
be abolished by law. • The Court alone may initiate the Rules of
• In GENERAL, its members may only be Court. (PHIL. CONST., art. VIII, § 5(5).)
removed through impeachment. (PHIL. • The Court alone may order temporary
CONST., art. XI, § 2.) detail of judges. (PHIL. CONST., art. VIII, §
o Members of the Supreme Court 5(3).)
may now be removed from office • The Court can appoint all officials and
through a petition for quo employees of the Judiciary. (PHIL.
warranto. Section 2, Article XI of CONST., art. VIII, § 5(6).)
the Constitution allows the
institution of a quo warranto action C. APPOINTMENTS TO THE JUDICIARY
against an impeachable officer. A
quo warranto petition is predicated 1. QUALIFICATIONS OF MEMBERS OF THE
on grounds distinct from those of JUDICIARY
impeachment. The former
questions the validity of a public Every prospective appointee to the judiciary must
officer's appointment while the apprise the appointing authority of every matter
latter indicts him for the so-called bearing on his fitness for judicial office including
impeachable offenses without such circumstances as may reflect on his integrity
questioning his title to the office he and probity (In Re: JBC v. Judge Quitain, JBC No.
holds. (Republic v. Sereno, G.R. 013, Aug. 22, 2007).
No. 237428, June 19, 2018)
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Until a correction of existing records on one’s birth laws; and one who violates the Constitution and the
and citizenship, one cannot accept an appointment laws cannot rightfully claim to be person of integrity
to the judiciary, as that would be a violation of the and may thus be removed through a quo warranto
Constitution. For this reason, he can be prevented petition. (Republic v. Sereno, G.R. No. 237428,
by injunction from doing so (Kilosbayan v. Ermita, June 19, 2018)
G.R. No. 177721, July 3, 2007).
Lower Non-Collegiate Courts
Qualifications for Judges and Justices (PHIL. RTC MTC
CONST., art. VIII, § 7.) At least 35 years old At least 30 years old
Lower Engaged for at least Engaged for at least 5
Collegiate Lower Non- 10 years in the years in the practice
Supreme
Courts (CA, Collegiate practice of law in the of law in the
Court
CTA, Courts Philippines or Philippines or
Sandiganbayan)
Natural-born citizen of the Citizen of the Has held public office Has held public office
Philippines Philippines in the Philippines in the Philippines
(may be requiring admission to requiring admission to
naturalized) the practice of law as a the practice of law as a
At least 40 Possesses other qualifications requisite requisite
years old prescribed by Congress
At least 15 Member of the Philippine Bar Term (PHIL. CONST., art. VIII, § 11.)
years of Members of the Supreme Court and judges of the
experience lower courts hold office during good behavior until:
as a judge 1. The age of 70 years old
or in the 2. They become incapacitated to discharge
practice of their duties
law in the
Philippines 2. JUDICIAL AND BAR COUNCIL
A person of proven competence, integrity,
a. Composition
probity, and independence
(PHIL. CONST., art. VIII, § 8.)
A Supreme Court Justice, who is required under 1. Chief Justice, as ex-officio chairman
the Constitution to be a Member of the Philippine 2. Secretary of Justice, as ex-officio member
Bar as a qualification for the office held by him and 3. Representative of Congress, as ex-officio
who may be removed from office only by member
impeachment, cannot be charged with 4. Representative of the Integrated Bar
disbarment during his incumbency. Further, 5. A professor of law
during his incumbency, he cannot be charged 6. A retired member of the Supreme Court
criminally before the Sandiganbayan or any other 7. Private sector representative
court with any offence which carries with it the
penalty of removal from office, or any penalty Regular Members of the JBC
service of which would amount to removal from • The last four in the enumeration above are
office. (In Re Gonzalez, A.M. No. 88-4-5433, April the regular members of the JBC.
15, 1988) • The President, with the consent of the
Commission on Appointments, appoints
The Constitution requires that members of the regular members who serve for 4 years, in
Judiciary must be of proven integrity. To be of staggered terms. (PHIL. CONST., art. VIII, §
proven integrity means that the applicant must 8(2).)
have established steadfast adherence to moral and
ethical principles. One who chronically fails to file
his or her SALN violates the Constitution and the
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• They shall receive such emoluments as b. Powers

may be determined by the Supreme Court.
(PHIL. CONST., art. VIII, § 8(4).) Functions of The JBC (PHIL. CONST., art. VIII, §
8(5).)
Clerk of the Supreme Court – serves as the Primary Function: Recommend appointees to the
secretary ex officio of the Council and shall keep Judiciary.
a record of its proceedings (PHIL. CONST., art. VIII, Secondary Function: It may also exercise such
§ 8(3).) other functions as the SC may assign to it.
The JBC is composed of 7 members coming from Incidental Functions

different sectors. Thus, while we do not lose sight The functions of searching, screening, and
of the bicameral nature of our legislative selecting are necessary and incidental to the
department, it is beyond dispute that the JBC's principal function of choosing and
Constitution is explicit that we have only “a recommending nominees for vacancies in the
representative”. Thus, two (2) representatives from judiciary for appointment by the President. In
Congress would increase the number of JBC carrying out its main function, the JBC has the
members to eight (8), a number beyond what the authority to set the standards/criteria in
Constitution has contemplated. The lone choosing its nominees for every vacancy in the
representative of Congress is entitled to one full judiciary, subject only to the minimum qualifications
vote. This effectively disallows the scheme of required by the Constitution and law for every
splitting the said vote into half between two position. (Villanueva v. JBC, G.R. No. 211833, April
representatives of Congress. (Chavez v. JBC, G.R. 7, 2015)  
No. 202242, April 16, 2013)
Rules on Appointments/Clustering of
Thus, any inclusion of another member, whether Nominees
with one whole vote or 1/2 of it, goes against that 1. The President shall appoint Members of
mandate. Section 8(1), Article VIII of the the Supreme Court and judges of lower
Constitution, providing Congress with an equal courts from a list of at least three (3)
voice with other members of the JBC in nominees for each vacancy, as prepared
recommending appointees to the Judiciary is by the JBC.
explicit. (Id.) 2. No CA confirmation is needed for
appointments to the Judiciary.
The JBC can still perform its mandated task of 3. Vacancies in SC should be filled within 90
submitting the list of nominees to the President days from the occurrence of the vacancy.
despite a vacancy in the position of Chief Justice 4. Vacancies in lower courts should be filled
or the ex-officio Chairman (as a result, for within 90 days from submission to the
example, of impeachment). In such case, the most President of the JBC list.
Senior Justice of this Court who is not an applicant 5. Midnight Appointments – Explicit
for the position of Chief Justice should participate prohibition against midnight appointments
in the deliberations for the selection of nominees is already unnecessary due to the
for the said vacant post and preside over the intervention of and screening made by
proceedings. (Dulay v. JBC, G.R. No. 202143, July Judicial Bar Council (JBC) (De Castro v.
3, 2012) JBC, G.R. No. 191002, April 20, 2010)
The Supreme Court shall provide in its annual The Supreme Court has supervision over the JBC,
budget the appropriations for the Council. (PHIL. and this authority covers the overseeing of the
CONST., art. VIII, § 8(4)). JBC’s compliance with its own rules. (Jardeleza v.
Sereno, G.R. No. 213181, Aug. 19, 2014)
The primary limitation to the JBC's exercise of

discretion is that the nominee must possess the
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minimum qualifications required by the Constitution Members (PHIL. CONST., art. VIII, § 4(1).)
and the laws relative to the position. While the • Chief Justice, and
resolution of who to nominate as between two • 14 Associate Justices
candidates of equal qualification cannot be dictated
by this Court upon the JBC, such surrender of The President cannot appoint a temporary member
choice presupposes that whosoever is nominated of the Supreme Court. There can be no doubt that
is not otherwise disqualified. The question of the Chief Justice and Associate Justices required
whether or not the nominee possesses the by the Constitution to compose the Supreme Court
requisite qualifications is determined based on are regular members of the Court. A temporary
facts and therefore does not depend on, nor call member would be a misnomer, implying a position
for, the exercise of discretion on the part of the not contemplated by the Constitution. Thus, a law
nominating body. Thus, the nomination by the JBC which authorizes the President to designate any
is not accurately an exercise of policy or wisdom as judge of the lower court or cadastral judge to act as
to place the JBC's actions in the same category as member of the Supreme Court is void (Vargas vs.
political questions that the Court is barred from Rillaroza, G.R. No. L-1612, Feb. 26, 1948).
resolving. (Republic v. Sereno, G.R. No. 237428,
June 19, 2018) The members of the judiciary perform judicial
functions. This function is exclusive. They cannot
Mandamus will not lie to compel the JBC to select perform non- judicial functions. For this reason, the
and recommend nominees for vacant judicial Constitution provides that the members of the
positions, which is a discretionary function. There Supreme Court and of other courts shall not be
is no legal right to be included in the list of delegated to any agency performing quasi-judicial
nominees for judicial vacancies. Possession of the or administrative functions. (PHIL. CONST., art. VIII,
constitutional and statutory qualifications for § 12.)
appointment to the judiciary may not be used to
legally demand that one's name be included in the Primus Inter Pares
list of candidates for a judicial vacancy. (Villanueva Literally, first among equals; the maxim indicates
v. JBC, G.R. No. 211833, April 7, 2015)   that a person is the most senior of a group of
people sharing the same rank or office. The phrase
The clustering of nominees for the six vacancies in has been used to describe the status, condition or
the Sandiganbayan by the JBC impaired the role of the Chief Justice in many supreme courts
President's power to appoint members of the around the world.
Judiciary and to determine the seniority of the
newly-appointed Sandiganbayan Associate
Hearing Of Cases In The Supreme Court (PHIL.
Justices. The clustering by the JBC of nominees
for simultaneous or closely successive vacancies CONST., art. VIII, § 4(1).)
in collegiate courts can actually be a device to favor • Divisions of 3, 5, or 7 members
or prejudice a particular nominee. A favored • En Banc
nominee can be included in a cluster with no other
strong contender to ensure his/her appointment; or Any vacancy should be filled within 90 days from
conversely, a nominee can be placed in a cluster the occurrence thereof.
with many strong contenders to minimize his/her
chances of appointment. (Aguinaldo v. Aquino, 2. POWERS AND FUNCTIONS
G.R. No. 224302, November 29, 2016)
Decisions in General
D. THE SUPREME COURT No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts
1. COMPOSITION
and the law on which it is based. (PHIL. CONST., art.
A Constitutional Court VIII, § 14.)
The Supreme Court is the only constitutional court, • It is a requirement of due process that the
all the lower courts being of statutory creation. parties to a litigation be informed of how it
was decided, with an explanation of the
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factual and legal reasons that led to the before the case is assigned to a Member
conclusions of the court. (NICOS Industrial for the writing of the opinion of the Court.
Corp. v. Court of Appeals, G.R. No. 88709, • A certification to this effect must be signed
Feb. 11, 1992) by the Chief Justice and attached to the
• The purpose [of this Constitutional record of the case, and served upon the
requirement is] to inform the person parties.
reading the decision, and especially the o Absence of a certification does not
parties, of how it was reached by the court mean that there was no
after consideration of the pertinent facts consultation prior to assignment of
and examination of the applicable laws. the case to a member. The
(Francisco v. Permskul, G.R. No. 81006, presumption of regularity prevails
May 12, 1989) but the erring officer will be liable
• The [provision] does not apply to administratively (Consing v. CA,
interlocutory orders, such as one granting G.R. No. 78272, Aug. 29, 1989).
a motion for postponement or quashing a • Any Member who took no part, or
subpoena, because it refers only to dissented, or abstained from a decision or
decisions on the merits and not to orders resolution must state the reason therefor.
of the trial court resolving incidental The same requirements shall be observed
matters. (NICOS Industrial Corp. v. Court by all lower collegiate courts.
of Appeals, G.R. No. 88709, Feb. 11,
1992) All lower collegiate courts shall observe the same
• So long as the decision contains the procedure (e.g., CA, CTA, and Sandiganbayan).
necessary facts to warrant its conclusions,
it is no error for [the court] to withhold any Minute Resolutions
specific finding of facts with respect to the The adjudication of a case by minute resolution is
evidence for the defense. The mere failure an exercise of judicial discretion and constitutes
to specify (in the decision) the contentions sound and valid judicial practice. (Agoy v. Araneta
of the appellant and the reasons for Center, Inc., G.R. No. 196358 (Resolution), March
refusing to believe them is not sufficient to 21, 2012)
hold the same contrary to the requirements
of the provisions of law and the Minute resolutions are issued for the prompt
Constitution. (Air France v. Carrascoso, dispatch of the actions of the Court. While they are
G.R. No. L-21438, Sept. 28, 1986) the results of the deliberations by the Justices of
• The significance of factual findings lies in the Court, they are promulgated by the Clerk of
the value of the decision as a precedent. Court or his assistants whose duty is to inform the
How will the ruling be applied in the future, parties of the action taken on their cases by quoting
if there is no point of factual comparison? verbatim the resolutions adopted by the Court.
(Velarde v. Social Justice Society, G.R. Neither the Clerk of Court nor his assistants take
No. 159357, April 28, 2004) part in the deliberations of the case. They merely
transmit the Court's action in the form prescribed
No petition for review or motion for reconsideration by its Internal Rules. (Id.)
of a decision of the court shall be refused due
course or denied without stating the legal basis When a minute resolution denies or dismisses a
therefor. (PHIL. CONST., art. VIII, § 14).) petition for failure to comply with formal and
substantive requirements, the challenged decision,
Decisions by The Supreme Court (PHIL. CONST., together with its findings of fact and legal
art. VIII, § 13.) conclusions, are deemed sustained. (Philippine
• The conclusions of the Court in any case Health Care Providers v. CIR, G.R. No. 167330,
submitted to it for decision en banc or in June 12, 2009)
division shall be reached in consultation
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With respect to the same subject matter and the A case or matter shall be deemed submitted for
same issues concerning the same parties, it decision or resolution upon the filing of the last
constitutes res judicata. However, if other parties pleading, brief, or memorandum required by the
or another subject matter (even with the same Rules of Court or by the Court itself.
parties and issues) is involved, the minute
resolution is not binding precedent. (Id.) Upon expiration of the period without decision or
resolution, a certification stating why no decision
There are substantial, not simply formal, or resolution has been rendered shall be issued
distinctions between a minute resolution and a and signed by the Chief Justice or presiding judge.
decision. The constitutional requirement that the A copy of the certification shall be attached to the
facts and the law on which the judgment is based record of the case or matter, and served upon the
must be expressed clearly and distinctly applies parties. The certification shall state why a decision
only to decisions, not to minute resolutions. A or resolution has not been rendered or issued
minute resolution is signed only by the clerk of within said period.
court by authority of the justices, unlike a decision.
It does not require the certification of the Chief The expiration of the period notwithstanding, the
Justice. Moreover, unlike decisions, minute court shall decide or resolve the case or matter
resolutions are not published in the Philippine without further delay.
Reports. Finally, the proviso of Section 4(3) of
Article VIII speaks of a decision. Indeed, as a rule, LEONEN: Being the court of last resort, the
this Court lays down doctrines or principles of law Supreme Court should be given an ample amount
which constitute binding precedent in a decision of time to deliberate on cases pending before it.
duly signed by the members of the Court and While the 24-month period provided under the
certified by the Chief Justice. (Id.) 1987 Constitution is persuasive, it does not
summarily bind this Court to the disposition of
Memorandum Decisions cases brought before it. It is a mere directive to
Memorandum decisions, where the appellate court ensure this Court's prompt resolution of cases, and
adopts the findings of fact and law of the lower should not be interpreted as an inflexible rule. (Re:
court, are allowed as long as the decision adopted Elvira N. Enalbes, A.M. No. 18-11-09-SC
by reference is attached to the Memorandum for (Resolution, Jan. 22, 2019)
easy reference. (Oil and Natural Gas Commission
v. CA, G.R. No. 114323, July 23, 1998) The Sandiganbayan falls under the 3-month rule
because it is a trial-court, not a collegiate court (Re:
Sin Perjuico Judgments Problems of Delays in Cases Before the
One that is rendered without a statement of the Sandiganbayan, A.M. No. 00- 8-05-SC, Jan. 31,
facts in support of its conclusions, to be later 2002).
supplemented by the final judgment. The Supreme
Courted expressed its disapproval of the practice A judge who fails to resolve cases within the period
of rendering of sin perjuico judgments. prescribed may be held liable for gross inefficiency,
(NACHURA) unless he explains his predicament and asked for
extensions of time from the Supreme Court. (OCA
Timeframe for Deciding (PHIL. CONST., art. VIII, § v. Quiñanola, A.M. No. MTJ-99-1216, Oct. 20,
15.) 1999)
SUPREME COLLEGIATE LOWER
COURT COURTS COURTS EN BANC AND DIVISION CASES
24 months 12 months 3 months from
from from submission En Banc (PHIL. CONST., art. VIII, § 4(2).)
submission submission • All cases involving constitutionality of
a: (LIT)
The periods above commence from the date of o Law
submission for decision or resolution.
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o International or executive • When the required number is not obtained,

agreement the case shall be decided en banc.
o Treaty
• All cases involving the There is a distinction between cases, on the one
constitutionality, application or hand, and matters, on the other hand, such that
operation of: (POPORI) cases are "decided" while matters, which include
o Presidential decrees motions, are "resolved", applying the rule of
o Orders reddendo singula singulis. (Fortich v. Corona, G.R.
o Proclamations No. 131457, Aug. 19, 1999)  
o Ordinances • Only cases are referred to the Court en
o Other Regulations banc for decision whenever the required
o Instructions number of votes is not obtained.
• Cases required to be heard en banc • Conversely, the rule does not apply where
under the Rules of Court: the required three votes is not obtained in
o Appeals from Sandiganbayan and the resolution of a motion for
from the Constitutional reconsideration.
Commissions • Hence, “when the required number is not
o Cases heard by a division where obtained, the case shall be decided en
required majority of 3 was not banc” only speaks of “case” and not
obtained “matter.”
o Cases where SC modifies or • Article VIII, Section 4(3) pertains to the
reverses a doctrine or principle of disposition of cases by a division. If there
law laid down by the SC en banc is a tie in the voting, there is no decision.
or by a division The only way to dispose of the case then
o Administrative cases to discipline is to refer it to the Court en banc. On the
or dismiss judges of lower courts other hand, if a case has already been
o Election contests for President decided by the division and the losing party
and Vice-President files a motion for reconsideration, the
failure of the division to resolve the motion
Cases required to be heard en banc shall be because of a tie in the voting does not
decided with the concurrence of a majority of the leave the case undecided. There is still the
Members who: decision which must stand in view of the
• actually took part in the deliberations on failure of the members of the division to
the issues in the case and muster the necessary vote for its
• voted thereon reconsideration. Quite plainly, if the voting
results in a tie, the motion for
No doctrine or principle of law laid down by the reconsideration is lost.
court in a decision rendered en banc or in division
may be modified or reversed except by the court The Supreme Court sitting en banc is not an
sitting en banc. appellate court vis-à-vis its Divisions, and it
exercises no appellate jurisdiction over the latter.
Division (PHIL. CONST., art. VIII, § 4(3).) Each division of the Court is considered not a body
• Cases or matters heard by a division shall inferior to the Court en banc, and sits veritably as
be decided or resolved with: the Court en banc itself. It bears to stress further
o the concurrence of a majority of that a resolution of the Division denying a party’s
the Members who actually took motion for referral to the Court en banc of any
part in the deliberations on the Division case, shall be final and not appealable to
issues in the case and voted the Court en banc. (Apo Fruits v. CA, G.R. No.
thereon and, 164195, 2008)
o in no case without the concurrence
of at least three of such Members.
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PROCEDURAL RULE-MAKING (PHIL. CONST., regulating the judicial process for enforcing rights
art. VIII, § 5(5).) and duties recognized by substantive law and for
justly administering remedy and redress for a
The Supreme Court has the power to disregard or infraction of them. Sec. 23 of the
promulgate rules concerning the: Comprehensive Dangerous Drugs Act, which
• Protection and enforcement of states that “[a]ny person charged under any
constitutional rights provision of this Act regardless of the imposable
• Pleading, practice and procedure in all penalty shall not be allowed to avail of the provision
courts on plea-bargaining,” is unconstitutional as it
• Admission to the practice of law encroaches on the constitutional rule-making
• The Integrated Bar power of the Court. (Id.)
• Legal assistance to the underprivileged
A legislative grant of exemption from the payment
Limitations on Judicial Rule-Making: of legal fees under RA 8291 was held to be
1. It should provide a simplified and unconstitutional since the payment of legal fees is
inexpensive procedure for the speedy an integral part of the rules promulgated by the
disposition of cases. court pursuant to its rule-making power under the
2. It should be uniform for all courts of the Constitution. The other branches cannot trespass
same grade. upon this prerogative by enacting laws or issue
3. It should not diminish, increase, or modify orders that effectively repeal, alter or modify any of
substantive rights. the procedural rules (Re: Petition for Recognition
of the GSIS from Payment of Legal Fees, A.M. No.
It is possible for a substantive matter to be 08-2-01-0, Feb. 11, 2010).
nonetheless embodied in a rule of procedure. Yet
the absorption of the substantive point into a Rule-making power also includes the inherent
procedural rule does not prevent the substantive power to suspend its own rules in particular cases
right from being superseded or amended by in the interest of justice. (Philippine Blooming Mills
statute, for the creation of property rights is a Employment v. Philippine Blooming Mills Co., G.R.
matter for the legislature to enact on, and not for No. L-31195, June 5, 1973)
the courts to decide upon. (Republic v. Gingoyon,
G.R. No. 166429, Feb. 1, 2006). The constitutional grant to promulgate rules carries
with it the power, inter alia, to determine whether to
In determining whether a rule prescribed by the give the said rules prospective or retroactive effect.
Supreme Court, for the practice and procedure of (People v. Lacson, G.R. No. 149453, April 1, 2003)
the lower courts, abridges, enlarges, or modifies
any substantive right, the test is whether the rule ADMINISTRATIVE SUPERVISION OVER
really regulates procedure, that is, the judicial LOWER COURTS (PHIL. CONST., art. VIII, § 6.)
process for enforcing rights and duties recognized The Supreme Court has administrative supervision
by substantive law and for justly administering over all inferior courts and personnel.
remedy and redress for a disregard or infraction of
them. If the rule takes away a vested right, it is not Administrative supervision merely involves
procedural. If the rule creates a right such as the overseeing the operations of agencies to ensure
right to appeal, it may be classified as a substantive that they are managed effectively, efficiently and
matter; but if it operates as a means of economically, but without interference with day-to-
implementing an existing right then the rule deals day activities. Thus, to effectively exercise its
merely with procedure. (Estipona v. Lobrigo, G.R. power of administrative supervision over all courts
No. 226679, Aug. 15, 2017) as prescribed by the Constitution, P.D. No. 828, as
amended, created the Office of the Court
The rules on plea bargaining neither create a right Administrator. Nowhere in the functions of the
nor take away a vested right. Instead, it operates several offices in the Office of the Court
as a means to implement an existing right by Administrator is it provided that the Supreme Court
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can assume jurisdiction over a case already six (6) months without the consent of the
pending with another court. (Agcaoili v. Fariñas, judge concerned (PHIL. CONST., art. VIII, §
G.R. No. 232395, July 3, 2018) 5(3).)
• Order a change of venue or place of trial to
Administrative jurisdiction over a court employee avoid a miscarriage of justice (PHIL.
belongs to the Supreme Court, regardless of CONST., art. VIII, § 5(4).)
whether the offense was committed before or after
employment in the judiciary. (Ampong v CSC, G.R. The administrative function of the Court to transfer
No. 167916, Aug. 26, 2008) cases is a matter of venue, rather than jurisdiction.
The Court may transfer the trial of cases from one
It is only the Supreme Court that can oversee the court to another of equal rank in a neighboring site,
judges’ and court personnel’s compliance with all whenever the imperative of securing a fair and
laws, and take the proper administrative action impartial trial, or of preventing a miscarriage of
against them if they commit any violation thereof. justice, so demands. (Agcaoili v. Fariñas, G.R. No.
No other branch of government may intrude into 232395, July 3, 2018)
this power, without running afoul of the doctrine of
separation of powers. (Maceda v. Vasquez, G.R. POWER TO DISCIPLINE (PHIL. CONST., art. VIII, §
No. 102781, April 22, 1993) 11.)
The Supreme Court en banc shall have the power
Thus: to discipline judges of lower courts, or order their
• The Ombudsman cannot justify its dismissal by a vote of a majority of the Members
investigation of a judge on the powers who actually took part in the deliberations on the
granted to it by the Constitution. It cannot issues in the case and voted thereon.
compel the Court, as one of the three
branches of government, to submit its Decisions of the SC on disciplinary cases en banc
records, or to allow its personnel to testify is needed only when the penalty imposed is
on this matter. (Id.) dismissal of a judge, disbarment of a lawyer,
• The Ombudsman cannot determine for suspension of either for more than 1 year or a fine
itself and by itself whether a criminal exceeding 10,000 pesos. Otherwise, the case may
complaint against a judge, or court be decided by a division. (People v. Gacott, G.R.
employee, involves an administrative No. 116049, July 13, 1995)
matter. The Ombudsman is duty bound to
have all cases against judges and court The rule prohibiting the institution of disbarment
personnel filed before it, referred to the proceedings against an impeachable officer
Supreme Court for determination as to applies only during his or her tenure and does not
whether and administrative aspect is create immunity from liability for possibly criminal
involved therein. (Caoibes, Jr. v. acts or for alleged violations of the Code of Judicial
Ombudsman, G.R. No. 132177, July 19, Conduct or other supposed violations. Provided
2001) that the requirements of due process are met, the
• The CSC must likewise bring its complaint Court may penalize retired members of the
against a judicial employee before the Judiciary for misconduct committed during their
OCA. However, such employee may be incumbency. (In Re Undated Letter of Mr. Louis
estopped from questioning the jurisdiction C. Biraogo, A.M. No. 09-2-19-SC, Feb. 24, 2009)
of the CSC under specific circumstances.
(Ampong v CSC, G.R. No. 167916, Aug. POWER TO APPOINT
26, 2008) The Supreme Court has the power to appoint all
officials and employees of the Judiciary in
Administrative supervision also includes: accordance with the Civil Service Law.
• Power to temporarily assign lower court
judges to other stations in the public ORIGINAL AND APPELLATE JURISDICTION
interest; such assignment shall not exceed (PHIL. CONST., art. VIII, §5(1) and (2).)
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The Supreme Court has original jurisdiction over: deliberative process of reaching a decision. This
1. Cases affecting: enables the Members of the Court to freely discuss
a. Foreign ambassadors the issues without fear of criticism for holding
b. Other foreign public ministers unpopular positions or fear of humiliation for one's
c. Consuls stationed in the comments.
Philippines
2. Petitions for: To qualify for protection under the deliberative
a. Certiorari process privilege, the agency must show that the
b. Prohibition document is both predecisional and deliberative.
c. Mandamus • Predecisional – if it precedes, in temporal
d. Quo Warranto sequence, the decision to which it relates
e. Habeas Corpus i.e. if they were made in the attempt to
reach a final conclusion.
The Supreme Court has appellate jurisdiction (i.e. • Deliberative – if it reflects the give-and-
review, revise, reverse, modify, or affirm on appeal take of the consultative process. The key
or certiorari) over final judgments and orders of question in determining whether the
lower courts in: material is deliberative in nature is whether
1. All cases involving constitutionality or disclosure of the information would
validity of any Law, International discourage candid discussion within the
agreement or Treaty (LIT) agency.
2. All cases involving the constitutionality or
validity of any Presidential decree, Order, Summary of privileged documents or
Proclamation, Ordinance, Regulation or communications not subject to disclosure: (Id.)
Instruction (POPORI) • Court actions such as the result of the
3. All cases involving the legality of any: Tax, raffle of cases and the actions taken by the
Impost, Toll, Assessment or any Penalty Court on each case included in the agenda
imposed in relation thereto (TITAP) of the Court’s session on acts done
4. All cases in which the jurisdiction of any material to pending cases, except where a
lower court is in issue party litigant requests information on the
5. Criminal cases where the penalty imposed result of the raffle of the case, pursuant to
is reclusion perpetua or higher Rule 7, Section 3 of the Rules of Court of
6. All cases where only errors or questions of the Supreme Court (IRSC);
law are involved • Court deliberations or the deliberations of
the Members of the court sessions on
Judicial Privilege cases and matters pending before the
Judicial privilege insulates the Judiciary from an Court;
improper intrusion into the functions of the judicial
• Court records which are “pre-decisional”
branch and shields justices, judges, and court
and “deliberative” in nature;
officials and employees from public scrutiny or the
• Confidential Information secured by
pressure of public opinion that would impair a
justices, judges, court officials and
judge’s ability to render impartial decisions. (In Re:
employees in the course of their official
Production of Court Records and Documents and
functions mentioned in the 2 preceding
the Attendance of Court Officials and Employees
enumerations, are privileged even after
as Witnesses under the Subpoenas of February
their term of office;
10, 2012 and the Various Letters of Impeachment
• Records of cases that are still pending for
Prosecution Panel dated January 19 and 25, 2012,
decision are privileged materials that
Notice of Resolution, February 14, 2012).
cannot be disclosed, except only for
pleadings, orders and resolutions that
Deliberative Process Privilege (Id.)
have been made available by court to the
This privilege guards against the disclosure of
general public.
information/communication involving as it does the
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• The principle of comity or inter-

departmental courtesy demands that the
highest officials of each department be
exempt from the compulsory processes of
the other departments;
• These privileges belong to the Supreme
Court as an institution, not to any justice or
judge in his or her individual capacity.
Since the Court is higher than the
individual justices or judges, no sitting or
retired justice or judge, not even the Chief
Justice, may claim exception without the
consent of the Court.
The Internal Rules of the Supreme Court (IRSC)

prohibits the disclosure of:
1. Result of the raffle of cases;
2. Actions taken by the Court on each case
included in the agenda of the Court’s
session;
3. Deliberations of the Members in court
sessions on cases and matters pending
before it;
4. The privilege against disclosure of these
kinds of information/communication is
known as deliberative process privilege
Page 117 of 568

CONSTITUTIONAL
COMMISSIONS
Political Law
ATENEO CENTRAL
VIII. CONSTITUTIONAL COMMISSIONS A. COMMON PROVISIONS
TOPIC OUTLINE UNDER THE SYLLABUS: REVIEW OF FINAL ORDERS, RESOLUTIONS,

AND DECISIONS
VIII. CONSTITUTIONAL COMMISSIONS
How Commission decides Matters or Cases
A. COMMON PROVISIONS Each commission shall decide matters or cases by
a majority vote of all its members within 60 days
B. INSTITUTIONAL INDEPENDENCE
from submission. The rule on majority vote shall
SAFEGUARDS
apply both in a division or en banc.
C. POWERS AND FUNCTIONS
Who constitutes ‘majority’
D. COMPOSITION AND QUALIFICATION OF This provision is clear when it says that the voting
MEMBERS should be a majority vote of all its members and not
only of those who participated in the deliberation
E. PROHIBITED OFFICES AND INTERESTS
and voted therein.
Effect of Resignation of a Commissioner

When a commissioner resigns, it does not
automatically invalidate the decision. So long as
the required majority of the commission is still
achieved despite the withdrawal of the vote of the
one who resigned, the decision shall stand.
• Exception: COMELEC may sit en banc or
in 2 divisions.
How Election cases are decided on

Election cases, including pre-proclamation
controversies are decided in division, with motions
for reconsideration filed to the COMELEC en banc.
Majority Decision of a Division

A majority decision decided by a division of the
COMELEC is valid.
No One member can decide a case for the

Commission
As collegial bodies, each commission must act as
one, and no one member can decide a case for the
entire commission. (e.g. Chairman cannot ratify a
decision that would otherwise have been void.)
Rendered in the exercise of quasi-judicial

functions
• Decisions, orders or rulings of the
COMELEC or the COA may be brought on
certiorari to the SC under Rule 64.
• Decisions, orders or ruling of the CSC
should be appealed to the CA under Rule
43.
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• Period for appeals is 30 days from receipt be reduced by statute (PHIL. CONST. art. IX-
of a copy of the decision, order, or ruling. B, C, and D)
• It is however a requirement, that a motion • The Chairmen and members cannot be
for reconsideration must first be filed removed, except by impeachment (PHIL.
before the commission en banc, before CONST. art. XI, § 2)
resort to court is taken. • The Chairmen and the members are given
• The certiorari jurisdiction of the court is a fairly long term of office of 7 years (PHIL.
limited only to cases and matters rendered CONST. art. IX-B, C, and D, § 1, ¶ 2)
by a commission in the exercise of its • The Chairmen and members may not be
adjudicatory power, or those relating to an
re-appointed or appointed in an acting
election dispute and not to cases and
capacity
matters purely administrative or executive
• The salaries of the Chairmen and
in nature.
members are relatively high and may not
Rendered in the Exercise of Administrative be decreased during continuance in office
Functions (PHIL. CONST. art. IX, § 3; art. XVIII, § 117)
Administrative disciplinary cases involving penalty • The Commissions enjoy fiscal autonomy
of suspension for more than 30 days, or fine in an (PHIL. CONST. art. IX-A, § 5).
amount exceeding 30 days’ salary, demotion, • Each Commission en banc may
transfer, removal, or dismissal from office shall be promulgate its own procedural rules,
appealable to the CSC provided they do not diminish, increase or
modify substantive rights (PHIL. CONST. art.
Decision may be executed pending appeal IX, § 6)
o In case of conflict between the
Decision of CSC may be brought on appeal to the Rules of Court and the Rules
CA under Rule 43 promulgated by the commission,
the prevailing rule will depend on
Decision of CA may be brought on appeal to the where the case is filed. If before
SC under Rule 45. the commission, the rule of the
commission prevails, if before a
Exoneration of officers or employees from
regular court, the Rules of Court
administrative charges does not bar appeal. The
will prevail.
CSC is the proper party to bring the appeal (PD
o The power of the Supreme Court
807, §37- 39); (CSC v. Dacoycoy, G.R. No.
135805, April 29, 1999). to review the rules of quasi-judicial
agencies does not apply to
Enforcement - It has been held that the CSC can Constitutional Commissions
issue a writ of execution to enforce judgments, • The Chairmen and members are subject to
which is deemed final. certain disqualifications calculated to
strengthen their integrity (PHIL. CONST. art.
B. INSTITUTIONAL INDEPENDENCE IX, § 2)
SAFEGUARDS • The Commissions may appoint their own
officials and employees in accordance with
Constitutional Safeguards Civil Service Law (PHIL. CONST. art. IX, §
• The commissions are constitutionally 4).
created, and may not be abolished by law
(PHIL. CONST. art. IX-A, §1) Fiscal Autonomy
• Each is expressly described as Fiscal autonomy means that there is automatic and
‘independent’ regular release as opposed to the fiscal autonomy
• Each is conferred certain powers and of the judiciary, which includes the rule that
functions by the Constitution which cannot
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appropriation may not be less than the previous (c) The promotional appointment must
year. conform to the rotational plan or the
staggering of terms in the commission
Rotational Scheme of Appointments membership.
This scheme provides that the first appointees shall
serve terms of 7, 5 and 3 years, respectively. Jurisprudence on Sec.1(2), Art.IX-D
“There appears to be near unanimity as to the 1. Term of Appointment: The appointment of
purpose/s of the rotational system, as originally members of any of the three constitutional
conceived, i.e., to place in the commission a new commissions, after the expiration of the
appointee at a fixed interval (every two years uneven terms of office of the first set of
presently), thus preventing a four-year commissioners, shall always be for a fixed
administration appointing more than one term of seven (7) years; an appointment for a
permanent and regular commissioner, or to borrow lesser period is void and unconstitutional.
from Commissioner Monsod of the 1986
CONCOM, ‘to prevent one person (the President of The appointing authority cannot validly
the Philippines) from dominating the commissions’” shorten the full term of seven (7) years in case
(Funa v. Chairman of COA, G.R. No. 192791, April of the expiration of the term as this will result
24, 2012). in the distortion of the rotational system
prescribed by the Constitution.
The 2 conditions for the workability of the
“Rotational Scheme” are: 2. Rule on Appointment to Vacancies:
• The terms of the first batch of Appointments to vacancies resulting from
commissioners should start on a common certain causes (death, resignation, disability
date; and or impeachment) shall only be for the
• Any vacancy due to the death, resignation unexpired portion of the term of the
or disability before the expiration of the predecessor; such appointments cannot be
term should be filled only for the unexpired less than the unexpired portion [as it will
balance of the term (Funa v. Chairman of disrupt the staggering].
COA, G.R. No. 192791, Apr. 24, 2012
citing Republic v. Imperial, G.R. No. L- 3. Members of Commission who served Full
8684, March 31, 1955). Term: Members of the Commission who were
appointed for a full term of seven years and
Where the Rotational Scheme Applies: who served the entire period, are barred from
• Civil Service Commission (CSC) reappointment to any position in the
• Commission on Elections (COMELEC) Commission. The first appointees in the
• Commission on Audit (COA) Commission under the Constitution are also
• Judicial and Bar Council (JBC) covered by the prohibition against
reappointment.
Promotional Appointment of Commissioner to
Chairman 4. Eligibility for Appointment as Chairman of
Article IX-D, Sec. 1(2) does not prohibit a Commissioner who resigns: A
promotional appointment from commissioner to commissioner who resigns after serving in the
chairman as long as: Commission for less than seven years is
(a) The commissioner has not served the full eligible for an appointment as Chairman for
term of 7 years; and the unexpired portion of the term of the
(b) The appointment to any vacancy shall be departing chairman. Such appointment is not
only for the unexpired portion of the term covered by the ban on reappointment,
of the predecessor. (PHIL. CONST. art. IX- provided that the aggregate period of the
D, Sec. § 1(2)) length of service will not exceed seven (7)
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years and provided further that the vacancy in public accountability. It shall submit to the
the position of Chairman resulted from death, President and the Congress an annual report on its
resignation, disability or removal by personnel programs. (PHIL. CONST. art. IX-B, § 3)
impeachment. This is not a reappointment, but
effectively a new appointment. FUNCTIONS OF THE CSC
1. In the exercise of its powers to implement
5. Rule on Temporary Appointments: Any R.A. 6850 (granting civil service eligibility
member of the Commission cannot be to employees under provisional or
appointed or designated in a temporary or temporary status who have rendered
seven years of efficient service), the CSC
acting capacity.
enjoys a wide latitude of discretion, and
.
may not be compelled by mandamus
Term of Office of Each Commission Member
(Torregoza v. Civil Service Commission,
The terms of the first Chairmen and
G.R. No. 101526, July 3, 1992).
Commissioners of the Constitutional Commissions
2. Under the Administrative Code of 1987,
under the 1987 Constitution must start on a the Civil Service Commission has the
common date, irrespective of the variations in the power to hear and decide administrative
dates of appointments and qualifications of the cases instituted before it directly or on
appointees, in order that the expiration of the first appeal, including contested appointments.
terms of seven, five and three years should lead to 3. The Commission has original jurisdiction to
the regular recurrence of the two-year interval hear and decide a complaint for cheating
between the expiration of the terms. This common in the Civil Service examinations
appropriate starting point must be on February 02, committed by government employees.
1987, the date of the adoption of the 1987 (Cruz v. CSC, G.R. No. 144464, Nov. 27,
Constitution. 2001)
(a) Term – the time during which the officer 4. It is the intent of the Civil Service Law, in
may claim to hold office as of right, and requiring the establishment of a grievance
fixes the interval after which the several procedure, that decisions of lower level
incumbents shall succeed one another. officials (in cases involving personnel
(b) Tenure – term during which the incumbent actions) be appealed to the agency head,
actually holds the office. then to the Civil Service Commission.
(Olanda v.Bugayong G.R. No. 140917,
Oct. 10, 2003).
The term of office is not affected by the holdover.
5. As the central personnel agency of the
The tenure may be shorter than the term for
government, shall establish a career
reasons within or beyond the power of the
service and adopt measures to promote
incumbent. (Gaminde v. Commission on Audit,
morale, efficiency, integrity
G.R. No. 140335, Dec. 13, 2000)
responsiveness, progressiveness and
courtesy in the Civil Service.
C. POWERS AND FUNCTIONS
a. It may revoke a certificate of
Civil Service Commission eligibility motu proprio and
consequently, the power to revoke
The Civil Service Commission, as the central one that has been given.
personnel agency of the Government, shall b. Where the case simply involves
establish a career service and adopt measures to the rechecking of examination
promote morale, efficiency, integrity, papers and nothing more than a
responsiveness, progressiveness, and courtesy in re-evaluation of documents
the civil service. It shall strengthen the merit and already in the records of the CSC
rewards system, integrate all human resources according to a standard answer
development programs for all levels and ranks, and key previously set by it, notice and
institutionalize a management climate conducive to hearing is not required. Instead,
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what will apply in such a case is tenure limited to a period specific by law,
the rule of res ipsa loquitur (Lazo or which is co-terminus with that of the
v. Civil Service Commission, G.R. appointing authority or subject to his
No. 108824, Sept. 14, 1994). pleasure, or which is limited to the duration
6. Strengthen the merit and rewards system a. Elective officials, and their
7. Integrate all human resources personal and confidential staff;
development programs for all levels and b. Department heads and officials of
ranks Cabinet rank who hold office at the
8. Institutionalize a management climate pleasure of the President, and
conducive to public accountability their personal and confidential
9. Submit to the President and the Congress staff;
an annual report of personnel programs c. Chairmen and members of
commissions and bureaus with
Scope of the Civil Service Commission (BIGAS) fixed terms;
1. Branches d. Contractual personnel;
2. Instrumentalities e. Emergency and seasonal
3. GOCCs with original charters personnel
4. Agencies of the government
5. Subdivisions The CSC cannot disallow an appointment to a
(PHIL. CONST. art. IX-B, § 2(1)) position authorized by law but not included in
the Index of Occupational Service. Although the
Classes of Service CSC rules limit appointments to positions within the
1. Career Service: characterized by Index of Occupational Service, nevertheless, it is
entrance (a) based on merit and fitness to limited to the implementation of the laws it is tasked
be determined, as far as practicable, by to enforce. RA 8494 exempted the Trade and
competitive examinations; or (b) based on Investment Corporation from conforming to the
highly technical qualifications; with position classification; thus, the appointment is
opportunity for advancement to higher valid (Trade and Investment v. CSC, G.R. No.
career positions and security of tenure. 182249, March 5, 2013).
a. Open Career Positions: where
prior qualification in an appropriate Appointments in the Civil Service
examination is required General Rule: Made only according to merit and
b. Closed career positions: scientific fitness to be determined, as far as practicable, by
or highly technical in nature; competitive examination
c. Career Executive Service: Exceptions:
undersecretaries, bureau directors 1. Policy determining – Where the officer lays
d. Career Officers: other than those down principal or fundamental guidelines
belonging to the Career Executive or rules; or formulates a method of action
Service who are appointed by the for government or any of its subdivisions;
President (e.g. those in the foreign e.g. department head.
service) 2. Primarily confidential – Denoting not only
e. Positions in the AFP although confidence in the aptitude of the appointee
governed by a different merit for the duties of the office but primarily
system close intimacy which ensures freedom of
f. Personnel of GOCCs with original intercourse without embarrassment or
charters freedom from misgivings or betrayals on
g. Permanent laborers, whether confidential matters of state (De los Santos
skilled, semiskilled or unskilled v. Mallare, G.R. No. L-3881, Aug. 31,
2. Non-Career Service: characterized by 1950); OR one declared to be so by the
entrance on bases other than those of the President of the Philippines upon the
usual tests utilized for the career service,
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recommendation of the CSC (Salazar v. guidelines or rules or formulates a method

Mathay, G.R. No. L-44061, Sept. 20, 1976) of action for government or any of its
3. Highly technical – Requires possession of subdivisions. (Nachura, p. 418)
technical skill or training in supreme • Primarily confidential – when the nature
degree. (De los Santos v. Mallare, supra) of the office requires close intimacy
between the appointee and appointing
Types of Appointment authority which insures freedom of
1. Permanent Status: A permanent intercourse without embarrassment or
appointment shall be issued to a person freedom from misgiving of betrayal of
who meets all the requirements for the personal trust on confidential matters of
positions to which he is being appointed, state.
including the appropriate eligibility • Highly technical – it means something
prescribed, in accordance with the beyond the ordinary requirements of the
provisions of law, rules and standards profession. Hence, its determination is
promulgated in pursuance thereof. always a question of fact. (CSC v. Javier,
2. Temporary Status: In the absence of G.R. No. 173264, Feb. 22, 2008)
appropriate eligibles and when it becomes
necessary in the public interest to fill a When Position Primarily Confidential
vacancy, a temporary appointment shall A position is considered primarily confidential if the
be issued to a person who meets all the nature of the office requires close intimacy between
requirements for the position to which he is the appointee and appointing authority which
being appointed except the appropriate insures freedom of intercourse without
civil service eligibility; provided that such embarrassment or freedom from misgiving of
temporary appointment shall not exceed betrayal of personal trust on confidential matters of
12 months, but the appointee may be state.
replaced sooner if a qualified civil service
eligible becomes available. The Guarantee of Security of Tenure for
Primarily Confidential Positions
CSC may not terminate the employment of a They are covered by the guarantee of security of
civil servant tenure but the termination of their official relation
The CSC may not terminate the employment of a can be justified on the ground of loss of confidence
civil servant. The CSC is not a co-manager or because in that case their cessation from office
surrogate administrator of government offices and involves no removal but the expiration of the term
agencies. Its functions and authority are limited to of office.
approving or reviewing appointments to determine
their compliance with requirements of the Civil The CSC cannot take back-up files in the computer
Service Law. On its own, the Commission does not of an employee to determine if he was acting as
have the power to terminate employment or drop counsel for employees with cases before the
members from the rolls (UP and Torres v. CSC, Commission when such employee has a
G.R. No. 132860, April 3, 2001). reasonable expectation of privacy. In determining
such, the following factors should be considered:
Security of Tenure in Civil Service Law (RAC)
The concept of security of tenure in the Civil 1. The Employee’s Relationship to the item
Service Law is embraced in Section 2(3), Article XI- seized;
B. “No officer or employee of the civil service shall 2. Whether the employee took Action to
be removed or suspended except for cause maintain his privacy in the item
provided by law.” 3. Whether the item was in the immediate
Control of the employee;
Classes of non-competitive positions (Pollo v. Constantino-David, G.R. No. 181881, Oct.
• Policy determining – where the officer 18, 2011)
lays down principal or fundamental
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Rule on Security of Tenure Can ex officio members receive per diems?

No officer of employee of the CSC shall be No, ex officio members of a board are not entitled
removed or suspended except for causes provided to per diems. (PEZA v COA, G.R. No. 189767, July
by law (PHIL. CONST. art. IX-B, § 2, ¶ 3). Security 3, 2012)
tenure is available even to positions which are
considered highly technical, policy-determining Commission on Elections
and primarily confidential.
Enforce and administer
Rule on Partisan Political Activity • All laws and regulations relative to the
Joint Circular No.001 d. 2016 of the COMELEC conduct of an election, plebiscite, initiative,
and CSC reiterated art. IX, § 2(4) that no officer or referendum, and recall. e.g., COMELEC
employee in the civil service shall engage, directly can enjoin construction of public works
or indirectly, in any electioneering or partisan within 45 days of an election.
political campaign. However, the prohibition of • The COMELEC can take cognizance of
engaging in partisan political activity does not apply any question on the conduct of plebiscite
to department secretaries. (Santos v. Yatco, G.R. such as to correct or check what the Board
No. L013932, Dec. 24, 1959) of Canvassers erroneously or fraudulently
did during the canvassing, verify or
Right to Self-Organization ascertain the results of the plebiscite either
The right to self-organization shall not be denied to through pre-proclamation case or through
government employees. But employees in the civil revision of ballots. The power of the
service may not resort to strikes, walkouts, and COMELEC to ascertain the results of the
other temporary work stoppages, like workers in plebiscite is implicit in the power to enforce
the private sector, to pressure the government to all laws relative to the conduct of plebiscite.
accede to their demands. Thus, their right to • COMELEC can take jurisdiction over
organize does not include the right to strike. (SSS cases involving party identity and
v. CA, G.R. No. 85279, July 28, 1989) leadership or controversy as to leadership
in the party. Such jurisdiction is sourced
Prohibition against Additional and Double from the general power of the Commission
Compensation to administer laws and rules involving the
Rule: No elective or appointive public officer or conduct of election.
employee shall receive additional, double, or
• here is no need for a special legislation for
indirect compensation, unless specifically
the authorization of the conduct of recall
authorized by law, nor accept without the consent
elections because it is deemed included in
of the Congress, any present, emolument, office or
the constitutional function of COMELEC,
title of any kind from any foreign government.
hence, contemplated in its budget in the
Note that, pensions or gratuities shall not be
GAA (Goh v. Bayron, G.R. No. 212584,
considered as additional, double or indirect
Nov. 25, 2014).
compensation. (PHIL. CONST. art. IX-B, § 8)
a. Additional Compensation: when for one
Exercise exclusive original jurisdiction over all
and the same office for which
contests relating to the elections, returns, and
compensation has been fixed there is
qualifications of all elective regional, provincial
added to such fixed compensation an
and city officials
extra reward in the form of bonus and the
like (BERNAS)
Election contests in the Sangguniang Kabataan
b. Double Compensation: refers to two sets
(SK) are not under COMELEC jurisdiction but
of compensation for two different offices
under the jurisdiction of the DILG.
held concurrently by one officer
Exercise appellate jurisdiction over all contests
involving:
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1. Elective municipal officials decided by

trial courts of general jurisdiction Decide, except those involving the right to vote, all
2. Elective barangay officials decided by questions affecting elections, including
trial courts of limited jurisdiction determination of the number and location of polling
a. A petition for certiorari questioning places, appointment of election officials and
an interlocutory order of a trial inspectors, and registration of voters. These
court in an electoral protest was petitions are cognizable by the Regular Courts
within the appellate jurisdiction of (MTC).
the COMELEC. The Court
recognizes the COMELEC’s Deputize, with the concurrence of the President,
appellate jurisdiction over petitions law enforcement agencies and instrumentalities of
for certiorari against all acts or the Government, including the Armed Forces of the
omissions of courts in election Philippines, for the exclusive purpose of ensuring
cases (Bulilis v. Nuez, G.R. No. free, orderly, honest, peaceful, and credible
195953, Aug. 9, 2011). elections.
b. Petition for certiorari questioning • This power is NOT limited to the election
the decision of COMELEC division period.
is premature as there is a plain • Applies to both criminal and
and speedy remedy before administrative cases.
COMELEC En Banc (Villarosa v.
Festin, G.R. No. 212953, Aug. 5, Register political parties, organizations, or
2014). coalitions, accredit citizens’ arms of the
3. Decisions, final orders, or rulings of the Commission on Elections.
COMELEC contests involving elective • Political parties, etc. must present their
municipal and barangay offices shall be platform or program of government.
final, executory, and not appealable. • There should be sufficient publication.
a. Exception: May be appealed to • Groups that cannot be registered:
the SC EN BANC on questions of 1. Religious denominations/ sects
law When the decision is brought 2. Those that seek to achieve their goals
on a special civil action for through violence or unlawful means
certiorari, prohibition, or 3. Those that refuse to uphold and
mandamus under Rule 64 for adhere to the Constitution
grave abuse of discretion under 4. Those supported by any foreign
Article IX-A Section 7. government e.g. receipt of financial
contributions related to elections
Issue writs of certiorari, prohibition and
mandamus in the exercise of its appellate File, upon a verified complaint, or on its own
jurisdiction. initiative, petitions in court for inclusion or exclusion
of voters; investigate and, where appropriate,
Contempt powers prosecute cases of violations of election laws,
COMELEC can exercise this power only in relation including acts or omissions constituting elections
to its adjudicatory or quasi-judicial functions. It frauds, offenses and malpractices.
CANNOT exercise this in connection with its purely
executive or ministerial functions. COMELEC has exclusive jurisdiction to investigate
and prosecute cases for violations of election laws.
If it is a pre-proclamation controversy, the
COMELEC exercises quasi-judicial or COMELEC can deputize prosecutors for this
administrative powers. purpose. The actions of the prosecutors are the
actions of the COMELEC.
Its jurisdiction over ‘contests’ (after proclamation) is
in exercise of its judicial functions.
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COMELEC can conduct preliminary investigation • COMELEC has jurisdiction to determine

on election cases falling within its jurisdiction. the presence of “probable cause” in
election cases. The finding of probable
Recommend to the Congress effective measures cause and the prosecution of election
to minimize election spending, including limitation offenses rests in the COMELEC’s sound
of places where propaganda materials shall be discretion (Baytan v. COMELEC, G.R. No.
posted, and to prevent and penalize all forms of 153945, Feb. 4, 2003).
election frauds, offenses, malpractices, and • The Chief State Prosecutor, who may have
nuisance candidacies. been designated by the COMELEC to
prosecute a criminal action, merely derives
Recommend to the President the removal of any his authority from the COMELEC. It is
officer or employee it has deputized, or the beyond his power to oppose the appeal
imposition of any other disciplinary action, for made by COMELEC (Comelec v. Silva,
violation or disregard of, or disobedience to its G.R. No. 129417, Feb. 10, 1998).
directive, order, or decision.
The COMELEC cannot itself, in the same
Submit to the President and the Congress a cancellation (of certificate of candidacy) case,
comprehensive report on the conduct of each decide the qualification or lack thereof of the
election, plebiscite, initiative, referendum, or recall candidate if such issues are yet undecided or
(PHIL. CONST. art. IX-C, § 2). undetermined by the proper authority.
The vote requirement for a valid COMELEC en • The provisions in Article IX-C, Section 2,
Banc resolution is a majority of the votes of all enumerating the powers and functions of
members, or 4 votes. If the six members are evenly COMELEC does not have the same
divided, the Commission on Elections should exactitude of the provisions of Art. VI, Sec.
rehear the case (Sevilla v. COMELEC, G.R. 17, which provides for the HRET and SET,
203833, March 19, 2013). or that of Art. VII, Sec. 4, which provides
that the SC en banc shall be the sole judge
Powers not given to COMELEC of all contest regarding the Presidency and
• Decide questions involving the right to vote Vice-Presidency. These tribunals have
(placed under jurisdiction of courts); jurisdiction over the question of
• Transfer municipalities from one qualifications of the President, VP,
congressional district to another for the Senators, and the HoR.
purpose of preserving proportionality. o Not one of the enumerated powers
of the COMELEC as stated in
Cases decided by COMELEC subject to judicial Article IX-C, Sec. 2 of the
review: Constitution grants the
Decisions or determinations by COMELEC in the commission the power to
exercise of its administrative (not quasi-judicial) determine the qualifications of a
power may be questioned in an ordinary civil action candidate.
before the trial court. (Filipinas Engineering & • A COMELEC rule or resolution cannot
Machine Shop v. Ferrer, G.R. No. L-31455, Feb. supplant or vary the legislative enactments
28, 1985). that distinguish the grounds for
• The Court has no power to review on disqualification from those of ineligibility,
certiorari an interlocutory order or even a and the appropriate proceedings to raise
final resolution issued by a DIVISION of the said grounds. (Fermin v. COMELEC,
the COMELEC. The Court can only review G.R. No. 179695, Dec. 18, 2008)
a final decision or resolution of the • Insofar as the qualification of a candidate
COMELEC en banc (Cagas vs. is concerned, Rule 25 and Rule 23 of the
COMELEC, G.R. No. 194139, Jan. 24, COMELEC rules do not allow authorization
2012). and do not constitute vestment of
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jurisdiction for the COMELEC to determine The aim is to ensure equal opportunity, time, and
the qualification of a candidate. space, and the right to reply, including reasonable
• The facts of qualification must first be equal rates for public information campaigns and
established in a prior proceeding before an forums among candidates. (PHIL. CONST. art. IX-C,
authority vested with jurisdiction. Prior § 4).
determination of qualification may be by
statute, by an executive order or by a Can print media be compelled to allocate free
judgment of a competent court or tribunal. space?
• Lacking this prior determination, the No. Print media may not be compelled to allocate
certificate of candidacy cannot be free space to the Commission. Such would amount
cancelled or denied due course on ground to a taking of property without just compensation.
of false representations regarding a (Philippine Press Institute v. COMELEC, G.R. No
candidate’s qualifications except if there 119694, May 22, 1995)
exists self-evident facts of unquestioned or
unquestionable veracity and judicial Can the COMELEC regulate expressions made
confessions. by private citizens?
• In this light the COMELEC cannot cancel No. COMELEC had no legal basis to regulate
Poe’s certificate of candidacy lacking prior expressions made by private citizens. As such,
determination of her qualifications by a COMELEC’s order to remove the tarpaulin posted
competent body. (Poe-Llamanzares v. by the Diocese of Bacolod bearing the heading
Comelec et al, G.R. Nos. 221697 & ‘Conscience Vote’ was unconstitutional. (Diocese
221698-700, March 8, 2016) of Bacolod v COMELEC, G.R. No 205728, Jan. 21,
2015)
The COMELEC’s power to motu proprio deny due
course to a certificate of candidacy is subject to the Are the functions under R.A. No. 8436
candidate’s opportunity to be heard. Under Article mandatory? (LEONEN)
II, Section 26 of the Constitution, “the state shall Yes. The minimum functional capabilities
guarantee equal access to opportunities for public enumerated under Section 6 of R.A. No. 8436, as
service.” (PHIL. CONST. art. II, § 26). This, however, amended, are mandatory. These functions
constitute the most basic safeguards to ensure the
does not guarantee a constitutional right to run for
transparency, credibility, fairness and accuracy of
or hold public office. To run for public office is a
the upcoming elections. The law is clear. A “voter-
mere privilege subject to limitations imposed by
verified paper audit trail” requires the following: (a)
law, such as prohibition on nuisance candidates.
individual voters can verify whether the machines
To minimize logistical confusion caused by have been able to count their votes; and (b) that the
nuisance candidates, their COC’s may be denied verification at minimum should be paper based.
due course by the COMELEC, through motu There appears to be no room for further
proprio or upon verified petition of an interested interpretation of a “voter-verified paper audit trail.”
party, subject to an opportunity to be heard. The paper audit trail cannot be considered the
(LEONEN: Timbol v Commission on Elections, physical ballot, because there may be instances
G.R. No. 206004, Feb. 24, 2015) where the machine may translate the ballot
differently, or the voter inadvertently spoils his or
Regulation of Public Utilities, Media and her ballot. (Bagumbayan-VNP Movement, Inc. vs
Franchises COMELEC, G.R. No. 222731, March 8, 2016)
The COMELEC may, during the election period,
supervise or regulate the utilization of all franchises Commission on Audit
or permits for the operation of transportation and
other public utilities, media, all grants, privileges Examine, audit, and settle all accounts
and concessions, granted by the Government. pertaining to:
(PHIL. CONST. art. IX-C, § 4) 1. Revenue and receipts of funds or property
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2. Expenditures and uses of funds or

property owned or held in trust by, or To define the scope and techniques for its own
pertain to: auditing procedures
a. The Government
b. Any of its subdivisions, agencies To promulgate accounting and auditing rules
or instrumentalities including those for the prevention and disallowance
c. GOCCs with original charters. of irregular, unnecessary, excessive, extravagant,
or unconscionable expenditures;
COA is endowed with enough latitude to determine,
prevent and disallow irregular, unnecessary, Conduct post-audit with respect to the
excessive, extravagant or unconscionable following:
expenditures of government funds. In resolving 1. Constitutional bodies, commissions, and
cases brought before it on appeal, respondent offices granted fiscal autonomy
COA is not required to limit its review only to the 2. Autonomous state colleges and
grounds relied upon by a government agency’s universities
auditor with respect to disallowing certain 3. GOCCs and their subsidiaries
disbursements of public funds. In consonance with incorporated under the Corporation Code
its general audit power, respondent COA is not 4. Non-governmental entities receiving
merely legally permitted, but is also duty-bound to subsidy or equity, directly or indirectly,
make its own assessment of the merits of the from or through the government, which are
disallowed disbursement and not simply restrict required by law, through the granting
itself to reviewing the validity of the ground relied institution, to submit to such audit.
upon by the auditor of the government agency 5. To decide administrative cases involving
concerned. To hold otherwise would render COA’s expenditure of public funds
vital constitutional power unduly limited and (PHIL. CONST. art. IX-D, § 2)
thereby useless and ineffective (Yap v.
Commission on Audit, G.R. No.158562, April 23, If COA finds the internal control system of audited
2010). agencies inadequate, COA may adopt measures,
including temporary or special pre-audit, as
Funds cannot be released without auditing in pre- necessary to correct deficiencies.
audit while in post-audit, the auditing is done only
after the funds are released. (Maritime Industry Keep the general accounts of the government
Authority v. Commission on Audit, G.R. No.
185812, Jan. 13, 2015) Preserve vouchers and other supporting
papers pertaining thereto for such period as
COA is not required to limit its review only to the may be provided by law
grounds relied upon by the auditor with respect to
disallowing certain disbursements of public funds. The functions of COA can be classified as:
In consonance with its general audit power, COA is 1. Examining and auditing all forms of
not merely legally permitted but is also duty-bound government revenues and expenditures
to make its own assessment of the merits of the 2. Settling government accounts
disallowed disbursement and not simply restrict to 3. Promulgating accounting and auditing
reviewing the validity of the ground relied upon by rules
the auditor of the government agency concerned. 4. Deciding administrative cases involving
expenditures of public funds.
To settle government accounts
This means the power to settle liquidates accounts COA’s non-exclusive power to audit
i.e. accounts which may be adjusted simply by an The COA does not have the exclusive power to
arithmetical process. It does not include the power examine and audit government entities. As such,
to fix the amount of an unfixed or undetermined public corporations under COA, jurisdiction may
debt. employ private auditors. However, COA’s findings
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and conclusions necessarily prevail over those of

private auditors, at least insofar as government Jurisdiction
agencies and officials are concerned (DBP v COA, 1. Of the Commission in General: No law
G.R. No. 88435, Jan. 16, 2002) shall be passed exempting any entity of the
Government, or any investment of public
Thus, private auditors can be hired but if there is a funds, from the jurisdiction of the COA
conflict, COA audit prevails. (PHIL. CONST. art. IX-D, § 3)
2. Over GOCCs: The Constitution vests in the
Prosecutors Power to Review Accounts Settled COA audit jurisdiction over ‘government-
by COA owned and controlled corporations with
Prosecutors may still review accounts already original charters, as well as government
settled and approved by COA for the purpose of owned or controlled corporations without
determining possible criminal liability. This is original charters’. GOCCs with original
because COA’s interest in such accounts is merely charters are subject to COA pre-audit,
administrative. while GOCCs without original charters are
subject to COA post-audit. The
Exclusive Authority to Define Scope of Audit determining factor of COA’s audit
and Examination jurisdiction is government ownership or
Pursuant to its mandate as the guardians of public control of the corporation.
funds, the COA has the exclusive authority to 3. Over LGUs: LGUs, through granted local
define the scope of its audit and examination, fiscal autonomy are still within the audit
establish the techniques and methods for such jurisdiction of the COA (Veloso v.
review and promulgate accounting and auditing Commission on Audit, G.R. No. 193677,
rules and regulations (Veloso v. Commission on Sept. 6, 2011).
Audit, G.R. No. 193677, Sept. 6, 2011).
COA authority in Public Bidding
What are Considered Private Corporations COA has the power to determine the meaning of
Note that not all corporations, which are not ‘public bidding’ and what constitutes failure of the
government owned or controlled, are ipso facto to same when regulations require public bidding for
be considered private corporations as there exists the sale of government property.
another distinct class of corporations or chartered
institutions which are otherwise known as “public D. COMPOSITION AND QUALIFICATION
corporations.” These corporations are treated by OF MEMBERS
law as agencies or instrumentalities of the
government. As presently constituted, the BSP is a Civil Service Commission
public corporation created by law for a public
purpose, and being such the funds of the BSP fall Composition
under the jurisdiction of the Commission on Audit. A Chairman, and 2 Commissioners
(Boy Scouts of the Philippines v. COA, G.R. No.
177131, June 7, 2011) Qualifications (PHIL. CONST., art. IX-B, § 1(1))
Complete Discretion afforded to COA 1. Natural-born citizens of the Philippines;
COA is generally accorded complete discretion in 2. At the time of their appointment, at least 35
the exercise of its constitutional duty and years of age
responsibility to examine and audit expenditures of 3. With proven capacity for public
public funds. Only in instances when COA acts administration; and
without or in excess of jurisdiction or with grave 4. Must not have been candidates for any
abuse of discretion amounting to lack or excess of elective position in the election
jurisdiction shall the Court interfere. Thus, COA can
immediately preceding their appointment
disallow TESDA from paying a healthcare
allowance to their employees. (TESDA v. COA,
G.R. No. 196418, Feb. 10, 2015)
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2. At least 35 years old at the time of

Disqualifications appointment;
1. No candidate who has lost in any election 3. College degree holder;
shall, within 1 year after such election, be 4. Not a candidate in any election
appointed to any office in the Government Immediately preceding the appointment;
of any GOCC or in any of their and
subsidiaries. (PHIL. CONST. Art. IX-B, §6) 5. Majority, including the chairman, must be
2. No elective official shall be eligible for members of the Philippine Bar who have
appoint or designation in any capacity to been engaged in the practice of law for at
any public office or position during his least 10 years
tenure. (PHIL. CONST. Art. IX-B, § 7, ¶ 1) (PHIL. CONST., art. IX-C, § 1, ¶ 1).
Exceptions:
a. the Vice President may be Appointment and Term
appointed as member of the Appointed by the President with the consent of the
Cabinet commission of Appointment, for a term of 7 years,
b. Member of the Congress is without reappointment. (PHIL. CONST. art. IX-C, § 1,
designated to sit in the JBC ¶ 2)
3. Unless otherwise allowed by law or by the
primary functions of his position, no If the appointment was ad interim, a subsequent
appointive official shall hold any other renewal of the appointment does not violate the
office or employment in the government or prohibition on reappointment because no previous
any subdivision, agency or instrumentality appointment was confirmed by the Commission on
thereof including GOCCs or their Appointment. Further, the total term of both
subsidiaries. (PHIL. CONST. art. IX-B, § 7, ¶ appointments must not exceed the 7-year limit.
2) (Matibag v. Benipayo, G.R. No. 149036, April 2,
4. No officer or employee in the civil service 2002)
shall engage, directly or indirectly, in any
electioneering or partisan political Commission on Audit
campaign, (PHIL. CONST. art.IX-B, § 2, ¶ 4)
Composition
Appointment and Term 1 Chairman, 2 Commissioners
Appointed by the President with the consent of the
Commission on Appointments. The term is 7 years, Qualifications
without reappointment. The prohibition of 1. Natural born citizen;
reappointment applies even if the Commissioner 2. At least 35 years old at the time of
has served for less than 7 years. (BERNAS) appointment
3. CPAs with at least 10 years auditing
Appointment to any vacancy shall be only for the experience or members of the Bar with at
unexpired term of the predecessor. In no case shall least 10 years of experience in the practice
any member be appointed or designated in a of law; at no time shall all members belong
temporary or acting capacity. (PHIL. CONST., art. IX- to the same profession, and
B, § 1, ¶ 2) 4. Not a candidate in any election
immediately preceding appointment
Commission on Elections (PHIL. CONST. art. IX-D, § 1, ¶ 1)
Composition Appointment and Term

One Chairman and 6 Commissioners Appointed by the President with the consent of the
Commission of Appointments for a term of 7 years,
Qualifications (NTCIM) without reappointment.
1. Natural-born citizen;
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Appointment to any vacancy shall only be for the against all acts or omissions of courts in
unexpired portion of the term of the predecessor. election cases (Bulilis v. Nuez, G.R. No.
195953, Aug. 9, 2011).
In no case shall any member be appointed or • The COMELEC HAS jurisdiction over
designated in a temporary or acting capacity. (PHIL. intra-party disputes. The ascertainment of
CONST. art. IX-D, § 1, ¶ 2) the identity of a political party and its
legitimate officers is a matter that is well
Jurisdiction of each Constitutional within its authority. The COMELEC has the
Commission power to enforce and administer all laws
and regulations relative to the conduct of
Civil Service Commission an election.
Scope: All branches, subdivisions, • To resolve the issue, the COMELEC need
instrumentalities, agencies of the government, only refer to the Party Constitution. It need
including government owned and controlled not go as far as to resolve the root of the
corporations with original charters. conflict between the parties. It need only
resolve issues as may be necessary in the
• “With Original Charter” means that the exercise of its enforcement powers.
GOCC was created by special law or by
Congress Commission on Audit
• If incorporated under the Corporation COA is endowed with enough latitude to determine,
Code, it does not fall within the Civil prevent and disallow irregular, unnecessary,
Service and is not subject to the CSC excessive, extravagant or unconscionable
jurisdiction expenditures of government funds. In resolving
• If previously government-controlled, but is cases brought before it on appeal, respondent
later privatized, it ceases to fall under CSC COA is not required to limit its review only to the
• Jurisdiction is determined as of the time of grounds relied upon by a government agency’s
filing the complaint. auditor with respect to disallowing certain
disbursements of public funds. In consonance with
Commission on Elections its general audit power, respondent COA is not
EXCLUSIVE ORIGINAL jurisdiction over all merely legally permitted, but is also duty-bound to
contests relating to the elections, returns, and make its own assessment of the merits of the
qualifications of all elective REGIONAL, disallowed disbursement and not simply restrict
PROVINCIAL and CITY officials itself to reviewing the validity of the ground relied
upon by the auditor of the government agency
Election contests in the Sangguniang Kabataan concerned. To hold otherwise would render COA’s
(SK) are not under COMELEC jurisdiction but vital constitutional power unduly limited and
under the jurisdiction of the DILG. thereby useless and ineffective (Yap v.
• APPELLATE jurisdiction over all contests Commission on Audit, G.R. No.158562, April 23,
involving: 2010).
o ELECTIVE MUNICIPAL officials
decided by trial courts of general COA has authority not just over accountable
jurisdiction officers but also over other officers who perform
o ELECTIVE BARANGAY officials functions related to accounting such as verification
decided by trial courts of limited of evaluations and computation of fees collectible,
jurisdiction and the adoption of internal rules of control. COA
• A petition for certiorari questioning an has the authority to define the scope of its audit and
interlocutory order of a trial court in an examination, establish the techniques and
electoral protest was within the appellate methods for such review and promulgate
jurisdiction of the COMELEC. The Court accounting and auditing rules and regulations
recognizes the COMELEC’s appellate (Veloso v. Commission on Audit, G.R. No. 193677,
jurisdiction over petitions for certiorari Sept. 6, 2011).
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The Boy Scout of the Philippines (“BSP”) is a ————- end of topic ————-
government-owned and controlled corporation
under the jurisdiction of COA. The BSP Charter
(Commonwealth Act 111), entitled “An Act to
Create a Public Corporation to be Known as the
Boy Scouts of the Philippines, and to Define its
Powers and Purposes” created the BSP as a
“public corporation” (Boy Scouts of the Philippines
v. COA, G.R. No. 177131, June 7, 2011)
The Manila Economic and Cultural Office

(“MECO”) is subject to audit by the COA. The
MECO is sui generis. It was established when the
Philippines severed diplomatic relations with
Taiwan upon recognition of China. None of its
members are government officials. It is not a
GOCC nor an instrumentality. Its functions are of a
kind that would otherwise be performed by the
diplomatic and consular offices of the Philippines.
Nevertheless, the consular fees collected by the
MECO may be audited by the COA. (Funa v.
Manila Economic and Cultural Office, G.R. 193462,
Feb. 4, 2014)
Water districts are within the coverage of the COA.

A water district is a GOCC with a special charter
since it is created pursuant to a special law. Thus,
COA has the authority to investigate whether
directors, officials or employees of GOCCs
receiving allowances and bonuses are entitled to
such benefits under applicable laws. (Feliciano v.
Commission on Audit, G.R. 147402, Jan. 14, 2004)
F. PROHIBITED OFFICES AND INTERESTS
Prohibited Offices and Interests (BEEH)

No member of a Constitutional Commission shall,
during his tenure:
• Be financially interested, directly or
indirectly, in any contract with, or in any
franchise or privilege granted by the
Government, any of its subdivisions,
agencies or instrumentalities
• Engage in the Practice of any profession;
• Engage in the Active management and
control of any business which in any way
may be affected by the functions of his
office; and
• Hold any other Office or Employment.
Page 133 of 568

BILL OF RIGHTS
Political Law
ATENEO CENTRAL
IX. BILL OF RIGHTS 2. Types of Regulation

a. Prior restraint and subsequent
punishment
b. Content based and content neutral
c. Incitement and advocacy
IX. BILL OF RIGHTS
d. Specificity of regulation and
i. CONCEPT OF BILL OF RIGHTS
overbreadth doctrine
1. Privacy and autonomy
e. Speech regulation in relation to
2. Relation to human rights
election
f. Speech regulation in relation to media
ii. DUE PROCESS OF LAW
3. Judicial analysis, presumptions and
1. Concept to right to life, liberty and
levels and types of scrutiny
property
4. Special topics in free expression cases
2. Kinds of due process
a. Hate speech
a. Substantive
b. Defamation and libel
b. Procedural
c. Sedition and speech in relation to
i. Judicial
rebellion
ii. Administrative
d. Obscenity/pornography
c. Levels of Scrutiny
e. Commercial speech
f. National emergencies
iii. EQUAL PROTECTION OF LAWS
g. Speech of public officers
1. Concept
5. Cognate rights
2. Requisites for valid classification
a. Freedom of assembly
3. Levels of scrutiny
b. Freedom of association
c. Freedom of information
iv. RIGHT AGAINST UNREASONABLE
SEARCHES AND SEIZURES
vii. FREEDOM OF RELIGION
1. Concept of privacy
1. Basic principles
2. Concept of a search
a. Purpose
3. Requisites of a valid warrant
b. Concept of religion
4. Warrantless searches
2. Principle of separation of church and
5. Warrantless arrests and detention
state
6. Exclusionary rule
3. Non-establishment clause
7. Effects of unreasonable searches and
4. Free exercise clause
seizures
8. Effects of illegal detention
viii. LIBERTY OF ABODE AND FREEDOM OF
MOVEMENT
v. PRIVACY OF COMMUNICATIONS AND
1. Scope and limitations
CORRESPONDENCE
2. Watch-list and hold departure orders
1. Concept of communications,
correspondence
ix. EMINENT DOMAIN
2. Intrusion, when and how allowed
1. Concept
3. Exclusionary rule
2. Just compensation
3. Abandonment of intended use and right of
vi. FREEDOM OF SPEECH AND
repurchase
EXPRESSION
4. Expropriation by local government units
1. Concept
a. Continuum of thought, speech,
x. NON-IMPAIRMENT OF CONTRACTS
expression, and speech acts
b. Purpose of free speech doctrines
xi. ADEQUATE LEGAL ASSISTANCE AND
c. Balance between unbridled
FREE ACCESS TO COURTS
expression and liberty
xii. RIGHT AGAINST SELF-INCRIMINATION
1. Scope and coverage
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2. Application A. CONCEPT OF BILL OF RIGHTS

3. Immunity statutes
Concept and Purpose
xiii. RIGHTS OF PERSONS UNDER The Bill of Rights governs the relationship between
CUSTODIAL INVESTIGATION the individual and the state. (People v. Marti, G.R.
1. Availability No. 81561, Jan. 18, 1991)
2. Requisites
3. Waiver The provisions in the Bill of Rights are self-
executing. (Manila Prince Hotel v. GSIS, G.R. No.
xiv. RIGTS OF THE ACCUSED
122156 Feb. 3, 1997)
1. Criminal due process
2. Bail
The Bill of Rights is designed to preserve the ideals
3. Presumption of innocence
of liberty, equality and security against the assaults
4. Right to be heard
5. Assistance of counsel of opportunism, the expediency of the passing
6. Right to be informed of the nature and hour, the erosion of small encroachments, and the
cause of accusation scorn and derision of those who have no patience
7. Right to speedy, impartial, and public trial with general principles. (Philippine Blooming Mills
8. Right of confrontation Employment Organization v. Philippine Blooming
9. Compulsory process Mills Co., Inc., G.R. No. L-31195, June 5, 1973)
10. Trials in absentia
The purpose of the Bill of Rights is to withdraw
xv. RIGHT TO SPEEDY DISPOSITION OF certain subjects from the vicissitudes of political
CASES controversy, to place them beyond the reach of
majorities and officials, and to establish them as
xvi. RIGHT AGAINST EXCESSIVE FINES AND legal principles to be applied by the courts. One's
CRUEL, DEGRADING, AND INHUMAN rights to life, liberty and property, to free speech, or
PUNSIHMENTS free press, freedom of worship and assembly, and
other fundamental rights may not be submitted to a
xvii. NON-IMPRISONMENT FOR DEBTS
vote; they depend on the outcome of no elections.
(Philippine Blooming Mills Employment
xviii. RIGHT AGAINST DOUBLE JEOPARDY
Organization, citing West Virginia State Board of
1. Requisites; scope
Education vs. Barnette, 319 U.S. 624, 638)
2. Limitations
1. PRIVACY AND AUTONOMY
xix. RIGHT AGAINST INVOLUNTARY
SERVITUDE The Bill of Rights governs the relationship between
the individual and the state. Its concern is not the
xx. EX POST FACTO LAWS AND BILLS OF
relation between individuals, between a private
ATTAINDER
individual and other individuals. What the Bill of
Rights does is to declare some forbidden zones in
the private sphere inaccessible to any power
holder. (People v. Marti, G.R. No. 81561, Jan. 18,
1991)
In the absence of governmental interference, the

liberties guaranteed by the Constitution cannot be
invoked. Put differently, the Bill of Rights is not
meant to be invoked against acts of private
individuals. The equal protection erects no shield
against private conduct, however discriminatory or
wrongful. Private actions, no matter how
egregious, cannot violate the equal protection
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guarantee. (Yrasuegui v. PAL, G.R. No. 168081, B. DUE PROCESS OF LAW

Oct. 17, 2008)
No person shall be deprived of life, liberty, or
If the violation is by private individuals, the remedy property without due process of law, nor shall any
is found in the Civil Code, or if proper, in the person be denied the equal protection of the laws.
Revised Penal Code. (Bernas, The 1987 (PHIL. CONST., art. III, § 1)
Constitution of the Republic of the Philippines,
2009) Concept and Purpose
Due process of law means simply, first, that there
2. RELATION TO HUMAN RIGHTS shall be a law prescribed in harmony with the
general powers of the legislative department of the
While the Bill of Rights also protects property Government; second, that this law shall be
rights, the primacy of human rights over property reasonable in its operation; third, that it shall be
rights is recognized. Because these freedoms are enforced according to the regular methods of
delicate and vulnerable, as well as supremely procedure prescribed; and fourth, that it shall be
precious in our society and the threat of sanctions applicable alike to all the citizens of the state or to
may deter their exercise almost as potently as the all of a class. (Rubi v. Provincial Board of Mindoro,
actual application of sanctions, they need G.R. No. L-14078, March 7, 1919)
breathing space to survive, permitting government
regulation only with narrow specificity. (Philippine Due process evades a precise definition. The
Blooming Mills Employment Organization v. purpose of the guaranty is to prevent arbitrary
Philippine Blooming Mills Co., Inc., G.R. No. L- governmental encroachment against the life, liberty
31195, June 5, 1973) and property of individuals. The due process
guaranty serves as a protection against arbitrary
Property and property rights can be lost thru regulation or seizure. Even corporations and
prescription; but human rights are imprescriptible. partnerships are protected by the guaranty insofar
If human rights are extinguished by the passage of as their property is concerned. (White Light
time, then the Bill of Rights is a useless attempt to Corporation v. City of Manila, G.R. No. 122846,
limit the power of government and ceases to be an Jan. 20, 2009)
efficacious shield against the tyranny of officials, of
majorities, of the influential and powerful, and of Scope
oligarchs — political, economic or otherwise. The guarantees of the Bill of Rights are universal in
(Philippine Blooming Mills Employment their application to all persons within the territorial
Organization v. Philippine Blooming Mills Co., Inc., jurisdiction, without regard to any differences of
G.R. No. L-31195, June 5, 1973) race, color, or nationality. All natural persons, and
artificial persons, only in so far as their property is
The superiority of human rights over property rights concerned, are protected by the Due Process
is underscored by the fact that a mere reasonable clause. (Smith, Bell & Co. v. Natividad, G.R. No.
or rational relation between the means employed 15574, Sept. 17, 1919)
by the law and its object or purpose — that the law
is neither arbitrary nor discriminatory nor Relativity
oppressive — would suffice to validate a law which The concept of due process is not a static one.
restricts or impairs property rights. On the other What is due process of law depends on
hand, a constitutional or valid infringement of circumstances. It varies with the subject-matter
human rights requires a more stringent criterion, and necessities of the situation. (Rubi v. Provincial
namely existence of a grave and immediate danger Board, citing Moyer vs. Peabody [1909], 212 U. S.,
of a substantive evil which the State has the right 82)
to prevent. (Philippine Blooming Mills Employment
Organization v. Philippine Blooming Mills Co., Inc.,
G.R. No. L-31195, June 5, 1973)
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1. CONCEPT OF RIGHT TO LIFE, LIBERTY, 3. The right to labor; and

AND PROPERTY 4. The right of locomotion. (Rubi v. Provincial
Board of Mindoro, G.R. No. L-14078,
Life March 7, 1919)
The constitutional protection of the right to life is not
just a protection of the right to be alive or to the Property
security of one’s limb against physical harm. The Protected property includes all kinds of property
right to life is the right to a good life. The importance found in the Civil Code. It has been deemed to
of the quality of living now finds stronger emphasis include vested rights such as a perfected mining
in Art. XIII on social justice, and even the life of the claim, or a perfected homestead, or a final
unborn under Art. II. (Bernas, The 1987 judgement. It also includes the right to work and the
Constitution of the Republic of the Philippines, right to earn a living. (Bernas, The 1987
2009) Constitution of the Republic of the Philippines,
2009)
While the right to life guarantees essentially the
right to be alive - upon which the enjoyment of all However, a license authorizing a person to enjoy a
other rights is preconditioned - the right to security certain privilege is neither a property nor property
of person is a guarantee of the secure quality of this right. A license is merely a permit or privilege to do
life. A secure quality of life pertains to a life lived what otherwise would be unlawful, and is not a
with the assurance that the government he contract between the authority granting it and the
established and consented to, will protect the person to whom it is granted; neither is it property
security of his person and property. (Secretary of or a property right, nor does it create a vested right.
Defense v. Manalo, G.R. No. 180906, Oct. 7, 2008) All licenses may thus be revoked or rescinded by
executive action. It is not a contract, property or a
Essentially, the right to security of person is [1] property right protected by the due process clause
freedom from fear; [2] a guarantee of bodily and of the Constitution. (Chavez v. Romulo, G.R. No.
psychological integrity or security, and [3] a 157036, June 9, 2004)
guarantee of protection of one‘s rights by the
government. (Secretary of Defense v. Manalo, 2. KINDS OF DUE PROCESS
G.R. No. 180906, Oct. 7, 2008)
The due process guaranty has traditionally been
Liberty interpreted as imposing two related but distinct
The right to liberty guaranteed by the Constitution restrictions on government, "procedural due
includes the right to exist and the right to be free process" and "substantive due process." (White
from arbitrary personal restraint or servitude. (Rubi Light Corporation v. City of Manila, G.R. No.
v. Provincial Board of Mindoro, G.R. No. L-14078, 122846, Jan. 20, 2009)
March 7, 1919)
a. Substantive Due Process
Liberty includes the right of the citizens to be free If due process were confined solely to its
to use his faculties in all lawful ways; to live and procedural aspects, there would arise absurd
work where he will; to earn his livelihood by an situation of arbitrary government action, provided
lawful calling; to pursue any avocations, and for the proper formalities are followed. Substantive
that purpose, to enter into all contracts which may due process completes the protection envisioned
be proper, necessary, and essential to his carrying by the due process clause. It inquires whether the
out these purposes to a successful conclusion. government has sufficient justification for depriving
(Rubi v. Provincial Board of Mindoro, G.R. No. L- a person of life, liberty, or property. (White Light
14078, March 7, 1919) Corporation v. City of Manila, G.R. No. 122846,
January 20, 2009)
The chief elements of the guaranty are:
1. The right to contract; Substantive due process requires that laws be [1]
2. The right to choose one's employment; grounded on reason and [2] be free from
Page 138 of 568
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arbitrariness. The government must have sufficient victimize others. Therefore, the license
justification for depriving a person of life, liberty, or requirement to own and operate a firearm is a valid
property. Essentially, substantive due process is exercise of police power and not a violation of the
satisfied if the deprivation is done in the exercise of right to due process. (Acosta v. Ochoa, G.R. Nos.
the police power of the State. (Provincial Bus 211559, 211567, 212570 & 215634, Oct. 15, 2019)
Operators Association of the Philippines v. DOLE,
G.R. No. 202275, July 17, 2018) Requisites of a Valid Ordinance (Police Power
of LGUs) (Must NOT CUPPU, Must be GC)
Requisites 1. It must not contravene the constitution or any
Laws which interfere with life, liberty, and property statute;
satisfy substantive due process when there is: 2. It must not be unfair or oppressive;
1. Lawful Subject – The interests of the public 3. It must not be partial or discriminatory;
generally, as distinguished from those of a 4. It must not prohibit but may regulate trade;
particular class, require such interference; and 5. It must not be unreasonable; and
2. Lawful Means – The means are reasonably 6. It must be general and consistent with public
necessary for the accomplishment of the policy.
purpose, and not unduly oppressive upon
individuals. Publication
Due process, which is a rule of fairness, requires
The legislature may not, under the guise of that those who must obey a command must first
protecting the public interests, arbitrarily interfere know the command. Thus, Art. 2 of the Civil Code
with private business, or impose unusual and prescribes a 15-day period of publication of laws
unnecessary restrictions upon lawful occupations. before they take effect, unless otherwise provided.
In other words, its determination as to what is a
proper exercise of its police powers is not final or The omission of publication of laws would offend
conclusive, but is subject to the supervision of the due process insofar as it would deny the public
court. (US v. Toribio, G.R. No. L-5060, Jan. 26, knowledge of the laws that are supposed to govern
1910) it. The term "laws" should refer to all laws and not
only to those of general application, but including
License to Own and Operate Firearms those of local application and private laws. Covered
With the bearing of arms being a mere privilege, by this rule are presidential decrees and executive
there could not have been a deprivation of right to orders promulgated by the President.
due process in requiring a license for the Administrative rules and regulations must also be
possession of firearms. Article III, Section 1 of the published if their purpose is to enforce or
Constitution is clear that only life, liberty, or implement existing law pursuant also to a valid
property is protected by the due process clause. It delegation. However, no publication is required for
is settled that the license to possess a firearm is internal regulations issued by administrative
neither a property nor a property right. agencies. Publication must be in full or it is no
publication at all since its purpose is to inform the
Assuming, for the sake of argument, that the right public of the contents of the laws. (Tañada v.
to possess a firearm were considered a property Tuvera, G.R. No. L-63915, Dec. 29, 1986)
right, it is doctrine that property rights are always
subject to the State's police power. Further, the b. Procedural Due Process
PNP Guidelines, which suspended the issuance of
permits to carry firearms outside of residence, was Procedural due process refers to the procedures
a valid police power measure. The interest of the that the government must follow before it deprives
general public was satisfied, since the Guidelines a person of life, liberty, or property. Procedural due
were issued in response to the rise in high-profile process concerns itself with government action
crimes. As to the means employed to retain peace adhering to the established process when it makes
and order in society, the revocation of all permits to an intrusion into the private sphere. (White Light
carry firearms outside of residence would make it Corporation v. City of Manila, G.R. No. 122846,
difficult for criminals to commit gun violence and Jan. 20, 2009)
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Essence of substantive rights in judicial and extrajudicial

The essence of procedural due process is proceedings. It is a mistake to suppose that
embodied in the basic requirement of [1] notice and substantive law and adjective law are contradictory
[2] a real opportunity to be heard. (Vivo v. to each other or, as has often been suggested, that
PAGCOR, G.R. No. 187854, Nov. 12, 2013) enforcement of procedural rules should never be
permitted if it will result in prejudice to the
While it is true that the right to due process substantive rights of the litigants. This is not exactly
safeguards the opportunity to be heard and to true; the concept is much misunderstood. As a
submit any evidence one may have in support of matter of fact, the policy of the courts is to give
his claim or defense, where the opportunity to be effect to both kinds of law, as complementing each
heard is accorded, and the party can “present its other, in the just and speedy resolution of the
side” or “defend its interest in due course”, there is dispute between the parties. Observance of both
no denial of due process because what the law substantive and procedural rights is equally
proscribes is the lack of opportunity to be heard. guaranteed by due process, whatever the source
(Oca v Custodio, GR 199825, July 26, 2017) of such rights, be it the Constitution itself or only a
statute or a rule of court. (Tupas v. CA, G.R. No.
Publication 89571, Feb. 6, 1991)
Every agency shall file with the Office of the
National Administrative Register (ONAR) in the A party having forfeited the right to appeal cannot
University of the Philippines Law Center three (3) claim that he/she has been denied due process.
certified copies of every rule adopted by it. Rules in (Tupas v. CA, G.R. No. 89571, Feb. 6, 1991)
force on the date of effectivity of this Code which
are not filed within three (3) months from the date In a case of falsification of public documents, the
shall not thereafter be the basis of any sanction accused claimed that his constitutional rights were
against any party or persons. (Section 3 of Chapter violated when the Sandiganbayan denied his
2, Book VII of the Administrative Code of 1987) motion for new trial and motion to allow him to
present additional witnesses. The Court ruled that
These requirements of publication and filing were his right to due process was not violated. The
put in place as safeguards against abuses on the accused had 4 years to present evidence yet he
part of lawmakers and as guarantees to the only asked for the opportunity to present additional
constitutional right to due process and to evidence via a motion for reconsideration after the
information on matters of public concern and, Sandiganbayan had already admitted all the formal
therefore, require strict compliance. (Republic v. offers of evidence of the accused. Further, he failed
Pilipinas Shell, G.R. No. 173918, April 8, 2008) to present the witness through the compulsory
process of subpoena, during all the time that he
However, not all rules and regulations adopted by testified for his defense for a period of six (6)
every government agency are to be filed with the months. Moreover, his motion to present additional
UP Law Center. Only those of general or of witness was denied due to his failure to comply with
permanent character are to be filed. According to Sections 4-5 of Rule 15. In addition, the evidence
the UP Law Center’s guidelines for receiving and he seeks to present is not a newly discovered
publication of rules and regulations, interpretative evidence since it was already presented by the
regulations and those merely internal in nature, that other parties. All this points out to the conclusion
is, regulating only the personnel of the that he was given ample opportunity to be heard.
Administrative agency and not the public, need not (Escobar v. People. G.R. No. 205576, Nov. 20,
be filed with the UP Law Center. (The Board of 2017)
Trustees of the GSIS v. Velasco, G.R. No. 170463,
Feb. 2, 2011) Motion for Reconsideration
Due process is satisfied when the parties are
Late Petitions afforded fair and reasonable opportunity to explain
Rules of procedure are intended to ensure the their side of the controversy or an opportunity to
orderly administration of justice and the protection move for a reconsideration of the action or ruling
Page 140 of 568
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complained of. (Elenita S. Binay v. Office of the respondent be informed of the charges and be
Ombudsman, 213957-58, Aug. 7, 2019) given an opportunity to refute them. Even after
judgement is rendered, due process requires that
A city enacted an ordinance classifying certain the respondent not only be informed of the
areas as agricultural lands. A landowner filed an judgement but also given the opportunity to seek
application for exemption and an Order was issued reconsideration of that judgement. The opportunity
by the Secretary of Agrarian Reform, granting the to be heard can only be exercised by those who
exemption. Farmers of landowner’s landholdings have resigned or retired. The reason is obvious:
filed an MR of the Order, which was subsequently They are still alive. Even if they cease to hold public
granted by the judge, thereby revoking the first office, they can still be made aware of the
Order. However, this Order was sent to another city proceedings and actively submit pleadings.
and not to the correct address of the landowner. However, death forecloses any opportunity to be
The Court ruled that the landowner’s right to due heard. Dead respondents will never know how the
process was not violated. She was still able to file proceedings will continue. They cannot submit
her MR from the Order, albeit beyond the allowable responsive pleadings or plead innocence of beg
period to file and was still given due course. While clemency. To continue with the proceedings is a
it may be true that she was prevented from filing a violation of the right to due process. (Flores-
timely MR, it would be erroneous to conclude that Concepcion v. Castañeda, A.M. No. RTJ-15-2438
she had been completely denied her opportunity to (Resolution), Sept. 15, 2020)
be heard. In administrative proceedings,
procedural due process means that one is given Standard for Different Types of Proceedings
the opportunity to explain one’s side and the PROCEEDING STANDARD
opportunity to seek a reconsideration of the action Judicial (Ju3NO)
or ruling complained of, not only through verbal Proceedings
arguments in court but also through pleadings. 1. There must be a court or
When she filed her MR, she was able to completely tribunal clothed with
and exhaustively present her arguments. (Espiritu judicial power to hear and
determine the matter
v. Del Rosario, G.R. No. 204964. Oct. 15, 2014)
before it;
2. Jurisdiction must be
There is no denial of the right to due process if lawfully acquired over the
there was an opportunity for the parties to defend person of the defendant or
their interests in due course. Petitioner had been over the property which is
able to file a Motion for Reconsideration Ad the subject of the
Cautelam before the trial court, and later elevated proceeding;
its case before the Court of Appeals. There is no 3. The defendant must be
denial of due process if a party was given an given an opportunity to be
opportunity to be heard in a Motion for heard; and
4. Judgment must be
Reconsideration. Petitioner did not take advantage
rendered upon lawful
of the opportunities it was given to lead a hearing.
responsive pleading. It allowed the periods it was (El Banco Español – Filipino v.
given for the filing of pleadings to lapse. (Philippine Palanca, G.R. No. L-11390,
National Construction Corporation v. Asiavest March 26, 1918)
Merchant Bankers (M) Berhad, GR. No. 172301, Administrative/ (HESS-PIK)
Aug. 19, 2015) Quasi-Judicial
Proceedings 1. The right to a Hearing,
Administrative Proceeding; Dead Respondent which includes the right to
In administrative cases, the essence of procedural present one’s case and
due process is one’s right to given the opportunity submit evidence in support
to be heard. This opportunity to be heard must be thereof;
present at every single stage of proceedings. 2. The tribunal must consider
the Evidence presented;
Administrative proceedings require that the
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3. The decision must have the assistance of counsel,

something to Support if desired;
itself; 3. They shall be informed of
4. Evidence supporting the the Evidence against
finding or conclusion must them;
be Substantial; 4. They shall have the right to
5. The decision must be adduce Evidence in their
based on the evidence own behalf; and
Presented at the hearing 5. The evidence must be duly
or at least contained in the Considered by the
record and disclosed to the investigating committee or
parties affected; official designated by the
6. The tribunal or body or any school authorities to hear
of its judges must act on its and decide the case.
or his own Independent
consideration of the law
and facts of the Disciplinary cases involving
controversy, and not students need not necessarily
simply accept the views of include the right to cross
a subordinate in arriving at examination. An
a decision; administrative proceeding
7. The board or body should,
conducted to investigate
in all controversial
questions, render its students' participation in a
decision in such a manner hazing activity need not be
that the parties to the clothed with the attributes of a
proceeding can Know the judicial proceeding. Thus, it is
various issues involved, not subject to the rigorous
and the reasons for the requirements of criminal due
decision rendered. process, particularly with
(Ang Tibay v. CIR, G.R. No. L- respect to the specification of
46496, Feb. 27, 1940) the charge involved. (ADMU v.
Capulong, G.R. No. 99327,
A lack of formal hearing in the May 27, 1993)
administrative level does not Deportation (GIHO)
violate procedural due Proceedings
process. The due process 1. There should be a prior
requirement before determination by the Board
administrative bodies are not of Commissioners of the
as strict compared to judicial existence of the Ground
tribunals in that it suffices that as charged against the
a party is given a reasonable alien;
opportunity to be heard. 2. The alien should be
Informed of the specific
(Saunar v. Ermita, G.R. No.
grounds for deportation;
186502, Dec. 13, 2017) 3. A Hearing should be
Academic (WAEEC) conducted pursuant to the
Disciplinary Rules of Procedure
Proceedings 1. The students must be presented by the
informed in Writing of the Commissioner of
nature and cause of any Immigration; and
accusation against them; 4. Order of deportation
2. That they shall have the based on the
right to Answer the determination of the
charges against them with
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Commissioner of 2. That there exist special,

Immigration. humanitarian and
compelling circumstances.
Although a deportation (Rodriguez v. Presiding
proceeding does not partake Judge of RTC Manila, G.R.
of the nature of a criminal No. 157977, Feb. 27,
action, however, considering 2006)
that it is a harsh and
extraordinary administrative The grant of the bail
proceeding affecting the presupposes that the
freedom and liberty of a extraditee has already
person, the constitutional right presented evidence to prove
of such person to due process his/her right to be on bail, that
should not be denied. (Lao Gi she is no flight risk, and the
v. CA, G.R. No. 81798, Dec. trial court had already
29, 1989) exercised its sound discretion
Extradition If bail can be granted in and had already determined
Proceedings deportation cases, there is no that under the Constitution
(Granting of justification why it should not and laws in force, the
bail) also be allowed in extradition extraditee is entitled to
cases. After all, both are provisional release.
administrative proceedings (Rodriguez v. Presiding Judge
where the innocence or guilt of of RTC Manila, G.R. No.
the person detained is not in 157977, Feb. 27, 2006)
issue. (Government of
Hongkong v. Olalia, G.R. No. Thus, the cancellation of an
153675, April 19, 2007) extraditee’s bail, without prior
notice and hearing, could be
While our extradition law does considered a violation of
not provide for the grant of bail his/her right to due process
to an extraditee, however, tantamount to grave abuse of
there is no provision discretion. (Rodriguez v.
prohibiting him or her from Presiding Judge of RTC
filing a motion for bail, a right Manila, G.R. No. 157977, Feb.
to due process under the 27, 2006)
Constitution. The applicable
standard of due process, Instances when hearing is not necessary:
however, should not be the (a) When administrative agencies are exercising
same as that in criminal their quasi-legislative functions.
proceedings. (Government of (b) When administrative agencies are exercising
Hongkong v. Olalia, G.R. No. their quasi-judicial functions if temporary
153675, April 19, 2007) pending hearing.
(c) Abatement of nuisance per se.
Bail may be granted to a (d) Granting by courts of provisional remedies.
possible extraditee only upon (e) Cases of preventive suspension.
a clear and convincing (f) Removal of temporary employees in the
showing: government.
1. That he will not be a flight (g) Issuance of warrants of distraint and/or levy by
risk or a danger to the the BIR Commissioner.
community; and (h) Cancellation of the passport of a person
charged with a crime.
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(i) Suspension of a bank’s operations by the the Code and System to be implemented" simply
Monetary Board upon a prima facie finding of pertains to what cadets have to sacrifice in order to
liquidity problems in such bank. prove that they are men or women of integrity and
honor, such as the right to entertain vices and the
Due Process Standards in Administrative right to freely choose what they want to say or do.
Proceedings In the context of disciplinary investigation, it does
Due process in administrative proceedings does not contemplate a surrender of the right to due
not necessarily require a trial type of hearing. process but, at most, refers to the cadets' rights to
Neither does it require an exchange of pleadings privacy and to remain silent. (Cudia v.
between or among the parties. Due process is Superintendent of the PMA, G.R. No. 211362, Feb.
satisfied if the party who is properly notified of 24, 2015)
allegations against him or her is given an
opportunity to defend himself or herself against Publicity and Coverage
those allegations, and such defense was The right of an accused to a fair trial is not
considered by the tribunal in arriving at its own incompatible to a free press. Pervasive publicity is
independent conclusions. (Gutierrez v COA, GR. not per se prejudicial to the right of an accused to
No. 200628, Jan. 13, 2015) fair trial. The mere fact that the trial of appellant
was given a day-to-day, gavel-to-gavel coverage
Due Process Standards in Student Disciplinary does not by itself prove that the publicity so
Cases permeated the mind of the trial judge and impaired
Due process in disciplinary cases involving his impartiality. (People v. Claudio Teehankee, Jr.,
students does not entail proceedings and hearings G.R. Nos., 111206-08, Oct. 6, 1995).
similar to those prescribed for actions and
proceedings in courts of justice. The proceedings The peculiarity of the subject criminal cases is that
may be summary. Cross-examination is not an the proceedings already necessarily entail the
essential part of the investigation or hearing. The presence of hundreds of families. It cannot be
required proof in a student disciplinary action, gainsaid that the families of the 57 victims and of
which is an administrative case, is neither proof the 197 accused have as much interest, beyond
beyond reasonable doubt nor preponderance of mere curiosity, to attend or monitor the
evidence but only substantial evidence or such proceedings as those of the impleaded parties or
relevant evidence as a reasonable mind might trial participants. It bears noting at this juncture that
accept as adequate to support a conclusion. What the prosecution and the defense have listed more
is crucial is that official action must meet minimum than 200 witnesses each. The impossibility of
standards of fairness to the individual, which holding such judicial proceedings in a courtroom
generally encompass the right of adequate notice that will accommodate all the interested parties,
and a meaningful opportunity to be heard. whether private complainants or accused, is
unfortunate enough. What more if the right itself
A cadet facing dismissal from the military academy commands that a reasonable number of the
for misconduct has constitutionally protected general public be allowed to witness the
private interests (life, liberty, or property); hence, proceeding as it takes place inside the courtroom.
disciplinary proceedings conducted within the Technology tends to provide the only solution to
bounds of procedural due process is a must. For break the inherent limitations of the courtroom, to
that reason, the PMA is not immune from the satisfy the imperative of a transparent, open and
strictures of due process. Where a person's good public trial. Thus, the Court partially granted pro
name, reputation, honor, or integrity is at stake hac vice petitioners’ prayer for a live broadcast of
because of what the government is doing to him, the trial court proceedings, subject to strict
the minimal requirements of the due process guidelines. (In Re: Petition for Radio and T.V.
clause must be satisfied. Coverage of The Multiple Murder Case Against
Zaldy Ampatuan et al., A.M. No. 10-11-5-SC, June
The statement that "a cadet can be compelled to 14, 2011)
surrender some civil rights and liberties in order for
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CONSTITUTIONAL AND STATUTORY DUE Although the closure was done in good faith and for
PROCESS valid reasons, we find that ITC did not comply with
the notice requirement. While an employer is under
What is often said about statutory due process is a no obligation to conduct hearings before effecting
procedure created by law, which upholds the termination of employment due to authorized
constitutional right of a person to due process. cause, however, the law requires that it must notify
the DOLE and its employees at least one month
Dismissal of Employees before the intended date of closure. (Timber Co. v
To be sure, the Due Process Clause in Article III, Ababon, G.R. No. 164518, Jan. 25, 2006)
Sec. 1 of the Constitution embodies a system of
rights based on moral principles so deeply Preliminary Investigation
imbedded in the traditions and feelings of our The purpose of a preliminary investigation is to
people as to be deemed fundamental to a civilized secure the innocent against hasty, malicious and
society as conceived by our entire history. Due oppressive prosecution, and to protect him from an
process is that which comports with the deepest open and public accusation of crime, from the
notions of what is fair and right and just. It is a trouble, expense and anxiety of a public trial, and
constitutional restraint on the legislative as well as also to protect the State from useless and
on the executive and judicial powers of the expensive trials. The right to a preliminary
government provided by the Bill of Rights. investigation is a statutory grant, and to withhold it
would be to transgress constitutional due process.
Due process under the Labor Code, like However, in order to satisfy the due process
constitutional due process, has two aspects: clause, it is not enough that the preliminary
substantive, (i.e., the valid and authorized causes investigation is conducted in the sense of making
of employment termination under the Labor Code) sure that a transgressor shall not escape with
and procedural, (i.e., the manner of dismissal). impunity. A preliminary investigation serves not
Procedural due process requirements for dismissal only the purposes of the State. More importantly, it
are found in the Implementing Rules of P.D. 442, is a part of the guarantees of freedom and fair play,
as amended, otherwise known as the Labor Code which are birthrights of all who live in our country.
of the Philippines in Book VI, Rule I, Sec. 2, as (Salonga v. Panon, G.R. No. L-59524, Feb. 18,
amended by Department Order Nos. 9 and 10. 1985)
Breaches of these due process requirements
violate the Labor Code. Therefore, statutory due C. LEVELS OF SCRUTINY
process should be differentiated from failure to
comply with constitutional due process. 1. STRICT SCRUTINY TEST
Applying strict scrutiny, the focus is on the

Constitutional due process protects the individual
presence of compelling, rather than substantial,
from the government and assures him of his rights
governmental interest and on the absence of less
in criminal, civil or administrative proceedings;
restrictive means for achieving that interest.
while statutory due process found in the Labor
Code and Implementing Rules protects employees
In terms of judicial review of statutes or ordinances,
from being unjustly terminated without just cause
strict scrutiny refers to the standard for determining
after notice and hearing.
the quality and the amount of governmental interest
brought to justify the regulation of fundamental
Where the dismissal is for a just cause, the lack of
freedoms. Strict scrutiny is used today to test the
statutory due process should not nullify the
validity of laws dealing with the regulation of
dismissal, or render it illegal, or ineffectual.
speech, gender, or race as well as other
However, the employer should indemnify the
fundamental rights as expansion from its earlier
employee for the violation of his statutory rights.
applications to equal protection. The United States
(Agabon v. NLRC, G.R. No. 158693, Nov. 17,
Supreme Court has expanded the scope of strict
2004)
scrutiny to protect fundamental rights such as
suffrage, judicial access and interstate travel.
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(White Light Corporation v. City of Manila, G.R. No. it must be construed together with the other parts
122846, Jan. 20, 2009) and kept subservient to the general intent of the
whole enactment. (Imbong v. Ochoa, G.R. No.
2. HEIGHTENED OR INTERMEDIATE 204819, April 8, 2014)
SCRUTINY TEST
Purpose
Under intermediate review, governmental interest A vague statute is repugnant to the Constitution in
is extensively examined and the availability of less two (2) respects:
restrictive measures is considered. (White Light 1. It violates due process for failure to accord
Corporation v. City of Manila, G.R. No. 122846, persons, especially the parties targeted by
Jan. 20, 2009) it, fair notice of what conduct to avoid; and
2. It leaves law enforcers unbridled discretion
3. RATIONAL BASIS TEST
in carrying out its provisions and becomes
Using the rational basis examination, laws or an arbitrary flexing of the Government
ordinances are upheld if they rationally further a muscle. (Estrada v. Sandiganbayan, G.R.
legitimate governmental interest. (White Light No. 148560, November 19, 2001)
Corporation v. City of Manila, G.R. No. 122846,
Jan. 20, 2009) OVERBREADTH DOCTRINE
VOID FOR VAGUENESS DOCTRINE Concept

Under the overbreadth doctrine, a proper
Concept governmental purpose, constitutionally subject to
A statute or act may be said to be vague when it state regulation, may not be achieved by means
lacks comprehensible standards that men of that unnecessarily sweep its subject broadly,
common intelligence must necessarily guess at its thereby invading the area of protected freedoms.
meaning and differ in its application.
Application to Penal Statutes
The test in determining whether a criminal statute General Rule: The overbreadth and vagueness
is void for uncertainty is whether the language doctrines then have special application only to free
conveys a sufficiently definite warning as to the speech cases. They are inapplicable for testing the
proscribed conduct when measured by common validity of penal statutes.
understanding and practice. It must be stressed,
however, that the "vagueness" doctrine merely Rationale: All penal laws, like the cybercrime
requires a reasonable degree of certainty for the law, have of course an inherent chilling effect,
statute to be upheld - not absolute precision or an in terrorem effect or the fear of possible
mathematical exactitude. prosecution. But to prevent the State from
legislating criminal laws because they instill
An act will not be held invalid merely because it such kind of fear is to render the state powerless
might have been more explicit in its wordings or in addressing and penalizing socially harmful
detailed in its provisions, especially where, conduct.
because of the nature of the act, it would be
impossible to provide all the details in advance as Exceptions:
in all other statutes. (Estrada v. Sandiganbayan,
G.R. No. 148560, November 19, 2001) 1. When a penal statute is challenged as applied
2. When a penal statute encroaches upon the
freedom of speech, a facial challenge grounded
In determining whether the words used in a statute on the overbreadth and vagueness doctrine is
are vague, words must not only be taken in acceptable. (Disini v. Sec. of Justice, G.R. No.
accordance with their plain meaning alone, but also 203335, Feb. 18, 2014)
in relation to other parts of the statute. It is a rule
that every part of the statute must be interpreted
with reference to the context, that is, every part of
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AS APPLIED V. FACIAL CHALLENGE Unconstitutional

Distinguished from an as-applied challenge which Statute or act Gov't regulation of free
considers only extant facts affecting real litigants, a speech
facial invalidation is an examination of the entire
law, pinpointing its flaws and defects, not only on Lacks comprehensible Means sweep
the basis of its actual operation to the parties, but standards unnecessarily broadly
also on the assumption or prediction that its very
existence may cause others not before the court to People guess at its Not necessarily
refrain from constitutionally protected speech or meaning; differ in unclear
activities. application
General Rule: In an "as applied" challenge, the Violates due process; Invades protected
petitioner who claims a violation of his creates unbridled freedoms
constitutional right can raise any constitutional discretion
ground – absence of due process, lack of fair (Bernas, The 1987 Constitution of the Republic of
notice, lack of ascertainable standards, the Philippines, 2009)
overbreadth, or vagueness. Here, one can
challenge the constitutionality of a statute only if he C. EQUAL PROTECTION OF LAWS
asserts a violation of his own rights. It prohibits
one from assailing the constitutionality of the No person shall be deprived of life, liberty, or
statute based solely on the violation of the property without due process of law, nor shall any
rights of third persons not before the court. This person be denied the equal protection of the laws.
rule is also known as the prohibition against third- (PHIL. CONST., art. III, § 1)
party standing.
1. CONCEPT AND PURPOSE
Exception: A petitioner may for instance mount a The equal protection of the law clause merely
"facial" challenge to the constitutionality of a statute requires that all persons shall be treated alike,
even if he claims no violation of his own rights under like circumstances and conditions both as to
under the assailed statute where it involves free privileges conferred and liabilities enforced.
speech on grounds of overbreadth or
vagueness of the statute. The equal protection of the law clause is against
undue favor and individual or class privilege, as
Rationale: To counter the "chilling effect" on well as hostile discrimination or the oppression of
protected speech that comes from statutes inequality. It is not intended to prohibit legislation,
violating free speech. (Disini v. Sec. of Justice, which is limited either in the object to which it is
G.R. No. 203335, Feb. 18, 2014) directed or by territory within which is to operate. It
does not demand absolute equality among
VOID FOR VAGUENESS V. OVERBREADTH residents. (Ichong v. Hernandez, G.R. No. L-7995,
May 31, 1957)
1. Vagueness and overbreadth are distinct from
each other; a vague law must lack clarity and
Scope
precision, while an overbroad law need not.
The guarantees of the Bill of Rights are universal in
2. It is submitted that while the defect of
their application to all persons within the territorial
overbreadth as an analytical tool is applicable
jurisdiction, without regard to any differences of
only to cases involving speech, this is not so
race, color, or nationality. All natural persons, and
about vagueness.
artificial persons, only in so far as their property is
concerned, are protected by the Equal Protection
VOID FOR clause. (Smith, Bell & Co. v. Natividad, G.R. No.
OVERBREADTH
VAGUENESS 15574, Sept. 17, 1919)
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Not a Guaranty of Equality in the Application of APPLICATION

Laws
The guaranty of equal protection of the laws is not General Banking Law of 2002
a guaranty of equality in the application of the laws The General Banking Law provides a shorter
upon all citizens of the state. It is not, therefore, a period for redemption of three (3) months or earlier
requirement, in order to avoid the constitutional to juridical entities compared to the one (1) year
prohibition against inequality, that every man, redemption period given to natural persons.
woman and child should be affected alike by a However, this does not violate the equal protection
statute. Equality of operation of statutes does not clause. Equal protection permits of reasonable
mean indiscriminate operation on persons merely classification. The difference in the treatment of
as such, but on persons according to the juridical persons and natural persons was based on
circumstances surrounding them. (Victoriano v. the nature of the properties foreclosed — whether
Elizalde Rope Workers’ Union, G.R. No. L-2524, these are used as residence, for which the more
Sept. 12, 1974) liberal one-year redemption period is retained, or
used for industrial or commercial purposes, in
Guarantees Equality, Not Identity of Rights which case a shorter term is deemed necessary to
The equal protection of the law guarantees reduce the period of uncertainty in the ownership
equality, not identity of rights. The Constitution of property and enable mortgagee banks to
does not require that things which are different in dispose sooner of these acquired assets. (Zomer
fact be treated in law as though they were the Development Co. v. Special 20th Division of the
same. The equal protection clause does not forbid CA, G.R. No. 194461, Jan. 07, 2020)
discrimination as to things that are different. It does
not prohibit legislation which is limited either in the Section 6 of the Cybercrime Prevention Act
object to which it is directed or by the territory within Section 6 of the Cybercrime Prevention Act
which it is to operate. (Victoriano v. Elizalde Rope imposing a penalty one degree higher than that
Workers’ Union, G.R. No. L-2524, Sept. 12, 1974) provided in the RPC for acts committed by, through
and with the use of information and
2. REQUISITES FOR VALID communications technologies was assailed for
CLASSIFICATION violating equal protection. The Court upheld the
section and explained that Section 6 merely makes
The equal protection of the laws clause of the commission of existing crimes through the internet
Constitution allows classification. Classification in a qualifying circumstance. There exists a
law, as in the other departments of knowledge or substantial distinction between crimes committed
practice, is the grouping of things in speculation or through the use of information and
practice because they agree with one another in communications technology and similar crimes
certain particulars. committed using other means. In using the
technology in question, the offender often evades
All that is required of a valid classification is identification and is able to reach far more victims
that it be reasonable, which means that the or cause greater harm. The distinction, therefore,
classification should be: (GEES) creates a basis for higher penalties for
1. Be Germane to the purposes of the law; cybercrimes. (Disini v. Sec. of Justice, G.R. No.
2. Not limited to Existing conditions only; 203335, Feb. 18, 2014)
3. Applied Equally to all members of the same
class; and Disbursement Acceleration Program
4. Rest on Substantial distinctions which make
The DAP was challenged as “unfair as it [was]
for real differences. (Victoriano v. Elizalde Rope
Workers’ Union, G.R. No. L-2524, Sept. 12, selective” because the funds released under the
1974) DAP was not made available to all the legislators,
with some of them refusing to avail themselves of
the DAP funds, and others being unaware of the
availability of such funds. The Court held that the
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challenge based on the contravention of the Equal COMELEC, et al. G.R. Nos. 176951, 177499,
Protection Clause, which focuses on the release of 178056, April 12, 2011)
funds under the DAP to legislators, lacks factual
and legal basis. The denial of equal protection of VAWC
any law should be an issue to be raised only by RA 9262 (An Act Defining Violence Against
parties who supposedly suffer it, and, in these Women and Their Children - VAWC) is not violative
cases, such parties would be the few legislators of the equal protection clause. There is a valid
claimed to have been discriminated against in the classification. The unequal power relationship that
releases of funds under the DAP. The requirement women are more likely to be victims of violence and
was not met here. (Araullo v. Aquino III, G.R. No. the widespread gender bias and prejudice against
209287, July 1, 2014) women make for real differences justifying the
classification. The distinction is germane to the
Classification Freeze Provision purpose of the law to address violence committed
The classification freeze provision does not violate against women. The law applies to women and
the equal protection and uniformity of taxation. children who suffer violence and abuse. (Garcia v.
Even though it failed to promote fair competition Hon. Drilon, G.R. No. 179267, June 25, 2013)
among the players in the industry, the classification
freeze provision was not precipitated by a veiled RH Law
attempt or hostile attitude on the part of Congress The RH Law, in providing that the poor are to be
to unduly favor older brands. Since the provision given priority in the government's reproductive
was done in good faith and is germane to the health care program, does not violate the equal
purpose of the law, the Court cannot declare it protection clause. In fact, it is pursuant to Section
unconstitutional nor question its wisdom. (British 11, Article XIII of the Constitution which recognizes
American Tobacco v. Camacho, G.R. No. 163583, the distinct necessity to address the needs of the
Aug. 20 2009) underprivileged by providing that they be given
priority in addressing the health development of the
Cityhood Laws people. It should be noted that Section 7 of the RH
The Cityhood laws were constitutional. Based on Law prioritizes poor and marginalized couples who
the deliberations by Congress on R.A. 9009, are suffering from fertility issues and desire to have
Congress intended that those with pending children. (Imbong v. Ochoa, G.R. 204819, April 8,
cityhood bills during the 11th Congress would not 2014)
be covered by the new and higher income
requirement of P100 million imposed by RA 9009. Discounts to PWDs
The exemption clauses found in the individual The Supreme Court upheld the constitutionality of
Cityhood Laws are the express articulation of that R.A. No. 9442 or the Magna Carta for Persons with
intent to exempt respondent municipalities from the Disability granting the PWDs a 20% discount on the
coverage of RA 9009. Such Cityhood Laws are, purchase of medicine, and a tax deduction scheme
therefore, also amendments to the LGC itself. In was adopted wherein covered establishments may
the enactment of the Cityhood Laws, Congress deduct the discount granted from gross income
merely took the 16 municipalities covered thereby based on the net cost of goods sold or services
from the disadvantaged position brought about by rendered. The equal protection clause recognizes
the abrupt increase in the income requirement a valid classification, that is, a classification that
(from 20 million to 100 million) of RA 9009, has a reasonable foundation or rational basis and
acknowledging the “privilege” that they have not arbitrary. With respect to R.A. No. 9442, its
already given to those newly-converted component expressed public policy is the rehabilitation, self-
cities, which prior to the enactment of RA 9009, development and self-reliance of PWDs. Persons
were undeniably in the same footing or “class” as with disability form a class separate and distinct
the respondent municipalities. But in effect, the from the other citizens of the country. Indubitably,
Cityhood Laws granted to 33 municipalities such substantial distinction is germane and
amended RA 9009 through the exemption clauses intimately related to the purpose of the law. Hence,
found therein. (League of Cities of the Phil. et al. v. the classification and treatment accorded to the
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PWDs fully satisfy the demands of equal judges who have served at least five years and
protection. Thus, Congress may pass a law those who have served less than five years is
providing for a different treatment to persons with upheld in order to meet the requirements of proven
disability apart from the other citizens of the competence, experience, integrity, probity, and
country. (Drugstores Association of the Philippines, independence. The foregoing shows that
Inc. and Northern Luzon Drug Corporation v. substantial distinctions do exist between lower
National Council on Disability Affairs, et al., G.R. court judges with five year experience and those
No. 194561, Sept. 4, 2016) with less than five years of experience and the
classification enshrined in the assailed policy is
Elective and Appointive Officials reasonable and relevant to its legitimate purpose.
There is a substantial distinction between elective The Court, thus, rules that the questioned policy
and appointive officials. The former occupy their does not infringe on the equal protection clause as
office by virtue of the mandate of the electorate. it is based on reasonable classification intended to
They are elected to an office for a definite term and gauge the proven competence of the applicants.
may be removed therefrom only upon stringent Therefore, the said policy is valid and
conditions. On the other hand, appointive officials constitutional. (Villanueva v. JBC, G.R. No.
hold their office by virtue of their designation 211833, April 07, 2015)
thereto by an appointing authority. Some
appointive officials hold their office in a permanent Doctrine of Relative Unconstitutionality
capacity and are entitled to security of tenure while A statute valid at one time may become void at
others serve at the pleasure of the appointing another time because of altered circumstances.
authority. (Eleazar P. Quinto and Gerino A. Thus, if a statute in its practical operation becomes
Tolentino, Jr., vs. COMELEC, G.R. No. 189698, arbitrary or confiscatory, its validity, even though
Feb. 22, 2010) affirmed by a former adjudication, is open to inquiry
and investigation in the light of changed conditions.
Tax Ordinance Specific to an Entity
When the taxing ordinance was enacted, Ormoc This doctrine was invoked in a case to invalidate
Sugar Co., Inc. was the only sugar central in the RA 7653, which started as a valid measure of
City. A reasonable classification should be in terms legislative power applicable to Central Bank
applicable to future conditions as well. The taxing employees, but, with the enactment of subsequent
ordinance should not be singular and exclusive as laws exempting all rank and file employees of all
to exclude any subsequently established sugar GFIs from the Salary Standardization Law, was
central from the coverage of the tax. A rendered void on account of a violation of the equal
subsequently established sugar central cannot be protection clause. (Central Bank Employees
subject to tax because the ordinance expressly Association, Inc. v. Bangko Sentral ng Pilipinas,
points to Ormoc Sugar Company, Inc. as the entity G.R. No. 148208, Dec. 15, 2004)
to be levied upon. (Ormoc Sugar Company v.
Ormoc City, G.R. No. L-23794, Feb. 17, 1968) Suspect Classification
A suspect classification is one where distinctions
5 Years of Experience as a Lower Court Judge are made based on the most invidious bases for
as Requirement for RTC Judge classification that violate the most basic human
Consideration of experience by JBC as one factor rights, i.e., on the basis of race, national origin,
in choosing recommended appointees does not alien status, religious affiliation and, to a certain
constitute a violation of the equal protection clause. extent, sex and sexual orientation. (Serrano v.
The JBC does not discriminate when it employs Gallant, G.R. No. 167614, Mar. 24, 2009)
number of years of service to screen and
differentiate applicants from the competition. The A "suspect class" is defined as "a class saddled
number of years of service provides a relevant with such disabilities, or subjected to such a history
basis to determine proven competence which may of purposeful unequal treatment, or relegated to
be measured by experience, among other factors. such a position of political powerlessness as to
The difference in treatment between lower court command extraordinary protection from the
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majoritarian political process. (Zomer Development

Co. v. Special 20th Division of the CA, G.R. No. The intermediate scrutiny test applies when a
194461, Jan. 07, 2020) classification does not involve suspect classes or
fundamental rights, but requires heightened
Juridical entities cannot be considered a "suspect scrutiny, such as in classifications based on gender
class." Juridical entities enjoy certain advantages and legitimacy. (Spark v. Quezon City, G.R. No.
that natural persons do not, such as limited liability. 225442, Aug. 08, 2017)
The properties of juridical entities are also often
used for commercial purposes. In contrast, the c. Rational Basis Test
properties of natural persons are more often used
for residential purposes. They are also directly Under the rational basis test, a legislative
responsible for the liabilities they incur and, often, classification, to survive an equal protection
are not equipped with the same resources that challenge, must be shown to rationally further a
juridical entities may have. Juridical entities, thus, legitimate state interest. (British American Tobacco
cannot be considered a "suspect class." (Zomer v. Camacho, G.R. No. 163583, Aug. 20 2009)
Development Co. v. Special 20th Division of the
CA, G.R. No. 194461, Jan. 07, 2020) The rational basis test applies to all other subjects
not covered by the first two tests. (Spark v. Quezon
3. LEVELS OF SCRUTINY City, G.R. No. 225442, Aug. 08, 2017)
Philippine jurisprudence has developed three (3) D. RIGHT AGAINST UNREASONABLE

tests of judicial scrutiny to determine the SEARCHES AND SEIZURES
reasonableness of classifications.
The right of the people to be secure in their
a. Strict Scrutiny Test persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
The most demanding of all the three tests. Under nature and for any purpose shall be inviolable, and
the strict scrutiny test, the legislative classification no search warrant or warrant of arrest shall issue
is presumed to be unconstitutional and the except upon probable cause to be determined
government has the burden of proving that the personally by the judge after examination under
classification is necessary to achieve a compelling oath or affirmation of the complainant and the
State interest, and is the least restrictive means to witnesses he may produce, and particularly
protect such interest or the means chosen is describing the place to be searched and the
narrowly tailored to accomplish the interest. persons or things to be seized. (PHIL. CONST., art.
(Serrano v. Gallant, G.R. NO. 167614, Mar. 24, III, § 2)
2009)
Does Not Prohibit Reasonable Search and
The strict scrutiny test applies when a classification Seizure
either (i) interferes with the exercise of fundamental The Constitutional guarantee does not prohibit all
rights, including the basic liberties guaranteed forms of searches and seizures. It is only directed
under the Constitution, or (ii) burdens suspect against those that are unreasonable. Conversely,
classes. (Spark v. Quezon City, G.R. No. 225442, reasonable searches and seizures fall outside the
Aug. 08, 2017) scope of the prohibition and are not forbidden.
b. Intermediate Scrutiny Test General Rule: Searches and seizures are

normally unreasonable.
The intermediate scrutiny test requires the
• Exception: Unless authorized by a validly
government to show that the challenged
issued search warrant or warrant of arrest.
classification serves an important state interest and (Sapi v. People, G.R. No. 200370, June 7,
that the classification is at least substantially 2017)
related to serving the interest. (Serrano v. Gallant,
G.R. No. 167614, Mar. 24, 2009)
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To Whom Available: Natural & Juridical procured. (Sapi v. People, G.R. No. 200370, June
Persons; Aliens 7, 2017)
The constitutional right against unreasonable
searches and seizures is a personal right invocable No Presumption of Regularity
only by those whose rights have been infringed, or A presumption of regularity in the performance of
threatened to be infringed. (Valmonte v. Gen. De official duty is made in the context of an existing
Villa, G.R. No. 83988, September 29, 1989) rule of law or statute authorizing the performance
of an act or duty or prescribing a procedure in the
This right equally applies to both citizens and performance thereof. The presumption applies
foreigners in this country. (Chee Gan v. when nothing in the record suggests that the law
Deportation Board, G.R. No. L-10280, Sept. 30, enforcers deviated from the standard conduct of
1963) official duty required by law; where the official act
is irregular on its face, the presumption cannot
A corporation is entitled to immunity, under the 4th arise. (Carreon v. People, G.R. No. 214490, Jan.
Amendment, against unreasonable searches and 13, 2016)
seizures. A corporation is, after all, but an
association of individuals under an assumed name No presumption of regularity may be invoked in aid
and with a distinct legal entity. In organizing itself of the process when the officer undertakes to justify
as a collective body it waives no constitutional an encroachment of rights secured by the
immunities appropriate to such body. Its property Constitution. (Nala v. Barroso, G.R. No. 153087,
cannot be taken without compensation. It can only Aug. 7, 2003)
be proceeded against by due process of law.
(Bache & Co., v. Ruiz, G.R. No. L-32409, Feb. 27, There is no presumption of regularity. Normally,
1971) searches and seizures are “unreasonable” unless
there is a valid warrant issued. A liberal
To Whom Directed: The State construction in search and seizure cases is given
The constitutional proscription against unlawful in favor of the individual. (Bernas, The 1987
searches and seizures therefore applies as a Constitution of the Republic of the Philippines,
restraint directed only against the government and 2009)
its agencies tasked with the enforcement of the
law. Thus, it could only be invoked against the 1. CONCEPT OF PRIVACY
State to whom the restraint against arbitrary and
unreasonable exercise of power is imposed. the The right to privacy, or the right to be let alone, was
protection against unreasonable searches and institutionalized in the 1987 Constitution as a facet
seizures cannot be extended to acts committed by of the right protected by the guarantee against
private individuals so as to bring it within the ambit unreasonable searches and seizures. The right to
of alleged unlawful intrusion by the government. privacy exists independently of its identification
(People v. Marti, G.R. No. 81561, Jan. 18, 1991) with liberty; it is in itself fully deserving of
constitutional protection.
Purely a Judicial Question
There is no hard and fast rule in determining when Relevant to any discussion of the right to privacy is
a search and seizure is reasonable. In any given the concept known as the "Zones of Privacy."
situation, what constitutes a reasonable search is Zones of privacy are recognized and protected in
purely a judicial question, the resolution of which our laws. Within these zones, any form of intrusion
depends upon the unique and distinct factual is impermissible unless excused by law and in
circumstances. This may involve an inquiry into the accordance with customary legal process. The
purpose of the search or seizure, the presence or meticulous regard we accord to these zones arises
absence of probable cause, the manner in which not only from our conviction that the right to privacy
the search and seizure was made, the place or is a "constitutional right" and "the right most valued
thing searched, and the character of the articles by civilized men," but also from our adherence to
the Universal Declaration of Human Rights which
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mandates that, "no one shall be subjected to 1. Probable cause is present (in connection with
arbitrary interference with his privacy" and one specific offense);
"everyone has the right to the protection of the law 2. Such probable cause must be determined
against such interference or attacks." personally by the judge;
3. The judge must examine, in writing and under
oath or affirmation, the complainant and the
Two constitutional guarantees create these zones
witnesses he or she may produce;
of privacy: 4. The applicant and the witnesses testify on the
1. The right against unreasonable searches and facts personally known to them; and
seizures, which is the basis of the right to be let 5. The warrant specifically describes the place to
alone, and be searched and the things to be seized.
2. The right to privacy of communication and (People v. Mamaril, G.R. No. 171980, Oct. 6,
correspondence. 2010)
In assessing the challenge that the State has A search warrant shall not issue except upon
impermissibly intruded into these zones of privacy, probable cause in connection with one specific
a court must determine whether a person has offense to be determined personally by the judge
exhibited a reasonable expectation of privacy and, after examination under oath or affirmation of the
if so, whether that expectation has been violated by complainant and the witnesses he may produce,
unreasonable government intrusion. (Disini v. Sec. and particularly describing the place to be
of Justice, G.R. No. 203335, Feb. 18, 2014) searched and the things to be seized which may be
anywhere in the Philippines. (ROC, Rule 126, § 4)
2. CONCEPT OF A SEARCH
Search Warrant A search warrant must conform strictly to the

A search warrant is an order in writing issued in the constitutional requirements for its issuance;
name of the People of the Philippines, signed by a otherwise, it is void. (Diaz v. People, G.R. No.
judge and directed to a peace officer, commanding 188794, Sept. 2, 2015)
him to search for personal property described
a. Probable Cause
therein and bring it before the court. (ROC, Rule
126, § 1) Definition
Probable cause for a search warrant is defined as
Validity of a Search Warrant such facts and circumstances which would lead a
A search warrant shall be valid for ten (10) days reasonably discrete and prudent man to believe
from its date. Thereafter, it shall be void. (ROC, that an offense has been committed and that the
Rule 126, § 10) objects sought in connection with the offense are in
the place sought to be searched. (Laud v. People,
When Any Court May Issue Search Warrant G.R. No. 199032, Nov. 19, 2014)
In certain cases when no criminal action has yet
been filed, any court may issue a search warrant Concept
even though it has no jurisdiction over the offense A finding of probable cause needs only to rest on
allegedly committed, provided that all the evidence showing that, more likely than not, a
requirements for the issuance of such warrant are crime has been committed and that it was
present. (People v. Hon. Castillo, Sr., G.R. No. committed by the accused. Probable cause
204419, Nov. 7, 2016) demands more than bare suspicion; it requires less
than evidence which would justify conviction. The
3. REQUISITES OF A VALID SEARCH
existence depends to a large degree upon the
WARRANT finding or opinion of the judge conducting the
examination. However, the findings of the judge
The requisites for the issuance of a search warrant
should not disregard the facts before him nor run
are: (POJEWS)
counter to the clear dictates of reason. (Laud v.
People, G.R. No. 199032, Nov. 19, 2014)
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Trial Judge Determination Accorded Great

Deference by the Reviewing Court
Probability, Not Absolute or Moral Certainty Generally, a judge’s determination of probable
Probable cause is concerned with probability, not cause for the issuance of a search warrant is
absolute or even moral certainty. What is required accorded great deference by a reviewing court, so
is not proof beyond reasonable doubt but merely long as there was substantial basis for that
probable cause. (Bernas, The 1987 Constitution of determination. Substantial basis means that the
the Republic of the Philippines, 2009) questions of the examining judge brought out such
facts and circumstances as would lead a
b. Personal Determination by the Judge reasonably discreet and prudent man to believe
that an offense has been committed, and the
Trial Court Discretion objects in connection with the offense sought to be
There is no exact test for the determination of seized are in the place sought to be searched.
probable cause in the issuance of search warrants. (Diaz v. People, G.R. No. 188794, Sept. 2, 2015)
It is a matter wholly dependent on the finding of trial
judges in the process of exercising their judicial If the judge is satisfied of the existence of facts
function. They determine probable cause based on upon which the application is based or that there is
"evidence showing that, more likely than not, a probable cause to believe that they exist, he shall
crime has been committed and that it was issue the warrant, which must be substantially in
committed" by the offender. (Worldwide Web the form prescribed by these Rules. (ROC, Rule
Corporation v. People, G.R. No. 161106, Jan. 13, 126, § 6)
2014)
c. Personal Examination of the Complainant
Probing and Exhaustive Examination and the Witnesses
In determining the existence of probable cause for
the issuance of a search warrant, the examining Purpose
magistrate must make probing and exhaustive, not The intent was to ensure that a warrant is issued
merely routine or pro forma examination of the not merely on the basis of the affidavits of the
applicant and the witnesses. (Nala v. Barroso, G.R. complainant and his witnesses, but only after
No. 153087, Aug. 7, 2003) examination by the judge of the complainant and
his witnesses. (Diaz v. People, G.R. No. 188794,
Facts and Circumstances Must Be Examined in Sept. 2, 2015)
their Totality
Ultimately, in determining the existence of probable Personal Examination v. Personal
cause, the facts and circumstances must be Determination
personally examined by the judge in their totality, What the Constitution requires is for the judge to
together with a judicious recognition of the variable conduct an "examination under oath or affirmation
complications and sensibilities attending a criminal of the complainant and the witnesses he may
case. (Laud v. People, G.R. No. 199032, Nov. 19, produce," after which he determines the existence
2014) of probable cause for the issuance of the warrant.
(Diaz v. People, G.R. No. 188794, Sept. 2, 2015)
Delay in Application Does Not Negate Probable
Cause Personal examination by the judge of the
The supposed delay in the search warrant’s complainant and his witnesses is necessary to
application does not dilute the probable cause enable him to determine the existence or non-
finding made herein. The delay may be accounted existence of a probable cause. The determination
for by a witness’s fear of reprisal and natural of whether or not a probable cause exists calls for
reluctance to get involved in a criminal case. (Laud the exercise of judgment after a judicial appraisal
v. People, G.R. No. 199032, Nov. 19, 2014) of facts and should not be allowed to be delegated
in the absence of any rule to the contrary. (Bache
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and Co. v. Ruiz, G.R. No. L-32409. February 27, d. Facts Personally Known to the Applicant
1971) and the Witnesses
Purpose
The oath required must refer to the truth of the facts
Affidavits are Insufficient within the personal knowledge of the applicant or
Affidavits of the complainant and his witnesses are his witnesses, because the purpose thereof is to
insufficient to establish the factual basis for convince the committing magistrate, not the
probable cause. Personal examination by the individual making the affidavit and seeking the
judge of the applicant and his witnesses is issuance of the warrant, of the existence of
indispensable, and the examination should be probable cause. (Burgos v. Chief of Staff, G.R. No.
probing and exhaustive, not merely routinary or a L-6426, Dec. 26, 1984)
rehash of the affidavits. (Diaz v. People, G.R. No.
188794, Sept. 2, 2015) Testimony Must Not be Based on Mere Hearsay
The testimony must be within the personal
The judge must, before issuing the warrant, knowledge of the complainant or the witnesses he
personally examine in the form of searching may produce and not based on mere hearsay.
questions and answers, in writing and under oath, (Nala v. Barroso, G.R. No. 153087, Aug. 7, 2003)
the complainant and the witnesses he may produce
on facts personally known to them and attach to the Testimony Must Not be Based on Personal
record their sworn statements, together with the Belief
affidavits submitted. (ROC, Rule 126, § 5) The applicant and the witness must testify on their
personal knowledge, not personal belief. (Nala v.
Compliance is Shown by the Depositions and Barroso, G.R. No. 153087, Aug. 7, 2003)
the Transcript
Ideally, compliance with the examination e. Particularity of Description
requirement is shown by the depositions and the
Purpose
transcript. In their absence, however, a warrant
The evident purpose and intent of the requirement
may still be upheld if there is evidence in the
is to limit the things to be seized to those, and only
records that the requisite examination was made
those, particularly described in the search warrant
and probable cause was based thereon. There
– to leave the officers of the law with no discretion
must be, in the records, particular facts and
regarding what articles they should seize, to the
circumstances that were considered by the judge
end that unreasonable searches and seizures may
as sufficient to make an independent evaluation of
not be made and that abuses may not be
the existence of probable cause to justify the
committed. (People v. Go, G.R. No. 144639, Sept.
issuance of the search warrant. (Diaz v. People,
12, 2003)
G.R. No. 188794, Sept. 2, 2015)
Test of Sufficiency
A description of a place to be searched is sufficient
if the officer with the warrant can, with reasonable
effort, ascertain and identify the place intended and
distinguish it from other places in the community.
Any designation or description known to the locality
that points out the place to the exclusion of all
others, and on inquiry leads the officers unerringly
to it, satisfies the constitutional requirement. (Laud
v. People, G.R. No. 199032, Nov. 19, 2014)
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Particular Description Not Required if Goods by person upon whom the warrant is to be served. As
their Nature are Described Generally the search warrant stated that John Doe had
The search warrant must contain a particular gambling apparatus in his possession in the
description of the place to be searched and the building occupied by him at No. 124 Calle
person or thing to be seized. These provisions are Arzobispo, City of Manila, and as this John Doe
mandatory and must be strictly complied with; but was Jose Ma. Veloso, the manager of the club, the
where, by the nature of the goods to be seized, police could identify John Doe as Jose Ma. Veloso
their description must be rather generally, it is not without difficulty. (People v. Veloso, G.R. No. L-
required that a technical description be given, as 23051, Oct. 20, 1925)
this would mean that no warrant could issue.
(Alvarez v. CFI, G.R. No. L-45358, Jan. 29, 1937) John Doe Search Warrants – Exception, Not the
Rule
Technical Precision of Description Not John Doe search warrants should be the exception
Required and not the rule. The police should particularly
Technical precision of description is not required. It describe the place to be searched and the person
is only necessary that there be reasonable or things to be seized, wherever and whenever it is
particularity and certainty as to the identity of the feasible. The police should not be hindered in the
property to be searched for and seized, so that the performance of their duties, which are difficult
warrant shall not be a mere roving commission. enough of performance under the best of
Indeed, the law does not require that the things to conditions, by superficial adherence to technicality
be seized must be described in precise and minute or farfetched judicial interference. (People v.
detail as to leave no room for doubt on the part of Veloso, G.R. No. L-23051, Oct. 20, 1925)
the searching authorities. If this were the rule, it
would be virtually impossible for the applicants to Mistake in the Name of the Person Does Not
obtain a warrant as they would not know exactly Invalidate the Warrant
what kind of things to look for. Any description of A mistake in the name of the person to be searched
the place or thing to be searched that will enable does not invalidate the warrant, especially when
the officer making the search with reasonable the authorities had personal knowledge of the drug-
certainty to locate such place or thing is sufficient. related activities of the accused. In fact, a "John
(Worldwide Web Corporation v. People, G.R. No. Doe" warrant satisfies the requirements so long as
161106, Jan. 13, 2014) it contains a descriptio personae such as will
enable the officer to identify the accused. A mistake
Required Wherever and Whenever it is Feasible in the identification of the owner of the place does
The particularity of the description of the place to not invalidate the warrant provided the place to be
be searched and the things to be seized is required searched is properly described. (People v. Tiu Won
"wherever and whenever it is feasible." A search Chua, G.R. No. 149878, July 1, 2003)
warrant need not describe the items to be seized in
precise and minute detail. The warrant is valid General Warrants are Void
when it enables the police officers to readily identify A general warrant is defined as a search or arrest
the properties to be seized and leaves them with warrant that is not particular as to the person to be
no discretion regarding the articles to be seized. arrested or the property to be seized. It is one that
(Worldwide Web Corporation v. People, G.R. No. allows the seizure of one thing under a warrant
161106, Jan. 13, 2014) describing another and gives the officer executing
the warrant the discretion over which items to take.
Search Warrant for an Unnamed Party; John (Worldwide Web Corporation v. People, G.R. No.
Doe Search Warrant 161106, Jan. 13, 2014)
A warrant for the apprehension of an unnamed
party is void, except in those cases where it General warrants do not meet the requirement in
contains a descriptio personae such as will enable Art. III, Sec. 1, of the Constitution, and of Sec. 3,
the officer to identify the accused. The description Rule 126 of the Revised Rules of Court, that the
must be sufficient to indicate clearly the proper warrant should particularly describe the things to
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be seized. (Uy v. BIR, G.R. No. 129651, Oct. 20, Laboratories v. Isip, G.R. No. 163858, June 28,
2000) 2005)
General Rule: A general warrant is null and void. CONDUCT OF A SEARCH

(Nolasco v. Paño, G.R. No. L- 69803, Oct. 8, 1985).
Place to be Searched
• Exception: The search warrant is severable, What is material in determining the validity of a
and those items not particularly described search is the place stated in the warrant itself, not
may be cut off without destroying the whole what the applicants had in their thoughts, or had
warrant. (Uy v. BIR, G.R. No. 129651, Oct. 20,
represented in the proofs they submitted to the
2000)
court issuing the warrant. (People v. CA, G.R. No.
WHAT MAY BE SEARCHED 126379, June 26, 1998)
Personal Property to be Seized Time of Making Search

A search warrant may be issued for the search and The warrant must direct that it be served in the day
seizure of personal property: time, unless the affidavit asserts that the property
1. Subject of the offense; is on the person or in the place ordered to be
2. Stolen or embezzled and other proceeds, or searched, in which case a direction may be
fruits of the offense; or inserted that it be served at any time of the day or
3. Used or intended to be used as the means of night. (ROC, Rule 126, § 9)
committing an offense. (ROC, Rule 126, § 3)
Search of House, Room, or Premises to Be
Ownership Not Required, But Control or
Made in Presence of Two Witnesses
Possession
No search of a house, room, or any other premises
The above rule does not require that the property
shall be made except in the presence of the lawful
to be seized should be owned by the person
occupant thereof or any member of his family or in
against whom the search warrant is directed. It may
the absence of the latter, two witnesses of sufficient
or may not be owned by him. In fact, under
age and discretion residing in the same locality.
subsection [2] of the above-quoted Section 2, one
(ROC, Rule 126, § 3)
of the properties that may be seized is stolen
property. Necessarily, stolen property must be
This requirement is mandatory to ensure regularity
owned by one other than the person in whose
in the execution of the search warrant. The Rules
possession it may be at the time of the search and
of Court clearly and explicitly establishes a
seizure. Ownership, therefore, is of no
hierarchy among the witnesses in whose presence
consequence, and it is sufficient that the person
the search of the premises must be conducted.
against whom the warrant is directed has control or
Thus, Section 8, Rule 126 provides that the search
possession of the property sought to be seized.
should be witnessed by “two witnesses of sufficient
(Burgos v. Chief of Staff, G.R. No. L-6426, Dec. 26,
age and discretion residing in the same locality”
1984)
only in the absence of either the lawful occupant of
the premises or any member of his family (People
Only Those Things Particularly Described in
v. Go, G.R. No. 144639, Sept. 12, 2003)
the Search Warrant
The officers of the law are to seize only those
“Knock and Announce” Principle in the Service
things particularly described in the search warrant.
of a Search Warrant
A search warrant is not a sweeping authority
Police officers are obliged to give notice, show their
empowering a raiding party to undertake a fishing
authority, and demand that they be allowed entry.
expedition to seize and confiscate any and all kinds
They may only break open any outer or inner door
of evidence or articles relating to a crime. The
or window of a house to execute the search warrant
search is limited in scope so as not to be general
if, after such notice and demand, such officers are
or explanatory. Nothing is left to the discretion of
refused entry to the place of directed search. This
the officer executing the warrant. (United
is known as the “knock and announce” principle
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which is embodied in Anglo-American Law. The and authority, may break open any outer or inner
method of entry of an officer into a dwelling and the door or window of a house or any part of a house
presence or absence of such notice are as or anything therein to execute the warrant or
important considerations in assessing whether liberate himself or any person lawfully aiding him
subsequent entry to search and/or arrest is when unlawfully detained therein. (ROC, Rule 126,
constitutionally reasonable. (People v. Huang Zhen § 7)
Hua, G.R. No. 139301, Sept. 29, 2004)
The police authorities’ claim that they had to use
Unannounced Intrusion When Permissible some force in order to gain entry cannot be
Unannounced intrusion into the premises is doubted. The occupants of the house, especially
permissible when: accused-appellant, refused to open the door
1. A party whose premises or is entitled to the despite the fact that the searching party knocked
possession thereof refuses, upon demand, to on the door several times. Furthermore, the agents
open it; saw the suspicious movements of the people inside
2. When such person in the premises already the house. These circumstances justified the
knew of the identity of the officers and of their searching party's forcible entry into the house,
authority and persons;
founded as it is on the apprehension that the
3. When the officers are justified in the honest
belief that there is an imminent peril to life or execution of their mission would be frustrated
limb; and unless they do so. (People v. Salanguit, G.R. No.
4. When those in the premises, aware of the 133254-55, April 19, 2001)
presence of someone outside (because, for
example, there has been a knock at the door), 4. WARRANTLESS SEARCHES
are then engaged in activity which justifies the
officers to believe that an escape or the There are exceptional circumstances when
destruction of evidence is being attempted. searches are reasonable even when warrantless.
There are recognized instances of permissible
Suspects have no constitutional right to destroy warrantless searches laid down in jurisprudence.
evidence or dispose of evidence. However, the (Sapi v. People, G.R. No. 200370, June 7, 2017)
exceptions above are not exclusive or conclusive.
At times, without the benefit of hindsight and Warrantless searches are allowable in the
ordinarily on the spur of the moment, the officer following circumstances: (WIPE MS CACP)
must decide whether or not to make an 1. Waiver of right
unannounced intrusion into the premises. Although 2. Search Incidental to a lawful arrest
a search and seizure of a dwelling might be 3. Seizure of evidence in Plain view
constitutionally defective, if the police officers’ entry 4. During exigent and Emergency
was without prior announcement, law enforcement circumstances
5. Search of a Moving vehicle
interest may also establish the reasonableness of
6. Stop and frisk rule (Terry Search)
an unannounced entry. 7. Customs search
8. Airport searches
Indeed, there is no formula for the determination of 9. Checkpoint Search
reasonableness. Each case is to be decided on its 10. Warrantless search by a Private individual
own facts and circumstances. In determining the [Note: This is found in Sec. 5, Rule 113 of the
lawfulness of an unallowed entry and the existence Rules of Court where a private person may
of probable cause, the courts are concerned only arrest a person without a warrant, and in turn
with what the officers had reason to believe and the such private individual may validly conduct a
time of the entry. (People v. Huang Zhen Hua, G.R. search incidental to a lawful arrest] (People v.
Aruta, G.R. No. 120915, April 3, 1998)
No. 139301, Sept. 29, 2004)
a. Waiver of Right
When Forcible Entry Justified
The officer, if refused admittance to the place of Requisites
directed search after giving notice of his purpose
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There is an effective waiver of rights against such waivers are not to be presumed. (Sapi v.
unreasonable searches and seizures if the People, G.R. No. 200370, June 7, 2017)
following requisites are present: (EKI)
1. It must appear that the rights Exist; Invalid Waiver Under RA 10951
2. The person involved had Knowledge, actual or RA No. 10591 authorizes warrantless inspections
constructive, of the existence of such right; of houses, which are unreasonable and, therefore,
3. Said person had an actual Intention to require a search warrant. Signing the Consent of
relinquish the right. (People v. Tudtud, G.R. No. Voluntary Presentation for Inspection in the pro
144037, Sept. 26, 2003)
forma Individual Application for New Firearm
Who May Waive Registration cannot be considered a valid waiver of
The constitutional immunity from unreasonable the right against unreasonable searches under
searches and seizures, being personal one, cannot Article III, Section 2 of the Constitution. There is a
be waived by anyone except: legitimate, almost absolute, expectation of privacy
1. The person whose rights are invaded; or in one's residence. The inspection contemplated
2. One who is expressly authorized to do so in his may only be done with a search warrant. Therefore,
or her behalf. (People v. Damaso, G.R. No. the signing of the Consent of Voluntary
93516, Aug. 12, 1992) Presentation for Inspection is violative of the
protection against unreasonable searches and
Prosecution Must Prove the Waiver with Clear seizures. (Acosta v. Ochoa, G.R. Nos. 211559,
and Convincing Evidence 211567, 212570 & 215634, Oct. 15, 2019)
Silence or lack of resistance can hardly be
considered as consent to the warrantless search. b. Search Incidental to a Lawful Arrest
Although the right against unreasonable searches
and seizures may be surrendered through a valid A person lawfully arrested may be searched for
waiver, the prosecution must prove that the waiver dangerous weapons or anything which may have
was executed with clear and convincing evidence. been used or constitute proof in the commission of
Consent to a warrantless search and seizure must an offense without a search warrant. (ROC, Rule
be unequivocal, specific, intelligently given and 126, § 13)
unattended by duress or coercion. (Sapi v. People,
G.R. No. 200370, June 7, 2017) Purpose
The purpose of allowing a warrantless search and
Determined by the Totality of the seizure incident to a lawful arrest is to protect the
Circumstances arresting officer from being harmed by the person
The validity of a consented warrantless search is arrested, who might be armed with a concealed
determined by the totality of the circumstances. weapon, and to prevent the latter from destroying
This may involve an inquiry into the environment in evidence within reach. It is therefore a reasonable
which the consent was given such as the presence exercise of the State’s police power to protect (1)
of coercive police procedures. (Sapi v. People, law enforcers from the injury that may be inflicted
G.R. No. 200370, June 7, 2017) on them by a person they have lawfully arrested;
and (2) evidence from being destroyed by the
Waiver Not Presumed arrestee. It seeks to ensure the safety of the
Mere passive conformity or silence to the arresting officers and the integrity of the evidence
warrantless search is only an implied under the control and within the reach of the
acquiescence, which amounts to no consent at all. arrestee. (People v. Calantiao, G.R. No. 203984,
Silence or lack of aggressive objection is a natural June 18, 2014)
reaction to a coercive environment brought about
by the police officer's excessive intrusion into his
private space. The prosecution and the police carry
the burden of showing that the waiver of a
constitutional right is one which is knowing, Requisites
intelligent, and free from any coercion. In all cases,
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Test for a valid warrantless search incidental to a area searched could not be considered as one
lawful arrest: (LCC) within his immediate control that he could take any
1. The arrest must be Lawful; weapon or destroy any evidence against him.
2. The item to be searched was within the (People v. Calantiao, G.R. No. 203984, June 18,
arrestee’s Custody or area of immediate 2014)
control; and
3. The search was Contemporaneous with the The better and established rule is a strict
arrest.
application of the exception provided in Rule 126,
sec. 12 [now Sec. 13] and that is to absolutely limit
Lawful Arrest Must Precede the Search
a warrantless search of a person who is lawfully
General Rule: A search incidental to a lawful arrest
requires that there must first be a lawful arrest arrested to his or her person at the time of and
before a search is made. Otherwise stated, a lawful incident to his or her arrest and to "dangerous
arrest must precede the search; the process weapons or anything which may be used as proof
cannot be reversed. (Sapi v. People, G.R. No. of the commission of the offense." Such
200370, June 7, 2017) warrantless search obviously cannot be made in a
place other than the place of arrest.” (Nolasco v.
• Exception: A search substantially Pano, G.R. No. L- 69803, Jan. 30, 1987)
contemporaneous with an arrest can precede
the arrest if the police has probable cause to
What May Be Searched
make the arrest at the outset of the search.
(People v. Mariacos, G.R. No. 188611, June Assuming a valid arrest, the arresting officer may
16, 2010) search the person of the arrestee and the area
within which the latter may reach for a weapon or
Scope of Warrantless Search for evidence to destroy, and seize any money or
The scope of allowable warrantless search is property found which was:
limited to the area within which the person arrested 1. Used in the commission of the crime, or
could reach for a weapon or reach for evidence to 2. The fruit of the crime, or
destroy it. (Chimel v. California, 395 U.S. 752, June 3. That which may be used as evidence, or
23, 1969) 4. Which might furnish the arrestee with the
means of escaping or committing violence.
(People v. Comprado, G.R. No. 213225, April 4,
Moreover, in lawful arrests, it becomes both the 2018)
duty and the right of the apprehending officers to
conduct a warrantless search not only on the c. Seizure of Evidence in Plain View
person of the suspect, but also in the permissible
area within the latter’s reach. Otherwise stated, a Concept
valid arrest allows the seizure of evidence or Objects in the "plain view" of an officer who has the
dangerous weapons either on the person of the right to be in the position to have that view are
one arrested or within the area of his immediate subject to seizure without a warrant.
control. The phrase "within the area of his
immediate control" means the area from within Requisites
which he might gain possession of a weapon or The following elements must be present before the
destructible evidence. A gun on a table or in a doctrine may be applied: (VIAJ)
drawer in front of one who is arrested can be as 1. A prior Valid intention based on the valid
dangerous to the arresting officer as one concealed warrantless arrest in which the police are legally
in the clothing of the person arrested. (People v. present in the pursuit of their official duties;
2. The evidence was Inadvertently discovered by
Calantiao, G.R. No. 203984, June 18, 2014)
the police who have the right to be where they
are;
In Valeroso, however, the Court held that the 3. The evidence must be immediately Apparent;
evidence searched and seized from him could not and
be used against him because they were discovered 4. "Plain view" Justified were seizure of evidence
in a room, different from where he was being without further search. (People v. Compacion,
detained, and was in a locked cabinet. Thus, the G.R. No. 124442, July 20, 2001)
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the contents are in plain view and may be

Immediately Apparent Requirement; Probable seized.
Cause
The immediate requirement means that the In other words, if the package is such that an
executing officer can, at any time of discovery of experienced observer could infer from its
the object or the facts therein available to him, appearance that it contains the prohibited article,
determine probable cause of the object’s then the article is deemed in plain view. It must be
incriminating evidence. Probable cause must be immediately apparent to the police that the items
the direct result of the officer’s instantaneous that they observe may be evidence of a crime,
sensory perception of the object. The immediately contraband or otherwise subject to seizure.
apparent test does not require an unduly high (Caballes v. CA, G.R. No. 136292, Jan. 15, 2002)
degree of certainty as to the incriminating character
of the evidence. (United Laboratories v. Isip, G.R. Plain View Doctrine Not Applicable When
No. 163858, June 28, 2005) Evidence Discovered in the Course of a Search
The seizure of the passports, bankbooks, checks,
Exception to the Inadmissibility of Evidence typewriter, check writer, dry seals and stamp pads
Obtained in a Warrantless Search Incident to a and other assorted documents does not fall within
Lawful Arrest Outside the Suspect’s Person the “plain view” exception. The assertions of the
and Premises under his Immediate Control police officers that said objects were “inadvertently”
The Plain View Doctrine is actually the exception to seized within their “plain view” are mere legal
the inadmissibility of evidence obtained in a conclusions which are not supported by any clear
warrantless search incident to a lawful arrest narration of the factual circumstances leading to
outside the suspect’s person and premises under their discovery. The supposed illegal character of
his immediate control. It serves to supplement the the items claimed to have been seized within the
prior justification – whether it be a warrant for “plain view” of the policemen was not readily and
another object, hot pursuit, search incident to lawful immediately apparent. Rather, the suspicions of
arrest, or some other legitimate reason for being the policemen appear to have been aroused by the
present unconnected with a search directed presence of the numerous passports and
against the accused – and permits the warrantless immigration documents which they discovered in
seizure. (People v. Calantiao, G.R. No. 203984, the course of their search. (People v. Go, G.R. No.
June 18, 2014) 144639, Sept. 12, 2003)
d. Exigent and Emergency Circumstances

Applied Where a Police Officer is Not Searching
for Evidence In the event of a coup d’etat conducted by the
The doctrine is usually applied where a police “Reform the Armed Forces Movement Soldiers of
officer is not searching for evidence against the the Filipino People”, the EUROCAR Building was
accused, but nonetheless inadvertently comes put under surveillance pursuant to an intelligence
across an incriminating object. (Valeroso v. CA, report that it housed large quantities of ammunition.
G.R. No. 164815, Sept. 3, 2009) During the operations, the car of the surveillance
team was fired upon by 5 persons from a crowd
Object Seized Inside a Closed Package within the vicinity of the EUROCAR Building. The
General Rule: An object is in plain view if the team proceeded to the building without a warrant
object itself is plainly exposed to sight. Where the and was able to seize de Gracia and plenty of
object seized was inside a closed package, the explosives and ammunition. The SC held that the
object itself is not in plain view and therefore cannot arrests were impelled by the exigencies of the
be seized without a warrant. situation, which concerned the very survival of
society and the government. In this case, the
• Exception: However, if the package military operatives had reasonable ground to
proclaims its contents, whether by its believe that a crime was being committed. The
distinctive configuration, its transparency, or if
team had no opportunity to apply for a search
its contents are obvious to an observer, then
warrant from the courts, as the court with
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jurisdiction, at that time, was closed due to Extensive Search – Probable Cause Required
disorder. (People v. De Gracia, G.R. Nos. 102009- On the other hand, extensive searches are
10, July 6, 1994). permissible only when they are founded upon
probable cause. Any evidence obtained will be
e. Search of a Moving Vehicle subject to the exclusionary principle under the
Constitution. (Sapi v. People, G.R. No. 200370,
Concept June 7, 2017)
The rules governing searches and seizures have
been liberalized when the object of a search is a That the object of a warrantless search is allegedly
vehicle for practical purposes. Police officers inside a moving vehicle does not justify an
cannot be expected to appear before a judge and extensive search absent probable cause.
apply for a search warrant when time is of the Moreover, law enforcers cannot act solely on the
essence considering the efficiency of vehicles in basis of confidential or tipped information. A tip is
facilitating transactions involving contraband or still hearsay no matter how reliable it may be. It is
dangerous articles. However, the inherent mobility not sufficient to constitute probable cause in the
of vehicles cannot justify all kinds of searches. Law absence of any other circumstance that will arouse
enforcers must act on the basis of probable cause. suspicion. (Sapi v. People, G.R. No. 200370, June
(Sapi v. People, G.R. No. 200370, June 7, 2017) 7, 2017)
Rationale When a vehicle is stopped and subjected to an

Securing a search warrant is not practicable to extensive search, such a warrantless search has
secure a warrant because the vehicle can be been held to be valid only as long as the officers
quickly moved out of the locality or jurisdiction in conducting the search have reasonable or
which the warrant must be sought. (Papa v. Mago, probable cause to believe before the search that
G.R. No. L-27360, Feb. 28, 1968) they will find the instrumentality or evidence
pertaining to a crime, in the vehicle to be searched.
Visual Search – No Probable Cause Required (Macad v. People, G.R. No. 227366, Aug. 1, 2018)
Thus, routinary and indiscriminate searches of
moving vehicles are allowed if they are limited to a A confidential informer tipped the police that a
visual search. This holds especially true when the Gemini car was going to deliver shabu. When they
object of the search is a public vehicle where stopped the car, they saw a gun tucked in Tuazon’s
individuals have a reasonably reduced expectation waist. He did not have any documents, which
of privacy. (Sapi v. People, G.R. No. 200370, June strengthened the police’s suspicion. After he was
7, 2017) told to step out of the car, they found plastic
sachets containing shabu on the driver’s seat.
A search of a moving vehicle may either be a mere These circumstances are sufficient to establish
routine inspection or an extensive search. The probable cause for the warrantless search of the
search in a routine inspection is limited to the car. Hence, the sachets of shabu may be admitted
following instances: as evidence. (People v. Tuazon, G.R. No. 175783,
1. Where the officer merely draws aside the Sept. 3, 2007)
curtain of a vacant vehicle which is parked on
the public fair grounds; f. Stop and Frisk Rule (Terry Search)
2. Simply looks into a vehicle;
3. Flashes a light therein without opening the car's Concept
doors;
A "stop and frisk" search is the act of a police officer
4. Where the occupants are not subjected to a
physical or body search; to stop a citizen on the street, interrogate him, and
5. Where the inspection of the vehicles is limited pat him for weapon(s) or contraband. (Sapi v.
to a visual search or visual inspection; and People, G.R. No. 200370, June 7, 2017)
6. Where the routine check is conducted in a fixed
area. (Macad v. People, G.R. No. 227366, Aug. Requisites (URIRA)
1, 2018) 1. Police Officer observes Unusual conduct.
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2. Reasonable suspicion that person is engaged Probable Cause Not Required; But Genuine
in some type of criminal activity in light of Reason Based on Experience
experience. Law enforcers do not have unbridled discretion in
3. Identifies himself as a policeman upon conducting "stop and frisk" searches. While
approach. probable cause is not required, a "stop and frisk"
4. Makes Reasonable inquiries.
search cannot be validated on the basis of a
5. There is reasonable fear for one’s own, or
others’ safety. Thus, he is entitled to conduct a suspicion or hunch. Law enforcers must have a
limited search of the outer clothing of such genuine reason to believe, based on their
persons in an Attempt to discover weapons experience and the particular circumstances of
that might be used for assault. (Terry v. Ohio, each case, that criminal activity may be afoot.
392 U.S. 1, June 10, 1968) Reliance on one (1) suspicious activity alone, or
none at all, cannot produce a reasonable search.
Scope (Sapi v. People, G.R. No. 200370, June 7, 2017)
The allowable scope of a "stop and frisk" search is
limited to a protective search of outer clothing for g. Customs Search
weapons. (Sapi v. People, G.R. No. 200370, June
7, 2017) The Tariff and Customs Code of 1957 authorizes
persons having police authority under Section
Totality of Suspicious Circumstances; At Least 2203 of the Tariff and Customs Code to enter, pass
2 or More Suspicious Circumstances through or search any land, inclosure, warehouse,
For a “stop and frisk” search to be valid, it must be store or building, not being a dwelling house; and
supported by evidence such that the totality of the also to inspect, search and examine any vessel or
suspicious circumstances observed by the aircraft and any trunk, package, or envelope or any
arresting officer led him/her to believe that an person on board, or to stop and search and
accused was committing an illicit act. (Telen v. examine any vehicle, beast or person suspected of
People, G.R. 228107, Oct. 9, 2019) holding or conveying any dutiable or prohibited
article introduced into the Philippines contrary to
To sustain the validity of a stop and frisk search, law, without mentioning the need of a search
the arresting officer should have personally warrant in said cases. But in the search of a
observed two (2) or more suspicious dwelling house, the Code provides that said
circumstances, the totality of which would then dwelling house may be entered and searched only
create a reasonable inference of criminal activity to upon warrant issued by a judge or justice of the
compel the arresting officer to investigate further. peace. Thus, except in the case of the search of a
(Manibog vs People, G.R. No. 211214, March 20, dwelling house, persons exercising police authority
2019) under the customs law may effect search and
seizure without a search warrant in the
The police officer must observe at least 2 or more enforcement of customs laws. (Papa v. Mago, G.R.
suspicious circumstances. In this case, the No. L-27360, Feb. 28, 1968)
prosecution failed to prove the legality of the
warrantless arrest and the bare assertion that they Requisites
caught X in flagrante delicto of illegal possession of Customs searches are allowed when persons
a hand grenade is insufficient to cloth the police exercising police authority under the customs law
officers with the authority to restrain X’s liberty. effect search and seizure in the enforcement of
PO3 Y suspicion based on the sight of a metal customs laws. To be valid, the requirements are:
object is not sufficient to defeat X’s constitutional (ACH)
right to privacy. More importantly, the prosecution 1. The person conducting the search is exercising
in this case failed to prove the existence of a hand police Authority under customs law;
grenade as no evidence was proffered on its chain 2. The search was for the enforcement of
Customs law; and
custody. (Telen v. People, G.R. 228107, Oct. 9,
3. The place searched is not a dwelling place or
2019) House. (Dela Cruz v People of the Philippines,
G.R. No. 209387, Jan. 11, 2016)
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Such power to search includes removal of any false

CUSTOMS MODERNIZATION AND TARIFF ACT bottom, partition, bulkhead, or any other
obstruction for the purpose of uncovering any
Persons Exercising Police Authority concealed dutiable or forfeitable goods.
The following persons are authorized to effect
search, seizure, and arrest: The proceeding herein authorized shall not give
1. Officials of the Bureau, District Collectors, rise to any claim for damage caused to the goods,
Deputy District Collectors, police officers,
vessel or aircraft, unless there is gross negligence
agents, inspectors and guards of the Bureau;
or abuse of authority in the exercise thereof.
2. Upon authorization of the Commissioner,
officers and members of the Armed Forces of (Customs Modernization And Tariff Act, § 221)
the Philippines (AFP) and national law
enforcement agencies; and Authority to Search Vehicles, Other Carriers,
3. Officials of the BIR on all cases falling within the Persons and Animals
regular performance of their duties, when Upon reasonable cause, any person exercising
payment of internal revenue taxes is involved. police authority may open and examine any box,
(Customs Modernization And Tariff Act, § 214) trunk, envelope, or other container for purposes of
determining the presence of dutiable or prohibited
Authority to Enter Properties goods. This authority includes the search of
Any person exercising police authority may, at any receptacles used for the transport of human
time, enter, pass through, and search any land, remains and dead animals. Such authority likewise
enclosure, warehouse, store, building or structure includes the power to stop, search, and examine
not principally used as a dwelling house. any vehicle or carrier, person or animal suspected
of holding or conveying dutiable or prohibited
When a security personnel or any other employee goods. (Customs Modernization And Tariff Act, §
lives in the warehouse, store, or any building, 222)
structure or enclosure that is used for storage of
goods, it shall not be considered as a dwelling Authority to Search Persons Arriving From
house for purposes of this Act. (Customs Foreign Countries
Modernization And Tariff Act, § 219) Upon reasonable cause, travelers arriving from
foreign countries may be subjected to search and
Authority to Search Dwelling House detention by the customs officers. The dignity of
A dwelling house may be entered and searched the person under search and detention shall be
only upon warrant issued by a Judge of a respected at all times. Female inspectors may be
competent court, the sworn application thereon employed for the examination and search of
showing probable cause and particularly persons of their own sex. (Customs Modernization
describing the place to be searched and the goods And Tariff Act, § 223)
to be seized. (Customs Modernization And Tariff
Act, § 220) h. Airport Searches
Authority to Search Vessels or Aircrafts and The search was made pursuant to routine airport
Persons or Goods Conveyed Therein security procedure, which is allowed under Section
Any person exercising police authority under this 9 of Republic Act No. 6235 reading as follows:
Act may board, inspect, search and examine a
vessel or aircraft and any container, trunk, SEC. 9. Every ticket issued to a passenger by the
package, box or envelope found on board, and airline or air carrier concerned shall contain among
physically search and examine any person others the following condition printed thereon:
thereon. In case of any probable violation of this "Holder hereof and his hand-carried luggage(s) are
Act, the person exercising police authority may subject to search for, and seizure of, prohibited
seize the goods, vessel, aircraft, or any part materials or substances. Holder refusing to be
thereof. searched shall not be allowed to board the aircraft,"
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which shall constitute a part of the contract

between the passenger and the air carrier. Requisites (No body LAV)
1. Passengers Not subjected to Body search;
This constitutes another exception to the 2. Limited to visual search
proscription against warrantless searches and 3. Abnormal times; and
seizures. As admitted by SUSAN and shown in 4. Vehicle not searched. (Valmonte v. Gen. De
Annex "D" of her Brief, the afore-quoted provision Villa, G.R. No. 83988, September 29, 1989)
is stated in the "Notice to All Passengers" located
at the final security checkpoint at the departure Limited to a Visual Search; Vehicle and Body
lounge. From the said provision, it is clear that the Search Not Allowed
search, unlike in the Terry search, is not limited to The extent of routine inspections must be limited to
weapons. Passengers are also subject to search a visual search. Routine inspections do not give
for prohibited materials or substances. law enforcers carte blanche to perform warrantless
searches. (Sapi v. People, G.R. No. 200370, June
In this case, after the metal detector alarmed 7, 2017)
SUSAN consented to be frisked, which resulted in
the discovery of packages on her body. It was too For as long as the vehicle is neither searched nor
late in the day for her to refuse to be further its occupants subjected to a body search, and the
searched because the discovery of the packages inspection of the vehicle is limited to a visual
whose contents felt like rice granules, coupled by search, said routine checks cannot be regarded as
her apprehensiveness and her obviously false violative of an individual's right against
statement that the packages contained only unreasonable searches. Thus, a search where an
money, aroused the suspicion of the frisker that officer merely draws aside the curtain of a vacant
SUSAN was hiding something illegal. It must be vehicle which is parked on the public fair grounds,
repeated that R.A. No. 6235 authorizes search for or simply looks into a vehicle, or flashes a light
prohibited materials or substances. To limit the therein is not unreasonable. (Sapi v. People, G.R.
action of the airport security personnel to simply No. 200370, June 7, 2017)
refusing her entry into the aircraft and sending her
home (as suggested by appellant), and thereby Extensive Search Allowed When Probable
depriving them of "the ability and facility to act Cause Present
accordingly, including to further search without However, an extensive search may be conducted
warrant, in light of such circumstances, would be to on a vehicle at a checkpoint when law enforcers
sanction impotence and ineffectivity in law have probable cause to believe that the vehicle's
enforcement, to the detriment of society." Thus, the passengers committed a crime or when the vehicle
strip search in the ladies’ room was justified under contains instruments of an offense. (Sapi v.
the circumstances. (People v. Canton, G.R. No. People, G.R. No. 200370, June 7, 2017)
148825, Dec. 27, 2002)
Exclusive reliance on information tipped by
i. Checkpoint Search
informants goes against the very nature of
Concept probable cause. A single hint hardly amounts to the
A checkpoint search is a variant of a search of a existence of such facts and circumstances which
moving vehicle. Checkpoints per se are not invalid. would lead a reasonably discreet and prudent man
They are allowed in exceptional circumstances to to believe that an offense has been committed and
protect the lives of individuals and ensure their that the objects sought in connection with the
safety. They are also sanctioned in cases where offense are in the place to be searched. The finding
the government's survival is in danger. Considering of should be premised on more than just the initial
that routine checkpoints intrude on a motorist's information relayed by assets. It was the
right to 'free passage’ to a certain extent, they must confluence of initial tips and a myriad of other
be conducted in a way least intrusive to motorists. occurrences that ultimately sustained probable
(Sapi v. People, G.R. No. 200370, June 7, 2017) cause. In this case, a radio message cannot be the
sole basis of the finding of probable cause to
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warrant the extensive search of the vehicle of the (Saluday v. People, G.R. No. 215305, April 3,
accuse on the police checkpoint. (People v. 2018)
Yanson, G.R. No. 238453, July 31, 2019)
Prior to Entry
j. Warrantless Search by a Private Individual Prior to entry, passengers and their bags and
luggages can be subjected to a routine inspection
If the search is made at the behest or initiative of akin to airport and seaport security protocol. In this
the proprietor of a private establishment for its own regard, metal detectors and x-ray scanning
and private purposes, and without the intervention machines can be installed at bus terminals.
of police authorities, the right against unreasonable Passengers can also be frisked. In lieu of electronic
search and seizure cannot be invoked for only the scanners, passengers can be required instead to
act of a private individual, not the law enforcers, is open their bags and luggages for inspection, which
involved. In sum, the protection against inspection must be made in the passenger's
unreasonable searches and seizures cannot be presence. Should the passenger object, he or she
extended to acts committed by private individuals can validly be refused entry into the terminal.
so as to bring it within the ambit of alleged unlawful
intrusion by the government. (People v. Marti, G.R. While in Transit
No. 81561, Jan. 18, 1991) While in transit, a bus can still be searched by
government agents or the security personnel of the
REASONABLE SEARCH V. bus owner in the following three instances: (IPC)
WARRANTLESS SEARCH 1. Upon receipt of information that a passenger
carries contraband or Illegal articles, the bus
A reasonable search, on the one hand, and a where the passenger is aboard can be stopped
warrantless search, on the other, are mutually en route to allow for an inspection of the person
exclusive. While both State intrusions are valid and his or her effects. This is no different from
even without a warrant, the underlying reasons for an airplane that is forced to land upon receipt of
the absence of a warrant are different. (Saluday v. information about the contraband or illegal
People, G.R. No. 215305, April 3, 2018) articles carried by a passenger onboard.
2. Whenever a bus picks passengers en route, the
Prospective passenger can be frisked and his
Reasonable Search
or her bag or luggage be subjected to the same
A reasonable search arises from a reduced routine inspection by government agents or
expectation of privacy, for which reason Section 2, private security personnel as though the person
Article III of the Constitution finds no application. boarded the bus at the terminal. This is because
Examples include searches done at airports, unlike an airplane, a bus is able to stop and pick
seaports, bus terminals, malls, and similar public passengers along the way, making it possible
places. (Saluday v. People, G.R. No. 215305, April for these passengers to evade the routine
3, 2018) search at the bus terminal.
3. A bus can be flagged down at designated
Warrantless Search military or police Checkpoints where State
agents can board the vehicle for a routine
In contrast, a warrantless search is presumably an
inspection of the passengers and their bags or
"unreasonable search," but for reasons of luggages.
practicality, a search warrant can be dispensed
with. Examples include search incidental to a lawful Requisites
arrest, search of evidence in plain view, consented In both situations (prior to entry and while in
search, and extensive search of a private moving transit), the inspection of passengers and their
vehicle. (Saluday v. People, G.R. No. 215305, April effects prior to entry at the bus terminal and the
3, 2018) search of the bus while in transit must also satisfy
the following conditions to qualify as a valid
reasonable search: (LIDSE)
1. First, as to the manner of the search, it must be
REASONABLE SEARCH: BUS SEARCHES the Least Intrusive and must uphold the dignity
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of the person or persons being searched, of reasonable security regulations to safeguard the
minimizing, if not altogether eradicating, any passengers passing through ports or terminals.
cause for public embarrassment, humiliation or Any perceived curtailment of liberty due to the
ridicule. presentation of person and effects for port security
2. Second, neither can the search result from any measures is a permissible intrusion to privacy
Discriminatory motive such as insidious
when measured against the possible harm to
profiling, stereotyping and other similar motives.
In all instances, the fundamental rights of society caused by lawless persons.
vulnerable identities, persons with disabilities,
children and other similar groups should be Thus, when the results of the x-ray scan revealed
protected. the existence of firearms in the bag, the port
3. Third, as to the purpose of the search, it must authorities have probable cause to conduct a
be confined to ensuring public Safety. search of the person’s bag. (Dela Cruz v People of
4. Fourth, as to the Evidence seized from the the Philippines, GR 209387, Jan. 11, 2016)
reasonable search, courts must be convinced
that precautionary measures were in place to 5. CONCEPT OF AN ARREST
ensure that no evidence was planted against
the accused. Definition
Arrest is the taking of a person into custody in order
Applies to Other Vehicles that he may be bound to answer for the
Aside from public transport buses, any moving commission of an offense. (ROC, Rule 113, § 1)
vehicle that similarly accepts passengers at the
terminal and along its route is likewise covered by Arrest, How Made
these guidelines. Hence, whenever compliant with An arrest is made by an actual restraint of a person
these guidelines, a routine inspection at the to be arrested, or by his submission to the custody
terminal or of the vehicle itself while in transit of the person making the arrest.
constitutes a reasonable search. Otherwise, the
intrusion becomes unreasonable, thereby No violence or unnecessary force shall be used in
triggering the constitutional guarantee under making an arrest. The person arrested shall not be
Section 2, Article III of the Constitution. subject to a greater restraint than is necessary for
his detention. (ROC, Rule 113, § 2)
Does Not Apply to Privately-Owned Cars
The guidelines do not apply to privately-owned Requisites of a Valid Warrant of Arrest
cars. Neither are they applicable to moving The requisites for the issuance of a warrant of
vehicles dedicated for private or personal use, as arrest are: (3PS)
in the case of taxis, which are hired by only one or 1. Existence of Probable cause;
a group of passengers such that the vehicle can no 2. Such probable cause must be determined
longer be flagged down by any other person until Personally by the judge;
the passengers on board alight from the vehicle. 3. Probable cause is determined by the judge
through a Personal evaluation of the report and
REASONABLE SEARCH: PORT SEARCHES the supporting documents submitted by the
fiscal; and
Searches pursuant to port security measures are 4. The warrant Specifically describes the place to
not unreasonable per se. The security measures of be searched and the things to be seized. (AAA
x-ray scanning and inspection in domestic ports are v. Carbonell, G.R. No. 171465, June 8, 2007)
akin to routine security procedures in airports. The
a. Probable Cause
reason behind the exception to the prohibition
against warrantless searches is that there is a Definition
reasonable reduced expectation of privacy when Probable cause is such set of facts and
coming into airports or ports of travel. circumstances as would lead a reasonably discreet
and prudent man to believe that the offense
Actual inspection upon showing of probable cause charged in the Information or any offense included
that a crime is being or has been committed is part therein has been committed by the person sought
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to be arrested. (Viudez II v. CA, G.R. No. 152889, cannot be forced to issue the arrest warrant.
June 5, 2009) (Mendoza v. People, G.R. No. 197293, April 21,
2014)
Purpose
The purpose of the mandate of the judge to first b. Personal Determination of Probable
determine probable cause for the arrest of the Cause
accused is to insulate from the very start those
falsely charged with crimes from the tribulations, Exclusive
expenses and anxiety of a public trial. (Viudez II v. The function of the judge to issue a warrant of
CA, G.R. No. 152889, June 5, 2009) arrest upon the determination of probable cause is
exclusive; thus, the consequent implementation of
More Than Suspicion, Less Than Evidence That a warrant of arrest cannot be deferred pending the
Would Justify Conviction resolution of a Petition for Review by the Secretary
In determining probable cause, the average man of Justice as to the finding of probable cause, a
weighs the facts and circumstances without function that is executive in nature. To defer the
resorting to the calibrations of the rules of evidence implementation of the warrant of arrest would be an
of which he has no technical knowledge. He relies encroachment on the exclusive prerogative of the
on common sense. A finding of probable cause judge. (Viudez II v. CA, G.R. No. 152889, June 5,
needs only to rest on evidence showing that, more 2009)
likely than not, a crime has been committed and
that it was committed by the accused. Probable Relies Solely on the Prosecutor’s Certification
cause demands more than suspicion; it requires – Grave Abuse of Discretion
less than evidence that would justify conviction. If a Judge relies solely on the certification of the
(Viudez II v. CA, G.R. No. 152889, June 5, 2009) Prosecutor as in this case where all the records of
the investigation have not yet been submitted to
Probable Cause: Executive v. Judicial him, he or she has not personally determined
The executive determination of probable cause is probable cause. The determination is made by the
one made during preliminary investigation. It is a Provincial Prosecutor. The constitutional
function that properly pertains to the public requirement has not been satisfied. The Judge
prosecutor who is given a broad discretion to commits a grave abuse of discretion. (Lim, Sr. v.
determine whether probable cause exists and to Hon. Felix, G.R. Nos. 94054-57, Feb. 19, 1991)
charge those whom he believes to have committed
c. Personal Evaluation of the Report and the
the crime as defined by law and thus should be
Supporting Documents
held for trial. Otherwise stated, such official has the
quasi-judicial authority to determine whether or not Judge Not Required to Personally Examine the
a criminal case must be filed in court. Whether or Complainant and His Witnesses; Only Required
not that function has been correctly discharged by in the Issuance of Search Warrants
the public prosecutor, i.e., whether or not he has What the Constitution underscores is the exclusive
made a correct ascertainment of the existence of and personal responsibility of the issuing judge to
probable cause in a case, is a matter that the trial satisfy himself of the existence of probable cause.
court itself does not and may not be compelled to In satisfying himself of the existence of probable
pass upon. cause for the issuance of a warrant of arrest, the
judge is not required to personally examine the
The judicial determination of probable cause, on complainant and his witnesses. Following
the other hand, is one made by the judge to established doctrine and procedure, he shall:
ascertain whether a warrant of arrest should be 1. Personally evaluate the report and the
issued against the accused. The judge must satisfy supporting documents submitted by the fiscal
himself that based on the evidence submitted, regarding the existence of probable cause and,
there is necessity for placing the accused under on the basis thereof, issue a warrant of arrest;
custody in order not to frustrate the ends of justice. or
If the judge finds no probable cause, the judge
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2. If on the basis thereof he finds no probable Arrest Warrant for an Unnamed Party; John
cause, he may disregard the fiscal’s report and Doe Arrest Warrant
require the submission of supporting affidavits Warrant for the apprehension of an unnamed party
of witnesses to aid him in arriving at a is void, except in those cases where it contains a
conclusion as to the existence of probable descriptio personae such as will enable the officer
cause.
to identify the accused." The description must be
Sound policy dictates this procedure, otherwise sufficient to indicate clearly the proper person upon
judges would by unduly laden with the preliminary whom the warrant is to be served. (People v.
examination and investigation of criminal Veloso, G.R. No. L-23051, Oct. 20, 1925)
complaints instead of concentrating on hearing and
deciding cases filed before their courts. (AAA v. General Warrants are Void
Carbonell, G.R. No. 171465, June 8, 2007) A general arrest warrant is a warrant upon which
any other individual might as well have been
Judge Should Not Solely Rely on the Report of arrested, as being included in the description, as
the Prosecutor the defendant himself. (People v. Veloso, G.R. No.
Indeed, what the law requires as personal L-23051, Oct. 20, 1925)
determination on the part of the judge is that he
should not rely solely on the report of the A general warrant is defined as a search or arrest
investigating prosecutor. The judge should warrant that is not particular as to the person to be
consider not only the report of the investigating arrested or the property to be seized. It is one that
prosecutor but also the affidavit and the allows the seizure of one thing under a warrant
documentary evidence of the parties, the counter- describing another and gives the officer executing
affidavit of the accused and his witnesses, as well the warrant the discretion over which items to take.
as the transcript of stenographic notes taken during (Worldwide Web Corporation v. People, G.R. No.
the preliminary investigation, if any, submitted to 161106, Jan. 13, 2014)
the court by the investigating prosecutor upon the
filing of the Information. If the report, taken together CONDUCT OF AN ARREST
with the supporting evidence, is sufficient to sustain
Time of Making Arrest
a finding of probable cause, it is not compulsory
An arrest may be made on any day and at any time
that a personal examination of the complainant and
of the day or night. (ROC, Rule 113, § 6)
his witnesses be conducted. (AAA v. Carbonell,
G.R. No. 171465, June 8, 2007)
Method of Arrest by Officer by Virtue of Warrant
d. Particularity of Description When making an arrest by virtue of a warrant, the
officer shall inform the person to be arrested of the
Does Not Prevent the Issue and Service of a cause of the arrest and the fact that a warrant has
Warrant Against a Party Whose Name is been issued for his arrest, except when he flees or
Unknown forcibly resists before the officer has opportunity to
This rule or principle does not prevent the issue so inform him, or when the giving of such
and service of a warrant against a party whose information will imperil the arrest. The officer need
name is unknown. In such case the best not have the warrant in his possession at the time
description possible of the person to be arrested is of the arrest but after the arrest, if the person
to be given in the warrant; but it must be sufficient arrested so requires, the warrant shall be shown to
to indicate clearly on whom it is to be served, by him as soon as practicable. (ROC, Rule 113, § 7)
stating his occupation, his personal appearance
and peculiarities, the place of his residence, or
other circumstances by which he can be identified. Method of Arrest by Officer Without Warrant
(People v. Veloso, G.R. No. L-23051, Oct. 20, When making an arrest without a warrant, the
1925) officer shall inform the person to be arrested of his
authority and the cause of the arrest, unless the
latter is either engaged in the commission of an
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offense, is pursued immediately after its 3. When the person to be arrested is a prisoner
commission, has escaped, flees, or forcibly resists who has escaped from a penal establishment or
before the officer has opportunity to so inform him, place where he is serving final judgment or is
or when the giving of such information will imperil temporarily confined while his case is pending,
the arrest. (ROC, Rule 113, § 8) or has escaped while being transferred from
one confinement to another. (ROC, Rule 113, §
5)
Method of Arrest by Private Person
When making an arrest, a private person shall a. In Flagrante Delicto
inform the person to be arrested of the intention to
arrest him and the cause of the arrest, unless the Requisites (OP)
latter is either engaged in the commission of an 1. The person to be arrested must execute an
offense, is pursued immediately after its Overt act indicating that he has just committed,
commission, or has escaped, flees, or forcibly is actually committing, or is attempting to
resists before the person making the arrest has commit a crime; and
opportunity to so inform him, or when the giving of 2. Such overt act is done in the Presence or within
the view of the arresting officer.
such information will imperil the arrest. (ROC, Rule
113, § 9)
Reliable information alone is insufficient to support
the arrest absent any overt act from the person to
When Forcible Entry Justified
be arrested indicating a crime has just been
An officer, in order to make an arrest either by
committed, was being committed, or is about to be
virtue of a warrant, or without a warrant, may break
committed. (Sapi v. People, G.R. No. 200370, June
into any building or enclosure where the person to
7, 2017)
be arrested is or is reasonably believed to be, if he
is refused admittance thereto, after announcing his
Officer Sees the Offense, Although at a
authority and purpose. (ROC, Rule 113, § 11)
Distance
6. WARRANTLESS ARRESTS AND When the illegal act was committed in the presence
of the arresting officers, a warrantless arrest may
DETENTION
be effected. An offense is committed in the
Purpose presence of an officer when the officer sees the
To hold that no criminal can, in any case, be offense, although at a distance, or hears the
arrested and searched for the evidence and tokens disturbances created thereby and proceeds at
of his crime without a warrant, would be to leave once to the scene of the crime. Police officers have
society, to a large extent, at the mercy of the personal knowledge of the actual commission of
shrewdest, the most expert, and the most depraved the crime when they had earlier conducted
of criminals, facilitating their escape in many surveillance activities of the accused. (People v.
instances. (Umil v. Ramos, G.R. No. 81567 July 9, Sucro, G.R. No. 93239, March 18, 1991)
1990)
Continuing Offense
Instances When Warrantless Arrest May Be The crimes of rebellion, subversion, conspiracy or
Made proposal to commit such crimes, and crimes or
A peace officer or a private person may, without a offenses committed in furtherance thereof or in
warrant, arrest a person: connection therewith constitute direct assaults
1. In Flagrante Delicto: When, in his presence, against the State and are in the nature of
the person to be arrested has committed, is continuing crimes. Thus, a rebel may be arrested
actually committing, or is attempting to commit without a warrant at any time for he is deemed to
an offense; be in the act of committing a crime. (Umil v. Ramos,
2. Hot Pursuit Arrest: When an offense has just G.R. No. 81567 July 9, 1990)
been committed and he has probable cause to
believe based on personal knowledge of facts Buy-Bust
or circumstances that the person to be arrested
In buy-bust operations, the arresting officers catch
has committed it; and
the malefactor in flagrante delicto. But the arresting
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officers must neither instigate nor induce the police officer's determination of probable cause
arrestee to commit a crime. Entrapment is the would necessarily be limited to raw or
employment of such ways and means for the uncontaminated facts or circumstances, gathered
purpose of capturing a lawbreaker from whose as they were within a very limited period of time.
mind the criminal intent originated. In such cases, The same provision adds another safeguard with
a search warrant is not necessary because a the requirement of probable cause as the standard
search pursuant to a buy-bust operation is one for evaluating these facts of circumstances before
made incidental to a lawful arrest – the arrestee is the police officer could effect a valid warrantless
caught in flagrante delicto. (People v. De La Cruz, arrest. (Pestilos v. Generoso, G.R. No. 182601,
G.R. No. 101315, May 12, 1993) Nov. 10, 2014)
Stop and Frisk Manlulu was arrested without a warrant for

When a policeman observes suspicious activity, allegedly having killed another person at around
which leads him to believe that a crime is about to 1:00AM in the morning. The warrantless arrest was
be committed, he can investigate the suspicious made around 7:00PM or about 19 hours later. The
looking person and may frisk him for weapons as a SC held that for there to be a lawful warrantless
measure of self-protection. Should he find, arrest, the arresting officer must have personal
however, a weapon on the suspect, which is knowledge of the offense, which has in fact just
unlicensed, he can arrest such person for having been committed. In other words, the arrest has to
committed an offense in his presence. immediately follow the commission of the offense.
If a sufficient amount of time lapses as to allow him
b. Hot Pursuit Arrest to procure a warrant, then the police officer must
do so. In this case, not only was the arrest 19 hours
Requisites (BC-PC-PK) after the alleged crime, but the arresting officer also
1. An offense has just Been Committed; and did not have any personal knowledge of the facts.
2. The arresting officer has Probable Cause to
The SC also held that personal gathering of
believe based on Personal Knowledge of facts
or circumstances that the person to be arrested information is different from personal knowledge.
has committed it. (People v. Comprado, G.R. (People v. Manlulu, G.R. No. 102140, Apr. 22,
No. 213225, April 4, 2018) 1994)
Element of Immediacy Probable Cause

The clincher in the element of ''personal knowledge In determining probable cause, the arresting officer
of facts or circumstances" is the required element may rely on all the information in his possession,
of immediacy within which these facts or his fair inferences therefrom, including his
circumstances should be gathered. This required observations. Mere suspicion does not meet the
time element acts as a safeguard to ensure that the requirements of showing probable cause to arrest
police officers have gathered the facts or perceived without warrant especially if it is a mere general
the circumstances within a very limited time frame. suspicion. Probable cause may rest on reasonably
This guarantees that the police officers would have trustworthy information as well as personal
no time to base their probable cause finding on knowledge. Thus, the arresting officer may rely on
facts or circumstances obtained after an information supplied by a witness or a victim of a
exhaustive investigation. crime; and under the circumstances, the arresting
officer need not verify such information.
The reason for the element of the immediacy is this
- as the time gap from the commission of the crime The arresting officer should base his determination
to the arrest widens, the pieces of information of probable cause on his personal knowledge of
gathered are prone to become contaminated and facts and circumstances that the person sought to
subjected to external factors, interpretations and be arrested has committed the crime. In other
hearsay. On the other hand, with the element of words, the arresting officer operates on the basis
immediacy imposed under Section 5(b), Rule 113 of more limited facts, evidence or available
of the Revised Rules of Criminal Procedure, the
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information that he must personally gather within a objection is deemed waived. Consequently, any
limited time frame. irregularity attendant to his arrest, if any, had been
cured by his voluntary submission to the jurisdiction
One should not expect too much of an ordinary of the trial court when he entered his plea and
policeman. He is not presumed to exercise the participated during the trial. (People v. Salvatierra,
subtle reasoning of a judicial officer. Oftentimes, he G.R. No. 104663, July 24, 1997)
has no opportunity to make proper investigation but
must act in haste on his own belief to prevent the Accused was seen having a pot session and that
escape of the criminal. (Pestilos v. Generoso, G.R. the police who arrested him were conducting a
No. 182601, Nov. 10, 2014) “stake-out” operation. When accused tested
positive for drugs, he was charged with violation of
Personal Knowledge: Hearsay Tip Insufficient RA 9165. Accused did not deny that he was
The rule requires that an offense had just been positive for drugs but rather, he questions the
committed. It connotes immediacy in point of time. alleged illegality of his arrest. The Court ruled that
Law enforcers need not personally witness the accused had already waived the right to question
commission of a crime. However, they must have the arrest. He was assisted by counsel when he
personal knowledge of facts and circumstances entered his plea and was able to present his
indicating that the person sought to be arrested evidence. The right to question the validity of an
committed it. A hearsay tip by itself is not personal arrest may be waived if the accused, assisted by
knowledge required by the rule. (Sapi v. People, counsel, fails to object to its validity before
G.R. No. 200370, June 7, 2017) arraignment. (Lapi v. People, G.R. No. 210731,
Feb. 13, 2019)
The requirement of personal knowledge is absent
in this case. The Policeman was about 6-10 meters Waiver of an Illegal Arrest, Not a Waiver of an
away when he saw the accused emerge from an Illegal Search
alley holding a plastic sachet. His testimony fails to A waiver of an illegal arrest, however, is not a
state that he had personal knowledge that the waiver of an illegal search. While the accused has
sachet contained shabu, or that he saw the sachet already waived his right to contest the legality of his
containing white crystalline substance, to create a arrest, he is not deemed to have equally waived his
reasonable suspicion that the sachet did indeed right to contest the legality of the search.
contain shabu. From all indications — the time of (Villanueva v. People, G.R. No. 199042, Nov. 17,
the arrest being 11:30 p.m., the Policeman's 2014)
location, and the tinted front windshield of the van
through which he was looking — it was highly A waiver of an illegal warrantless arrest does not
doubtful that the Policeman saw, let alone also mean a waiver of the inadmissibility of
deciphered, the contents of the sachet. For sure, it evidence seized during an illegal warrantless
was only when he held the hand of the accused arrest. (Valdez v. People, G.R. No. 170180, Nov.
and confiscated the plastic sachet that he was able 23, 2007)
to verify its contents. (Villasana y Cabahug v.
People, G.R. No. 209078, Sept. 4, 2019) The right to question the validity of an arrest may
be waived if the accused, assisted by counsel, fails
c. Waiver of Right to object to its validity before arraignment. This
waiver, however, does not carry with it a waiver of
Objection to Illegal Arrest Must be Made Before the inadmissibility of the evidence seized during the
Plea illegal arrest. (Lapi v. People, G.R. No. 210731,
Appellant is estopped from questioning the legality Feb. 13, 2019)
of his arrest considering that he never raised this
before entering his plea. Any objection involving a Application for Bail, Not a Waiver
warrant of arrest or the procedure in the acquisition An application for or admission to bail shall not bar
of jurisdiction over the person of an accused must the accused from challenging the validity of his
be made before he enters his plea, otherwise, the arrest or the legality of the warrant issued therefor,
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provided that he raises them before entering his

plea. (ROC, Rule 114, § 26) 2. Employees – Constitutional
The random drug testing would be undertaken in
ADMINISTRATIVE ARRESTS such a manner as to protect the privacy of the
employees involved. Also, the privacy interest in an
Deportation Proceedings office is circumscribed by the company’s work
Section 37 of the Immigration Law, empowering the policies, CBAs, and the right of the employer to
Commissioner of Immigration to issue warrants for maintain discipline and efficiency in the workplace.
the arrest of overstaying aliens is constitutional. The right to privacy must yield to the necessary and
The arrest is a step preliminary to the deportation reasonable requirements of police power.
of the aliens who had violated the condition of their
stay in this country. The requirement of probable 3. Students – Constitutional
cause, to be determined by a Judge, does not It is within the prerogative of schools to require
extend to deportation proceedings. There need be compliance with reasonable school regulations, as
no "truncated" recourse to both judicial and a condition for admission or enrollment. The court
administrative warrants in a single deportation found:
proceeding. (Harvey v. Miriam Defensor Santiago, a. Schools and their administrators stand in
G.R. No. 82544, June 28, 1988) loco parentis with respect to their students;
b. Minor students have contextually fewer
Drug, Alcohol, and Blood Test rights than an adult, and are subject to the
The Court acknowledged that compelled urinalysis custody and supervision of their parents,
was a form of search but its “reasonableness” must guardians, and schools;
c. Schools, acting in loco parentis, have a duty
be judged by balancing the intrusion on the
to safeguard the health and well-being of
individual’s interests against the promotion of
their students and may adopt such
legitimate government interests. What was measures as may reasonably be necessary
essential was the school’s custodial responsibility to discharge such duty; and
and authority, the nature of the intrusion, the d. Schools have the right to impose conditions
confidentiality of the test results and the legitimate on applicants for admission that are fair, just,
government interest. (Vernonia School District v. and non- discriminatory.
Acton, 515 U.S. 64, June 26, 1995; Board of
Education v. Earls, 536 U.S. 22, June 27, 2002) 4. Persons charged before the public
prosecutor's office – Unconstitutional
The Philippine courts followed the ruling in Defendants in a criminal complaint are not
Vernonia when it decided a case involving the randomly picked; neither are they beyond
mandatory drug testing of candidates for public suspicion. Certain persons are singled out and are
office, students of secondary and tertiary schools, impleaded against their will, making a medical test
officers and employees of public and private a tool for criminal prosecution. (Social Justice
offices, and persons charged before the Society v. Dangerous Drugs Board, G.R. Nos.
prosecutor’s office with certain offenses. The SC 157870, 158633, 161658, Nov. 3, 2008)
held that the right to privacy has been accorded as
a facet of the right to unreasonable searches and
seizures.
7. EXCLUSIONARY RULE
On the case of mandatory drug testing provided for Concept
in the Dangerous Drug Act, the Supreme Court Any evidence obtained in violation of the right
held the following: against unreasonable searches and seizure shall
be inadmissible for any purpose in any proceeding.
1. Candidates for Constitutional Offices – (PHIL. CONST., art. III, § 3[2])
Unconstitutional
A law cannot provide additional qualifications other Any evidence obtained in violation of the right
than those outlined in the Constitution. against unreasonable searches and seizures shall
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be inadmissible for any purpose in any proceeding. Invalidity of Arrest

This exclusionary rule instructs that evidence The invalidity of an arrest leads to several
obtained and confiscated on the occasion of such consequences among which are:
unreasonable searches and seizures are deemed 1. The failure to acquire jurisdiction over the
tainted and should be excluded for being the person of an accused;
proverbial fruit of a poisonous tree. In other words, 2. Criminal liability of law enforcers for illegal
evidence obtained from unreasonable searches arrest; and
and seizures shall be inadmissible in evidence for 3. Any search incident to the arrest becomes
any purpose in any proceeding. (People v. invalid thus rendering the evidence acquired as
Comprado, G.R. No. 213225, April 4, 2018) constitutionally inadmissible. (Sapi v. People,
G.R. No. 200370, June 7, 2017)
To Whom Directed: The State
The constitutional proscription against unlawful Arbitrary Detention
searches and seizures therefore applies as a Any public officer or employee who, without legal
restraint directed only against the government and grounds, detains a person, shall suffer:
its agencies tasked with the enforcement of the 1. The penalty of arresto mayor in its maximum
law. Thus, it could only be invoked against the period to prisión correccional in its minimum
State to whom the restraint against arbitrary and period, if the detention has not exceeded three
unreasonable exercise of power is imposed. days;
(People v. Marti, G.R. No. 81561, Jan. 18, 1991) 2. The penalty of prisión correccional in its
medium and maximum periods, if the detention
If the search is made at the behest or initiative of has continued more than three but not more
the proprietor of a private establishment for its own than fifteen days;
and private purposes, and without the intervention 3. The penalty of prisión mayor, if the detention
of police authorities, the right against unreasonable has continued for more than fifteen days but not
search and seizure cannot be invoked for only the more than six months; and
act of private individual, not the law enforcers, is 4. That of reclusión temporal, if the detention shall
involved. In sum, the protection against have exceeded six months.
unreasonable searches and seizures cannot be
extended to acts committed by private individuals The commission of a crime, or violent insanity or
so as to bring it within the ambit of alleged unlawful any other ailment requiring the compulsory
intrusion by the government. (People v. Marti, G.R. confinement of the patient in a hospital, shall be
No. 81561, Jan. 18, 1991) considered legal grounds for the detention of any
person. (REVISED PENAL CODE, art. 124)
8. EFFECTS OF UNREASONABLE
SEARCHES AND SEIZURES Delay in the Delivery of Detained Persons to the
Proper Judicial Authorities
Exclusionary Rule: Fruit of the Poisonous Tree The penalties provided in the next preceding article
To protect the people from unreasonable searches shall be imposed upon the public officer or
and seizures, Section 3 (2), Article III of the 1987 employee who shall detain any person for some
Constitution provides that evidence obtained legal ground and shall fail to deliver such person to
from unreasonable searches and seizures shall be the proper judicial authorities within the period of
inadmissible in evidence for any purpose in any one hour. (REVISED PENAL CODE, art. 125)
proceeding. In other words, evidence obtained and
confiscated on the occasion of such unreasonable Delaying Release
searches and seizures are deemed tainted and The penalties provided for in article 124 shall be
should be excluded for being the proverbial fruit of imposed upon any public officer or employee who
a poisonous tree. (Miguel v. People, G.R. No. delays for the period of time specified therein the
227038, July 31, 2017) performance of any judicial or executive order for
the release of a prisoner or detention prisoner, or
9. EFFECTS OF ILLEGAL DETENTION
unduly delays the service of the notice of such
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order to said prisoner or the proceedings upon any The right of individuals to make certain kinds of
petition for the liberation of such person. (REVISED fundamental choices with respect to their personal
PENAL CODE, art. 126) and reproductive autonomy. (Vivares v. St.
Theresa’s College, G.R. No. 202666, Sept. 29,
E. PRIVACY OF COMMUNICATION AND 2014)
CORRESPONDENCE
Zones of Privacy
(1) The privacy of communication and Relevant to any discussion of the right to privacy is
correspondence shall be inviolable except upon the concept known as the "Zones of Privacy."
lawful order of the court, or when public safety or Zones of privacy are recognized and protected in
order requires otherwise as prescribed by law. our laws. Within these zones, any form of intrusion
is impermissible unless excused by law and in
(2) Any evidence obtained in violation of this or the accordance with customary legal process. The
preceding section shall be inadmissible for any meticulous regard we accord to these zones arises
purpose in any proceeding. (PHIL. CONST., art. III, § not only from our conviction that the right to privacy
3) is a "constitutional right" and "the right most valued
by civilized men," but also from our adherence to
Right to Privacy the Universal Declaration of Human Rights which
The right to privacy is the right to be free from mandates that, "no one shall be subjected to
unwarranted exploitation of one’s person or from arbitrary interference with his privacy" and
intrusion into one’s private activities in such a way "everyone has the right to the protection of the law
as to cause humiliation to a person’s ordinary against such interference or attacks." (Disini v.
sensibilities. It is the right of an individual to be free Sec. of Justice, G.R. No. 203335, Feb. 18, 2014)
from unwarranted publicity, or to live without
unwarranted interference by the public in matters The right of privacy is recognized and enshrined in
in which the public is not necessarily concerned. several provisions of the Bill of Rights:
Simply put, the right to privacy is "the right to be let 1. Sec. 3 – Privacy of Communication &
alone." Correspondence
2. Sec. 1 – Due Process & Equal Protection; Right
The Bill of Rights guarantees the people’s right to to Life, Liberty, and Property
privacy and protects them against the State’s 3. Sec. 2 – Right Against Unreasonable Searches
abuse of power. In this regard, the State and Seizures
recognizes the right of the people to be secure in 4. Sec. 6 – Liberty of Abode & Right to Travel
5. Sec. 8 – Right to Form Associations
their houses. No one, not even the State, except in
6. Sec. 17 – Right Against Self Incrimination (Ople
case of overriding social need and then only under
v. Torres, G.R. No. 127685, July 23, 1998)
the stringent procedural safeguards, can disturb
them in the privacy of their homes. (Sps. Hing v. Zones of privacy are likewise recognized and
Choachuy, G.R. No. 179736, June 26, 2013) protected in our laws and rules:
1. Civil Code
Three Strands of the Right to Privacy 2. Revised Penal Code
1. Locational or Situational Privacy 3. Anti-Wire Tapping Law
The privacy that is felt in physical space, such as 4. Secrecy of Bank Deposits Act
that which may be violated by trespass and 5. Intellectual Property Code
unwarranted search and seizure. 6. Rules of Court (Ople v. Torres, G.R. No.
127685, July 23, 1998)
2. Informational Privacy
1. CONCEPT OF COMMUNICATION AND
The right of individuals to control information about
themselves.
CORRESPONDENCE
Concept
3. Decisional Privacy
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Forms of communication and correspondence policy may limit or erode the reasonable
considered private and protected by this provision expectation of privacy. (Pollo v. Constantino-David,
include: G.R. No. 181881, Oct. 18, 2011)
1. Letters
2. Messages Private Communications Can Be Made Public
3. Telephone calls Private communications can be made public where
4. Telegrams and the like (Bernas, The 1987 a secret involves public questions which the State
Constitution of the Republic of the Philippines, should and ought to know, the State may infringe
2009)
that privacy of communication by some process or
Reasonable Expectation of Privacy Test by appealing to the Court for the purpose of
In ascertaining whether there is a violation of the determining whether or not the privacy should be
right to privacy, courts use the "reasonable maintained. The court may allow intrusions on
expectation of privacy" test. This test determines privacy of communication and correspondence
whether a person has a reasonable expectation of only on the ground of probable cause. (Bernas, The
privacy and whether the expectation has been 1987 Constitution of the Republic of the
violated. Philippines, 2009)
The reasonableness of a person’s expectation of Public Figure

privacy depends on a two-part test: The right of privacy of a "public figure" is
1. Subjective: Whether, by his conduct, the necessarily narrower than that of an ordinary
individual has exhibited an expectation of citizen. (Ayer v. Capulong, G.R. No. 82380, April
privacy; and 29, 1988)
2. Objective: This expectation is one that society
recognizes as reasonable. (Pollo v. Personal Matters
Constantino-David, G.R. No. 181881, Oct. 18, Section 7, Article III of the 1987 Constitution grants
2011) the right of the people to information on matters of
public concern. Personal matters are exempt or
Customs, community norms, and practices may, outside the coverage of the people’s right to
therefore, limit or extend an individual’s reasonable information on matters of public concern. The data
expectation of privacy. Hence, the reasonableness treated as "strictly confidential" under EO 420
of a person’s expectation of privacy must be being private matters and not matters of public
determined on a case-to-case basis since it concern, these data cannot be released to the
depends on the factual circumstances surrounding public or the press. (KMU v. Dir. Gen. of NEDA,
the case. (Sps. Hing v. Choachuy, G.R. No. G.R. No. 167798, April 19, 2006)
179736, June 26, 2013)
2. INTRUSION, WHEN AND HOW ALLOWED
In assessing the challenge that the State has
impermissibly intruded into these zones of privacy, The privacy of communication and
a court must determine whether a person has correspondence shall be inviolable except:
exhibited a reasonable expectation of privacy and, 1. Upon lawful order of the court, or
if so, whether that expectation has been violated by 2. When public safety or order requires otherwise
unreasonable government intrusion. (Disini v. Sec. as prescribed by law. (PHIL. CONST., art. III, §
of Justice, G.R. No. 203335, Feb. 18, 2014) 3[1])
A government employee has a burden of proving

that he has legitimate expectation of privacy either a. Upon Lawful Order of the Court
in his office or computer files. He can prove this by
alleging and demonstrating the following: he used Probable Cause Required
a password on his computer, did not share his The constitutional text does not give any ground. It
office with co-workers and kept the same locked. is submitted that the requirement of probable cause
However, the existence of a workplace privacy in the preceding section (Art. III, Sec. 2) should be
followed. After all, the privacy right is but an aspect
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of the right to be secure in one’s person. (Bernas, Applied to wife who took documents and
The 1987 Constitution of the Republic of the papers from husband’s clinic without the
Philippines, 2009) latter's knowledge and consent
The constitutional injunction declaring the privacy
b. When Public Safety or Order Requires of communication and correspondence to be
Otherwise as Prescribed by Law inviolable is no less applicable simply because it is
the wife (who thinks herself aggrieved by her
Prescribed by Law husband's infidelity) who is the party against whom
It should be based upon a government official’s the constitutional provision is to be enforced. The
assessment that public safety and order demand only exception to the prohibition in the Constitution
such intrusion, as provided by law. It is not only that is if there is a lawful order from a court or when
the discretion of the executive officer is limitable by public safety or order requires otherwise, as
law but also that a public officer who exercises this prescribed by law. Any violation of this provision
power must be able to point to a law under which renders the evidence obtained inadmissible for any
he acts. (Bernas, The 1987 Constitution of the purpose in any proceeding.
Republic of the Philippines, 2009)
The intimacies between husband and wife do not
Public Order and Safety justify any one of them in breaking the drawers and
The security of human lives, liberty, and property cabinets of the other and in ransacking them for
against the activities of invaders, insurrectionists, any telltale evidence of marital infidelity. A person,
and rebels. (1971 Constitutional Convention, Nov. by contracting marriage, does not shed his/her
25, 1972) integrity or his right to privacy as an individual and
the constitutional protection is ever available to him
3. EXCLUSIONARY RULE
or to her.
Concept
Any evidence obtained in violation of the right to The law insures absolute freedom of
privacy of communication and correspondence communication between the spouses by making it
shall be inadmissible for any purpose in any privileged. Neither husband nor wife may testify for
proceeding. (Phil. Const., art. III, § 3[2]) or against the other without the consent of the
affected spouse while the marriage subsists.
To Whom Directed: The State Neither may be examined without the consent of
To come under the exclusionary rule, however, the the other as to any communication received in
evidence must be obtained by government agents confidence by one from the other during the
and not by private individuals acting on their own. marriage, save for specified exceptions. But one
thing is freedom of communication; quite another is
This does not mean however that private a compulsion for each one to share what one
individuals cannot be held liable. Almost all these knows with the other. And this has nothing to do
liberties are also guaranteed by Article 32 of the with the duty of fidelity that each owes to the other.
Civil Code, making private violations actionable (Zulueta v. CA, G.R. No. 107383, Feb. 20, 1996)
even if the violation does not have a constitutional
consequence such as the applicability of the R.A. 10175 (CYBERCRIME PREVENTION ACT)
exclusionary rule. (Bernas, The 1987 Constitution
of the Republic of the Philippines, 2009) Certain Cybercrime Offenses under RA 10175
were assailed for violating both the right against
Exclusionary rule will not apply if the recipient of the unreasonable searches and seizures and the right
message granted access to the message(s) sent. to privacy. The court held that relevant to any
(Office of the Court Administrator v. Judge Eliza B. discussion of the right to privacy is the concept
Yu, A.M. No. MTJ-12-1813, Mar. 14, 2017) known as the Zones of Privacy, as discussed
earlier.
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In assessing the challenge that the State has be unlawful in the said law in cases involving the
impermissibly intruded into these zones of privacy, crimes of:
a court must determine whether a person has 1. Treason
exhibited a reasonable expectation of privacy and, 2. Espionage
if so, whether that expectation has been violated by 3. Provoking war and disloyalty in case of war
4. Piracy and mutiny in the high seas
unreasonable government intrusion. The usual
5. Rebellion (conspiracy and proposal to
identifying information regarding a person includes commit; inciting to commit)
his name, his citizenship, his residence address, 6. Sedition (conspiracy to commit and inciting
his contact number, his place and date of birth, the to commit)
name of his spouse, if any, his occupation, and 7. Kidnapping
similar data. The law punishes those who acquire 8. Violations of C.A. No. 616 (punishing
or use such identifying information without right, espionage and other offenses against
implicitly to cause damage. Petitioners failed to national security)
show how government effort to curb computer- d. R.A. 4200 does not distinguish between a party
related identity theft violates the right to privacy and to the private communication or a third person.
Hence, both could be held liable under R.A.
correspondence as well as the right to due process
4200 if they commit any of the prohibited acts
of law. under R.A. 4200. (Ramirez v. CA, G.R. No.
93833, Sept. 28, 1995)
However, Section 12 on real-time collection of e. The use of a telephone extension to overhear a
traffic data was declared unconstitutional for the private conversation is not a violation of R.A.
authority that Section 12 gives law enforcement 4200 because it is not similar to any of the
agencies is too sweeping and lacks restraint. While prohibited devices under the law. Also, a
it says that traffic data collection should not telephone extension is not purposely installed
disclose identities or content data, such restraint is for the purpose of secretly intercepting or
but an illusion. Admittedly, nothing can prevent law recording private communication. (Gaanan v.
IAC, G.R. No. L- 69809, Oct. 16, 1986)
enforcement agencies holding these data in their
hands from looking into the identity of their sender
ONLINE SOCIAL NETWORK PRIVACY
or receiver and what the data contains. This will
unnecessarily expose the citizenry to leaked
Before one can have an expectation of privacy in
information or, worse, to extortion from certain bad
his or her Online Social Network activity, it is first
elements in these agencies. Section 12, of course,
necessary that said user manifest the intention to
limits the collection of traffic data to those
keep certain posts private. In the cyber world,
“associated with specified communications.” But
utilization of privacy tools is the manifestation of the
this supposed limitation is no limitation at all since,
user’s invocation of his or her right to informational
evidently, it is the law enforcement agencies that
privacy.
would specify the target communications. The
power is virtually limitless, enabling law
That the photos are viewable by “friends only” does
enforcement authorities to engage in “fishing
not necessarily bolster the contention to the right to
expedition,” choosing whatever specified
privacy. In this regard, the cyber community is
communication they want. This evidently threatens
agreed that the digital images under this setting still
the right of individuals to privacy. (Disini v. Sec. of
remain to be outside the confines of the zones of
Justice, G.R. No. 203335, Feb. 18, 2014)
privacy in view of the following:
R.A. 4200 (ANTI-WIRETAPPING ACT)
1. Facebook “allows the world to be more open
and connected by giving its users the tools to
a. Only protects letters, messages, telephone interact and share in any conceivable way”
calls, telegrams and the like. 2. A good number of Facebook users “befriend”
b. The substance of the conversation need not be other users who are total strangers;
specifically alleged in the information. 3. The sheer number of “Friends” one user has,
c. Under Section 3 of R.A. 4200, a peace officer, usually by the hundreds; and
who is authorized by a written order of the
Court, may execute any of the acts declared to
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4. A user’s Facebook friend can “share” the of Amparo and habeas data will not issue to protect
former’s post, or “tag” others who are not purely property or commercial concerns nor when
Facebook friends with the former, despite its the grounds invoked in support of the petitions
being visible only to his or her own Facebook therefor are vague or doubtful. Employment
friends. constitutes a property right under the context of the
due process clause of the Constitution. It is evident
Setting a post’s or profile detail’s privacy to
that respondent’s reservations on the real reasons
“Friends” is no assurance that it can no longer be
for her transfer - a legitimate concern respecting
viewed by another user who is not Facebook
the terms and conditions of one’s employment - are
friends with the source of the content.
what prompted her to adopt the extraordinary
remedy of habeas data. (Manila Electric Company
Therefore, a Facebook user who opts to make use
v. Lim, G.R. No. 184679, Oct. 5, 2010)
of a privacy tool to grant or deny access to his or
her post or profile detail should not be denied the
Who May File (P-SCP-R) (Sec. 2)
informational privacy right which necessarily
1. Any person whose right to Privacy is
accompanies said choice. Otherwise, using these
threatened
privacy tools would be a feckless exercise, such 2. In case of extrajudicial disappearance or
that if, for instance, a user uploads a photo or any killings:
personal information to his or her Facebook page a. Spouse, Children and Parents
and sets its privacy level at "Only Me" or a custom b. Any ascendant, descendant or collateral
list so that only the user or a chosen few can view Relative of the aggrieved party within the
it, said photo would still be deemed public by the fourth civil degree of consanguinity or affinity
courts as if the user never chose to limit the photo’s in default of those mentioned in the
visibility and accessibility. Such position, if preceding paragraph.
adopted, will not only strip these privacy tools of
their function but it would also disregard the very National Bilibid Inmates
intention of the user to keep said photo or The right of a convicted national inmate to his or
information within the confines of his or her private her privacy runs counter to the state interest of
space. (Vivares v. St. Theresa’s College, G.R. No. preserving order and security inside our prison
202666, Sept. 29, 2014) systems. There is no longer any reasonable
expectation of privacy when one is being monitored
WRIT OF HABEAS DATA (A.M. No 08-1-16-SC) and guarded at all hours of the day. Unless there is
compelling evidence that a public employee
Definition (Sec. 1) engaged in the gathering, collecting or storing of
The writ of habeas data is a remedy available to data or information on the convicted national
any person whose right to privacy in life, liberty or inmate has committed an unlawful act which
security is violated or threatened by an unlawful act threatens the life of the inmate, a petition for the
or omission of a public official or employee, or of a writ of habeas data cannot prosper (In the Matter
private individual or entity engaged in the of the Petition for Writ of Habeas Corpus/Data v.
gathering, collecting or storing of data or De Lima, G.R. Nos. 215585 & 215768, Sept. 8,
information regarding the person, family, home and 2020).
correspondence of the aggrieved party.
F. FREEDOM OF SPEECH AND
Purpose EXPRESSION
It bears reiteration that like the Writ of Amparo,
No law shall be passed abridging the freedom of
habeas data was conceived as a response, given
speech, of expression, or of the press, or the right
the lack of effective and available remedies, to
of the people peaceably to assemble and petition
address the extraordinary rise in the number of
the government for redress of grievances. (PHIL.
killings and enforced disappearances. Its intent is
CONST., art. III, § 4)
to address violations of or threats to the rights to
life, liberty or security as a remedy independently 1. CONCEPT
from those provided under prevailing Rules. Writs
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Freedom of expression has gained recognition as (Diocese of Bacolod v. COMELEC, G.R. No.
a fundamental principle of every democratic 205728, Jan. 21, 2015)
government, and given a preferred right that stands
on a higher level than substantive economic Scope
freedom or other liberties. In the Philippines, the The scope of freedom of extends protection to:
primacy and high esteem accorded freedom of 1. Written or spoken words
expression is a fundamental postulate of our 2. Symbolic speech
constitutional system. This right was elevated to 3. Motion pictures
constitutional status in the 1935, the 1973 and the (Diocese of Bacolod v. COMELEC, G.R. No.
1987 Constitutions, reflecting our own lesson of 205728, Jan. 21, 2015)
history, both political and legal, that freedom of
speech is an indispensable condition for nearly Includes the Right to be Silent
every other form of freedom. (Chavez v. Gonzales, Freedom of speech includes the right to be silent.
Aptly has it been said that the Bill of Rights that
G.R. No. 168338, Feb. 15, 2008)
guarantees to the individual the liberty to utter what
a. Continuum of Thought, Speech, is in his mind also guarantees to him the liberty not
Expression, and Speech Acts to utter what is not in his mind. (Diocese of Bacolod
v. COMELEC, G.R. No. 205728, Jan. 21, 2015)
Speech may be said to be inextricably linked to
freedom itself as the right to think is the beginning Protects Speech, Print and Assembly
of freedom, and speech must be protected from the The scope of freedom of expression is so broad
government because speech is the beginning of that it extends protection to nearly all forms of
thought. (Diocese of Bacolod v. COMELEC, G.R. communication. It protects (1) speech, (2) print and
No. 205728, Jan. 21, 2015, citing Bernas from the (3) assembly regarding secular as well as political
Records of the 1987 Constitutional Convention) causes, and is not confined to any particular field
of human interest. The protection covers myriad
Communication is an essential outcome of matters of public interest or concern embracing all
protected speech. Communication exists when (1) issues, about which information is needed or
a speaker, seeking to signal others, uses appropriate, so as to enable members of society to
conventional actions because he or she cope with the exigencies of their period. (Chavez v.
reasonably believes that such actions will be taken Gonzales, G.R. No. 168338, Feb. 15, 2008)
by the audience in the manner intended; and (2)
the audience so takes the actions. In Protects Media, Whether Print or Broadcast
communicative action, the hearer may respond to The constitutional protection is not limited to the
the claims by either accepting the speech act’s exposition of ideas. The protection afforded free
claims or opposing them with criticism or requests speech extends to speech or publications that are
for justification entertaining as well as instructive or informative. All
forms of media, whether print or broadcast, are
Speech is not limited to vocal communication. entitled to the broad protection of the clause on
Conduct is treated as a form of speech sometimes freedom of speech and of expression. (Chavez v.
referred to as ‘symbolic speech,’ such that when Gonzales, G.R. No. 168338, Feb. 15, 2008)
‘speech’ and ‘nonspeech’ elements are combined
in the same course of conduct, the communicative b. Purposes of Free Speech Doctrines
element of the conduct may be sufficient to bring
The constitutional protection assures the broadest
into play the right to freedom of expression.
possible exercise of free speech and free press for
religious, political, economic, scientific, news, or
The right to freedom of expression, thus, applies to
informational ends, inasmuch as the Constitution's
the entire continuum of speech from utterances
basic guarantee of freedom to advocate ideas is
made to conduct enacted, and even to inaction
not confined to the expression of ideas that are
itself as a symbolic manner of communication.
conventional or shared by a majority. (Chavez v.
Gonzales, G.R. No. 168338, Feb. 15, 2008)
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Thus, all speech are not treated the same. Some

There are several theories and schools of thought types of speech may be subjected to some
that strengthen the need to protect the basic right regulation by the State under its pervasive police
to freedom of expression: power, in order that it may not be injurious to the
a. The right of the people to participate in public equal right of others or those of the community or
affairs, including the right to criticize society. (Chavez v. Gonzales, G.R. No. 168338,
government actions. Speech that promotes Feb. 15, 2008)
dialogue on public affairs, or airs out grievances
and political discontent, should thus be The freedom of expression, as with the other
protected and encouraged.
freedoms encased in the Bill of Rights, is, however,
b. Free speech should be encouraged under the
concept of a market place of ideas based on the not absolute. It may be regulated to some extent to
theory that the ultimate good desired is better serve important public interests, some forms of
reached by the free trade in ideas. speech not being protected. The limits of the
c. Free speech involves self-expression that freedom of expression are reached when the
enhances human dignity. This right is a means expression touches upon matters of essentially
of assuring individual self-fulfillment, among private concern. The constitutional guarantee
others. obviously was not intended to give immunity for
d. Expression is a marker for group identity. Free every possible use of language. The freedom to
speech must be protected as the vehicle to find express one’s sentiments and belief does not grant
those who have similar and shared values and
one the license to vilify in public the honor and
ideals, to join together and forward common
goals. integrity of another. Any sentiments must be
e. The Bill of Rights, free speech included, is expressed within the proper forum and with proper
supposed to protect individuals and minorities regard for the rights of others. (Soriano v.
against majoritarian abuses perpetrated Laguardia, G.R. No. 164785, April 29, 2009)
through the framework of democratic
governance. 2. TYPES OF REGULATION
f. Free speech must be protected under the
“safety valve theory.” This provides that a. Prior Restraint and Subsequent
nonviolent manifestations of dissent reduce the Punishment
likelihood of violence. Free speech must, thus,
be protected as a peaceful means of achieving PRIOR RESTRAINT (CENSORSHIP)
one’s goal, considering the possibility that
repression of nonviolent dissent may spill over Concept
to violent means just to drive a point. (Diocese Prior restraint refers to official governmental
of Bacolod v. COMELEC, G.R. No. 205728, restrictions on the press or other forms of
Jan. 21, 2015) expression in advance of actual publication or
c. Balance Between Unbridled Expression dissemination. Freedom from prior restraint is
largely freedom from government censorship of
and Liberty
publications, whatever the form of censorship, and
From the language of Sec. 4, the right to free regardless of whether it is wielded by the executive,
speech and a free press is not susceptible of any legislative or judicial branch of the government.
limitation. But the realities of life in a complex (Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
society preclude a literal interpretation of the 2008)
provision prohibiting the passage of a law that
would abridge such freedom. For freedom of Essence of Censorship
expression is not an absolute, nor is it an unbridled The Session Law of Minnesota mandated the
license that gives immunity for every possible use abatement, as public nuisances, of malicious,
of language and prevents the punishment of those scandalous, and defamatory publications. After
who abuse this freedom. (Chavez v. Gonzales, publishing articles that criticized certain local public
G.R. No. 168338, Feb. 15, 2008) officials and personalities, The Saturday Press,
owned by the petitioner Near, was enjoined from
further publication. The court held that the
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operation and effect of the statute in substance is must clearly make out a case to overcome this
that public authorities may bring the owner or presumption, which it failed to do in this case. The
publisher of a newspaper or periodical before a word “security” is so broad that it should not be
judge upon a charge of conducting a business of used to abrogate the fundamental law. The
publishing scandalous and defamatory publication would not cause an inevitable,
matter...and unless the owner or publisher is able immediate, and direct event that would imperil the
to disposed to bring competent evidence to satisfy safety of the American forces, such that there was
the judge that the charges are true and are no grave and irreparable danger. The US Supreme
published with good motives and for justifiable Court also held that the 1st Amendment does not
ends, his newspaper or periodical is suppressed tolerate prior restraints predicated upon beliefs that
and further publication is made punishable as a untoward consequences may result therefrom. The
contempt. This is of the essence of censorship. press must be left free to publish news, whatever
(Near v. Minnesota, 283 U.S. 697, June 1, 1931; the source, without censorship or restraint because
Bernas, The 1987 Constitution of the Republic of only a free and unrestrained press can effectively
the Philippines, 2009) expose government deception to the people. (New
York Times v. United States, 403 U.S. 713, June
Presumed Invalid and Unconstitutional 30, 1971)
General Rule: Any system of prior restraints of
expression comes to court bearing a heavy Government Acts Precluded
Presumption against its constitutional validity. The Freedom from prior restraint precludes
Government thus carries a heavy burden of governmental acts that:
showing justification for in enforcement of such 1. Requires approval of a proposal to publish;
restraint. There, thus a reversal of the normal 2. Licensing or permits as prerequisites to
publication including the payment of license
presumption of validity that inheres in every
taxes for the privilege to publish; and
legislation. (SWS v. COMELEC, G.R. No. 147571, 3. Injunctions against publication.
May 5, 2001)
Even the closure of the business and printing
• Exception: The technical effect of Article IX offices of certain newspapers, resulting in the
(C) (4) of the Constitution may be seen to be discontinuation of their printing and publication, are
that no presumption of invalidity arises in deemed as previous restraint or censorship.
respect of exercises of supervisory or
regulatory authority on the part of the Comelec Any law or official that requires some form of
for the purpose of securing equal opportunity permission to be had before publication can be
among candidates for political office, although made, commits an infringement of the
such supervision or regulation may result in constitutional right, and remedy can be had at the
some limitation of the rights of free speech and courts. (Chavez v. Gonzales, G.R. No. 168338,
free press. For supervision or regulation of the Feb. 15, 2008)
operations of media enterprises is scarcely
conceivable without such accompanying When Prohibition on Prior Restraint Does Not
limitation. Thus, the applicable rule is the Apply (WOS)
general, time-honored one — that a statute is 1. When the nation is at War. (Chavez v.
presumed to be constitutional and that the Gonzales, G.R. No. 168338, Feb. 15, 2008)
party asserting its unconstitutionality must (e.g., The government can prevent publication
discharge the burden of clearly and about the number or location of its troops)
convincingly proving that assertion. (National 2. Obscene publications
Press Club v. COMELEC, G.R. No. 102653 3. Security of community life may be protected
March 5, 1992) against incitements to acts of violence or
overthrow by force of orderly government. (Near
v. Minnesota, 283 U.S. 697, June 1, 1931)
Any prior restraint upon the freedom of the press
bears a heavy presumption against its SUBSEQUENT PUNISHMENT
constitutionality. In other words, the government
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A governmental action that restricts freedom of

Concept speech or of the press based on content is given
The aspect of freedom from liability subsequent to the strictest scrutiny in light of its inherent and
publication precludes liability for completed invasive impact. Only when the challenged act has
publications of views traditionally held innocent. overcome the clear and present danger rule will it
Otherwise, the prohibition on prior restraint would pass constitutional muster, with the government
be meaningless, as the unrestrained threat of having the burden of overcoming the presumed
subsequent punishment, by itself, would be an unconstitutionality. Unless the government can
effective prior restraint. overthrow this presumption, the content-based
restraint will be struck down. (Chavez v. Gonzales,
Thus, opinions on public issues cannot be G.R. No. 168338, Feb. 15, 2008)
punished when published, merely because the
opinions are novel or controversial, or because Clear and Present Danger Test
they clash with current doctrines. This fact does not Whether the words used are used in such
imply that publishers and editors are never liable circumstances and are of such a nature as to
for what they print. Such freedom gives no create a clear and present danger that they will
immunity from laws punishing scandalous or bring about the substantive evils that Congress has
obscene matter, seditious or disloyal writings, and a right to prevent. It is a question of proximity and
libelous or insulting words. degree. (Chavez v. Gonzales, G.R. No. 168338,
Feb. 15, 2008)
As classically expressed, the freedom of the press
embraces at the very least the freedom to discuss Requisites of a Valid Content-Based Regulation
truthfully and publicly matters of public concern, With respect to content-based restrictions, the
without previous restraint or fear of subsequent government must: (HIIR)
punishment. For discussion to be innocent, it must 1. The government must show the type of Harm
be truthful, must concern something in which the speech sought to be restrained would bring
people in general take a healthy interest, and must about — especially the gravity and the
not endanger some important social end that the imminence of the threatened harm – otherwise
government by law protects. (Bernas, The 1987 the prior restraint will be invalid;
2. The regulation which restricts the speech
content must serve an important or substantial
2009) government Interest, which is unrelated to the
suppression of free expression; and
b. Content Based and Content Neutral 3. The Incidental Restriction on speech must be
no greater than what is essential to the
It is not enough to determine whether a challenged furtherance of that interest. (Chavez v.
governmental act constitutes some form of Gonzales, G.R. No. 168338, Feb. 15, 2008)
restraint on freedom of speech. A distinction has to
be made whether the restraint is (1) a content- CONTENT-NEUTRAL REGULATION
neutral regulation, or (2) a content-based restraint
or censorship. (Chavez v. Gonzales, G.R. No. Concept
168338, Feb. 15, 2008) A content-neutral regulation is merely concerned
with the incidents of the speech, or one that merely
CONTENT-BASED REGULATION controls the time, place or manner, and under well-
defined standards. (Chavez v. Gonzales, G.R. No.
Concept 168338, Feb. 15, 2008)
A content-based restraint or censorship is where
the restriction is based on the subject matter of the
utterance or speech. (Chavez v. Gonzales, G.R. Subject to Intermediate Approach
No. 168338, Feb. 15, 2008) When the speech restraints take the form of a
content-neutral regulation, only a substantial
Subject to the Clear and Present Danger Rule governmental interest is required for its validity.
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Because regulations of this type are not designed Specificity of Regulation and Vagueness
to suppress any particular message, they are not Doctrine
subject to the strictest form of judicial scrutiny but The vagueness doctrine is an analytical tool
an intermediate approach—somewhere between developed for testing "on their faces" statutes in
the mere rationality that is required of any other law free speech cases or, as they are called in
and the compelling interest standard applied to American law, First Amendment cases. A facial
content-based restrictions. The test is called challenge is allowed to be made to a vague statute
intermediate because the Court will not merely and also to one which is overbroad because of
rubberstamp the validity of a law but also require possible "'chilling effect' on protected speech that
that the restrictions be narrowly-tailored to promote comes from statutes violating free speech. A
an important or significant governmental interest person who does not know whether his speech
that is unrelated to the suppression of expression. constitutes a crime under an overbroad or vague
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15, law may simply restrain himself from speaking in
2008) order to avoid being charged of a crime. The
overbroad or vague law thus chills him into silence.
Intermediate Approach: O’Brien Test for a Valid (Lagman v. Medialdea, G.R. No. 231658)
Content-Neutral Regulation
A governmental regulation is sufficiently justified if: It is best to stress that the vagueness doctrine has
(CISUNOG) a special application only to free-speech cases.
They are not appropriate for testing the validity of
1. It is within the Constitutional power of the penal statutes. (Lagman v. Medialdea, G.R. No.
Government; 231658)
2. It furthers an Important or Substantial
governmental interest;
A facial challenge is allowed to be made to a vague
3. The governmental interest is Unrelated to the
suppression of free expression; and statute and to one which is overbroad because of
4. The incident restriction on alleged freedom of possible 'chilling effect' upon protected speech.
speech & expression is NO Greater than is The theory is that when statutes regulate or
essential to the furtherance of that interest. proscribe speech and no readily apparent
(Chavez v. Gonzales, G.R. No. 168338, Feb. construction suggests itself as a vehicle for
15, 2008) rehabilitating the statutes in a single prosecution,
the transcendent value to all society of
c. Incitement and Advocacy constitutionally protected expression is deemed to
justify allowing attacks on overly broad statutes
General Rule: The constitutional guarantees of
with no requirement that the person making the
free speech and free press do not permit a State to
attack demonstrate that his own conduct could not
forbid or proscribe advocacy of the use of force or
be regulated by a statute drawn with narrow
of law violation.
specificity. This rationale does not apply to penal
statutes.
• Exception: Except where such advocacy is
directed to inciting or producing imminent
lawless action and is likely to incite or produce In sum, the doctrines of strict scrutiny, overbreadth,
such action. (Brandenburg v. Ohio, 395 U.S. and vagueness are analytical tools developed for
444, June 9, 1969) testing 'on their faces' statutes in free speech cases
or, as they are called in American law, First
Further, it is incumbent on the court to make clear Amendment cases. They cannot be made to do
in some fashion that the advocacy must be of service when what is involved is a criminal statute.
action and not merely abstract doctrine. (Yates v. With respect to such statute, the established rule is
United States, 354 U.S. 298, June 17, 1957) that one to whom application of a statute is
constitutional will not be heard to attack the statute
d. Specificity of Regulation and Overbreadth on the ground that impliedly it might also be taken
Doctrine as applying to other persons or other situations in
which its application might be unconstitutional. As
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has been pointed out, vagueness challenges in the Exceptions:

First Amendment context, like overbreadth
challenges typically produce facial invalidation, 1. When a penal statute is challenged as applied
while statutes found vague as a matter of due 2. When a penal statute encroaches upon the
process typically are invalidated only 'as applied' to freedom of speech, a facial challenge grounded
on the overbreadth and vagueness doctrine is
a particular defendant.
acceptable. (Disini v. Sec. of Justice, G.R. No.
203335, Feb. 18, 2014)
"On its face" invalidation of statutes results in
striking them down entirely on the ground that they The facial challenge has expanded its scope to
might be applied to parties not before the Court cover statutes not only regulating free speech, but
whose activities are constitutionally protected. It also those involving religious freedom, and other
constitutes a departure from the ‘case and fundamental rights because of the expanded scope
controversy’ requirement of the Constitution and of judicial power. (Imbong v. Ochoa, G.R. No.
permits decisions to be made without concrete 204819, April 8, 2014)
factual settings and in sterile abstract contexts.
(Estrada v. Sandiganbayan, G.R. No. 148560, As Applied v. Facial Challenge
Nov. 19, 2001) Distinguished from an as-applied challenge which
considers only extant facts affecting real litigants, a
Overbreadth Doctrine facial invalidation is an examination of the entire
Under the overbreadth doctrine, a proper law, pinpointing its flaws and defects, not only on
governmental purpose, constitutionally subject to the basis of its actual operation to the parties, but
state regulation, may not be achieved by means also on the assumption or prediction that its very
that unnecessarily sweep its subject broadly, existence may cause others not before the court to
thereby invading the area of protected freedoms. refrain from constitutionally protected speech or
activities.
Prohibiting placing of campaign decals on private
cars is overbroad, and thus invalid prohibition. General Rule: In an "as applied" challenge, the
(Adiong v. COMELEC, G.R. No. 103956 March 31, petitioner who claims a violation of his
1992) constitutional right can raise any constitutional
ground – absence of due process, lack of fair
Banning the publishing of survey results is also
notice, lack of ascertainable standards,
overbroad because it does not meet the O’Brien
overbreadth, or vagueness. Here, one can
test, since it suppresses one type of expression
challenge the constitutionality of a statute only if he
while allowing others like editorials. (SWS v.
COMELEC, G.R. No. 147571, May 5, 2001) asserts a violation of his own rights. It prohibits
one from assailing the constitutionality of the
Summary of Rules statute based solely on the violation of the
General Rule: The overbreadth and vagueness rights of third persons not before the court. This
doctrines then have special application only to free rule is also known as the prohibition against third-
speech cases. They are inapplicable for testing the party standing.
validity of penal statutes.
Exception: A petitioner may for instance mount a
Rationale: All penal laws, like the cybercrime "facial" challenge to the constitutionality of a statute
law, have of course an inherent chilling effect, even if he claims no violation of his own rights
an in terrorem effect or the fear of possible under the assailed statute where it involves free
prosecution. But to prevent the State from speech on grounds of overbreadth or
legislating criminal laws because they instill vagueness of the statute.
such kind of fear is to render the state powerless
Rationale: To counter the "chilling effect" on
in addressing and penalizing socially harmful
protected speech that comes from statutes
conduct.
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violating free speech. (Disini v. Sec. of Justice, stated, §5.4 aims at the prevention of last-minute
G.R. No. 203335, Feb. 18, 2014) pressure on voters, the creation of bandwagon
effect, “junking” of weak or “losing” candidates, and
e. Speech Regulation in Relation to Election resort to the form of election cheating called
“dagdag-bawas.” Praiseworthy as these aims of
R.A. NO. 9006: FAIR ELECTION ACT the regulation might be, they cannot be attained at
the sacrifice of the fundamental right of expression,
Purpose when such aim can be more narrowly pursued by
Republic Act No. 9006 was adopted with the end in punishing unlawful acts, rather than speech
mind of guaranteeing or ensuring equal opportunity because of apprehension that such speech creates
for public service and to this end, stipulates the danger of such evils.
mechanisms for the supervision or regulation of the
enjoyment or utilization of all franchises or permits To summarize then, §5.4 is invalid because (1) it
for the operation of media of communication or imposes a prior restraint on the freedom of
information. The Fair Election Act provides means expression, (2) it is a direct and total suppression
to realize the policy articulated in Article II, Section of a category of expression even though such
26 of the 1987 Constitution to guarantee equal suppression is only for a limited period, and (3) the
access to opportunities for public service. (SWS v. governmental interest sought to be promoted can
COMELEC, G.R. No. 208062, April 07, 2015) be achieved by means other than the suppression
of freedom of expression. (SWS v. COMELEC,
Sec. 5.4 of R.A. 9006 – Unconstitutional G.R. No. 147571, May 5, 2001)
§5.4 lays a prior restraint on freedom of speech,
expression, and the press prohibiting the COMELEC Resolution No. 9674 –
publication of election survey results affecting Constitutional
candidates within the prescribed periods of fifteen
(15) days immediately preceding a national Section 5. Election Surveys. – 5.2. During the
election seven (7) days before a local election. election period, any person, natural as well as
juridical, candidate or organization who publishes
Sec. 5.4 fails to meet criterion [3] of the O’Brien test a survey must likewise publish the following
because the causal connection of expression to the information:
asserted governmental interest makes such a. The name of the person, candidate, party or
interest not unrelated to the suppression of free organization who commissioned or paid for the
expression. By prohibiting the publication of survey.
election survey results because of the possibility
that such publication might undermine the integrity SWS, Pulse Asia and other survey firms of similar
of the election, §5.4 actually suppresses a whole circumstance are required to submit the names of
class of expression, while allowing the expression all commissioners and payors of surveys. The
of opinion concerning the same subject matter by submission shall include the names of all
newspaper columnists, radio and TV "subscribers" of those published surveys. Such
commentators, armchair theorists, and other information/data shall be for the exclusive and
opinion makers. In effect, §5.4 shows a bias for a confidential use of the Commission. All surveys
particular subject matter, if not viewpoint, by published subsequent to the promulgation of this
preferring personal opinion to statistical results. Resolution must be accompanied by all the
information required in Republic Act no. 9006,
Even if the governmental interest sought to be including the names of commissioners, payors and
promoted is unrelated to the suppression of speech subscribers. A violation of these rules shall
and the resulting restriction of free expression is constitute an election offense as provided in
only incidental, §5.4 nonetheless fails to meet Republic Act no. 9006, or the Fair Election Act.
criterion [4] of the O’Brien test, namely, that the
restriction be not greater than is necessary to COMELEC Resolution No. 9674 is valid. The
further the governmental interest. As already names of those who commission or pay for election
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surveys, including subscribers of survey firms, Election surveys, on their face, do not state or
must be disclosed pursuant to Section 5.2(a) of the allude to preferred candidates. As a means,
Fair Elections Act. This requirement is a valid election surveys are ambivalent. Election surveys
regulation in the exercise of police power and thus become unambiguous only when viewed in
effects the constitutional policy of guaranteeing relation to the end for which they are employed. To
equal access to opportunities for public service. those whose end is to get a candidate elected,
Section 5.2(a)’s requirement of disclosing election surveys, when limited to their own private
subscribers does not curtail petitioners’ free consumption, are a means to formulate strategy.
speech rights.
a) Applying the O’Brien Test, first, the text of When published, however, the tendency to shape
Section 5.2(a) of the Fair Elections Act supports voter preferences comes into play. In this respect,
the inclusion of subscribers among those published election surveys partake of the nature of
persons who paid for the survey. Thus, election propaganda. It is then declarative speech
Resolution No. 9674 is a regulation finding in the context of an electoral campaign properly
basis in statute.
subject to regulation. (SWS v. COMELEC, G.R.
b) Second, not only an important or substantial
state interest but even a compelling one No. 208062, April 07, 2015)
reasonably grounds Resolution No. 9674’s
inclusion of subscribers to election surveys. Effects of Election Surveys on Voter Behavior
Thus, regardless of whether an intermediate or 1. Bandwagon effect – where electors rally to
strict standard is used, Resolution No. 9674 support the candidate leading in the polls.
passes scrutiny. 2. Underdog effect – where electors rally to
c) Third, while it does regulate expression (i.e., support the candidate trailing in the polls.
petitioners’ publication of election surveys), it 3. Motivating effect – where individuals who had
does not go so far as to suppress desired not intended to vote are persuaded to do so.
expression. There is neither prohibition nor 4. Demotivating effect – where voters abstain
censorship specifically aimed at election from voting out of certainty that their candidate
surveys. The freedom to publish election or party will win.
surveys remains. All Resolution No. 9674 does 5. Strategic voting – where voting is influenced
is articulate a regulation as regards the manner by the chances of winning.
of publication, that is, that the disclosure of 6. Free-will effect – where voters cast their ballots
those who commissioned and/or paid for, to prove the polls wrong. (SWS v. COMELEC,
including those subscribed to, published G.R. No. 208062, April 07, 2015)
election surveys must be made.
d) Lastly, Resolution No. 9674 is narrowly tailored REGULATION OF SPEECH IN THE CONTEXT
to meet the objective of enhancing the OF ELECTORAL CAMPAIGNS
opportunity of all candidates to be heard and
considering the primacy of the guarantee of free Regulation of Speech Made by Candidates or
expression and is demonstrably the least the Members of Their Political Parties – Valid if
restrictive means to achieve that object. (SWS
Content-Neutral
v. COMELEC, G.R. No. 208062, April 07, 2015)
Regulation of speech in the context of electoral
COMELEC Resolution No. 9674 – Not a Prior campaigns made by candidates or the members of
Restraint their political parties or their political parties may be
Resolution No. 9674 poses no prohibition or regulated as to time, place, and manner (content-
censorship specifically aimed at election surveys. neutral regulation). (Diocese of Bacolod v.
Apart from regulating the manner of publication, COMELEC, G.R. No. 205728, Jan. 21, 2015)
survey companies remain free to publish election
surveys. The disclosure requirement kicks in only Regulation of Speech of Persons Who Are Not
upon, not prior to, publication. (SWS v. COMELEC, Candidates or Who Do Not Speak as Members
G.R. No. 208062, April 07, 2015) of a Political Party - Unconstitutional
Regulation of speech in the context of electoral
Public Election Surveys May Be Subject to campaigns made by persons who are not
Regulation candidates or who do not speak as members of a
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political party which are, taken as a whole, property. (Diocese of Bacolod v. COMELEC, G.R.
principally advocacies of a social issue that the No. 205728, Jan. 21, 2015)
public must consider during elections is
unconstitutional. Such regulation is inconsistent Regulation on Size Limitations of Tarpaulins –
with the guarantee of according the fullest possible A Content-Based Regulation
range of opinions coming from the electorate Size limitations during elections hit at a core part of
including those that can catalyze candid, expression. The content of the tarpaulin is not
uninhibited, and robust debate in the criteria for the easily divorced from the size of its medium. A
choice of a candidate. content-based regulation, however, bears a heavy
presumption of invalidity and is measured against
COMELEC does not have the authority to regulate the clear and present danger rule. The latter will
the enjoyment of the right to freedom of expression pass constitutional muster only if justified by a
exercised by citizens who are neither electoral compelling reason, and the restrictions imposed
candidates nor sponsored by any electoral are neither overbroad nor vague.
candidate. A tarpaulin that expresses a political
opinion constitutes political speech. Speech that With the clear and present danger test, respondent
promotes dialogue on public affairs, or airs out COMELEC failed to justify the regulation. There is
grievances and political discontent, should be no compelling and substantial state interest
protected and encouraged. endangered by the posting of the tarpaulin as to
justify curtailment of the right of freedom of
However, this does not mean that there cannot be expression. There is no reason for the state to
a specie of speech by a private citizen which will minimize the right of noncandidate petitioners to
not amount to an election paraphernalia to be post the tarpaulin in their private property. The size
validly regulated by law. (Diocese of Bacolod v. of the tarpaulin does not affect anyone else’s
COMELEC, G.R. No. 205728, Jan. 21, 2015) constitutional rights. (Diocese of Bacolod v.
COMELEC, G.R. No. 205728, Jan. 21, 2015)
Test for a Valid Regulation of Election
Paraphernalia Directed to Private Persons Prohibition on Posting of Election Campaign
Regulation of election paraphernalia will still be Materials During an Election Period in PUVs
constitutionally valid if it reaches into speech of and Transport Terminals – A Prior Restraint;
persons who are not candidates or who do not Unconstitutional
speak as members of a political party if they are not COMELEC Resolution No. 9615: Posting an
candidates, only if what is regulated is declarative election campaign material during an election
speech that, taken as a whole, has for its principal period in PUVs and transport terminals carries with
object the endorsement of a candidate only. The it the penalty of revocation of the public utility
regulation should be: (LR-NT-LR) franchise and shall make the owner thereof liable
1. Provided by Law; for an election offense.
2. Reasonable;
3. Narrowly Tailored to meet the objective of The prohibition constitutes a clear prior restraint on
enhancing the opportunity of all candidates to the right to free expression of the owners of PUVs
be heard and considering the primacy of the and transport terminals. As a result of the
guarantee of free expression; and
prohibition, owners of PUVs and transport
4. Demonstrably the Least Restrictive means to
achieve that object. terminals are forcefully and effectively inhibited
from expressing their preferences under the pain of
The regulation must only be content-neutral, i.e. indictment for an election offense and the
with respect to the time, place, and manner of the revocation of their franchise or permit to operate.
rendition of the message. In no situation may the
speech be prohibited or censored on the basis of Resolution No. 9615 are content-neutral
its content. For this purpose, it will not matter regulations since they merely control the place
whether the speech is made with or on private where election campaign materials may be posted.
However, the prohibition is still repugnant to the
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free speech clause as it fails to satisfy all of the to shield the public from some kinds of speech on
requisites for a valid content-neutral regulation the ground that they are more offensive than
(O’Brien Test). others. Such selective restrictions have been
upheld only when the speaker intrudes on the
Applying the O’Brien Test, it is conceded that privacy of the home or the degree of captivity
Resolution No. 9615 furthers an important and makes it either impossible or impractical for the
substantial governmental interest, i.e., ensuring unwilling viewer or auditor to avoid exposure.
equal opportunity, time and space among
candidates aimed at the holding of free, orderly, A government regulation based on the captive-
honest, peaceful, and credible elections. It is audience doctrine may not be justified if the
further conceded that the governmental interest in supposed “captive audience” may avoid exposure
imposing the said prohibition is unrelated to the to the otherwise intrusive speech. The prohibition
suppression of free expression. However, under Resolution No. 9615 is not justified under the
Resolution No. 9615 is not within the captive- audience doctrine; the commuters are not
constitutionally delegated power of the COMELEC, forced or compelled to read the election campaign
thus fails the first criterion of the O’Brien Test. (1- materials posted on PUVs and transport terminals.
UTAK v. COMELEC, G.R. No. 206020, April 14, Nor are they incapable of declining to receive the
2015) messages contained in the posted election
campaign materials since they may simply avert
COMELEC May Only Regulate the Franchise or their eyes if they find the same unbearably
Permit to Operate and Not the Ownership per intrusive. (1-UTAK v. COMELEC, G.R. No.
se of PUVs and Transport Terminals 206020, April 14, 2015)
Section 4, Article IX-C of the Constitution only
grants COMELEC supervisory and regulatory Prohibition on Posting of Decals and Stickers
powers over the enjoyment or utilization of all in Mobile Places – Unconstitutional
franchises or permits for the operation, inter alia, of COMELEC’s prohibition on posting of decals and
transportation and other public utilities. The stickers on mobile places whether public or private
COMELEC’s constitutionally delegated powers of except in designated areas provided for by the
supervision and regulation do not extend to the COMELEC itself is null and void on constitutional
ownership per se of PUVs and transport terminals, grounds.
but only to the franchise or permit to operate the
same. There is a marked difference between the The posting of decals and stickers in mobile places
franchise or permit to operate transportation for the like cars and other moving vehicles does not
use of the public and the ownership per se of the endanger any substantial government interest.
vehicles used for public transport. In the same There is no clear public interest threatened by such
manner, the COMELEC does not have the activity so as to justify the curtailment of the
constitutional power to regulate public transport cherished citizen’s right of free speech and
terminals owned by private persons. (1-UTAK v. expression.
COMELEC, G.R. No. 206020, April 14, 2015)
The regulation strikes at the freedom of an
Resolution No. 9615 Not Justified Under the individual to express his preference and, by
Captive Audience Doctrine displaying it on his car, to convince others to agree
The captive-audience doctrine states that when a with him. A sticker may be furnished by a candidate
listener cannot, as a practical matter, escape from but once the car owner agrees to have it placed on
intrusive speech, the speech can be restricted. The his private vehicle, the expression becomes a
captive-audience doctrine recognizes that a statement by the owner, primarily his own and not
listener has a right not to be exposed to an of anybody else. (Adiong v. COMELEC, G.R. No.
unwanted message in circumstances in which the 103956 March 31, 1992)
communication cannot be avoided. A regulation
based on the captive-audience doctrine is in the f. Speech Regulation in Relation to Media
guise of censorship, which undertakes selectively
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Four Aspects of Freedom of the Press However, the clear and present danger rule applies
1. Freedom from prior restraint to all media, including broadcast, but only when the
2. Freedom from punishment subsequent to challenged act is a content-based regulation that
publication infringes on free speech, expression and the press.
3. Freedom of access to information (Chavez v. Gonzales, G.R. No. 168338, Feb. 15,
4. Freedom of circulation. (Chavez v. Gonzales, 2008)
G.R. No. 168338, Feb. 15, 2008)
Print v. Broadcast Media Motion Pictures Censorship

While all forms of communication are entitled to the When the MTRCB classified the movie Kapit sa
broad protection of freedom of expression clause, Patalim as "For-Adults-Only," the Supreme Court
the freedom of film, television and radio dismissed this petition for certiorari solely on the
broadcasting is somewhat lesser in scope than the ground that there are not enough votes for a ruling
freedom accorded to newspapers and other print that there was a grave abuse of discretion in the
media. classification.
According to U.S. Courts, the three major reasons The test to determine whether freedom of
why broadcast media stands apart from print media expression may be limited is the clear and present
are: danger of an evil of a substantive character that the
a. The scarcity of the frequencies by which the State has a right to prevent. Such danger must not
medium operates [i.e., airwaves are physically only be clear but also present.
limited while print medium may be limitless]; a. There should be no doubt that what is feared
b. Its "pervasiveness" as a medium; and may be traced to the expression complained of.
c. Its unique accessibility to children. The causal connection must be evident.
According to Philippine jurisprudence, first, the b. Also, there must be reasonable apprehension
difference in treatment, in the main, is in the about its imminence. The time element cannot
regulatory scheme applied to broadcast media that be ignored. Nor does it suffice if such danger be
only probable.
is not imposed on traditional print media, and
narrowly confined to unprotected speech (e.g., The basic postulate, wherefore, is that where the
obscenity, pornography, seditious and inciting movies, theatrical productions radio scripts,
speech), or is based on a compelling government television programs, and other such media of
interest that also has constitutional protection, such expression are concerned — included as they are
as national security or the electoral process. in freedom of expression — censorship, especially
so if an entire production is banned, is allowable
Second, regardless of the regulatory schemes that only under the clearest proof of a clear and present
broadcast media is subjected to, the Court has danger of a substantive evil to public morals, public
consistently held that the clear and present danger health or any other legitimate public interest.
test applies to content-based restrictions on media, (Gonzales v. Katigbak, G.R. No. L-69500 July 22,
without making a distinction as to traditional print or 1985)
broadcast media. (Chavez v. Gonzales, G.R. No.
168338, Feb. 15, 2008) A limited intrusion into a person's privacy has long
been regarded as permissible where that person is
Clear and Present Danger Rule: Applicable to a public figure and the information sought to be
Broadcast Media IF Content-Based Regulation elicited from him or to be published about him
All forms of media, whether print or broadcast, are constitute of a public character. The right of privacy
entitled to the broad protection of the freedom of cannot be invoked resist publication and
speech and expression clause. The test for dissemination of matters of public interest. The
limitations on freedom of expression continues to interest sought to be protected by the right of
be the clear and present danger rule. (Eastern privacy is the right to be free from unwarranted
Broadcasting v. Dans, G.R. No. L-59329 July 19, publicity, from the wrongful publicizing of the
1985) private affairs and activities of an individual which
are outside the realm of legitimate public concern.
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(Ayer v. Capulong, G.R. No. 82380 April 29, 1988, Radio Censorship
On the proposed motion picture entitled "The Four In Santiago v. Far Eastern Broadcasting, the case
Day Revolution" involving Sen. Juan Ponce Enrile) hinges on whether the petitioner has a clear legal
right to broadcast any speech over one of the radio
Television Censorship stations owned and operated by the respondent
PD No. 1986 gives the MTRCB the power to without first submitting the manuscript, and
screen, review and examine all "television whether there is a corresponding duty devolved by
programs." By the clear terms of the law, the Board law upon the respondent to permit the petitioner to
has the power to approve, delete and/or prohibit do so.
the exhibition and/or television broadcast of
television programs. The law also directs the The Court ruled that it is not the duty of the
MTRCB to apply contemporary Filipino cultural respondent as a public service corporation to
values as standard to determine those which are broadcast speeches without requiring the
objectionable for being immoral, indecent, contrary submission of the manuscript thereof in advance,
to law and/or good customs, injurious to the but that, on the contrary, the laws and regulations
prestige of the Republic of the Philippines and its expressly authorize the respondent to make such
people, or with a dangerous tendency to encourage requirement.
the commission of violence or of a wrong or crime. a. Section 2 of Act No. 3180, which is the franchise
of the respondent corporation, provides that the
It is significant to note that in Iglesia ni Cristo v. CA, broadcasting service shall be open to the
the Court declared that freedom of religion has general public subject to the general regulations
been accorded a preferred status by the framers of of the grantee for the allotment of time and the
class of communications acceptable for
our fundamental laws. Yet despite the fact that
broadcasting.
freedom of religion has been accorded a preferred b. Commonwealth Act No. 98, where the
status, still the Court, did not exempt the Iglesia ni Secretary of the Interior "shall examine all
Cristo’s religious program from petitioner’s review programs, sustaining or sponsored, of all
power. broadcasting stations," with the power "to
eliminate or cancel from the program such
If the Court, in Iglesia ni Cristo, did not exempt number or parts thereof as in his opinion are
religious programs from the jurisdiction and review neither moral, educational nor entertaining, and
power of petitioner MTRCB, with more reason, prejudicial to public interest."
there is no justification to exempt therefrom "The c. Department Order No. 13, which requires all
broadcasting stations to submit daily to the
Inside Story" which, is protected by the
Secretary of the Interior at least twenty-four
constitutional provision on freedom of expression hours in advance of the actual broadcasting
and of the press, a freedom bearing no preferred hour, two copies of all programs to be
status. broadcasted by the stations. Further, it is
provided that if a program contains any
Thus, MTRCB has power to review both religious speeches, ... copies of these or a gist thereof,
shows like the INC program, as well as public may be required by the Secretary of the Interior
affairs and documentary programs like The Inside to be submitted together with the program.
Story. (MTRCB v. ABS-CBN, G.R. No. 155282, (Santiago v. Far Eastern Broadcasting, G.R.
Jan. 17, 2005) No. L-48683, Nov. 8, 1941)
3. JUDICIAL ANALYSIS, PRESUMPTIONS

Live TV coverage of a criminal case may be
AND LEVELS AND TYPES OF SCRUTINY
allowed...“mere fear of possible undue influence is
not tantamount to actual prejudice resulting in the Generally, restraints on freedom of speech and
deprivation of the right to a fair trial.” (In Re: Petition expression are evaluated by either or a
For Radio And TV Coverage Of The Multiple combination of three tests. As articulated in our
Murder Case Against Zaldy Ampatuan et al., A.M. jurisprudence, the Court has applied either the
No. 10-11-5-SC, June 14, 2011) dangerous tendency doctrine or clear and present
danger test to resolve free speech challenges.
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More recently, the Court has concluded that it has broadcasts that incite the listeners to violently
generally adhered to the clear and present danger overthrow it.
test. (Chavez v. Gonzales, G.R. No. 168338, Feb.
15, 2008) However, the clear and present danger test is not
an all-embracing interpretation that is applicable to
a. Clear and Present Danger Test all utterances in all forums. Freedom of television
and radio broadcasting is lesser in scope than the
Concept freedom accorded to newspaper and print media.
This test is used for statements against lower Radio broadcasting receives the most limited
courts. Whether the words used are used in such protection from the free expression clause.
circumstances and are of such a nature as to Broadcast media have a uniquely pervasive
create a clear and present danger that they will presence in the lives of all citizens – it reaches
bring about the substantive evils that Congress has even the privacy of the home. Broadcast media is
a right to prevent. It is a question of proximity and uniquely accessible to all, even children –
degree. selectivity is more difficult in radio and TV. In other
words, the audiences of radio and TV have lesser
“Clear” connotes a causal connection with the opportunity to cogitate, analyze, and reject the
danger of the substantive evil arising from the utterances. (Eastern Broadcasting v. Dans Jr.,
utterance questioned. “Present” refers to the time G.R. No. L-59329, July 19, 1985)
element that is identified with imminent and
immediate danger. (Gonzales v. COMELEC, G.R. Applied to Cases involving the Court’s Power
No. L-27833, April 18, 1969) of Contempt
The power of contempt should be balanced with
Applies to Content-Based Regulation; the right to freedom of expression, especially when
Presumed Unconstitutional it may have the effect of stifling comment on public
A governmental action that restricts freedom of matters. The power to punish for contempt is not
speech or of the press based on content is given exercised without careful consideration of the
the strictest scrutiny in light of its inherent and circumstances of the allegedly contumacious act,
invasive impact. Only when the challenged act has and the purpose of punishing the act. Especially
overcome the clear and present danger rule will it where freedom of speech and press is involved,
pass constitutional muster, with the government this Court has given a restrictive interpretation as
having the burden of overcoming the presumed to what constitutes contempt. An article which does
unconstitutionality. Unless the government can not impede, obstruct, or degrade the administration
overthrow this presumption, the content-based of justice is not contumacious. The question in
restraint will be struck down. (Chavez v. Gonzales, every case is whether the words used are used in
G.R. No. 168338, Feb. 15, 2008) such circumstances and are of such a nature as to
create a clear and present danger that they will
As Applied to Broadcast Media bring about the substantive evils that congress has
Radio station DYRE was summarily closed for a right to prevent. It is a question of proximity and
national security reasons because it allegedly aired degree. (Roque v. Chief of Staff, G.R. No. 214986,
subversive programs. The Court ruled that all forms February 15, 2017)
of media are entitled to the protection of the
freedom of speech and expression clause. The b. Dangerous Tendency Rule
clear and present danger test may be applied to
test the limits of free speech. That the words are Concept
used in such circumstances and are of such nature If the words uttered create a dangerous tendency
as to create a clear and present danger that they which the state has a right to prevent, then such
will bring about the substantive evils that Congress words are punishable. It is not necessary that some
has a right to prevent. The SC recognized that the definite or immediate acts of force, violence, or
government also has a right to be protected against unlawfulness be advocated. It is sufficient that such
acts be advocated in general terms. Nor is it
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necessary that the language used be reasonably The 1987 Constitution of the Republic of the
calculated to incite persons to acts of force, Philippines, 2009)
violence or unlawfulness. It is sufficient if the
natural tendency and probable effect of the c. Balancing of Interests Test
utterance be to bring about the substantive evil the
utterance be to bring about the substantive evil Concept
which the legislative body seeks to prevent. The balancing of interests test is used as a
(Cabansag v. Fernandez, G.R. No. L-8974, Oct. standard when courts need to balance conflicting
18, 1957) social values and individual interests, and requires
a conscious and detailed consideration of the
This is used for statements against the Supreme interplay of interests observable in a given situation
Court and permits the application of restrictions of type of situation. (Chavez v. Gonzales, G.R. No.
when: 168338, Feb. 15, 2008)
a. There is a rational connection between the
speech restrained and the danger Republic Act 4880 among other things prohibits the
apprehended; and too early nomination of political candidates and
b. The tendency of one to create the other is limits the period for partisan political activity. Its
shown. (Gonzales v. COMELEC, G.R. No. L- purpose is to prevent the debasement of the
27833, April 18, 1969) political process. In determining the validity of the
law, free speech as a social value must be weighed
Applied to the Cases Involving Independence against the political process as a social value.
of the Court (Gonzales v. COMELEC, G.R. No. L-27833, April
The "dangerous tendency" rule has been adopted 18, 1969)
in cases where extreme difficulty is confronted
determining where the freedom of expression ends The dangerous tendency rule and the clear and
and the right of courts to protect their present danger rule were evolved in the context of
independence begins. There must be a remedy to prosecution for seditious speech. They are thus
borderline cases and the basic principle of this rule couched in terms of degree of evil and proximity of
lies in that the freedom of speech and of the press, the evil. But not all evils easily lend themselves, like
as well as the right to petition for redress of sedition to measurement of proximity and degree.
grievance, while guaranteed by the constitution, For legislation therefore whose object is not the
are not absolute. They are subject to restrictions prevention of evil measurable in terms of proximity
and limitations, one of them being the protection of and degree, another test had to be evolved. The
the courts against contempt. (Cabansag v. balancing of interests serves this purpose. It is
Fernandez, G.R. No. L-8974, Oct. 18, 1957) used, for instance, for commercial speech. (People
v. Perez, G.R. No. L-21049, Dec. 22, 1923; Bernas,
Applied to Seditious Speech The 1987 Constitution of the Republic of the
Citizen Perez made this remark at a political Philippines, 2009)
discussion at a town municipio: “and the Filipinos,
like myself, must use bolos for cutting off Wood’s Factors to Consider
head for having recommended a bad thing for the Although the urgency of the public interest sought
Philippines.” The court held that criticism, no matter to be secured by Congressional power restricting
how severe, on the Executive, the Legislature, and the individual's freedom, and the social importance
the Judiciary, is within the range of liberty of and value of the freedom so restricted, are to be
speech, unless the intention and effect be judged in the concrete, not on the basis of
seditious. In this case, the Court found a seditious abstractions, a wide range of factors are
tendency which could easily produce disaffection necessarily relevant in ascertaining the point or line
among the people and a state of feeling of equilibrium. Among these are:
incompatible with a disposition to remain loyal to a. The social values and importance of the specific
the Government and obedient to the laws. (People aspect of the particular freedom restricted by
v. Perez, G.R. No. L-21049, Dec. 22, 1923; Bernas, the legislation;
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b. The specific thrust of the restriction, i.e., 4. SPECIAL TOPICS IN FREE EXPRESSION
whether the restriction is direct or indirect, CASES
whether or not the persons affected are few;
c. The value and importance of the public interest a. Hate Speech and Fighting Words
sought to be secured by the legislation — the
reference here is to the nature and gravity of the HATE SPEECH
evil which Congress seeks to prevent; Speech that demeans on the basis of race,
d. Whether the specific restriction decreed by ethnicity, gender, religion, age, disability, or any
Congress is reasonably appropriate and
other similar ground is hateful. (Matal v. Tam, 582
necessary for the protection of such public
interest; and U.S., June 19, 2017)
e. Whether the necessary safeguarding of the
public interest involved may be achieved by Speech that carries no meaning other than the
some other measure less restrictive of the expression of hatred for some group, such as a
protected freedom. (J. Castro, Separate particular race, esp. in circumstances in which the
Opinion in Gonzales v. COMELEC, G.R. No. L- communication is likely to provoke violence.
27833, April 18, 1969) (Black’s Law Dictionary, 10th ed.)
Summary No Hate Speech Exception to Free Speech

TEST CRITERION The proudest boast of our free speech
jurisprudence is that we protect the freedom to
Whether the words used are express “the thought that we hate.” (Matal v. Tam,
used in such circumstances 582 U.S., June 19, 2017)
and are of such a nature as to
create a clear and present FIGHTING WORDS
Clear and
danger that they will bring Words which by their very utterance, inflict injury or
Present Danger
about the substantive evils tend to incite an immediate breach of the peace. It
that Congress has a right to has been well observed that such utterances are
prevent. It is a question of no essential part of any exposition of ideas, and are
proximity and degree. of such slight social value as a step to truth that any
benefit that may be derived from them is clearly
If the words uttered create a outweighed by the social interest in order and
dangerous tendency which morality. (Chaplinsky v. New Hampshire, 315 U.S.
the state has a right to 568, March 9, 1942)
prevent, then such words are
punishable. Test
Dangerous
There should be a rational The test is what men of common intelligence would
Tendency
connection between the understand would be words likely to cause an
speech restrained and the average addressee to fight. (Chaplinsky v. New
danger apprehended and the Hampshire, 315 U.S. 568, March 9, 1942)
tendency of one to create the
other is shown. Fighting Words – No Constitutional Protection
IF Defamatory or Tortious
Courts need to balance "Fighting words" are not entitled to constitutional
conflicting social values and protection and may be penalized. (Chavez v.
individual interests, and Gonzales, G.R. No. 168338, Feb. 15, 2008)
Balancing of requires a conscious and
Interests detailed consideration of the Fighting words are not subject to subsequent
interplay of interests punishment unless they are defamatory or tortious.
observable in a given Fighting words refer to profane or vulgar words that
situation of type of situation. are likely to provoke a violent response from an
audience. Profane or vulgar words like "Fuck the
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draft," when not directed at any particular person, Elements

ethnic or religious group, are not subject to The elements of libel are: (APIM)
subsequent punishment. As aptly stated, "one a. The Allegation of a discreditable act or
man’s vulgarity may be another man’s lyric." If condition concerning another;
profane or vulgar language like "Fuck the draft" is b. Publication of the charge;
not subject to subsequent punishment, then with c. Identity of the person defamed; and
more reason it cannot be subject to prior restraint. d. Existence of Malice.
(Disini v. Sec. of Justice, G.R. No. 203335, Feb.
Without a law punishing the actual utterance or
18, 2014)
publication of an expression, an expression cannot
be subject to prior restraint because such
Proof that Statement is False
expression is not unlawful or illegal. (J. Carpio,
In the absence of proof that the defendant knew
Separate Opinion in Soriano v. Laguardia, G.R. No.
that the statement was false or published with
164785, April 29, 2009; citing Cohen v. California,
reckless disregard of whether or not it was true, the
403 U.S. 15, June 7, 1971)
defendant cannot be held liable for libel.
(Guingguing v. Court of Appeals, G.R. No. 128959,
Summary
Sept. 30, 2005)
HATE SPEECH FIGHTING WORDS
When is Malice Present
Speech that demeans There is malice when the author of the imputation
Words which by their
on the basis of race, is prompted by ill-will or spite and speaks not in
very utterance, inflict
ethnicity, gender, response to duty but merely to injure the reputation
injury or tend to incite
religion, age, disability, of the person who claims to have been defamed.
an immediate breach
or any other similar (Alonzo v. CA, G.R. No. 110088, Feb. 1, 1995)
of the peace.
ground is hateful.
Every Defamatory Imputation Presumed
Unprotected Speech (if Malicious
Protected Speech General Rule: Every defamatory imputation is
defamatory or tortious)
presumed to be malicious, even if it be true, if no
good intention and justifiable motive for making it is
shown.
b. Defamation and Libel • Exceptions:

1. A private communication made by any
Definition person to another in the performance of
A libel is a public and malicious imputation of a any legal, moral or social duty; and
crime, or of a vice or a defect, real or imaginary, or 2. A fair and true report, made in good faith,
without any comments or remarks, of any
any act, omission, condition, status, or
judicial, legislative or other official
circumstance tending to cause the dishonor, proceedings which are not of confidential
discredit, or contempt of a natural or juridical nature, or of any statement, report or
person, or to blacken the memory of one who is speech delivered in said proceedings, or of
dead. (REVISED PENAL CODE, art. 353) any other act performed by public officers
in the exercise of their functions. (REVISED
Libel Not a Constitutionally Protected Speech PENAL CODE, art. 354)
Libel is not a constitutionally protected speech and
that the government has an obligation to protect Doctrine of Fair Commentaries
private individuals from defamation. (Disini v. Sec. The enumeration under Art. 354 is not an exclusive
of Justice, G.R. No. 203335, Feb. 18, 2014) list of qualifiedly privileged communications since
fair commentaries on matters of public interest are
likewise privileged.
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The doctrine of fair commentaries means "that by public officers in the performance of their duties,
while in general every discreditable imputation and allegations or statements made by the parties
publicly made is deemed false, because every man or their counsel in their pleadings or motions or
is presumed innocent until his guilt is judicially during the hearing of judicial proceedings, as well
proved, and every false imputation is deemed as the answers given by witnesses in reply to
malicious, nevertheless, when the discreditable questions propounded to them, in the course of
imputation is directed against a public person in his said proceedings, provided that said allegations or
public capacity, it is not necessarily actionable. In statements are relevant to the issues, and the
order that such discreditable imputation to a public answers are responsive or pertinent to the
official may be actionable, it must either be a false questions propounded to said witnesses.
allegation of fact or a comment based on a false
supposition. (Yuchengco v. The Manila Chronicle, 2. Qualifiedly Privileged Communications
G.R. No. 184315, Nov. 25, 2009) Those which contain defamatory imputations but
are not actionable unless found to have been made
Cyberlibel – Only the Original Author is Liable without good intention justifiable motive.
Only the original author of the statement should be
prosecuted for libel. Because of the unique culture To this genre belong "private communications" and
of cyberspace, the inclusion of those who just "fair and true report without any comments or
shared the statement in the case would have a remarks” under article 354 of the Revised Penal
chilling effect upon them. This makes the law Code. (Manila Bulletin v. Domingo, G.R. No.
overbroad and therefore in violation of freedom of 170341, July 5, 2017)
expression. (Disini v. Sec. of Justice, G.R. No.
203335, Feb. 18, 2014) While generally every defamatory imputation is
presumed malicious, if the communication is
Contempt is Akin to a Case of Libel privileged, the presumption does not arise. The
Contempt is akin to a case of libel for both plaintiff assumes the burden of proving malice.
constitute limitations upon freedom of the press or (Bernas, The 1987 Constitution of the Republic of
freedom of expression guaranteed by our the Philippines, 2009)
Constitution. What is considered a privilege in one
may likewise be considered in the other. The Requisites of a Qualifiedly Privileged
principle of privileged communications can also be Communication under Article 354, No. 1 of the
invoked in contempt charges. Revised Penal Code – “Private
Communications”
When a lawyer has become a public figure for In order to prove that a statement falls within the
being involved in a public issue, the controversy purview of a qualified privileged communication
involving such individual becomes a matter of under Article 354, No. 1, the following requisites
public interest. Therefore, the media has the right must concur: (DAG)
to report the disciplinary case as legitimate news. 1. The person who made the communication had
Such will not be considered as a violation of the a legal, moral, or social Duty to make the
confidentiality rule in disciplinary proceedings communication, or at least, had an interest to
against lawyers. (Atty. Raymund P. Palad v. Lolit protect, which interest may either be his own or
of the one to whom it is made;
Solis, et al., G.R. No. 206691, Oct. 3, 2016)
2. The communication is Addressed to an officer
or a board, or superior, having some interest or
Privileged Communications duty in the matter, and who has the power to
1. Absolutely Privileged Communications furnish the protection sought; and
Those which are not actionable even if the author 3. The statements in the communication are made
has acted in bad faith. in Good faith and without malice. (Syhunliong
v. Rivera, G.R. No. 200148, June 4, 2014)
This classification includes statements made by
members of Congress in the discharge of their
functions as such, official communications made
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recover damages for a defamatory falsehood

Group/Class Libel relating to his official conduct.
Where the defamation is alleged to have been
directed at a group or class, it is essential that the Actual malice means there was knowledge that it
statement must be so sweeping or all-embracing was false or with reckless disregard of whether it
as to apply to every individual in that group or class, was false or not. (NY Times v. Sullivan, 376 U.S.
or sufficiently specific so that each individual in the 254, 1964).
class or group can prove that the defamatory
statement specifically pointed to him, so that he General Rule: Every defamatory imputation is
can bring the action separately, if need be. presumed to be malicious, even if it be true, if no
(Newsweek v. IAC, G.R. No. L-63559, May 30, good intention and justifiable motive for making it is
1986) shown.
• Exception: If the defamed is a public
If the group is a very large one, then the alleged
figure/official, there is no presumption of
libelous statement is considered to have no malice. Instead, the public official/figure
application to anyone in particular, since one might defamed must prove ‘actual malice.’
as well defame all mankind. Not only does the
group as such have no action; the plaintiff does not Fair Commentaries
establish any personal reference to himself. As the These are privileged and constitute a valid defense
size of these groups increases, the chances for in an action for libel or slander. When the
members of such groups to recover damages on discreditable imputation is directed against a public
tortious libel become elusive. This principle is said person in his public capacity, it is not necessarily
to embrace two (2) important public policies: actionable. In order for it to be actionable, it must
a. First, where the group referred to is large, the either be a false allegation of fact or a comment
courts presume that no reasonable reader based on a false supposition.
would take the statements as so literally
applying to each individual member; and If the comment is an expression of opinion based
b. Second, the limitation on liability would
on established facts, then it is immaterial that the
satisfactorily safeguard freedom of speech and
expression, as well as of the press, effecting a opinion happens to be mistaken, as long as it might
sound compromise between the conflicting reasonably be inferred. The insertion of an old
fundamental interests involved in libel cases. picketing footage in a news report was not libelous
(MVRS Publication v. Islamic Da’wah Council of because it did not convey anything derogatory in
the Philippines, G.R. No. 135306. Jan. 28, nature, and it was actually simultaneously voiced
2003) over by the narration of the news report. The report
was also merely quoted from the contents and
LIBEL AGAINST PUBLIC OFFICIALS AND allegations in the petition and is merely a summary
PUBLIC FIGURES of the petition. (GMA Network v. Bustos, G.R. No.
146848, Oct. 17, 2006)
Public Figure
Those who, by reason of the notoriety of their LIBEL AGAINST PRIVATE INDIVIDUALS
achievements or the vigor and success with which
they seek the public's attention. (Gertz v. Welch, New York Times Standard Not Applicable to
418 U.S. 323, June 25, 1974) Defamed Private Individuals
So long as they do not impose liability without fault,
Public Official the States may define for themselves the
Those who hold governmental office. (Gertz v. appropriate standard of liability (less demanding
Welch, 418 U.S. 323, June 25, 1974) than the New York Times standard – actual malice)
for a publisher or broadcaster of defamatory
New York Times Standard – Actual Malice falsehood injurious to a private individual.
Public officials/figures must prove that the
statement was made with ‘actual malice’ in order to
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The States, however, may not permit recovery of The freedom of speech secured by the Constitution
presumed or punitive damages when liability is not does not confer an absolute right to speak or
based on knowledge of falsity or reckless disregard publish without responsibility whatever one may
for the truth, and the private defamation plaintiff choose. It is not unbridled license that gives
who establishes liability under a less demanding immunity for every possible use of language and
standard than the New York Times test may prevents the punishment of those who abuse this
recover compensation only for actual injury. (Gertz freedom. So statutes against sedition have
v. Welch, 418 U.S. 323, June 25, 1974) guaranty, although they should not be interpreted
so as to agitate for institutional changes. Thus,
Rationale another limit of free speech and writing is seditious
Because private individuals characteristically have speech which is prohibited under Art. 142 of the
less effective opportunities for rebuttal than do Revised Penal Code. (Mendoza v. People, G.R.
public officials and public figures, they are more No. L-2990, Dec. 17, 1951)
vulnerable to injury from defamation. Because they
have not voluntarily exposed themselves to When a fictitious suicide photo and letter were
increased risk of injury from defamatory published in newspapers of general circulation
falsehoods, they are also more deserving of expressing disappointment in the Roxas
recovery. The state interest in compensating injury administration and instructing a fictitious wife to
to the reputation of private individuals is therefore teach their children to burn photos of the President,
greater than for public officials and public figures. the Court held that such act constitutes inciting to
sedition. It suggests or incites rebellious
To extend the New York Times standard to media conspiracies or riots and tends to turn the people
defamation of private persons whenever an issue against the constituted authorities, or to provoke
of general or public interest is involved would violence from opposition groups who may seek to
abridge to an unacceptable degree the legitimate silence the writer, which is the sum and substance
state interest in compensating private individuals of the offense under consideration. (Mendoza v.
for injury to reputation and would occasion the People, G.R. No. L-2990, Dec. 17, 1951)
additional difficulty of forcing courts to decide on an
ad hoc basis which publications and broadcasts Reason Why Seditious Utterances are
address issues of general or public interest and Prohibited
which do not. (Gertz v. Welch, 418 U.S. 323, June Manifestly, the legislature has authority to forbid
25, 1974) the advocacy of a doctrine designed and intended
to overthrow the Government without waiting until
c. Sedition and Speech in Relation to there is a present and immediate danger of the
Rebellion success of the plan advocated. If the State were
compelled to wait until the apprehended danger
Seditious Speech is an Unprotected Speech became certain, then its right to protect itself would
Criticism is permitted to penetrate even to the come into being simultaneously with the overthrow
foundations of Government. Criticism, no matter of the Government, when there would be neither
how severe, on the Executive, the Legislature, and prosecuting officers nor courts for the enforcement
the Judiciary, is within the range of liberty of of the law. (Gitlow vs. New York, 268 U.S. 652,
speech, unless the intention and effect be June 7, 1925)
seditious. But when the intention and effect of the
act is seditious, the constitutional guaranties of Tests Applied to Seditious Words
freedom of speech and press and of assembly and
petition must yield to punitive measures designed 1. Clear and Present Danger Test
to maintain the prestige of constituted authority, the A political party applied for a permit to hold a public
supremacy of the constitution and the laws, and the meeting in Manila. The Mayor refused to grant
existence of the State. (People v. Perez, G.R. No. permit. The refusal of the Mayor to grant permit for
L-21049, Dec. 22, 1923) the holding of a public meeting was predicated
upon fear that in view of the bitterness of the
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speeches expected from the minority men who d. Obscenity/Pornography

were fresh from a political defeat and were
smarting with charges of fraud against those in Concept; Miller Test for Obscenity
power, there might be breach of the peace and of There is no perfect definition of "obscenity" but the
public order. The Court ruled that the danger latest word is that of Miller v. California which
apprehended was not imminent and the evil to be established basic guidelines, to wit: (PILV)
prevented was not a serious one. Thus, the Mayor 1. Whether to the average person, applying
was ordered by the Supreme Court in mandamus contemporary standards would find the work,
proceedings to issue a permit. (Primicias v. taken as a whole, appeals to the Prurient
Interest;
Fugoso, G.R. No. L-1800, Jan. 27, 1948)
2. Whether the work depicts or describes, in a
patently offensive way, sexual conduct
2. Dangerous Tendency Test specifically defined by the applicable state Law;
Citizen Perez made this remark at a political and
discussion at a town municipio: “and the Filipinos, 3. Whether the work, taken as a whole, lacks
like myself, must use bolos for cutting off Wood’s serious literary, artistic, political, or scientific
head for having recommended a bad thing for the Value. (Fernando v. CA, G.R. No. 159751, Dec.
Philippines.” The court held that criticism, no matter 6, 2006; Miller v. California, 413 U.S. 15, June
how severe, on the Executive, the Legislature, and 21, 1973)
the Judiciary, is within the range of liberty of
But, it would be a serious misreading of Miller to
speech, unless the intention and effect be
conclude that the trier of facts has the unbridled
seditious. In this case, the Court found a seditious
discretion in determining what is "patently
tendency which could easily produce disaffection
offensive. No one will be subject to prosecution for
among the people and a state of feeling
the sale or exposure of obscene materials unless
incompatible with a disposition to remain loyal to
these materials depict or describe patently
the Government and obedient to the laws. (People
offensive "hard core" sexual conduct. Examples
v. Perez, G.R. No. L-21049, Dec. 22, 1923)
included (a) patently offensive representations or
descriptions of ultimate sexual acts, normal or
Utterances Must Incite the Public to Commit
perverted, actual or simulated; and (b) patently
Sedition
offensive representations or descriptions of
It is not inciting to sedition when it is not proved that
masturbation, excretory functions, and lewd
the defendant incited the people to rise publicly and
exhibition of the genitals. What remains clear is that
tumultuously in order to attain any of the ends
obscenity is an issue proper for judicial
mentioned in Art. 139 (sedition), which are:
determination and should be treated on a case to
1. To prevent the promulgation or execution of any
law or the holding of any popular election; case basis and on the judge’s sound discretion.
2. To prevent the National Government, or any (Fernando v. CA, G.R. No. 159751, Dec. 6, 2006)
provincial or municipal government, or any
public officer thereof from freely exercising its or Relative Obscenity
his functions, or prevent the execution of any The Court noted that there was “no perfect
administrative order; definition of obscenity” and that ultimately therefore
3. To inflict any act of hate or revenge upon the “obscenity is an issue proper for judicial
person or property of any public officer or determination and should be treated on a case to
employee; case basis and on the judge’s sound discretion.”
4. To commit, for any political or social end, any
(Soriano v. Laguardia, G.R. No. 164785, April 29,
act of hate or revenge against private persons
or any social class; and 2009)
5. To despoil, for any political or social end, any
person, municipality or province, or the National Obscenity is an Unprotected Speech
Government of all its property or any part As obscenity is an unprotected speech which the
thereof. (People vs. Arrogante, 39 O.G. 1974) State has the right to regulate, the State in pursuing
its mandate to protect, as parens patriae, the public
from obscene, immoral and indecent materials
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must justify the regulation or limitation. One such Hudson Gas v. Public Service Commission, 447
regulation is Article 201 of the Revised Penal Code. U.S. 557, June 20, 1980)
(Fernando v. CA, G.R. No. 159751, Dec. 6, 2006)
Advertising, however tasteless and excessive it
Necessarily, that the confiscated materials are sometimes may seem, is nonetheless
obscene must be proved. (Fernando v. CA, G.R. dissemination of information as to who is producing
No. 159751, Dec. 6, 2006) and selling what product, for what reason, and at
what price. So long as we preserve a
Procedure for Conviction Under Art. 201 predominantly free enterprise economy, the
1. The authorities must apply for the issuance of a allocation of our resources in large measure will be
search warrant from a judge, if in their opinion, made through numerous private economic
an obscenity rap is in order; decisions. It is a matter of public interest that those
2. The authorities must convince the court that the decisions, in the aggregate, be intelligent and well
materials sought to be seized are "obscene", informed. To this end, the free flow of commercial
and pose a clear and present danger of an evil
information is indispensable. And if it is
substantive enough to warrant State
interference and action; indispensable to the proper allocation of resources
3. The judge must determine whether or not the in a free enterprise system, it is also indispensable
same are indeed "obscene:" the question is to to the formation of intelligent opinions as to how
be resolved on a case-to-case basis and on His that system ought to be regulated or altered.
Honor's sound discretion. (Virginia State Board of Pharmacy v. Virginia
4. If, in the opinion of the court, probable cause Citizens Consumer Council, 425 U.S. 748, May 24,
exists, it may issue the search warrant prayed 1976)
for;
5. The proper suit is then brought in the court Accorded Lesser Protection
under Article 201 of the Revised Penal Code;
Although the Constitution accords a lesser
6. Any conviction is subject to appeal. The
appellate court may assess whether or not the protection to commercial speech than to other
properties seized are indeed "obscene." (Pita v. constitutionally guaranteed expression,
CA, G.R. No. 80806, Oct. 5, 1989) nevertheless the First Amendment protects
commercial speech from unwarranted
Mere Possession Not Punishable; Publicity is governmental regulation. (Central Hudson Gas v.
Necessary Public Service Commission, 447 U.S. 557, June
Mere possession of obscene materials, without 20, 1980)
intention to sell, exhibit, or give them away, is not
punishable under Article 201 of the RPC,
considering the purpose of the law is to prohibit the Central Hudson Test for a Valid Commercial
dissemination of obscene materials to the public. Speech Regulation
The offense in any of the forms under Article 201 is For commercial speech to come within the First
committed only when there is publicity. The law Amendment: (FISDO)
does not require that a person be caught in the act 1. Speech must not be False or misleading or
of selling, giving away or exhibiting obscene proposing an illegal activity;
materials to be liable, for as long as the said 2. Governmental Interest sought to be served by
materials are offered for sale, displayed or the regulation must be Substantial;
3. The regulation must Directly advance the
exhibited to the public. (Fernando v. CA, G.R. No.
governmental interest asserted; and
159751, Dec. 6, 2006) 4. The regulation must not be Overbroad – not
more extensive than is necessary to serve that
e. Commercial Speech interest. (Central Hudson Gas v. Public Service
Commission, 447 U.S. 557, June 20, 1980)
Concept
Commercial speech is speech that does no more f. National Emergencies
than propose a commercial transaction. (Central
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The right of freedom of speech and to peacefully In many places and in ordinary times, the
assemble and petition the government for redress defendants, in saying all that was said in the
of grievances, are fundamental personal rights of circular, would have been within their constitutional
the people recognized and guaranteed by the rights. But the character of every act depends upon
Constitutions of democratic countries. the circumstances in which it is done.
But it is a settled principle growing out of the nature The question in every case is whether the words
of well-ordered civil societies that the exercise of used are used in such circumstances and are of
those rights is not absolute for it may be so such a nature as to create a clear and present
regulated that it shall not be injurious to the equal danger that they will bring about the substantive
enjoyment of others having equal rights, not evils that Congress has a right to prevent. It is a
injurious to the rights of the community or society. question of proximity and degree. (Schenck v.
The power to regulate the exercise of such and United States, 249 U.S. 47, March 3, 1919)
other constitutional rights is termed the sovereign
"police power" which is the power to prescribe g. Speech of Public Officers
regulations, to promote the health, morals, peace,
education, good order or safety, and general Civil Service Does Not Deprive Government
welfare of the people. This sovereign police power Workers of their Freedom of Expression
is exercised by the government through its Government workers, whatever their ranks, have
legislative branch by the enactment of laws as much right as any person in the land to voice out
regulating those and other constitutional and civil their protests against what they believe to be a
rights, and it may be delegated to political violation of their rights and interests. Civil Service
subdivisions, such as towns, municipalities, and does not deprive them of their freedom of
cities authorizing their legislative bodies, called expression. It would be unfair to hold that by joining
municipal and city councils to enact ordinances for the government service, the members thereof have
the purpose. renounced or waived this basic liberty. This
freedom can be reasonably regulated only but can
However, under our democratic system of never be taken away. (GSIS v. Villaviza, G.R. No.
government no such unlimited power may be 180291, July 27, 2010)
validly granted to any officer of the government,
except perhaps in cases of national emergency. Freedom of Expression – Regulated, But Not
(Primicias v. Fugoso, G.R. No. L-1800, Jan. 27, Removed
1948) It is correct to conclude that those who enter
government service are subjected to a different
Speech During War Time degree of limitation on their freedom to speak their
In the landmark case of Schenck v. United States, mind; however, it is not tantamount to the
the Supreme Court affirmed the conviction of relinquishment of their constitutional right of
Charles Schenck and Elizabeth Baer for violating expression otherwise enjoyed by citizens just by
the Espionage Act of 1917 through actions that reason of their employment. Unarguably, a citizen
obstructed the “recruiting or enlistment service” who accepts public employment must accept
during World War I. certain limitations on his or her freedom. But there
are some rights and freedoms so fundamental to
The ruling established that Congress has more liberty that they cannot be bargained away in a
latitude in limiting speech in times of war than in contract for public employment. It is the Court’s
peacetime. When a nation is at war, many things responsibility to ensure that citizens are not
that might be said in time of peace are such a deprived of these fundamental rights by virtue of
hindrance to its effort that their utterance will not be working for the government.
endured so long as men fight, and that no Court
could regard them as protected by any In simple paraphrase, regulation of the freedom of
constitutional right. expression is not removal of the constitutional right.
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(Davao City Water District v. Aranjuez, G.R. No. speech, of expression, and of the press, a right that
194192, June 16, 2015) enjoys primacy in the realm of constitutional
protection. For these rights constitute the very
basis of a functional democratic polity, without
which all the other rights would be meaningless
h. Heckler’s Veto and unprotected. (Bayan v. Ermita, G.R. No.
169838, April 25, 2006)
The “heckler’s veto” involves situations in which the
government attempts to ban protected speech Definition of Assembly & Public Assembly
because it might provoke a violent response. In "Assembly" means a right on the part of the citizens
such situations, the mere possibility of a violent to meet peaceably for consultation in respect to
reaction to protected speech is simply not a public affairs. It is a necessary consequence of our
constitutional basis on which to restrict the right to republican institution and complements the right of
speak. (Cohen v. California, 403 U.S. 15 June 7, speech. As in the case of freedom of expression,
1971) this right is not to be limited, much less denied,
except on a showing of a clear and present danger
In Feiner v. New York (340 U.S. 315, Jan. 14, of a substantive evil that Congress has a right to
1951), petitioner was neither arrested nor prevent. In other words, like other rights embraced
convicted for the making of the speech or the in the freedom of expression, the right to assemble
content of his speech, but for the reaction which it is not subject to previous restraint or censorship. It
actually engendered. The Court held that the police may not be conditioned upon the prior issuance of
cannot be used as an instrument for the a permit or authorization from the government
suppression of unpopular views; but, when a authorities except, of course, if the assembly is
speaker passes the bounds of argument or intended to be held in a public place, a permit for
persuasion and undertakes incitement to riot, the the use of such place, and not for the assembly
police are not powerless to prevent a breach of the itself, may be validly required. (David v. Arroyo,
peace. G.R. No. 171396, May 3, 2006)
5. COGNATE RIGHTS
"Public assembly" means any rally, demonstration,
a. Freedom of Assembly and Petition march, parade, procession or any other form of
mass or concerted action held in a public place for
No law shall be passed abridging the freedom of the purpose of presenting a lawful cause; or
speech, of expression, or of the press, or the right expressing an opinion to the general public on any
of the people peaceably to assemble and petition particular issue; or protesting or influencing any
the government for redress of grievances. (PHIL. state of affairs whether political, economic or
CONST., art. III, § 4) social; or petitioning the government for redress of
grievances. The definition herein contained shall
Concept not include picketing and other concerted action in
The right of petition is the primary right, the right strike areas by workers and employees resulting
peaceably to assemble a subordinate and from a labor dispute as defined by the Labor Code,
instrumental right, as if the provision read: “The its implementing rules and regulations, and by the
right of the people peaceable to assemble” in order Batas Pambansa Bilang 227. (B.P. 880, Sec. 3[a])
to “petition the government”. The right to peaceable
assembly is a right cognate to those of free speech B.P. 880: THE PUBLIC ASSEMBLY
and free press and is equally fundamental. ACT OF 1985
(Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009, citing De Jonge v. Oregon, Purpose
299 U.S. 353, Jan. 3, 1937) B.P. 880 sets forth the requirements and procedure
which are necessary to regulate the time, place and
The right to peaceably assemble and petition for manner of public assemblies.
redress of grievances is, together with freedom of
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Rules on Assembly in Public Place Application Subject to the Clear and Present
(a) The applicants for a permit to hold an assembly Danger Test
should inform the licensing authority of the date, It shall be the duty of the mayor or any official acting
the public place where and the time when it will in his behalf to issue or grant a permit unless there
take place. is clear and convincing evidence that the public
(b) If the assembly were to be held at a private assembly will create a clear and present danger to
place, only the consent of the owner or the one public order, public safety, public convenience,
entitled to its legal possession is required. public morals or public health. (B.P. 880, Sec. 6[a])
(c) The application should be filed ahead of time to
enable the public official concerned to appraise The permit can only be denied on the ground of
whether there are valid objections to the grant clear and present danger to public order, public
of the permit or to its grant, but in another public safety, public convenience, public morals or public
place. It is an indispensable condition to such health. This is a recognized exception to the
refusal or modification that the clear and exercise of the right. (Bayan v. Ermita, G.R. No.
present danger test be the standard for the 169838, April 25, 2006)
decision reached.
(d) If the public authority is of the view that there is The Mayor possesses “reasonable discretion to
an imminent and grave danger of a substantive determine or specify streets or public places to be
evil, the applicants must be heard on the matter. used for the assembly in order to secure
(e) The decision of the public authority, whether convenient use thereof by others and provide
favorable or adverse, must be transmitted to the adequate and proper policing to minimize the risks
applicants at the earliest opportunity so that of disorder and maintain public safety and order.”
they may, if they so desire, have recourse to the (Navarro v. Villegas, G.R. No. L-31687, Feb. 26,
proper judicial authority. (Reyes v. Bagatsing, 1970)
G.R. No. L-65366, Nov. 9, 1983; Codified in the
provisions of B.P. 880) Inaction of Mayors on the Application
There is need to address the situation adverted to
Application Permit by petitioners where mayors do not act on
General Rule: A written permit shall be required applications for a permit and when the police
for any person or persons to organize and hold a demand a permit and the rallyists could not
public assembly in a Public Place. produce one, the rally is immediately dispersed. In
such a situation, as a necessary consequence and
• Exceptions: However, no permit shall be
required if the public assembly shall be done part of maximum tolerance, rallyists who can show
or made in a: (FPC) the police an application duly filed on a given date
1. Freedom park duly established by law or can, after two days from said date, rally in
ordinance or; accordance with their application without the need
2. In Private property, in which case only the to show a permit, the grant of the permit being then
consent of the owner or the one entitled to presumed under the law, and it will be the burden
its legal possession is required; or of the authorities to show that there has been a
3. In the Campus of a government-owned denial of the application, in which case the rally
and operated educational institution which may be peacefully dispersed following the
shall be subject to the rules and regulations
procedure of maximum tolerance prescribed by the
of said educational institution. (B.P. 880,
Sec. 4) law. (Bayan v. Ermita, G.R. No. 169838, April 25,
2006)
"Public place" shall include any highway,
boulevard, avenue, road, street, bridge or other The mayor or any official acting in his behalf shall
thoroughfare, park, plaza, square, and/or any open act on the application within two (2) working days
space of public ownership where the people are from the date the application was filed, failing
allowed access. (B.P. 880, Sec. 3[b]) which, the permit shall be deemed granted. Should
for any reason the mayor or any official acting in his
behalf refuse to accept the application for a permit,
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said application shall be posted by the applicant on maximum tolerance is for the protection and benefit
the premises of the office of the mayor and shall be of all rallyists and is independent of the content of
deemed to have been filed. (B.P. 880, Sec. 6[b]) the expressions in the rally.
Neither is the law overbroad. It regulates the

exercise of the right to peaceful assembly and
Freedom Parks – No Prior Permit Required petition only to the extent needed to avoid a clear
Every city and municipality in the country shall and present danger of the substantive evils
within six months after the effectivity of this Act Congress has the right to prevent. There is,
establish or designate at least one suitable likewise, no prior restraint, since the content of the
"freedom park" or mall in their respective speech is not relevant to the regulation. (Bayan v.
jurisdictions which, as far as practicable, shall be Ermita, G.R. No. 169838, April 25, 2006)
centrally located within the poblacion where
demonstrations and meetings may be held at any The Calibrated Preemptive Response (CPR);
time without the need of any prior permit. In the Serves No Valid Purpose
cities and municipalities of Metropolitan Manila, the The CPR is a policy set forth in a press release
respective mayors shall establish the freedom (Sept. 21, 2005) by Malacañang issued in view of
parks within the period of six months from the intelligence reports pointing to credible plans of
effectivity this Act. (B.P. 880, Sec. 15) anti-government groups to inflame the political
situation, sow disorder and incite people against
The existence of freedom parks is an essential part the duly constituted authorities. The rule of CPR
of the law’s system of regulation of the people’s was issued in lieu of ‘maximum tolerance’ provided
exercise of their right to peacefully assemble and under B.P. 880.
petition. No prior permit may be required for the
exercise of such right in any public park or plaza of The Court ruled that in view of the maximum
a city or municipality until that city or municipality tolerance mandated by B.P. No. 880, CPR serves
shall have established or designated such freedom no valid purpose if it means the same thing as
parks. For without such alternative forum, to deny maximum tolerance and is illegal if it means
the permit would in effect be to deny the right. something else. Accordingly, what is to be followed
Advance notices should, however, be given to the is and should be that mandated by the law itself,
authorities to ensure proper coordination and namely, maximum tolerance, which specifically
orderly proceeding. (Bayan v. Ermita, G.R. No. means the following: (Bayan v. Ermita, G.R. No.
169838, April 25, 2006) 169838, April 25, 2006)
B.P. 880 is Constitutional "Maximum tolerance" means the highest degree of

B.P. No. 880 is not an absolute ban of public restraint that the military, police and other peace
assemblies but a restriction that simply regulates keeping authorities shall observe during a public
the time, place and manner of the assemblies. A assembly or in the dispersal of the same. (B.P. 880,
fair and impartial reading of B.P. No. 880 thus Sec. 3[c])
readily shows that it refers to all kinds of public
assemblies that would use public places. The A.M. 98-7-02-SC: GUIDELINES ON THE
reference to “lawful cause” does not make it CONDUCT OF DEMONSTRATIONS, PICKETS,
content-based because assemblies really have to RALLIES AND OTHER SIMILAR GATHERINGS
be for lawful causes, otherwise they would not be IN THE VICINITY OF THE SUPREME COURT
“peaceable” and entitled to protection. Neither are AND ALL OTHER COURTS
the words “opinion,” “protesting” and “influencing”
in the definition of public assembly content based, Prohibited Activity Near the SC and Other
since they can refer to any subject. The words Courts
“petitioning the government for redress of Demonstrators, picketers, rallyists and all other
grievances” come from the wording of the similar persons are enjoined from holding any
Constitution, so its use cannot be avoided. Finally, activity on the sidewalks and streets adjacent to, in
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front of, or within a radius of two hundred (200) competition. This certification ensures that the
meters from, the outer boundary of the Supreme extra ammunition is indeed granted to legitimate
Court Building, any Hall of Justice, and any other sports shooters, which is remarkably more than
building that houses at least one (1) court sala. that allowed to an ordinary owner of a firearm.
Such activities unquestionably interrupt and Thus, Section 4.10 does not violate Article III,
hamper the working condition in the salas, offices Section 8 of the Constitution. (Acosta v. Ochoa,
and chambers of the courts. (Sec. 2) G.R. Nos. 211559, 211567, 212570 & 215634, Oct.
15, 2019)
b. Freedom of Association
Not Accorded to Top-level and Middle
The right of the people, including those employed Managers
in the public and private sectors, to form unions, The Commission intended the absolute right to
associations, or societies for purposes not contrary organize of government workers, supervisory
to law shall not be abridged. (PHIL. CONST., art. III, employees, and security guards to be
§ 8) constitutionally guaranteed. By implication, no
similar absolute constitutional right to organize for
Does Not Include the Right to Compel Others labor purposes should be deemed to have been
The provision guarantees the right to form granted to top-level and middle managers. As to
associations. It does not include the right to compel them the right of self-organization may be
others to form an association. (Bernas, The 1987 regulated and even abridged conformably to Art. III,
Constitution: A Commentary, 2009) § 8.
Article III, Section 8 guarantees the freedom to If these managerial employees would belong to or
associate as well as the freedom not to associate. be affiliated with a Union, the latter might not be
The provision is not a basis to compel others to assured of their loyalty to the Union in view of
form or join an association. (Acosta v. Ochoa, G.R. evident conflict of interests. The Union can also
Nos. 211559, 211567, 212570 & 215634, Oct. 15, become company-dominated with the presence of
2019) managerial employees in Union membership
(United Pepsi-Cola Supervisory Union (UPSU) v.
Aspect of Right to Liberty Laguesma, G.R. No. 122226, March 25, 1998)
The right to form associations shall not be impaired
without due process of law and is thus an aspect of Registration Not a Limitation to the Right
the right of liberty. (Bernas, The 1987 Philippine The registration of labor unions is not a limitation to
Constitution: A Comprehensive Reviewer, 2011). the right of assembly or association, which may be
exercised with or without said registration. The
Aspect of Freedom of Contract latter is merely a condition sine qua non for
It is also an aspect of the freedom of contract. In the acquisition of legal personality by labor
addition, insofar as the associations may have for organizations, associations or unions and the
their object the advancement of beliefs and ideas, possession of the "rights and privileges granted by
the freedom of association is an aspect of the law to legitimate labor organizations". The
freedom of speech and expression, subject to the Constitution does not guarantee these rights and
same limitation. (Bernas, The 1987 Philippine privileges, much less said personality, which are
Constitution: A Comprehensive Reviewer, 2011). mere statutory creations, for the possession and
exercise of which registration is required to protect
IRR of RA 10951; Sports Shooter Applicant both labor and the public against abuses, fraud, or
Section 4.10 of the Rules Implementing RA 10951 impostors who pose as organizers, although not
does not compel a sports shooter applicant to join truly accredited agents of the union they purport to
a gun club or sports shooting association; it only represent. Such requirement is a valid exercise of
provides that they must submit a certification from the police power, because the activities in which
the president of a recognized gun club or sports labor organizations, associations and union of
shooting association that he or she is joining the workers are engaged affect public interest, which
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should be protected. (Philippine Assoc. of Free

Labor Unions v. Sec. of Labor, G.R. No. L-22228, A closed shop agreement is legal since it is a valid
Feb. 27, 1969) form of union security. (Villar v. Inciong, G.R. No.
L-50283-84, April 20, 1983).
Compulsory membership of all lawyers in the

State Not Obligated to Accord Official Status Integrated Bar of the Philippines does not violate
The right to organize does not equate to the state’s the right of association (In Re: Edillon, A.M. No.
obligation to accord official status to every single 1928, Aug. 3, 1978).
association that comes into existence. It is one
thing for individuals to galvanize themselves as a Right to Strike of Employees in the Public
collective, but it is another for the group that they Sector
formed to not only be formally recognized by the To grant employees of the public sector the right to
state, but also bedecked with all the benefits and strike, there must be a clear and direct legislative
privileges that are attendant to official status. In authority therefor. In the absence of any express
pursuit of public interest, the state can set legislation allowing government employees to
reasonable regulations — procedural, formal, and strike, recognizing their right to do so, or regulating
substantive — with which organizations seeking the exercise of the right, employees in the public
state imprimatur must comply. (Quezon City PTCA service may not engage in strikes, walkouts and
Federation, Inc. vs DepEd, G.R. No. 188720, temporary work stoppages like workers in the
February 23, 2016) private sector. (Bangalisan v. CA, G.R. No.
124678, July 31, 1997).
B.P. 222
B.P. 222, which prevents political parties and In cases of CSC employees (e.g., SSS, public
groups from supporting directly or indirectly any school teachers):
barangay candidate’s campaign for election does Government employees may, therefore, through
not violate the right to form associations. Political their unions or associations, either petition the
parties may freely be formed although there is a Congress for the betterment of the terms and
restriction on their activities, i.e., their intervention conditions of employment which are within the
in the election of barangay officials on May 17, ambit of legislation or negotiate with the
1982 is prescribed. But the ban is narrow, not total, appropriate government agencies for the
and has the purpose of preventing the clear and improvement of those which are not fixed by law. If
imminent danger of the debasement of the there be any unresolved grievances, the dispute
electoral process. It operates only on concerted or may be referred to the Public Sector Labor -
group action of political parties. (Occeña v. Management Council for appropriate action. But
COMELEC, G.R. No. L-60258, 1984) employees in the civil service may not resort to
strikes, walk-outs and other temporary work
Automatic or Compulsory Membership stoppages, like workers in the private sector, to
Compulsory membership is an annotation on a lot pressure the Government to accede to their
owner's certificate of title. Hence, petitioners were demands. (Social Security System Employees
bound by this annotation. The constitutional Association (SSEA) v. Court of Appeals, G.R. No.
guarantee of freedom of association can only be 85279, July 28, 1989)
invoked against the State, and does not apply to
private transactions, like a sale, where a condition Other Constitutional Provisions Related to the
was validly imposed by the vendor. Automatic Right to Association:
membership in a homeowners' association does The State shall guarantee the rights of all workers
not violate lot owners' right to freedom of to self-organization, collective bargaining and
association because they were not forced to buy negotiations, and peaceful concerted activities,
their lots from the developer. (Cezar Yatco Real including the right to strike in accordance with law.
Estate Services, Inc. v. Bel-Air Village Association, (PHIL. CONST., art. III, § 3, par. 2)
Inc., G.R. No. 211780, Nov. 21, 2018.)
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The right to self-organization shall not be denied to concern. "Public concern" like "public interest" is a
government employees. (PHIL. CONST., art. IX-B, § term that eludes exact definition. Both terms
2, par. 5) embrace a broad spectrum of subjects which the
public may want to know, either because these
directly affect their lives, or simply because such
c. Freedom of Information matters naturally arouse the interest of an ordinary
citizen. In the final analysis, it is for the courts to
The right of the people to information on matters of determine in a case by case basis whether the
public concern shall be recognized. (PHIL. CONST., matter at issue is of interest or importance, as it
art. III, § 7) relates to or affects the public. (Legazpi v. CSC,
G.R. No. L-72119, May 29, 1987)
The constitutional guarantee of the right to
information on matters of public concern In case of conflict, there is a need to strike a
enunciated in Section 7 of Article III of the 1987 balance between the right of the people and the
Constitution complements the State’s policy of full interest of the Government to be protected.
public disclosure in all transactions involving public (Sereno v. Committee on Trade and Related
interest expressed in Section 28 of Article II of the Matters of NEDA, G.R. No. 175210, Feb. 1, 2016)
1987 Constitution. These provisions are aimed at
ensuring transparency in policy-making as well as Limitations
in the operations of the Government, and at The government has discretion with respect to the
safeguarding the exercise by the people of the authority to determine what matters are of public
freedom of expression. In a democratic society like concern and the authority to determine the manner
ours, the free exchange of information is of access to them. A distinction has to be made
necessary, and can be possible only if the people between the discretion to refuse outright the
are provided the proper information on matters that disclosure of or access to a particular information
affect them. But the people’s right to information is and the authority to regulate the manner in which
not absolute. The constitutional guarantee to the access is to be afforded.
information does not open every door to any and
all information. It is limited to matters of public The first is a limitation upon the availability of
concern, and is subject to such limitations as may access to the information sought, which only the
be provided by law. Likewise, the State’s policy of Legislature may impose. The second pertains to
full public disclosure is restricted to transactions the government agency charged with the custody
involving public interest, and is further subject to of public records. (Legazpi v. CSC, G.R. No. L-
reasonable conditions prescribed by law. (Sereno 72119, May 29, 1987)
v. Committee on Trade and Related Matters of
NEDA, G.R. No. 175210, Feb. 1, 2016) The regulations which the Register of Deeds, or the
Chief of the General Land Registration Office, or
Rights Guaranteed the Secretary of Justice is empowered to
1. Right to information on matters of public promulgate are confined to prescribing the manner
concern and hours of examination to the end that damage
2. Right of access to official records and to, or loss of, the records may be avoided, that
documents undue interference with the duties of the custodian
of the books and documents and other employees
The people have the right to information on matters may be prevented, that the right of other persons
of public concern, and access to official records entitled to make inspection may be insured, and the
shall be allowed to citizens as may be provided by like. (Subido v. Ozaeta, G.R. No. L-1631, Feb. 27,
law. It is a self-executing provision. (Legazpi v. 1948)
CSC, G.R. No. L-72119, May 29, 1987)
Although citizens are afforded the right to
The threshold question is, therefore, whether or not information and, pursuant thereto, are entitled to
the information sought is of public interest or public access to official records, the Constitution does not
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accord them a right to compel custodians of official There are certain classes of information which may
records to prepare lists, abstracts, summaries and be withheld from the public and even from
the like in their desire to acquire information on Congress. These are national security matters or
matters of public concern. (Valmonte v. Belmonte confidential diplomatic matters, trade secrets and
Jr., G.R. No. 74930, Feb. 13, 1989) banking transactions, the identity of informants in
criminal investigations, confidential or classified
Examples of Matters of Public Information matters which come to the knowledge of public
according to Jurisprudence: officials by reason of their office. (Chavez v. PCGG,
1. Decision and voting slips of the MTRCB board G.R. No 130716, Dec. 9, 1998)
for the classification of movies (Aquino-
Sarmiento v. Morato, G.R. No. 92541, Nov. 13, Before a definite proposition is reached by an
1991) agency, there are no official acts, transactions, or
2. Civil Service eligibility of sanitarians (Legaspi v. decisions yet which can be accessed by the public
CSC, G.R. No. L-72119, May 29, 1987) under the right to information. Only when there is
3. Party-list nominees through medium other than an official recommendation can a definite
the “Certified List” (Bantay Republic Act or BA- proposition arise and, accordingly, the public’s right
RA 7941 v. COMELEC, G.R. No. 177271, May to information attaches. (DFA v. BCA International,
4, 2007) G.R. No. 210858, June 29, 2016)
4. GSIS loans granted to former Batasang
Pambansa members (Valmonte v. Belmonte Without doubt, therefore, ensuring and promoting
Jr., G.R. No. 74930, Feb. 13, 1989) the free exchange of ideas among the members of
5. Examination papers and answer keys in the the committee tasked to give tariff
CPA Board Exam (Antolin v. Domondon, G.R. recommendations to the President were truly
No.165036, July 5, 2010) imperative. The fact that some members of the
6. Definite propositions and “official committee were not part of the President's Cabinet
recommendations” of agencies preceding and was of no moment. The Court regarded the
even before the consummation of the contract meeting of the committee as a Closed-door
(Chavez v. Public Estates Authority, G.R. No. Cabinet meeting. (Sereno v. Committee on Trade
133250, July 9, 2002) and Related Matters of NEDA, G.R. No. 175210,
Feb. 1, 2016)
The right to information is paramount, and that the
wiretapping issue is subservient to this right. The The chemical composition of special lubricants is a
“Hello Garci” tapes should be played, because trade secret. The ingredients constitute the very
prohibiting its airing would be prior restraint. fabric of the company’s business. To compel its
(Chavez v. Gonzales, G.R. No. 168338, Feb. 15, disclosure is to cripple their business and to place
2008) it at an undue disadvantage. Trade secrets should
receive greater protection from discovery because
Exceptions (BENT DISC) they deserve economic value from being generally
The constitutional guarantee of the people's right to unknown and not readily ascertainable by the
information do not cover: public. (Air Philippines v. Pennswell, Inc, G.R. No.
1. Banking transactions 172835, Dec. 13, 2007)
2. Executive Sessions
3. National Security matters Diplomatic Negotiations
4. Trade secrets It is clear that while the final text of the JPEPA may
not be kept perpetually confidential – since there
5. Diplomatic correspondence
should be “ample opportunity for discussion before
6. Intelligence information
a treaty is approved” – the offers exchanged by the
7. Supreme Court deliberations
parties during the negotiations continue to be
8. Closed Door cabinet meetings privileged even after the JPEPA is published. It is
reasonable to conclude that the Japanese
representatives submitted their offers with the
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understanding that “historic confidentiality” would and employees as witnesses under the subpoenas
govern the same. Disclosing these offers could of Feb 10,2012 and the various letters for the
impair the ability of the Philippines to deal not only Impeachment Prosecution Panel dated Jan 19 and
with Japan but with other foreign governments in 25, 2012, Feb. 14, 2012)
future negotiations. (Akbayan v. Aquino, G.R. No.
170516, July 16, 2008)
Deliberative Process Privilege
Negotiations for Treaties and Executive U.S. courts have established two fundamental
Agreements requirements, both of which must be met, for the
Information regarding negotiations for treaties and deliberative process privilege to be invoked:
executive agreements prior to conclusion of the 1. Predecisional – The communication must be
agreement is privileged information. (Senate v. predecisional, i.e., antecedent to the adoption of
Ermita, G.R. No. 169777, April 20, 2006) an agency policy; and
2. Deliberative – The communication must be
Access to Court Records deliberative, i.e., a direct part of the deliberative
The right of the public to be informed of the process in that it makes recommendations or
proceedings in court is not founded in the desire or expresses opinions on legal or policy matters.
necessity of people to know about the doing of
others, but in the necessity of knowing whether its
The deliberative process privilege exempts
servant, the judge, is properly performing his duty.
materials that are 'predecisional' and 'deliberative,'
but requires disclosure of policy statements and
Unlike court orders and decisions, however,
final opinions 'that have the force of law or explain
pleadings and other documents filed by parties to
actions that an agency has already taken.
a case need not be matters of public concern or
interest. For they are filed for the purpose of
As a qualified privilege, the burden falls upon the
establishing the basis upon which the court may
government agency asserting the deliberative
issue an order or a judgment affecting their rights
process privilege to prove that the information in
and interests.
question satisfies both requirements -
predecisional and deliberative. The agency bears
In fine, access to court records may be permitted
the burden of establishing the character of the
at the discretion and subject to the supervisory and
decision, the deliberative process involved, and the
protective powers of the court, after considering the
role played by the documents in the course of that
actual use or purpose for which the request for
process. It may be overcome upon a showing that
access is based and the obvious prejudice to any
the discoverant's interests in disclosure of the
of the parties. (Hilado v. Judge Reyes, G.R. No.
materials outweigh the government's interests in
163155, July 21, 2006)
their confidentiality. The determination of need
must be made flexibly on a case-by-case, ad hoc
Court deliberations are traditionally recognized as
basis, and the factors relevant to this balancing
privileged communications (deliberative process
include: the relevance of the evidence, whether
privilege). This privilege may be invoked by judges
there is reason to believe the documents may shed
and also by court officials and employees who are
light on government misconduct, whether the
privy to these deliberations. It is understood that
information sought is available from other sources
the rule extends to documents and other
and can be obtained without compromising the
communications which are part of or are related to
government's deliberative processes, and the
the deliberative process. However, to invoke the
importance of the material to the discoverant's
privilege, there must be a showing that the
case. (DFA v. BCA International, G.R. No. 210858,
document is both predecisional and deliberative.
June 29, 2016)
Court records which can be shown to possess both
these qualities cannot be the subject of subpoena.
Presidential Communications Privilege
(In Re: Production of Court Records and
Documents and the Attendance of Court officials
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Applies to decision-making of the President; rooted No law shall be made respecting an establishment
in the constitutional principle of separation of power of religion, or prohibiting the free exercise thereof.
and the President's unique constitutional role; The free exercise and enjoyment of religious
applies to documents in their entirety, and covers profession and worship, without discrimination or
final and post-decisional materials as well as pre- preference, shall forever be allowed. No religious
deliberative ones; meant to encompass only those test shall be required for the exercise of civil or
functions that form the core of presidential political rights. (PHIL. CONST., art. III, § 5)
authority.
The constitutional assurance of religious freedom
Requisites: provides two guarantees:
1. The communications relate to a "quintessential 1. The Establishment Clause
and non-delegable power" of the President; 2. The Free Exercise Clause (Imbong v. Ochoa,
2. The communications are "received" by a close G.R. No. 204819, April 8, 2014)
advisor of the President; and
1. BASIC PRINCIPLES
3. There is no adequate showing of a compelling
need that would justify the limitation of the a. Purpose
privilege and of the unavailability of the
information elsewhere by an appropriate The constitutional provision not only prohibits
investigating authority. (Neri v. Senate legislation for the support of any religious tenets or
Committee, G.R. No. 180643, March 25, 2008) the modes of worship of any sect, thus forestalling
compulsion by law of the acceptance of any creed
Publication of Laws and Regulations or the practice of any form of worship, but also
The very first clause of Section I of Commonwealth assures the free exercise of one’s chosen form of
Act 638 reads: "There shall be published in the religion within limits of utmost amplitude.
Official Gazette..." The word "shall" used therein
imposes upon respondent officials an imperative It has been said that the religion clauses of the
duty. That duty must be enforced if the Constitution are all designed to protect the
Constitutional right of the people to be informed on broadest possible liberty of conscience, to allow
matters of public concern is to be given substance each man to believe as his conscience directs, to
and reality. The law itself makes a list of what profess his beliefs, and to live as he believes he
should be published in the Official Gazette. It is ought to live, consistent with the liberty of others
needless to add that the publication of presidential and with the common good.
issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is Any legislation whose effect or purpose is to
a rule of law that before a person may be bound by impede the observance of one or all religions, or to
law, he must first be officially and specifically discriminate invidiously between the religions, is
informed of its contents. Publication is necessary invalid, even though the burden may be
to apprise the public of the contents of [penal] characterized as being only indirect. But if the state
regulations and make the said penalties binding on regulates conduct by enacting, within its power, a
the persons affected thereby. (Tanada v. Tuvera, general law which has for its purpose and effect to
G.R. No. L-63915, April 24, 1985). advance the state’s secular goals, the statute is
valid despite its indirect burden on religious
Other Constitutional Provisions Related to the observance, unless the state can accomplish its
Right to Information purpose without imposing such burden. (Estrada v.
Subject to reasonable conditions prescribed by Escritor, A.M. NO. P-02-1651, June 22, 2006)
law, the State adopts and implements a policy of
full public disclosure of all its transactions involving b. Concept of Religion
public interest. (PHIL. CONST., art. II, § 28)
In Philippine jurisprudence, religion, for purposes
G. FREEDOM OF RELIGION of the religion clauses, has thus far been
interpreted as theistic. In 1937, the Philippine case
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of Aglipay v. Ruiz involving the Establishment Verily, the principle of separation of Church and
Clause, defined religion as a profession of faith to State is based on mutual respect. Generally, the
an active power that binds and elevates man to his State cannot meddle in the internal affairs of the
Creator. church, much less question its faith and dogmas or
dictate upon it. It cannot favor one religion and
Twenty years later, the Court cited the Aglipay discriminate against another. On the other hand,
definition in American Bible Society v. City of the church cannot impose its beliefs and
Manila, a case involving the Free Exercise clause. convictions on the State and the rest of the
The latter also cited the American case of Davis v. citizenry. It cannot demand that the nation follow its
Beason in defining religion, viz: it has reference to beliefs, even if it sincerely believes that they are
one’s views of his relations to His Creator and to good for the country. (Imbong v. Ochoa, G.R. No.
the obligations they impose of reverence to His 204819, April 8, 2014)
being and character and obedience to His Will.
Definition of Church
The Davis definition, however, has been expanded The Constitution utilizes the term "church" in its
in U.S. jurisprudence to include non-theistic beliefs. generic sense, which refers to a temple, a mosque,
(Estrada v. Escritor, A.M. NO. P-02-1651, June 22, an iglesia, or any other house of God which
2006) metaphorically symbolizes a religious organization.
Thus, the "Church" means the religious
Accorded Preferred Status congregations collectively. (Imbong v. Ochoa, G.R.
Freedom of religion is accorded preferred status by No. 204819, April 8, 2014)
the framers of our fundamental law. And the
Supreme Court has consistently affirmed this Rationale
preferred status, well aware that it is designed to Our history, not to speak of the history of mankind,
protect the broadest possible liberty of conscience, has taught us that the union of church and state is
to allow each man to believe as his conscience prejudicial to both, for occasions might arise when
directs, to profess his beliefs, and to live as he the state will use the church, and the church the
believes he ought to live, consistent with the liberty state, as a weapon in the furtherance of their
of others and with the common good. (Re: Letter of respective ends and aims. (Re: Letter of Tony
Tony Valenciano, A.M. No. 10-4-19-SC, March 7, Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)
2017)
The rationale of the rule is summed up in the
Religious freedom, although not unlimited, is a familiar saying, "Strong fences make good
fundamental personal right and liberty and has a neighbors." The idea is to delineate the boundaries
preferred position in the hierarchy of values. between the two institutions and, thus, avoid
Contractual rights, therefore, must yield to freedom encroachments by one against the other because
of religion. It is only where unavoidably necessary of a misunderstanding of the limits of their
to prevent an immediate and grave danger to the respective exclusive jurisdictions. The demarcation
security and welfare of the community that line calls on the entities to “render therefore unto
infringement of religious freedom may be justified, Caesar the things that are Caesar's and unto God
and only to the smallest extent necessary. (Estrada the things that are God's." (Re: Letter of Tony
v. Escritor, A.M. NO. P-02-1651, June 22, 2006) Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)
2. PRINCIPLE OF SEPARATION OF CHURCH

AND STATE 3. NON-ESTABLISHMENT CLAUSE
The separation of Church and State shall be Concept

inviolable. (PHIL. CONST., art. II, § 6) The establishment clause principally prohibits the
State from sponsoring any religion or favoring any
Basis religion as against other religions. It mandates a
strict neutrality in affairs among religious groups.
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Essentially, it prohibits the establishment of a state 4. The State cannot punish a person for
religion and the use of public resources for the entertaining or professing religious beliefs or
support or prohibition of a religion. (Imbong v. disbeliefs, for church attendance or
Ochoa, G.R. No. 204819, April 8, 2014) nonattendance.
5. No tax in any amount, large or small, can be
levied to support any religious activity or
Basis
institution whatever they may be called or
In Philippine jurisdiction, there is substantial whatever form they may adopt or teach or
agreement on the values sought to be protected by practice religion.
the Establishment Clause, namely, voluntarism 6. The State cannot openly or secretly participate
and insulation of the political process from interfaith in the affairs of any religious organization or
dissension: group and vice versa.
1. Voluntarism Its minimal sense is that the State cannot establish

Voluntarism, has both a personal and a social or sponsor an official religion. (Re: Letter of Tony
dimension. As a personal value, it refers to the Valenciano, A.M. No. 10-4-19-SC, March 7, 2017)
inviolability of the human conscience which is also
protected by the free exercise clause. From the In effect, what non-establishment calls for is
religious perspective, religion requires voluntarism government neutrality in religious matters. Such
because compulsory faith lacks religious efficacy. government neutrality may be summarized in four
Compelled religion is a contradiction in terms. general propositions:
1. Government must not prefer one religion over
As a social value, it means that the growth of a another or religion over irreligion because such
religious sect as a social force must come from the preference would violate voluntarism and breed
dissension.
voluntary support of its members because of the
2. Government funds must not be applied to
belief that both spiritual and secular society will religious purposes because this too would
benefit if religions are allowed to compete on their violate voluntarism and breed interfaith
own intrinsic merit without benefit of official dissension.
patronage. 3. Government action must not aid religion
because this too can violate voluntarism and
2. Insulation of the Political Process From breed interfaith dissension.
Interfaith Dissension 4. Government action must not result in excessive
Such voluntarism cannot be achieved unless the entanglement with religion because this too can
political process is insulated from religion and violate voluntarism and breed interfaith
dissension. (Re: Letter of Tony Valenciano;
unless religion is insulated from politics. Non-
citing Bernas, The 1987 Constitution of the
establishment thus calls for government neutrality Republic of the Philippines, 2009)
in religious matters to uphold voluntarism and avoid
breeding interfaith dissension. (Estrada v. Escritor,
A.M. NO. P-02-1651, June 22, 2006) Limiting the prohibition for religious use of the
structure to 20 years obviously opens the facility to
Prohibited Acts of the State Under the use for any purpose at the end of that period. It
Establishment Clause cannot be assumed that a substantial structure has
The non-establishment clause reinforces the wall no value after that period and hence the
of separation between Church and State. It simply unrestricted use of a valuable property is in effect
means that: a contribution of some value to a religious body.
1. The State cannot set up a Church. Congress did not base the 20-year provision on
2. The State cannot pass laws which aid one any contrary conclusion. If, at the end of 20 years,
religion, aid all religion, or prefer one religion the building is, for example, converted into a chapel
over another. or otherwise used to promote religious interests,
3. The State cannot force nor influence a person
the original federal grant will in part have the effect
to go to or remain away from church against his
will or force him to profess a belief or disbelief of advancing religion. To this extent the Act
in any religion. therefore trespasses on the Religion Clauses. The
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restrictive obligations of a recipient institution under At the option expressed in writing by the parents or
§751 (a) (2) cannot, compatibly with the Religion guardians, religion shall be allowed to be taught to
Clauses, expire while the building has substantial their children or wards in public elementary and
value. The limitation of federal interest in the high schools within the regular class hours by
facilities to a period of 20 years violates the instructors designated or approved by the religious
Religion Clauses of the First Amendment, as the authorities of the religion to which the children or
unrestricted use of valuable property after 20 years wards belong, without additional cost to the
is in effect a contribution to a religious body. (Tilton Government. (PHIL. CONST., art. XIV, § 3[3])
v. Richardson, 403 U.S. 672, June 28, 1971)
When viewed in its overall context, the creche Ownership of Sectarian Educational
display violates the Establishment Clause. The Institutions
creche angel's words endorse a patently Christian Educational institutions, other than those
message: Glory to God for the birth of Jesus Christ. established by religious groups and mission
Moreover, nothing in the creche's setting detracts boards, shall be owned solely by citizens of the
from that message. Although the government may Philippines or corporations or associations at least
acknowledge Christmas as a cultural sixty per centum of the capital of which is owned by
phenomenon, it may not observe it as a Christian such citizens. The Congress may, however,
holy day by suggesting that people praise God for require increased Filipino equity participation in all
the birth of Jesus. (County of Allegheny v. ACLU, educational institutions. (PHIL. CONST., art. XIV,
492 U.S. 573, July 2, 1989) §4[2])
Permitted Acts of the State Under the 2. Jurisprudence

Establishment Clause
The holding of Catholic masses at the basement of
1. Constitutionally Created the QC Hall of Justice is not a case of
establishment, but merely accommodation.
Tax Exemptions 1. There is no law, ordinance or circular issued by
Charitable institutions, churches and parsonages any duly constitutive authorities expressly
or convents appurtenant thereto, mosques, non- mandating that judiciary employees attend the
profit cemeteries, and all lands, buildings, and Catholic masses at the basement.
improvements, actually, directly, and exclusively 2. When judiciary employees attend the masses to
profess their faith, it is at their own initiative,
used for religious, charitable, or educational
without any coercion from the judges or
purposes shall be exempt from taxation. (PHIL. administrative officers.
CONST., art. VI, § 28[3]) 3. No government funds are being spent because
the lightings and air conditioning continue to be
Limited Public Aid to Chaplaincies operational even if there are no religious rituals
No public money or property shall be appropriated, there.
applied, paid, or employed, directly or indirectly, for 4. The basement has neither been converted into
the use, benefit, or support of any sect, church, a Roman Catholic chapel nor has it been
denomination, sectarian institution, or system of permanently appropriated for the exclusive use
religion, or of any priest, preacher, minister, or of its faithful.
5. The allowance of the masses has not
other religious teacher, or dignitary as such, except
prejudiced other religions
when such priest, preacher, minister, or dignitary is 6. In no case shall a particular part of a public
assigned to the armed forces, or to any penal building be a permanent place for worship for
institution, or government orphanage or the benefit of any and all religious groups. There
leprosarium. (PHIL. CONST., art. VI, § 29[2]) shall also be no permanent display of religious
icons in all halls of justice in the country. In case
Religious Instruction in Public Elementary and of religious rituals, religious icons and images
High Schools may be displayed but their presentation is
limited only during the celebration of such
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activities. After any religious affair, the icons communities. The fiesta relieves the monotony and
and images shall be hidden or concealed from drudgery of the lives of the masses. Not every
public view. (Re: Letter of Tony Valenciano, governmental activity which involves the
A.M. No. 10-4-19-SC, March 7, 2017) expenditure of public funds and which has some
religious tint is violative of the constitutional
provisions regarding separation of church and
Aglipay of the Philippine Independent Church
state, freedom of worship and banning the use of
sought to prohibit the issuance and sale of such
public money or property. (Garces v. Estenzo, G.R.
stamps commemorating a Catholic Eucharistic
No. L-53487, May 25, 1981)
Congress for violating the command that no public
money should be appropriated to support any
The express purpose of the statute was the
system of religion. The SC held that the statute
furtherance of educational opportunities for the
contemplates no religious purpose. The stamps
young, and the law merely makes available to all
were not sold for the benefit of the Catholic Church,
children the benefits of a general program to lend
but merely to advertise the Philippines as the seat
school books free of charge, and the financial
of the Eucharistic Congress. Thus, the resulting
benefit is to parents and children, not to schools.
propaganda possibly in favor of the Catholic
Parochial schools, in addition to their sectarian
Church is merely incidental and should not frustrate
function, perform the task of secular education,
the main purpose of the law, which is to generate
and, on the basis of this meager record, the Court
profit and boost tourism. (Aglipay v. Ruiz, G.R. No.
cannot agree with appellants that all teaching in a
L-45459, March 13, 1937)
sectarian school is religious or that the intertwining
of secular and religious training is such that secular
Government programs that neutrally provide
textbooks furnished to students are in fact
benefits to a broad class of citizens and without
instrumental in teaching religion. (Board of
reference to religion do not violate the non-
Education v. Allen, 392 U.S. 236, June 10, 1968)
establishment clause, as when government
furnishes a disabled child enrolled in a sectarian
The menorah display does not have the prohibited
school with a sign language interpreter to facilitate
effect of endorsing religion, given its "particular
his education because the service is part of a
physical setting." Its combined display with a
general government program that neutrally
Christmas tree and a sign saluting liberty does not
distributes benefits to any child qualifying as
impermissibly endorse both the Christian and
disabled under the IDEA, without regard to the
Jewish faiths, but simply recognizes that both
sectarian or non-sectarian or public or non-public
Christmas and Chanukah are part of the same
nature of the school the child attends. Neither does
winter-holiday season, which has attained a
the IDEA create a financial incentive for parents to
secular status in our society. The widely accepted
choose a sectarian school. Most cases, where
view of the Christmas tree as the preeminent
governmental aids were struck down, challenged
secular symbol of the Christmas season
programs which gave direct grants of government
emphasizes this point. The tree, moreover, by
aid, relieving sectarian schools of costs they
virtue of its size and central position in the display,
otherwise would have borne. In this case, the child
is clearly the predominant element, and the
is the primary beneficiary and whatever benefits
placement of the menorah beside it is readily
that may accrue to the school is merely incidental.
understood as simply a recognition that Christmas
(Zobrest, et al. v. Catalina Foothills School District,
is not the only traditional way of celebrating the
509 U.S. 1, June 18, 1993)
season. The absence of a more secular alternative
to the menorah negates the inference of
If there is nothing unconstitutional or illegal in
endorsement. Similarly, the presence of the
holding a fiesta and having a patron saint for the
mayor's sign confirms that in the particular context
barrio, then any activity intended to facilitate the
the government's association with a religious
worship of the patron saint (such as the acquisition
symbol does not represent sponsorship of religious
and display of his image) cannot be branded as
beliefs but simply a recognition of cultural diversity.
illegal. The barrio fiesta is a socio-religious affair.
Given all these considerations, it is not sufficiently
Its celebration is an ingrained tradition in rural
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likely that a reasonable observer would view the To determine/assess excessive entanglement, the
combined display as an endorsement or following must be taken into consideration:
disapproval of his individual religious choices. 1. The character and purposes of the benefitted
(County of Allegheny v. ACLU, 492 U.S. 573, July institutions;
2, 1989) 2. The nature of the aid that the State provides;
and
The RH Law does not violate the Establishment 3. The resulting relationship between the
government and religion, e. g., whether it was
Clause. The petitioners are misguided in their
neutral and nonideological. (Agostini v. Felton,
supposition that the State cannot enhance its 521 U.S. 203, June 23, 1997)
population control program through the RH Law
simply because the promotion of contraceptive use
is contrary to their religious beliefs. Indeed, the Mitchell Test for Determining a Statute’s Effect
State is not precluded to pursue its legitimate Three primary criteria for determining whether a
secular objectives without being dictated upon by statute/government aid has the effect of advancing
the policies of any one religion. (Imbong v. Ochoa, religion:
G.R. No. 204819, April 8, 2014) 1. If it results in governmental indoctrination;
2. If it defines its recipients by reference to religion;
TESTS FOR CONSTITUTIONALITY OF or
STATUTES 3. If it creates an excessive entanglement.
Abington Test The US Supreme Court further held that under the
To withstand the strictures of the Establishment neutrality principle, aid that is offered to a broad
Clause: (SAIR) range of groups or persons without regard to
1. There must be a Secular legislative purpose; religion are valid. One way to assure the said
and neutrality is through the principle of private choice,
2. A primary effect that neither Advances nor wherein the government is not considered to have
Inhibits Religion. provided any support of religion when aid to
schools, even if direct, is a) neutrally available and
If the purpose and the primary effect of the b) before reaching or benefitting any religious
enactment is the advancement or inhibition of school, first passes through the hands of numerous
religion, then the enactment exceeds the scope of private citizens who are free to direct the aid
legislative power as circumscribed by the elsewhere. (Mitchell v. Helms, 530 US 793, June
Constitution. (School Dist. of Abington Tp. v. 28 2000)
Schempp, 374 U.S. 203, June 17, 1963)
TWO MAIN STANDARDS USED BY THE COURT
Lemon Test IN DECIDING RELIGION CLAUSE CASES
The Lemon test requires a challenged policy to
meet the following criteria to pass scrutiny under 1. Separation
the Establishment Clause. The test for determining Protects the principle of church-state separation
whether a law meets the requirements of the with a rigid reading of the principle.
Establishment Clause is that: (SAIREE)
1. The statute must have a Secular legislative a. Strict Separationist
purpose; The Strict Separationist believes that the
2. Its primary or principal effect must be one that Establishment Clause was meant to protect the
neither Advances nor Inhibits Religion; and state from the church, and the state’s hostility
3. The statute must not foster an Excessive
towards religion allows no interaction between
Entanglement with religion. (Lemon v.
Kurtzman, 403 U.S. 602, June 28, 1971) the two.
An absolute barrier to formal interdependence

Agostini Test for Excessive Entanglement of religion and state needs to be erected.
Religious institutions could not receive aid,
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whether direct or indirect, from the state. Nor religious exercise may flourish. Accommodation is
could the state adjust its secular programs to forbearance and not alliance. it does not reflect
alleviate burdens the programs placed on agreement with the minority, but respect for the
believers. conflict between the temporal and spiritual
authority in which the minority finds itself.
Only the complete separation of religion from
politics would eliminate the formal influence of Benevolent neutrality gives room for
religious institutions and provide for a free accommodation of religious exercises as required
choice among political views, thus a strict wall by the Free Exercise Clause. It allows breaches in
of separation is necessary. the wall of separation to uphold religious liberty,
which after all is the integral purpose of the religion
clauses.
b. Strict Neutrality or Separationist View
Unlike the strict separationists, the strict Although the Philippines’ constitutional history and
neutrality view believes that the wall of interpretation mandate benevolent neutrality,
separation does not require the state to be their benevolent neutrality does not mean that the Court
adversary. Rather, the state must be neutral in ought to grant exemptions every time a free
its relations with groups of religious believers exercise claim comes before it. But it does mean
and non-believers. State power is no more to be that the Court will not look with hostility or act
used so as to handicap religions than it is to indifferently towards religious beliefs and practices
favor them. and that it will strive to accommodate them when it
can within flexible constitutional limits; it does mean
The strict neutrality approach is not hostile to that the Court will not simply dismiss a claim under
religion, but it is strict in holding that religion may the Free Exercise Clause because the conduct in
not be used as a basis for classification for question offends a law or the orthodox view for this
purposes of governmental action, whether the precisely is the protection afforded by the religion
action confers rights or privileges or imposes clauses of the Constitution, i.e., that in the absence
duties or obligations. Only secular criteria may of legislation granting exemption from a law of
be the basis of government action. It does not general applicability, the Court can carve out an
permit, much less require, accommodation of exception when the religion clauses justify it.
secular programs to religious belief.
The Court thus lays down the doctrine that in
2. Benevolent Neutrality or Accommodation Philippine jurisdiction, we adopt the benevolent
Benevolent neutrality protects religious realities, neutrality approach not only because of its merits
tradition and established practice with a flexible as discussed above, but more importantly,
reading of the principle. because our constitutional history and
interpretation indubitably show that benevolent
Accommodations are government policies that neutrality is the launching pad from which the Court
take religion specifically into account not to should take off in interpreting religion clause cases.
promote the government’s favored form of religion, The ideal towards which this approach is directed
but to allow individuals and groups to exercise their is the protection of religious liberty not only for a
religion without hindrance. Their purpose or effect minority, however small – not only for a majority,
therefore is to remove a burden on, or facilitate the however large – but for each of us to the greatest
exercise of, a person’s or institution’s religion. extent possible within flexible constitutional limits.
(Estrada v. Escritor, A.M. NO. P-02-1651, June 22,
The government may take religion into account to 2006)
exempt, when possible, from generally applicable
governmental regulation individuals whose 4. FREE EXERCISE CLAUSE
religious beliefs and practices would otherwise
thereby be infringed, or to create without state Concept
involvement an atmosphere in which voluntary
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The right to religious profession and worship has a detrimental effect on the same. (Centeno v.
two-fold aspect: freedom to believe and freedom to Villalon-Pornillos, G.R. No. 113092, Sept. 1, 1994)
act on one’s belief. The first is absolute as long as
the belief is confined within the realm of thought. Benevolent neutrality and claims of religious
The second is subject to regulation where the belief freedom cannot shield respondent judge from
is translated into external acts that affect the public liability for misconduct under our laws. She
welfare. (Re: Letter of Tony Valenciano, A.M. No. knowingly entered into a civil marriage with her first
10-4-19-SC, March 7, 2017) husband. She knew its effects under our laws. She
had sexual relations with her second husband
Freedom to believe while her first marriage was subsisting. She cannot
Absolute as long as the belief is confined within the claim that engaging in sexual relations with another
realm of thought. The individual is free to believe person during the subsistence of a marriage is an
(or disbelieve) as he pleases concerning the exercise of her religious expression. Legal
hereafter. He may not be required to prove his implications and obligations attach to any person
beliefs. He may not be punished for his inability to who chooses to enter civil marriages. This is
do so. Religion, after all, is a matter of faith. "Men regardless of how civil marriages are treated in that
may believe what they cannot prove." Everyone person’s religion. Also, as a lawyer and a judge, is
has a right to his beliefs and he may not be called expected to abide by the law. Her conduct affects
to account because he cannot prove what he the credibility of the courts in dispensing justice.
believes. (Re: Letter of Tony Valenciano, A.M. No. Thus, in finding respondent administratively liable
10-4-19-SC, March 7, 2017) for violation of her marriage obligations under our
laws, this court protects the credibility of the
Freedom to act on one's beliefs judiciary in administering justice. (Perfecto v.
But where the individual externalizes his beliefs in Esidera, A.M. NO. RTJ-15-2417, July 22, 2015)
acts or omissions that affect the public, his freedom
to do so becomes subject to the authority of the Basis
State. As great as this liberty may be, religious The basis of the free exercise clause is the respect
freedom, like all other rights guaranteed in the for the inviolability of the human conscience. Under
Constitution, can be enjoyed only with a proper this part of religious freedom guarantee, the State
regard for the rights of others. It is error to think that is prohibited from unduly interfering with the
the mere invocation of religious freedom will outside manifestations of one's belief and faith.
stalemate the State and render it impotent in (Imbong v. Ochoa, G.R. No. 204819, April 8, 2014)
protecting the general welfare. The inherent police
power can be exercised to prevent religious Permitted Acts of the State Under the Free
practices inimical to society. (Re: Letter of Tony Exercise Clause
Valenciano, A.M. No. 10-4-19-SC, March 7, 2017) The free exercise clause does not relieve one of
the obligations to comply with a law that incidentally
Purpose forbids (or requires) the performance of an act that
The Free Exercise Clause accords absolute his religious belief requires (or forbids):
protection to individual religious convictions and 1. If the law is not specifically directed to religious
beliefs and proscribes government from practice.
questioning a person’s beliefs or imposing 2. If the law is constitutional as applied to those
penalties or disabilities based solely on those who engage in the specified act for non-
beliefs. The Clause extends protection to both religious purposes.
beliefs and unbelief. (Estrada v. Escritor, A.M. NO.
If the law is not specifically directed to religious
P-02-1651, June 22, 2006)
practice and is applied equally to all, regardless of
whether they do the act for religious or non-
However, a law advancing a legitimate
religious purposes, it does not offend the free
governmental interest is not necessarily invalid as
exercise clause.
one interfering with the free exercise of religion
merely because it also has an incidental and
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The balancing of interests test, whereby The First Amendment does not prohibit the
government actions that substantially burden a challenged regulation from being applied to
religious practice must be justified by a compelling petitioner even though its effect is to restrict the
governmental interest, is inapplicable to an across- wearing of the headgear (yarmulke) required by his
the-board criminal prohibition of a particular form of religious beliefs. That Amendment does not require
conduct. Otherwise, this would create an the military to accommodate such practices as
extraordinary right to ignore general laws in the wearing a yarmulke in the face of its view that they
name of religion for as long as no compelling State would detract from the uniformity sought by dress
interest intervenes. (Employment Division v. Smith, regulations. Here, the Air Force has drawn the line
494 U.S. 872, April 17, 1990) essentially between religious apparel that is visible
and that which is not, and the challenged regulation
A law that burdens religious practice need not be reasonably and even-handedly regulates dress in
justified by a compelling governmental interest, if it the interest of the military's perceived need for
is a) neutral and b) of general applicability. uniformity. (Goldman v. Weinberger, 475 U.S. 503,
However, when the law is not neutral or not of March 25, 1986)
general application, the same must undergo the
most rigorous of scrutiny: Not all acts done by those who are priests, bishops,
1. It must be justified by a compelling ustadz, imams, or any other religious make such
governmental interest. act immune from any secular regulation. The
2. It must be narrowly tailored to advance the said religious also have a secular existence. They exist
interest. (Church of the Lukumi Babalu Aye, Inc. within a society that is regulated by law. The
v. Hialeah, 508 U.S. 520, June 11 1993) tarpaulin, on its face, does not convey any religious
doctrine of the Catholic church. That the position of
The Supreme Court upheld the exemption of
the Catholic church appears to coincide with the
members of the Iglesia ni Cristo, from the coverage
message of the tarpaulin regarding the RH Law
of a closed shop agreement between their
does not, by itself, bring the expression within the
employer and a union because it would violate the
ambit of religious speech. (Diocese of Bacolod v.
teaching of their church not to join any group.
COMELEC, G.R. No. 205728, Jan. 21, 2015)
(Victoriano v. Elizalde Rope Workers’ Union, G.R.
No. L-2524, Sept. 12, 1974)
Prohibited Acts of the State Under the Free
Exercise Clause
An exemption may be accorded to the Jehovah’s
A state statute which forbids any person to solicit
Witnesses with regard to the observance of the flag
money or valuables for any alleged religious cause,
ceremony out of respect for their religious beliefs,
unless a certificate therefor shall first have been
however ‘bizarre’ those beliefs may seem to others.
procured from a designated official, who is required
Nevertheless, their right not to participate in the flag
to determine whether such cause is a religious one
ceremony does not give them a right to disrupt
and who may withhold his approval if he
such patriotic exercises. (Ebralinag v. Division
determines that it is not, is a previous restraint upon
Superintendent, G.R. No. 95770, March 1, 1993)
the free exercise of religion and a deprivation of
liberty without due process of law in violation of the
City Ordinance No. 3000, as amended, which
Fourteenth Amendment. (Cantwell v. Connecticut,
requires obtaining of a Mayor's permit before any
310 U.S. 296, May 19, 1940)
person can engage in any of the businesses,
trades or occupations enumerated therein, does
The religious views espoused by respondents
not impose any charge upon the enjoyment of a
might seem incredible, if not preposterous, to most
right granted by the Constitution, nor tax the
people. But if those doctrines are subject to trial
exercise of religious practices. Hence, it cannot be
before a jury charged with finding their truth or
considered unconstitutional, even if applied to
falsity, then the same can be done with the
plaintiff Society. (American Bible Society v. City of
religious beliefs of any sect. When the triers of fact
Manila, G.R. No. L-9637, April 30, 1957)
undertake that task, they enter a forbidden domain.
The First Amendment does not select any one
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group or any one type of religion for preferred (Church of the Lukumi Babalu Aye, Inc. v. Hialeah,
treatment. It puts them all in that position. Thus, the 508 U.S. 520, June 11, 1993)
District Court ruled properly when it withheld from
the jury all questions concerning the truth or falsity TESTS USED IN ASCERTAINING THE LIMITS
of the religious beliefs or doctrines of respondents. OF THE EXERCISE OF RELIGIOUS FREEDOM
This course was required by the First Amendment's
guarantee of religious freedom. (United States v. 1. Clear and Present Danger Test
Ballard, 322 U.S. 78, April 24, 1944) Appropriate for religious speech cases. (Estrada v.
Escritor, A.M. NO. P-02-1651, June 22, 2006)
The provisions of City Ordinance No. 2529, as
amended, which requires the payment of license The constitutional guaranty of the free exercise and
fee for conducting the business of general enjoyment of religious profession and worship
merchandise, cannot be applied to plaintiff society, carries with it the right to disseminate religious
for in doing so, it would impair its free exercise and information. Any restraints of such right can only be
enjoyment of its religious profession and worship, justified like other restraints of freedom of
as well as its rights of dissemination of religious expression on the grounds that there is a clear and
beliefs. (American Bible Society v. City of Manila, present danger of any substantive evil which the
G.R. No. L-9637, April 30, 1957) State has the right to prevent. (American Bible
Society v. City of Manila, G.R. No. L-9637, April 30,
The State's claim that it is empowered, as parens 1957)
patriae, to extend the benefit of secondary
education to children regardless of the wishes of 2. Benevolent Neutrality – Compelling State
their parents cannot be sustained against a free Interest Test
exercise, for the Amish have introduced convincing The "compelling state interest" test is proper where
evidence that accommodating their religious conduct is involved for the whole gamut of human
objections by forgoing one or two additional years conduct has different effects on the state’s
of compulsory education will not impair the physical interests: some effects may be immediate and
or mental health of the child, or result in an inability short-term while others delayed and far-reaching.
to be self-supporting or to discharge the duties and
responsibilities of citizenship, or in any other way Compelling State Interest Test From a
materially detract from the welfare of society. Benevolent Neutrality Stance
(Wisconsin v. Yoder, 406 U.S. 205, May 15, 1972) A three-step process is followed in weighing the
state’s interest and religious freedom when these
The ordinances' texts and operation demonstrate collide: (BSCL)
that they are not neutral, but have as their object 1. Has the statute or government action created a
the suppression of Santeria's central element, Burden on the free exercise of religion? The
animal sacrifice. That this religious exercise has courts often look into the Sincerity of the
been targeted is evidenced by Resolution 87-66's religious belief, but without inquiring into the
statements of "concern" and "commitment," and by truth of the belief because the Free Exercise
Clause prohibits inquiring about its truth.
the use of the words "sacrifice" and "ritual" in
2. Is there a sufficiently Compelling state interest
Ordinances 87-40, 87-52, and 87-71. Moreover, to justify this infringement of religious liberty?
the latter ordinances' various prohibitions, 3. Has the state in achieving its legitimate
definitions, and exemptions demonstrate that they purposes used the Least intrusive means
were "gerrymandered" with care to proscribe possible so that the free exercise is not infringed
religious killings of animals by Santeria church any more than necessary to achieve the
members but to exclude almost all other animal legitimate goal of the state?
killings. Although Ordinance 87-72 appears to
apply to substantial nonreligious conduct and not In the above circumstances, the State undertakes
to be overbroad, it must also be invalidated the burden of presenting evidence of its compelling
because it functions in tandem with the other interest to override respondent’s religious belief.
ordinances to suppress Santeria religious worship. Further, the State has to show that the means it has
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adopted in pursuing the said interest is the least Accordingly, a conscientious objector should be
restrictive to means to a person’s exercise of exempt from compliance with the mandates of the
religious freedom. (Estrada v. Escritor, A.M. NO. P- RH Law. If he would be compelled to act contrary
02-1651, June 22, 2006) to his religious belief and conviction, it would be
violative of "the principle of non-coercion"
3. Conscientious Objector Test enshrined in the constitutional right to free exercise
A person who for moral or religious reasons is of religion. (Imbong v. Ochoa, G.R. No. 204819,
opposed to participating in any war, and who may April 8, 2014)
be excused from military conscription but remains
subject to service in civil work for the nation’s Conscientious Objection to Military Service
health, safety or interest. (Black’s Law Dictionary, Escritor was the court interpreter at the RTC of Las
9th ed.) Pinas. A complaint for disgraceful and immoral
conduct under the Revised Administrative Code
RH Law was filed against Escritor because of living with a
Sections 7, 23 and 24 commonly mandate that a man not her husband. As a defense, she asserted
hospital or a medical practitioner to immediately that this conjugal arrangement was in conformity
refer a person seeking health care and services with her religious congregation which was the
under the law to another accessible healthcare Jehovah’s witnesses. In discussing the Free
provider despite their conscientious objections Exercise Clause, the court tackled United States v.
based on religious or ethical beliefs. Seeger, which involved four men who claimed
"conscientious objector" status in refusing to serve
In this case, the conscientious objector's claim to in the Vietnam War. One of the four, Seeger, was
religious freedom would warrant an exemption not a member of any organized religion opposed to
from obligations under the RH Law, unless the war, but when specifically asked about his belief in
government succeeds in demonstrating a more a Supreme Being, Seeger stated that "you could
compelling state interest in the accomplishment of call (it) a belief in a Supreme Being or God. These
an important secular objective. Necessarily so, the just do not happen to be the words that I use."
plea of conscientious objectors for exemption from Forest Peter, another one of the four claimed that
the RH Law deserves no less than strict scrutiny. after considerable meditation and reflection "on
values derived from the Western religious and
The obligation to refer imposed by the RH Law philosophical tradition," he determined that it would
violates the religious belief and conviction of a be "a violation of his moral code to take human life
conscientious objector. Once the medical and that he considered this belief superior to any
practitioner, against his will, refers a patient obligation to the state." The Court avoided a
seeking information on modem reproductive health constitutional question by broadly interpreting not
products, services, procedures and methods, his the Free Exercise Clause, but the statutory
conscience is immediately burdened as he has definition of religion in the Universal Military
been compelled to perform an act against his Training and Service Act of 1940 which exempt
beliefs. from combat anyone "who, by reason of religious
training and belief, is conscientiously opposed to
In case of conflict between the religious beliefs and participation in war in any form." (Estrada v.
moral convictions of individuals, on one hand, and Escritor A.M. No. P-02-1651, June 22, 2006. See
the interest of the State, on the other, to provide also Gerona v. Secretary of Education, G.R. No. L-
access and information on reproductive health 13954, Aug. 12, 1959)
products, services, procedures and methods to
enable the people to determine the timing, number As seen in U.S. v. Seeger, supra, it may also be
and spacing of the birth of their children, the Court used as a ground for exemption from compulsory
is of the strong view that the religious freedom of military service. It also includes those with a
health providers, whether public or private, should sincere and meaningful belief which occupies in the
be accorded primacy. life of its possessor a place parallel to that filled by
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the God of those admittedly qualifying for the vehicles as the mode of traveling along limited
exemption. (380 U.S. 163, March 8, 1965) access highways. The right to travel does not mean
the right to choose any vehicle in traversing a toll
H. LIBERTY OF ABODE AND FREEDOM way. The right to travel refers to the right to move
OF MOVEMENT from one place to another. Petitioners can traverse
the toll way any time they choose using private or
The liberty of abode and of changing the same public four-wheeled vehicles. Petitioners are not
within the limits prescribed by law shall not be denied the right to move from Point A to Point B
impaired except upon lawful order of the court. along the toll way. Petitioners are free to access the
Neither shall the right to travel be impaired except toll way, much as the rest of the public can. The
in the interest of national security, public safety or mode by which petitioners wish to travel pertains to
public health, as may be provided by law. (PHIL. the manner of using the toll way, a subject that can
CONST., art. III, § 6) be validly limited by regulation. (Mirasol v. DPWH,
G.R. No. 158793, June 8, 2006)
1. SCOPE AND LIMITATIONS
City councils are authorized to enact curfew
Rights Guaranteed
ordinances (as what respondents have done in this
1. Freedom to choose and change one’s place of
case) and enforce the same through their local
abode
officials. In other words, PD 603 provides sufficient
2. Freedom to travel within the country and outside
statutory basis - as required by the Constitution - to
restrict the minors' exercise of the right to travel.
Liberty of Abode
Considering that the right to travel is a fundamental
But one can search in vain for any law, order, or
right in our legal system guaranteed no less by our
regulation, which even hints at the right of the
Constitution, the strict scrutiny test is the applicable
Mayor of the city of Manila or the chief of police of
test. (SPARK v. Quezon City, G.R. No. 225442,
that city to force citizens of the Philippine
Aug. 8, 2017)
Islands — and these women despite their being in
a sense lepers of society are nevertheless not
No Right of Return to One’s Country
chattels but Philippine citizens protected by the
Essentially, the right involved is the right to return
same constitutional guaranties as are other
to one's country, a totally distinct right under
citizens — to change their domicile from Manila to
international law, independent from although
another locality. (Villavicencio v. Lukban, G.R. No.
related to the right to travel. Thus, the Universal
L-14639, March 25, 1919)
Declaration of Humans Rights and the International
Covenant on Civil and Political Rights treat the right
The order of the Court of Appeals releasing
to freedom of movement and abode within the
petitioner on bail constitutes such lawful order as
territory of a state, the right to leave a country, and
contemplated by the above provision. The
the right to enter one's country as separate and
condition imposed by the Court of Appeals is
distinct rights. The Declaration speaks of the "right
simply consistent with the nature and function of a
to freedom of movement and residence within the
bail bond, which is to ensure that petitioner will
borders of each state" separately from the "right to
make himself available at all times whenever the
leave any country, including his own, and to return
Court requires his presence. Besides, a closer look
to his country." (Marcos v. Manglapus, G.R. No.
at the questioned condition will show that petitioner
88211, Sept. 15, 1989)
is not prevented from changing abode; he is merely
required to inform the court in case he does so.
Limitations (PHIL. CONST., art. III, § 6)
(Yap Jr. v. Court of Appeals, G.R. No. 141529,
June 6, 2001) CONDITIONS FOR
RIGHT VALID
Right to Travel CURTAILMENT
AO1 does not infringe upon petitioners’ right to Lawful order of the
LIBERTY OF ABODE
travel but merely bars motorcycles, bicycles, court and within the
tricycles, pedicabs, and any non- motorized
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limits prescribed by Private property shall not be taken for public use
law. without just compensation. (PHIL. CONST., art. III, §
May be curtailed even 9)
by administrative
1. CONCEPT
officers in the interest
RIGHT TO TRAVEL of national security, The State has the inherent power of eminent
public safety, or public domain. It means the ultimate right of the sovereign
health, as may be power not only over public property but also over
provided by law. the private property of all citizens within its
territorial sovereignty. Section 9 is NOT a grant of
this power to the State but rather a limitation to it.
2. WATCH-LIST AND HOLD DEPARTURE (Bernas, The 1987 Philippine Constitution: A
Comprehensive Reviewer, 2011)
ORDERS
Article III, Section 6 of the 1987 Constitution should Who May Exercise (CELPQ)
by no means be construed as delimiting the 1. Congress
inherent power of the Courts to use all means 2. Executive, pursuant to legislation enacted by
necessary to carry their orders into effect in Congress
criminal cases pending before them. When by law 3. Local government units, pursuant to an
jurisdiction is conferred on a Court or judicial ordinance enacted by their respective
officer, all auxiliary writs, process and other means legislative bodies (under LGC)
necessary to carry it into effect may be employed 4. Public corporations, as may be delegated by
by such Court or officer. Holding an accused in a law
criminal case within the reach of the Courts by 5. Quasi-public corporations e.g. PNR, PLDT,
preventing his departure from the Philippines must Meralco.
be considered as a valid restriction on his right to
travel so that he may be dealt with in accordance The delegated power of eminent domain of local
with law. The offended party in any criminal government is strictly speaking not a power of
proceeding is the People of the Philippines. It is to eminent but of inferior domain--a share merely in
their best interest that criminal prosecutions should eminent domain. Hence, it is only as broad as the
run their course and proceed to finality without authority delegated to it. (Bernas, The 1987
undue delay, with an accused holding himself Philippine Constitution: A Comprehensive
amenable at all times to Court Orders and Reviewer, 2011)
processes. (Silverio v. CA, G.R. No. 94284, April 8,
1991) Since, as we have held above, the powers and
functions of ISA have reverted to the Republic of
Department Circular No. 41 was bereft of legal the Philippines upon the termination of the statutory
basis because of the absence of a law authorizing term of ISA, While the power of eminent domain is,
the Secretary of Justice to issue Hold Departure in principle, vested primarily in the legislative
Orders (HDO), Watch List Orders (WLO), or Allow department of the government, we believe and so
Departure Order (ADO). The issuance of DOJ hold that no new legislative act is necessary should
Circular No. 41, without a law to justify its action, is the Republic decide, upon being substituted for
an unauthorized act of the DOJ of empowering ISA, in fact to continue to prosecute the
itself under the pretext of dire exigency or urgent expropriation proceedings. For the legislative
necessity (Genuino v. De Lima, G.R. No. 197930, authority, a long time ago, enacted a continuing or
April 17, 2018) standing delegation of authority to the President of
the Philippines to exercise, or cause the exercise
I. EMINENT DOMAIN of, the power of eminent domain on behalf of the
Government of the Republic of the Philippines.
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(Iron and Steel Authority v. CA, G.R. No. 102976, award expropriation. Nevertheless, the resolution
Oct. 25, 1995) of this case is without prejudice to the filing of a
separate case for expropriation. (PLDT v. Citi
REQUISITES FOR VALID EXERCISE: Appliance, G.R. No. 214546, October 9, 2019)
(TaPuCom)
1. There is a Taking of private property The exercise of the right of eminent domain,
2. Taking is for Public use whether directly by the State or by its authorized
3. Payment of just Compensation agents, is necessarily in derogation of private
rights. It is one of the harshest proceedings known
The power of eminent domain is available only to the law. Consequently, when the sovereign
when the owner does not want or opposes the sale delegates the power to a political unit or agency, a
of his property. Thus, if a valid contract exists strict construction will be given against the agency
between the government and the owner, the asserting the power. The authority to condemn is
government cannot exercise the power of eminent to be strictly construed in favor of the owner and
domain as a substitute to the enforcement of the against the condemnor. (Jesus is Lord School v.
contract. Municipality of Pasig, G.R. No. 152230, Aug. 9,
2005)
Where the landowner agrees voluntarily to the
taking of his property by the government for public Eminent Domain is the taking of private property for
use, he thereby waives his right to the institution of public use, thus no expropriation proceeding can
a formal expropriation proceeding covering such continue if the property to be expropriated will not
property. Failure for a long time of the owner to be for public use. Considering that Corp A is no
question the lack of expropriation proceedings longer using respondent X’s properties for the
covering a property that the government had taken purpose of building the Substation Project, it may
constitutes a waiver of his right to gain back be allowed to discontinue with the expropriation
possession. The landowner’s remedy in such case proceedings, subject to the approval of the court.
is an action for the payment of just compensation, However, in order to determine whether the
not ejectment. (Republic of the Philippines v. Primo expropriation may be dismissed, it must not fall
Mendoza and Maria Lucero, G.R. No. 185091, under the following exceptions: first, the trial court’s
Aug. 8, 2010) order already became final and executory, second,
the government already took possession of the
property; and lastly, the expropriation case already
The claim of Telephone Company A’s right of
eminent domain cannot be properly resolved in a caused prejudice to the landowner. (National
Power Corporation v. Posada, G.R. No. 191945,
complaint for forcible entry or unlawful detainer.
March 11, 2015)
Eminent domain or expropriation is the inherent
right of the state to condemn private property to
THERE IS TAKING OF PRIVATE PROPERTY
public use upon payment of just compensation.
The power is exercised by the legislature and may
The power of eminent domain must be
be delegated to local governments, other public
distinguished from police power. When the State
entities, and public utilities. Expropriation may be
exercises "police power," property is merely
judicially claimed only by filing a complaint for
"regulated." There is no transfer of ownership. By
expropriation. An expropriation suit falls under the
eminent domain, property is "taken." There is
jurisdiction of the regional trial court because it is a
transfer of ownership. "Regulation" is not
case incapable of pecuniary estimation. It deals
compensable but "taking" must be compensated.
with the government’s exercise of its authority and
(Bernas, The 1987 Philippine Constitution: A
right to take property for public use. The right of an
Comprehensive Reviewer, 2011).
expropriator to file a complaint for expropriation is
not allowed in an action such as a forcible entry or
In the context of the State's inherent power of
unlawful detainer suit. These actions are summary
eminent domain, there is "taking" where the owner
in nature. Therefore, in this case, the Court cannot
is actually deprived or dispossessed of his
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property; where there is a practical destruction or a property and to limit his or her exploitation of it.
material impairment of the value of his property; or Hence, due to the nature of the easement done by
when he is deprived of the ordinary use thereof. NPC in this case, which will deprive the normal use
(PNOC v. Maglasang, G.R. No. 155407, Nov. 11, of the land for an indefinite period and expose the
2008) property owners' lives and limbs to danger, just
compensation must be based on the full market
Neither can it be said that the right of eminent value of the affected property. (NPC v Sps.
domain may be exercised by simply leasing the Asoque, G.R. No. 172507, September 14, 2016)
premises to be expropriated. Where, as here, the
owner was compensated and not deprived of the Expropriation is not limited to the acquisition of real
ordinary and beneficial use of his property by its property with a corresponding transfer of title or
being diverted to public use, there is no taking possession. The right-of-way easement resulting in
within the constitutional sense. (PNOC v. a restriction or limitation on property rights over the
Maglasang, G.R. No. 155407, Nov. 11, 2008) land traversed by transmission lines also falls
within the ambit of the term expropriation. The
Elements of Taking (BEAPP) ownership of land extends to the surface as well as
1. Utilization of the property must be in such a way to the subsoil under it. Underground tunnels
as to oust the owner and deprive him of the impose limitations on the owner’s use of the
Beneficial enjoyment of his property; property for an indefinite period and deprive them
2. The expropriator Enters the property; of its ordinary use. (NPC v. Lucman Ibrahim, G.R.
3. Entry is made under warrant or color of legal No. 168732, June 29, 2007)
Authority;
4. Property is devoted to Public use; and There was a full taking on the part of NPC,
5. The entrance must be Permanent (Republic v. notwithstanding that the owners were not
Ortigas & Co., Ltd. Partnership, G.R. No. completely and actually dispossessed. It is settled
171496, March 3, 2014) that the taking of private property for public use, to
be compensable, need not be an actual physical
The owner of a property taken is entitled to be taking or appropriation. (NAPOCOR v. Heirs of
compensated when there is taking of private Macabangkit Sangkay, G.R. No. 165828, Aug. 24,
property for some public purpose. The Constitution 2011)
proscribes taking of private property without just
compensation, any taking must entail a Compensable taking includes destruction,
corresponding appropriation for that purpose. restriction, diminution, or interruption of the rights
When the road or street was delineated upon of ownership or of the common and necessary use
government request and taken for public use, the and enjoyment of the property in a lawful manner,
government must compensate the owner for his or lessening or destroying its value. (NAPOCOR v.
her sacrifice, lest it violates the constitutional Heirs of Macabangkit Sangkay, G.R. No. 165828,
provision against taking without just compensation. Aug. 24, 2011)
(Republic v. Ortigas & Co., Ltd. Partnership, G.R.
No. 171496, March 3, 2014) The Republic may, in the exercise of the sovereign
power of eminent domain, require the telephone
NPC is liable on the basis that its acquisition of a company to permit interconnection of the
right-of-way easement over the portion of government telephone system and that of the
respondents' land was a taking under the power of PLDT, as the needs of the government service may
eminent domain. A right-of-way easement or require, subject to the payment of just
burden becomes a "taking" under eminent domain compensation to be determined by the court.
when there is material impairment of the value of Nominally, of course, the power of eminent domain
the property or prevention of the ordinary uses of results in the taking or appropriation of title to, and
the property for an indefinite period. The intrusion possession of, the expropriated property; but no
into the property must be so immediate and direct cogent reason appears why the said power may
as to subtract from the owner's full enjoyment of the not be availed of to impose only a burden upon the
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owner of condemned property, without loss of title expanded notion of public use, expropriation is not
and possession. (Republic v. PLDT, G.R. No. L- anymore confined to vast tracts of land and landed
18841, Jan. 27, 1969) estates. It is therefore of no moment that the land
sought to be expropriated in this case is less than
A regulation that deprives any person of the half a hectare only. (Phil. Columbian Association v.
profitable use of his property constitutes a taking Hon. Panis, G.R. No. L-106528, Dec. 21, 1993)
and entitles him to compensation, unless the
invasion of rights is so slight as to permit the The purpose in setting up the marker is essentially
regulation to be justified under the police power. to recognize the distinctive contribution of the late
Similarly, a police regulation that unreasonably Felix Manalo to the culture of the Philippines, rather
restricts the right to use business property for than to commemorate his founding and leadership
business purposes amounts to a taking of private of the Iglesia ni Cristo. The practical reality that
property, and the owner may recover therefor. greater benefit may be derived by members of
(OSG v. Ayala, G.R. No. 177056, Sept. 18, 2009) the Iglesia ni Cristo than by most others could well
be true but such a peculiar advantage still remains
TAKING IS FOR PUBLIC USE to be merely incidental and secondary in nature.
(Manosca v. CA, G.R. No. 106440, Jan. 29, 1996)
The "public use" requirement for a and exercise of
the power of eminent domain is a flexible and 2. JUST COMPENSATION
evolving concept influenced by changing
conditions. It is accurate to state then that at Just compensation has been defined as the "fair
present whatever may be beneficially employed for and full equivalent of the loss". The equivalent to
the general welfare satisfies the requirement of be rendered for the property to be taken shall be
public use. Specifically, urban renewal or real, substantial, full and ample. The constitutional
redevelopment and the construction of low-cost limitation of "just compensation" is considered to be
housing is recognized as a public purpose, not only a sum equivalent to the market value of the
because of the expanded concept of public use but property, broadly defined as the price fixed by the
also because of specific provisions in the seller in open market in the usual and ordinary
Constitution. (Sumulong v. Guerrero, G.R. No. L- course of legal action and competition; or the fair
48685, Sept. 30, 1987) value of the property; as between one who receives
and one who desires to sell it, fixed at the time of
Public use means “public usefulness, utility or the actual taking by the government. (NPC v Sps.
advantage, or what is productive of general benefit; Asoque, G.R. No. 172507, September 14, 2016)
so that any appropriating of private property by the
State under its right of eminent domain for In eminent domain or expropriation proceedings,
purposes of great advantage to the community, is the just compensation is generally the market
a taking for public use.” (Gohld Realty Co. v. value. The market value is “that sum of money
Hartford, 104 A. 2d 365, 368-9 Conn., 1954; which a person is desirous but not compelled to
Bernas, The 1987 Philippine Constitution: A buy, and an owner willing but not compelled to sell,
Comprehensive Reviewer, 2011) would agree on as a price to be given and received
therefore.” (Landbank of the Philippines v
The City of Manila, acting through its legislative Manzano, GR 188243, Jan. 24, 2018)
branch, has the express power to acquire private
lands in the city and subdivide these lands into If municipal property is acquired in its corporate or
home lots for sale to bona fide tenants or private capacity, the State must pay just
occupants thereof, and to laborers and low- compensation. But if it is any other property such
salaried employees of the city. That only a few as public buildings or held by the municipality for
could actually benefit from the expropriation of the the State in trust for the inhabitants, the State is
property does not diminish its public use character. free to dispose of it at will, without any
It is simply not possible to provide all at once land compensation. (Land Bank v. Spouses Orilla, G.R.
and shelter for all who need them. Corollary to the No. 157206, June 27, 2008)
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The concept of just compensation does not imply Includes Payment In Full Without Delay
fairness to the property owner alone. Just compensation does not only refer to the full
Compensation must be just not only to the property and fair equivalent of the property taken; it also
owner, but also to the public which ultimately bears means, equally if not more than anything, payment
the cost of expropriation. (DPWH v. Spouses in full without delay. (Land Bank of the Philippines
Tecson, G.R. No. 179334, July 1, 2013) v. Gallego, G.R. No. 173226, July 29 2013)
Judicial Function Tax Benefit as Just Compensation

The determination of just compensation is a judicial The tax benefit granted to the establishments can
function which cannot be curtailed or limited by be deemed as their just compensation for private
legislation, much less by an administrative rule. property taken by the State for public use. The
The executive department or legislature may make taxation power can also be used as an implement
initial determinations but when a party claims a for the exercise of the power of eminent domain.
violation of the guarantee on the exercise of the (Commissioner of Internal Revenue v. Central
power of eminent domain, no statute, decree, or Luzon Drug Corporation, G.R. No. 159647, April
executive order can mandate that its own 15, 2005)
determination shall prevail over the court’s
findings. (Landbank of the Philippines v Manzano, Excludes Value of Excavated Soil
GR 188243, January 24, 2018) The Court also upheld the CA ruling, which deleted
the inclusion of the value of the excavated soil in
While administrative issuances are entitled to great the payment for just compensation. There is no
respect, their application must always be in legal basis to separate the value of the excavated
harmony with the law they seek to interpret. soil from that of the expropriated properties. In the
Administrative issuances or orders, though they context of expropriation proceedings, the soil has
enjoy the presumption of legalities, are still subject no value separate from that of the expropriated
to the interpretation by the Supreme Court land. Just compensation ordinarily refers to the
pursuant to its power to interpret the law. While value of the land to compensate for what the owner
rules and regulations issued by the administrative actually loses. Such value could only be that which
bodies have the force and effect of law and are prevailed at the time of the taking. (Republic of the
entitled to great respect, courts interpret Philippines, represented by the National Irrigation
administrative regulations in harmony with the law Administration v. Rural Bank of Kabacan Inc., G.R.
that authorized them and avoid as much as No. 185124, Jan. 25, 2012)
possible any construction that would annul them as
invalid exercise of legislative power. Thus, while Who Are Entitled to Just Compensation:
the formula prescribed by the Department of 1. Owner of the property
Agrarian Reform requires due consideration, the 2. All owning, occupying or claiming to the
determination of just compensation shall still be property who have lawful interest in the
subject to the final decision of the special agrarian property to be condemned (e.g. mortgagee,
court. (Land Bank of the Philippines v. Franco, G.R. lessee, vendee under an executory contract).
No. 203242, March 12, 2019) (Vda. De Ouano v. Republic, G.R. No. 168770,
Feb. 9, 2011)
Just Compensation in Expropriation by LGUs
The exercise of the power of eminent domain by a Payment for Consequential Damages
local government unit is now governed by Section No actual taking of the building is necessary to
19 of Republic Act 7160. For properties under grant consequential damages. Consequential
expropriation, the law now requires the deposit of damages are awarded if as a result of the
an amount equivalent to fifteen percent (15%) of expropriation, the remaining property of the owner
the fair market value of the property based on its suffers from an impairment or decrease in value.
current tax declaration. (Knecht v. Municipality of (Republic v. BPI, G.R. No. 203039, Sept. 11, 2013)
Cainta, G.R. No. 145254, 2006).
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To determine just compensation, the trial court The courts are not precluded from considering
should first ascertain the market value of the other factors. A’s argument on mandatory
property, to which should be added the adherence to the provisions of law and the
consequential damages after deducting therefrom administrative orders must fail. (Landbank of the
the consequential benefits which may arise from Philippines v Manzano, GR 188243, January 24,
the expropriation. If the consequential benefits 2018)
exceed the consequential damages, these items
should be disregarded altogether as the basic Settled is the rule that when the agrarian reform
value of the property should be paid in every case. process is still incomplete, such as in this case
(Republic v. BPI, G.R. No. 203039, Sept. 11, 2013) where the just compensation due the landowner
(B.H. Berkenkotter & Co. v. Court of Appeals, G.R. has yet to be settled, just compensation should be
No. 89980, Dec. 14, 1992) determined and the process be concluded under
RA 6657. (Land Bank of the Philippines, v. Heirs of
Jesus Alsua, G.R. No. 211351, Feb. 4, 2015)
In determining just compensation, the cost of
Reckoning period acquisition of the land, the current value of like
The value of the property must be determined properties, its nature, actual use and income, the
either as of the date of the taking of the property or sworn valuation by the owner, the tax declarations,
the filing of the complaint, "whichever came first." and the assessment made by government
(Eslaban v. De Onorio, G.R. No. 146062, June 18, assessors, shall be considered. The social and
2001) economic benefits contributed by the farmers and
the farm workers and by government to the
If the objections to and the defenses against the property as well as the non-payment of taxes or
right of the plaintiff to expropriate the property are loans secured from any government financing
overruled, or when no party appears to defend as institution on the said land shall be considered as
required by this Rule, the court may issue an order additional factors to determine its valuation. (RA
of expropriation declaring that the plaintiff has a 6657, sec. 17, otherwise known as Comprehensive
lawful right to take the property sought to be Agrarian Reform Law of 1988)
expropriated, for the public use or purpose
described in the complaint, upon the payment of It is not adequate to merely use the formula in an
just compensation to be determined as of the date administrative order of the Department of Agrarian
of the taking of the property or the filing of the Reform or rely on the determination of a land
complaint, whichever came first. (ROC, Rule 67, § assessor to show a final determination of the
4) amount of just compensation. Courts are still
tasked with considering all factors present, which
Just Compensation in Agrarian Cases may be stated in formulas provided by
Under CARL, the final decision on the value of just administrative agencies. When acting within the
compensation lies solely on the Special Agrarian bounds of the Comprehensive Agrarian Reform
Court. There is no need to exhaust administrative Law, special agrarian courts "are not strictly bound
remedies through the various Adjudication Board to apply the DAR’s formula to its minute detail,
of the Department of Agrarian Reform before a particularly when faced with situations that do not
party can go to the Special Agrarian Court for warrant the formula's strict application; they may,
determination of just compensation. (Landbank of in the exercise of their discretion, relax the
the Philippines v Manzano, GR 188243, January formula's application to fit the factual situations
24, 2018) before them. The Comprehensive Agrarian Reform
Law merely provides for guideposts to ascertain
The Special Agrarian Court is “required to the value of properties. Courts are not precluded
consider” the facts in CARL and the formula in the from considering other factors that may affect the
administrative issuances. Consideration of these value of property. (Land Bank of the Philippines v.
guidelines, however, does not mean that these are Franco, G.R. No. 203242, March 12, 2019)
the sole bases for arriving at the just compensation.
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Effect of Non-Payment of Just Compensation

Non-payment of just compensation does not entitle The foregoing clearly dictates that valuation of the
the private landowners to recover possession of land for purposes of determining just compensation
their expropriated lot. But, the prolonged should not include the inflation rate of the Philippine
occupation of the government without instituting Peso because the delay in payment of the price of
expropriation proceedings will entitle the expropriated land is sufficiently recompensed
landowner to damages. Such pecuniary loss through payment of interest on the market value of
entitles him to adequate compensation in the form the land as of the time of taking from the
of actual or compensatory damages, which in this landowner. (NAPOCOR v. Manalastas, G.R. No.
case should be the legal interest (6%) on the value 196140, Jan. 27, 2016)
of the land at the time of taking, from said point up
to full payment. (City of Iloilo v. Besana, G. R. No. Under Article III, Section 9 of the 1987 Constitution,
168967, Feb. 12, 2010) “private property shall not be taken for public use
without just compensation.” The SC notes that for
While the prevailing doctrine is that "the non- almost 20 years, the DPWH had been enjoying the
payment of just compensation does not entitle the use of X’s property without paying the full amount
private landowner to recover possession of the of just compensation under the Compromise
expropriated lots, however, in cases where the Agreement. In keeping with substantial justice, the
government failed to pay just compensation within Court imposes the payment of legal interest on the
five (5) years from the finality of the judgment in the remaining just compensation due to X. (Republic of
expropriation proceedings, the owners concerned the Philippines v. Fetalvero, G.R. No. 198008,
shall have the right to recover possession of their February 4, 2019.)
property. This is in consonance with the principle
that "the government cannot keep the property and The concept of delay does not pertain to the length
dishonor the judgment." To be sure, the five-year of time that elapsed from the filing of the Complaint
period limitation will encourage the government to until its resolution. Rather, it refers to the fact that
pay just compensation punctually. This is in property was taken for public use before
keeping with justice and equity. After all, it is the compensation was deposited with the court having
duty of the government, whenever it takes property jurisdiction over the case. There will be delay if the
from private persons against their will, to facilitate property was taken for public use before
the payment of just compensation. We defined just compensation was paid or deposited with the court.
compensation as not only the correct determination Hence, between the taking of the property and the
of the amount to be paid to the property owner but actual payment, legal interests accrue in order to
also the payment of the property within a place the owners in a position as good as the
reasonable time. Without prompt payment, position they were in before the taking occurred.
compensation cannot be considered "just." (National Power Corporation v. Heirs of Gregorio
(Republic v. Lim, G.R. No. 161656, June 29, 2005) Ramoran, G.R. No. 193455, June 13, 2016)
Effect of Delay in Payment of Just 3. ABANDONMENT OF INTENDED USE AND

Compensation RIGHT OF REPURCHASE
Imposition of legal interest per annum on the just
compensation due to the landowner is in the nature If the property ceases to be used for a public
of damages for delay of payment. If property is purpose, the property reverts to the owner in fee
taken for public use before compensation is simple. (Bernas, The 1987 Constitution: A
deposited with the court having jurisdiction over the Comprehensive Reviewer, 2006).
case, the final compensation must include interests
on its just value to be computed from the time the We now expressly hold that the taking of private
property is taken to the time when compensation is property, consequent to the Government’s
actually paid or deposited with the court. exercise of its power of eminent domain, is always
(Landbank of the Philippines v Manzano, GR subject to the condition that the property be
188243, January 24, 2018) devoted to the specific public purpose for which it
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was taken. Corollarily, if this particular purpose or 1. An Ordinance is enacted by the local legislative
intent is not initiated or not at all pursued, and is council authorizing the local chief executive, in
peremptorily abandoned, then the former owners, behalf of the LGU, to exercise the power of
if they so desire, may seek the reversion of the eminent domain or pursue expropriation
property, subject to the return of the amount of just proceedings over a particular private property.
compensation received. In such a case, the 2. The power of eminent domain is exercised for
exercise of the power of eminent domain has Public use, purpose or welfare, or for the
become improper for lack of the required factual benefit of the poor and the landless.
justification. (Mactan-Cebu International Airport v. 3. There is payment of Just compensation, as
Lozada, G.R. No. 176625, Feb. 25, 2010) required under Section 9, Article III of the
Constitution, and other pertinent laws.
If the genuine public necessity — the very reason 4. A valid and definite Offer has been previously
or condition as it were — allowing, at the first made to the owner of the property sought to be
instance, the expropriation of a private land ceases expropriated, but said offer was not accepted.
or disappears, then there is no more cogent point (LOCAL GOVERNMENT CODE, sec. 19)
for the government’s retention of the expropriated
land. The same legal situation should hold if the Immediate Entry
government devotes the property to another public In the case of LGUs, entry into the property may be
use very much different from the original or made before payment provided that a deposit is
deviates from the declared purpose to benefit made in an amount set by the court (15%). The
another private person. A condemnor should local government unit may immediately take
commit to use the property pursuant to the purpose possession of the property upon the filing of the
stated in the petition for expropriation, failing which expropriation proceedings and upon making a
it should file another petition for the new purpose. deposit with the proper court of at least fifteen
If not, then it behooves the condemnor to return the percent (15%) of the fair market value of the
said property to its private owner, if the latter so property based on the current tax declaration of the
desires. Lands should be differentiated from a property to be expropriated. (LOCAL GOVERNMENT
piece of land, ownership of which was absolutely CODE, sec. 19)
transferred by way of an unconditional purchase
and sale contract freely entered by two parties, one Limitations on the Exercise of the Eminent
without obligation to buy and the other without the Domain Powers of LGUs
duty to sell. In that case, the fee simple concept Order of priority in acquiring land for socialized
really comes into play. There is really no occasion housing: Private lands rank last in the order of
to apply the "fee simple concept" if the transfer is priority for purposes of socialized housing.
conditional. The taking of a private land in
expropriation proceedings is always conditioned on RA No. 7279 (Urban Development & Housing Act)
its continued devotion to its public purpose. As a lays down the mandatory priority in the acquisition
necessary corollary, once the purpose is of lands:
terminated or peremptorily abandoned, then the 1. Those owned by the government
former owner, if he so desires, may seek its 2. Alienable lands of the public domain
reversion, subject of course to the return, at the 3. Unregistered, idle, or abandoned lands
very least, of the just compensation received. 4. Those within declared Areas of Priority
(Ouano, et. al. v. Republic, G.R. No.168770, Feb. Development, Zonal Improvement, Slum
9, 2011) Improvement, or Resettlement Program
sites Bagong Lipunan Improvement Sites
4. EXPROPRIATION BY LOCAL and Services (BLISS) which have not been
GOVERNMENT UNITS acquired
5. Privately owned lands (last in the priority)
Requisites Before an LGU Can Exercise the
• Other modes of acquisition must first be
Power of Eminent Domain (OPJO):
exhausted.
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The City of Manila failed to comply with any of the the public use character of the taking. Any law
aforesaid requirements. The exercise of eminent fixing the amount of just compensation is not
domain cannot override the guarantees of due binding on the courts because it is a question of
process conferred upon the property owners. fact which is always subject to review by the courts.
(Heirs of JBL Reyes v. City of Manila, G.R. Nos. (Bernas, The 1987 Constitution: A Commentary,
132431 & 137146, Feb. 13, 2004) 2009)
LGUs v. National Government The statements made in tax documents by the

On the part of local government assessor may serve as one of the factors to be
units, expropriation is also considered but they cannot exclude or prevail over
governed by Section 19 of the a court determination made after expert
Local Government Code: commissioners have examined the property and all
pertinent circumstances are taken into account and
1. The filing of a complaint for
after the parties have had the opportunity to fully
expropriation sufficient in form
plead their cases before a competent and unbiased
and substance; and
LGUs tribunal. (Manotok v. NHA, G.R. No. L-55166, May
2. The deposit of the amount 21, 1987)
equivalent to 15% of the fair
market value of the property to A previous decision is no obstacle to the legislative
be expropriated based on its arm of the Government in thereafter (over two
current tax declaration. (Iloilo v. years later in this case) making its own
Legaspi, G.R. No. 154614, Nov. independent assessment of the circumstances
25, 2004) then prevailing as to the propriety of undertaking
Pursuant to Section 2 of Rule 67 the expropriation of the properties in question and
of the 1997 Revised Rules of Civil thereafter by enacting the corresponding
Procedure:
legislation as it did in this case. (Republic v. De
Knecht, G.R. No. 87335, Feb. 12, 1990)
1. The filing of a complaint for
expropriation sufficient in form
and substance; and EMINENT DOMAIN V. POLICE POWER
2. The making of a deposit Action to Recover Just Compensation v. Action

NATIONAL
equivalent to the assessed for Damages
GOV’T
value of the property subject to ACTION TO
ACTION FOR
expropriation. Upon RECOVER JUST
DAMAGES
compliance with the COMPENSATION
requirements, the issuance of Also known as inverse Seeks to vindicate a
the writ of possession becomes condemnation, has legal wrong through
ministerial. (Biglang-awa v. the objective to damages, which may
Bacalla, G.R. Nos. 139927 and recover the value of be actual, moral,
139936, Nov. 22, 2000) property taken in fact nominal, temperate,
by the governmental liquidated, or
JUDICIAL REVIEW defendant, even exemplary
though no formal
Matters That May be Reviewed by the Courts: exercise of the power When a right is
(ANP) of eminent domain has exercised in a manner
1. The Adequacy of the compensation been attempted by the not conformable with
2. The Necessity of the taking taking agency. the norms enshrined
3. The “Public Use” character of the taking in Article 19 and like
provisions on human
If the expropriation is pursuant to a specific law relations in the Civil
passed by Congress, the courts cannot question Code, and the
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exercise results to the General Rule: The value must be that as of the
damage of another, a time of the filing of the complaint for expropriation.
legal wrong is
committed and the Exception:
wrongdoer is held When the filing of the case comes later than the
responsible. time of taking and meanwhile the value of the
property has increased because of the use to which
The two actions are radically different in nature and the expropriator has put it, the value is that of the
purpose. The action to recover just compensation time of the earlier taking.
is based on the Constitution while the action for
damages is predicated on statutory enactments. Exceptions to the Exception:
Indeed, the former arises from the exercise by the
State of its power of eminent domain against • If the value increased independently of what the
private property for public use, but the latter expropriator did, then the value is that of the
emanates from the transgression of a right. FILING of the case.
• Even before compensation is given, entry may
The fact that the owner rather than the expropriator be made upon the property condemned by
brings the former does not change the essential depositing the money or an equivalent form of
nature of the suit as an inverse condemnation, for payment such as government bonds.
the suit is not based on tort, but on the
constitutional prohibition against the taking of J. NON-IMPAIRMENT OF CONTRACTS
property without just compensation. It would very
well be contrary to the clear language of the No law impairing the obligation of contracts shall be
Constitution to bar the recovery of just passed. (PHIL. CONST., art. 3, § 10)
compensation for private property taken for a public
use solely on the basis of statutory prescription. What Constitutes Impairment
(NAPOCOR v. Heirs of Mabangkit Sangkay, G.R. 1. If it changes the terms and conditions of a legal
No. 165828, Aug. 24, 2011) contract either as to the time or mode of
performance.
Article III, Section 9 of the Constitution provides a 2. If it imposes new conditions or dispenses with
substantive guarantee that private property that is those expressed
taken by the state for public use should be paid for 3. If it authorizes for its satisfaction something
with just compensation. If the state does not agree different from that provided in its terms.
with the property owner on a price, the state, (Bernas, The 1987 Philippine Constitution: A
through the competent government agency, should Comprehensive Reviewer, 2011) (Clemens v.
file the proper expropriation action under Rule 67 Nolting, 42 Phil. 702, Jan. 24, 1922)
of the Revised Rules of Court. In case of a taking
without the proper expropriation action filed, the The non-impairment clause is a limit on the
property owner may file its own action to question exercise of legislative power and not of judicial or
the propriety of the taking or to compel the payment quasi-judicial power. The SEC, through the hearing
of just compensation. Among these inverse panel that heard the petition for approval of the
condemnation actions is a complaint for payment Rehabilitation Plan, was acting as a quasi-judicial
of just compensation and damages. When an body and thus, its order approving the plan cannot
inverse condemnation is filed, the provisions for the constitute an impairment of the right and the
appointment of commissioners under Rule 32 — freedom to contract. (BPI v. SEC, G.R. No.
not Sections 5, 6, 7, or 8 of Rule 67 of the Rules of 164641, 2007)
Court — will be followed. (NPC v. Sps. Asoque,
G.R. No. 172507, Sept. 14, 2016) Settled is the rule that the non-impairment clause
of the Constitution must yield to the loftier purposes
MISCELLANEOUS APPLICATION targeted by the Government. The right granted by
this provision must submit to the demands and
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necessities of the State's power of regulation. Such Licenses are Not Considered Contracts
authority to regulate businesses extends to the Timber licenses, permits, and license agreements
banking industry which, as this Court has time and are the principal instruments by which the State
again emphasized, is undeniably imbued with regulates the utilization and disposition of forest
public interest. (Goldenway v. Merchandising resources to the end that public welfare is
Corporation v. Equitable PCI Bank, G.R. No. promoted. It cannot be denied that they merely
195540, 2013) evidence a privilege granted by the State, and it
does not vest a permanent or irrevocable right.
Public Contracts They are not deemed contracts within the due
The non-impairment clause protects contracts with process of law clause. (Oposa v Factoran, G.R. No.
the government, including franchises. However, 101083, July 30, 1993; C&M Timber Corporation v.
the obligation arising from franchises are subject to Alcala, G.R. No. 111088, June 13, 1997)
modification by police power. This is in consonance
with Article 12, Section 11. (Bernas, The 1987 Instances When the Non-impairment Clause is
Philippine Constitution: A Comprehensive Inapplicable
Reviewer, 2011) The parties to a contract cannot, through the
exercise of prophetic discernment, fetter the
Even granting that the "agreement" between the exercise of the taxing power of the State. For not
two governments or their representatives creates a only are existing laws read into contracts in order
binding obligation under international law, it to fix obligations as between parties, but the
remains incumbent for each contracting party to reservation of essential attributes of sovereign
adhere to its own internal law in the process of power is also read into contracts as a basic
complying with its obligations. The promises made postulate of the legal order. The policy of protecting
by a Philippine president or his alter egos to a contracts against impairment presupposes the
foreign monarch are not transubstantiated by maintenance of a government, which retains
divine right so as to ipso facto render legal rights of adequate authority to secure the peace and good
private persons obviated. (Kuwait Airways v. order of society. In truth, the Contract Clause has
Philippine Airlines, G.R. No. 156087, 2009) never been thought as a limitation on the exercise
of the State's power of taxation save only where a
tax exemption has been granted for a valid
consideration. (Tolentino v. Secretary of Finance,
G.R. No. 115455, Oct. 30, 1995)
These contractual stipulations on the use of the

land even if said conditions are annotated on the
Torrens title can be impaired if necessary to
reconcile with the legitimate exercise of police
power. (Presley v. Bel-Air Village Association, Inc.,
G.R. No. 86774, Aug. 21, 1991) (Ortigas & Co.
Limited Partnership v. Feati Bank and Trust Co.,
G.R. No. L-24670, Dec. 14, 1979)
Impairment is anything that diminishes the efficacy

of the contract. Section 47 of the General Banking
Law did not divest juridical persons of the right to
redeem their foreclosed properties but only
modified the time for the exercise of such right by
reducing the one-year period originally provided in
Act No. 3135. (Goldenway Merchandising Corp. v.
Equitable PCI Bank, G.R. No. 195540, March 13,
2013)
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immediate family do not earn a gross income

The free exercise of religious profession or belief is abovementioned, and they do not own any real
superior to contract rights. In case of conflict, the property with the fair value aforementioned,
latter must, therefore, yield to the former. supported by an affidavit of a disinterested person
(Victoriano v. Elizalde Rope Workers’ Union, G.R. attesting to the truth of the litigant’s affidavit. The
No. L-25246, Sept. 12, 1974) current tax declaration, if any, shall be attached to
the litigant’s affidavit. (ROC, Rule 141, § 19)
K. ADEQUATE LEGAL ASSISTANCE AND Matter of Right

FREE ACCESS TO COURTS If the applicant for exemption meets the salary and
property requirements under Section 19 of Rule
Free access to the courts and quasi-judicial bodies 141, then the grant of the application is mandatory
and adequate legal assistance shall not be denied and is a matter of right. (Algura v. The Local
to any person by reason of poverty. (PHIL. CONST., Government Unit of the City of Naga G.R. No.
art. 3, § 11) 150135, Oct. 30, 2006)
Indigent Party Matter of Discretion

A party may be authorized to litigate his action, On the other hand, when the application does not
claim or defense as an indigent if the court, upon satisfy one or both requirements, then the
an ex parte application and hearing, is satisfied that application should not be denied outright; instead,
the party is one who has no money or property the court should apply the "indigency test" under
sufficient and available for food, shelter and basic Section 21 of Rule 3 – that the applicant has no
necessities for himself and his family. money or property sufficient and available for food,
shelter and basic necessities for himself and his
Such authority shall include an exemption from family – and use its sound discretion in determining
payment of docket and other lawful fees, and of the merits of the prayer for exemption. (Algura v.
transcripts of stenographic notes which the court The Local Government Unit of the City of Naga
may order to be furnished him. The amount of the G.R. No. 150135, Oct. 30, 2006)
docket and other lawful fees which the indigent was
exempted from paying shall be a lien on any Sheriff’s Expenses
judgment rendered in the case favorable to the Sheriff’s expenses are not exacted for any service
indigent, unless the court otherwise provides. rendered by the court; they are the amount
(ROC, Rule 3, § 21) deposited to the Clerk of Court upon filing of the
complaint to defray the actual travel expenses of
Indigent Litigants Exempt From Payment of the sheriff, process server or other court-
Legal Fees authorized persons in the service of summons,
Indigent litigants (a) whose gross income and that subpoena and other court processes that would be
of their immediate family do not exceed an amount issued relative to the trial of the case. Thus, in In
double the monthly minimum wage of an employee Re: Exemption of Cooperatives from Payment of
and (b) who do not own real property with a fair Court and Sheriff’s Fees Payable to the
market value as stated in the current tax Government in Actions Brought Under R.A. 6938,
declaration of more than three hundred thousand the Court clarified that sheriff’s expenses are not
(P300,000.00) pesos shall be exempt from the considered as legal fees. (In Re Letter of Chief
payment of legal fees. Public Attorney Acosta, AM No. 11-10-03-O, July
30, 2013)
The legal fees shall be a lien on any judgment
rendered in the case favorable to the indigent L. RIGHT AGAINST SELF INCRIMINATION
litigant unless the court otherwise provides.
No person shall be compelled to be a witness
To be entitled to the exemption herein provided, the against himself. (PHIL. CONST., art. 3, § 17)
litigant shall execute an affidavit that he and his
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Concept tendency to incriminate him for some crime.

It is the duty of the prosecution, in order to convict (People v. Ayson, G.R. No. 85215, July 7, 1989)
one of a crime, to produce evidence showing guilt
beyond a reasonable doubt; and the accused 1. SCOPE AND COVERAGE
cannot be called upon either by express words or
acts to assist in the production of such evidence; Against Testimonial Compulsion
nor should his silence be taken as proof against The kernel of the right is not against all compulsion,
him. He has a right to rely on the presumption of but against testimonial compulsion. The right
innocence until the prosecution proves him guilty of against self-incrimination is simply against the legal
every element of the crime with which he is process of extracting from the lips of the accused
charged. (US v. Navarro, G.R. No. 1272, Jan. 11, an admission of guilt. It does not apply where the
1904) evidence sought to be excluded is not an
incrimination but as part of object evidence.
The right against self-incrimination is not merely a (Agustin v. CA, G.R. No. 162571, June 15, 2005)
formal technical rule the enforcement of which is
left to the discretion of the court; it is mandatory; it Covers Writing in a Prosecution for
secures to a defendant a valuable and substantive Falsification
right; it is fundamental to our scheme of justice. Writing is something more than moving the body,
Therefore, the court may not extract from a or the hands, or the fingers; writing is not a purely
defendant's own lips and against his will an mechanical act, because it requires the application
admission of his guilt. Nor may a court as much as of intelligence and attention. Writing means that the
resort to compulsory disclosure, directly or accused is to furnish a means to determine
indirectly, of facts usable against him as a whether or not he is the falsifier. (Beltran v.
confession of the crime or the tendency of which is Samson, G.R. No. 32025, Sept. 23, 1929)
to prove the commission of a crime.
Thus, an accused has: Purely Mechanical Act: Must Be Related to the

1. The right to forego testimony, and Offense Charged
2. The right to remain silent, unless he chooses to Petitioner was arrested for extortion; he resisted
take the witness stand. (Chavez v. CA, G.R. No. having his urine sample taken; and finally, his urine
L-29169, Aug. 19, 1968) sample was the only available evidence that was
used as basis for his conviction for the use of illegal
Purpose drugs. The drug test was a violation of petitioner's
It was established on the grounds of public policy right to privacy and right against self-incrimination.
and humanity —
1. Of Policy: Because if the party were required to Cases where non-testimonial compulsion has been
testify, it would place the witness under the allowed reveal, however, that the pieces of
strongest temptation to commit the crime of evidence obtained were all material to the principal
perjury. cause of the arrest. In the instant case, we fail to
2. Of Humanity: Because it would prevent the
see how a urine sample could be material to the
extorting of confessions by duress. (US v.
Navarro, G.R. No. 1272, Jan. 11, 1904) charge of extortion. The RTC and the CA,
therefore, both erred when they held that the
extraction of petitioner’s urine for purposes of drug
Option of Refusal to Answer, Not a Prohibition testing was merely a mechanical act. (Dela Cruz v.
of Inquiry People, G.R. No. 200748, July 23, 2014)
The right against self-incrimination prescribes an
option of refusal to answer incriminating questions EXCLUSIONS
and not a prohibition of inquiry. It simply secures to
a witness, whether he be a party or not, the right to The essence of the right against self-incrimination
refuse to answer any particular incriminatory is testimonial compulsion, that is, the giving of
question, i.e., one the answer to which has a evidence against himself through a testimonial act.
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Purely mechanical acts are not included in the decline to appear before the court at the time
prohibition as the accused does not thereby speak appointed, or to refuse to testify altogether. The
his guilt, hence the assistance and guiding hand of witness receiving a subpoena must obey it, appear
counsel is not required. as required, take the stand, be sworn and answer
questions. It is only when a particular question is
Thus, the right against self-incrimination does not addressed to him, the answer to which may
apply in the following cases: incriminate him for some offense, that he may
1. A woman charged with adultery may be refuse to answer on the strength of the
compelled to submit to physical examination to constitutional guaranty. (People v. Ayson, G.R. No.
determine her pregnancy. 85215, July 7, 1989)
2. An accused may be compelled to submit to
physical examination and to have a substance A question tends to incriminate when the answer of
taken from his body for medical determination
the accused or the witness would establish a fact,
as to whether he was suffering from gonorrhea
which was contracted by his victim. which would be a necessary link in a chain of
3. To expel morphine from the defendant’s mouth. evidence to prove the commission of a crime by the
4. To have the outline of the defendant’s foot accused or the witness. Further, a crime or a
traced to determine its identity with bloody criminal act may contain two or more elements and
footprints. that a question would have a tendency to
5. To be photographed or measured, or his incriminate, even if it tends to elicit only one of said
garments or shoes removed or replaced, or to elements. (Isabela Sugar Co. v. Macadaeg, G.R.
move his body to enable the foregoing things to No. L-5924, Oct. 28, 1953)
be done. (Dela Cruz v. People, G.R. No.
200748, July 23, 2014)
Not Self-Executing; May Be Waived
Over the years, the Supreme Court has expressly The right against self-incrimination is not self-
excluded several kinds of object evidence taken executing or automatically operational. It must be
from the person of the accused from the realm of claimed. If not claimed by or in behalf of the
self-incrimination. These include: witness, the protection does not come into play. It
1. Photographs, hair, and other bodily substances. follows that the right may be waived, expressly, or
2. Examination of a woman’s genitalia, in an action impliedly, as by a failure to claim it at the
for annulment filed by her husband, to verify his appropriate time. (People v. Ayson, G.R. No.
claim that she was impotent, her orifice being 85215, July 7, 1989)
too small for his penis.
3. DNA testing and its results. (Agustin v. CA, G.R. When a person, however, voluntarily answers an
No. 162571, June 15, 2005) incriminating question, he is deemed to have
waived his right. Moreover, after the accused has
The right against self-incrimination does not apply pleaded guilty, for the purpose of ascertaining the
to records required by law to be kept which are the proper penalty to be imposed or for any other legal
appropriate subjects of governmental regulation purposes, the court may properly ask such
and where restrictions are validly established. questions which are necessary to that end.
(Shapiro v. United States, 335 U.S. 1, June 21, (Bernas, The 1987 Constitution of the Republic of
1948) the Philippines, 2009)
WHEN TO INVOKE; WAIVER Where the witness, in answer to previous

incriminating questions, said, "I do not remember,"
Available Only When the Incriminatory that is clearly a refusal to answer, and the privilege
Question is Asked is not deemed waived thereby. (Isabela Sugar Co.
The right against self-incrimination can be claimed v. Macadaeg, G.R. No. L-5924, Oct. 28, 1953)
only when the specific question, incriminatory in
character, is actually put to the witness. It cannot Not a Valid Waiver; Judgement Void; Habeas
be claimed at any other time. It does not give a Corpus is a Proper Remedy
witness the right to disregard a subpoena, to
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In this case, petitioner is a defendant in a criminal visitorial powers of the state even if this results in
case. He was called by the prosecution as the first disclosure of criminal acts of the corporation.
witness in that case to testify for the People during Moreover, a corporate officer may not prevent the
the first day of trial thereof. Petitioner objected and production of corporate papers on the ground that
invoked the privilege of self-incrimination. This he they may incriminate him personally, for in such a
broadened "by the clear cut statement that “he will situation it would not be a case of the officer
not testify.” But petitioner's protestations were met incriminating himself but the corporation
with the judge's emphatic statement that it "is the incriminating him. (Bernas, The 1987 Constitution
right of the prosecution to ask anybody to act as of the Republic of the Philippines, 2009)
witness on the witness stand including the
accused," and that defense counsel "could not Accused v. Ordinary Witness
object to have the accused called on the witness ORDINARY
ACCUSED
stand." The cumulative impact of all these is that WITNESS
accused-petitioner had to take the stand. He was The defendant in a The witness receiving
thus peremptorily asked to create evidence against cannot be compelled a subpoena must obey
himself. to testify or produce it, appear as required,
evidence in the take the stand, be
The Court ruled that there is therefore no waiver of criminal case in which sworn and answer
the privilege. To be effective, a waiver must be he is the accused, or questions.
certain and unequivocal, and intelligently, one of the accused.
understandably, and willingly made; such waiver He cannot be
following only where liberty of choice has been fully
compelled to do so
accorded.
even by subpoena or
other process or order
Habeas corpus is a high prerogative writ. It is
of the Court.
traditionally considered as an exceptional remedy
to release a person whose liberty is illegally
The defendant in a A witness cannot
restrained such as when the accused's
criminal action can refuse to take the
constitutional rights are disregarded. Such defect
refuse to testify witness stand. It is only
results in the absence or loss of jurisdiction and
altogether. He can when a particular
therefore invalidates the trial and the consequent
conviction of the accused whose fundamental right refuse to take the question is addressed
was violated. That void judgment of conviction may witness stand, be to which may
be challenged by collateral attack, which precisely sworn, answer any incriminate himself for
is the function of habeas corpus. This writ may question. some offense that he
issue even if another remedy which is less effective may refuse to answer
may be availed of by the defendant. Thus, failure on the strength of the
by the accused to perfect his appeal before the constitutional
Court of Appeals does not preclude a recourse to guaranty.
the writ. The writ may be granted upon a judgment
already final. (Chavez v. CA, G.R. No. L-29169,
Aug. 19, 1968) As to an accused in a criminal case, it is settled that
he can refuse outright to take the stand as a
WHO MAY INVOKE witness. An accused occupies a different tier of
protection from an ordinary witness. Under the
Only Applies to Natural Persons Rules of Court, in all criminal prosecutions the
Unlike the search and seizure clause, which defendant is entitled among others –
protects both natural persons and corporations, the 1. To be exempt from being a witness against
privilege against self-incrimination is a personal himself, and
one, applying only to natural individuals. Thus, a 2. To testify as witness in his own behalf; but if he
offers himself as a witness he may be cross-
corporation may be compelled to submit to the
examined as any other witness; however, his
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neglect or refusal to be a witness shall not in Nature and Purpose

any manner prejudice or be used against him. A state response to the constitutional exception –
the right against self-incrimination – to its vast
The right of the defendant in a criminal case to be powers, especially in the field of ordinary criminal
exempt from being a witness against himself prosecution and in law enforcement and
signifies that he cannot be compelled to testify or administration, is the use of an immunity statute.
produce evidence in the criminal case in which he Immunity statutes seek a rational accommodation
is the accused, or one of the accused. He cannot between the imperatives of an individual’s
be compelled to do so even by subpoena or other constitutional right against self-incrimination
process or order of the Court. He cannot be (considered the fount from which all statutes
required to be a witness either for the prosecution, granting immunity emanate) and the legitimate
or for a co-accused, or even for himself. In other governmental interest in securing testimony. By
words – unlike an ordinary witness (or a party in a voluntarily offering to give information on the
civil action) who may be compelled to testify by commission of a crime and to testify against the
subpoena, having only the right to refuse to answer culprits, a person opens himself to investigation
a particular incriminatory question at the time it is and prosecution if he himself had participated in the
put to him – the defendant in a criminal action can criminal act. To secure his testimony without
refuse to testify altogether. He can refuse to take exposing him to the risk of prosecution, the law
the witness stand, be sworn, answer any question. recognizes that the witness can be given immunity
(Rosete v. Lim, G.R. No. 136051, June 8, 2006) from prosecution. In this manner, the state interest
is satisfied while respecting the individual’s
2. APPLICATION constitutional right against self-incrimination.
(Quarto v. Ombudsman, G.R. No. 169042, Oct. 5,
General Rule: The right against self-incrimination
2011)
is available in any civil, criminal, or administrative
proceeding. (People v. Ayson, G.R. No. 85215,
Kinds of Immunity Statutes
July 7, 1989)
1. Use Immunity – prohibits use of witness'
compelled testimony and its fruits in any
Expanded Application manner in connection with the criminal
1. The right is extended to respondents in prosecution of the witness.
administrative investigations that partake of the 2. Transactional Immunity – grants immunity to
nature of or are analogous to criminal the witness from prosecution for an offense to
proceedings. which his compelled testimony relates. (Galman
2. The right extends to all proceedings sanctioned v. Pamaran, G.R. Nos. 71208-09, Aug. 30,
by law. 1985)
3. The right extends to all cases in which
punishment is sought to be visited upon a Source of Immunity: The Legislative
witness, whether a party or not. The power to grant immunity from prosecution is
4. The right extends to legislative investigations.
essentially a legislative prerogative. The exclusive
5. The right extends to administrative proceedings
which possess a criminal or penal aspect, i.e. power of Congress to define crimes and their
medical board investigation. nature and to provide for their punishment
6. The right extends to investigations conducted concomitantly carries the power to immunize
by a fact-finding ad hoc board. certain persons from prosecution to facilitate the
(Standard Chartered Bank v. Senate attainment of state interests, among them, the
Committee on Banks, G.R. NO. 167173, Dec. solution and prosecution of crimes with high
27, 2007; Pascual v. Board of Medical political, social and economic impact. In the
Examiners, G.R. No. L-25018, May 26, 1969; exercise of this power, Congress possesses broad
Galman v. Pamaran, G.R. Nos. 71208-09, Aug. discretion and can lay down the conditions and the
30, 1985) extent of the immunity to be granted. (Quarto v.
Ombudsman, G.R. No. 169042, Oct. 5, 2011)
3. IMMUNITY STATUTES
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Authority to Grant Immunity: The Executive, M. RIGHTS OF PERSONS UNDER

But Reviewable by Courts CUSTODIAL INVESTIGATION
While the legislature is the source of the power to
grant immunity, the authority to implement is (1) Any person under investigation for the
lodged elsewhere. The authority to choose the commission of an offense shall have the right to be
individual to whom immunity would be granted is a informed of his right to remain silent and to have
constituent part of the process and is essentially an competent and independent counsel preferably of
executive function. (Quarto v. Ombudsman, G.R. his own choice. If the person cannot afford the
No. 169042, Oct. 5, 2011) services of counsel, he must be provided with one.
These rights cannot be waived except in writing
On the other hand, it is the trial court that and in the presence of counsel.
determines whether the prosecution’s preliminary
assessment of the accused-witness’ qualifications (2) No torture, force, violence, threat, intimidation,
to be a state witness satisfies the procedural or any other means which vitiate the free will shall
norms. This relationship is in reality a symbiotic one be used against him. Secret detention places,
as the trial court, by the very nature of its role in the solitary, incommunicado, or other similar forms of
administration of justice, largely exercises its detention are prohibited.
prerogative based on the prosecutor’s findings and
evaluation. The court is given this power once it (3) Any confession or admission obtained in
has already acquired jurisdiction over the crime violation of this or Section 17 hereof shall be
and the accused. The discharge of an accused is inadmissible in evidence against him.
part of the exercise of jurisdiction but is not a
recognition of an inherent judicial function. (Quarto (4) The law shall provide for penal and civil
v. Ombudsman, G.R. No. 169042, Oct. 5, 2011) sanctions for violations of this section as well as
compensation to and rehabilitation of victims of
Extent of Judicial Review of a Bestowed torture or similar practices, and their families. (PHIL.
Immunity CONST., art. 3, § 12)
An immunity statute does not, and cannot, rule out
a review by the Supreme Court of the Miranda Rights Under Sec. 12(1)
Ombudsman’s exercise of discretion. Like all other 1. The right to remain silent.
officials under our constitutional scheme of 2. The right to have competent and independent
government, all their acts must adhere to the counsel preferably of his own choice.
Constitution. The parameters of the Court’s review, 3. The right to be informed of such rights. (People
however, are narrow as the Court is not a trier of v. Rapeza, G.R. No. 169431, April 3, 2007)
facts. Since the determination of the requirements
Purpose
under Section 17, Rule 119 of the Rules of Court
The objective is to prohibit incommunicado
(Discharge of Accused to be State Witness) is
interrogation of individuals in a police-dominated
highly factual in nature, the Court must, thus,
atmosphere, resulting in self-incriminating
generally defer to the judgment of the Ombudsman
statement without full warnings of constitutional
who is in a better position (than the Sandiganbayan
rights. (People v. Rapeza, G.R. No. 169431, April
or the defense) to know the relative strength and/or
3, 2007)
weakness of the evidence presently in his
possession and the kind, tenor and source of
The purposes of the safeguards prescribed by
testimony he needs to enable him to prove his
Miranda are to ensure that the police do not coerce
case. Thus, the Court rules on the basis of a
or trick captive suspects into confessing, to relieve
petition for certiorari under Rule 65 and address
the inherently compelling pressures generated by
mainly the Ombudsman’s exercise of discretion.
the custodial setting itself, which work to undermine
The room for intervention only occurs when a clear
the individual’s will to resist, and as much as
and grave abuse of the exercise of discretion is
possible to free courts from the task of scrutinizing
shown. (Quarto v. Ombudsman, G.R. No. 169042,
individual cases to try to determine, after the fact,
Oct. 5, 2011)
whether particular confessions were voluntary.
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Those purposes are implicated as much by in- counsel, he must be provided with one. (PHIL.
custody questioning of persons suspected of CONST., art. III, § 12[1])
misdemeanours as they are by questioning of
persons suspected of felonies. (People v. Chavez, Counsel of Choice Not Exclusive
G.R. No. 207950, Sept. 22, 2014) The right to counsel does not mean that the
accused must personally hire his own counsel. The
RIGHT TO REMAIN SILENT constitutional requirement is satisfied when a
counsel is:
Silence Not an Implied Admission of Guilt 1. Engaged by anyone acting on behalf of the
Clearly, when appellant remained silent when person under investigation; or
confronted by the accusation of "AAA" at the police 2. Appointed by the court upon petition of the said
station, he was exercising his basic and person or by someone on his behalf. (People v.
fundamental right to remain silent. At that stage, his Espiritu, G.R. No. 128287, Feb. 2, 1999)
silence should not be taken against him. Thus, it
The phrase "preferably of his own choice" does not
was error on the part of the trial court to state that
convey the message that the choice of a lawyer by
appellant’s silence should be deemed as implied
a person under investigation is exclusive as to
admission of guilt. (People v. Guillen, G.R. No.
preclude other equally competent and independent
191756, Nov. 25, 2013)
attorneys from handling the defense; otherwise the
tempo of custodial investigation will be solely in the
A person under investigation has the right to refuse
hands of the accused who can impede, nay,
to answer any question. His silence, moreover,
obstruct the progress of the interrogation by simply
may not be used against him. (Bernas, The 1987
selecting a lawyer who, for one reason or another,
is not available to protect his interest. (People v.
2009)
Mojello, G.R. No. 145566, March 9, 2004)
Must Include an Explanation that Anything Said
Non-Independent Counsel
Can and Will be Used Against Him
The Constitution further requires that the counsel
The warning of the right to remain silent must be
be independent; thus, he cannot be:
accompanied by the explanation that anything said
1. A special counsel
can and will be used against the individual in court. 2. Public or private prosecutor
This warning is needed in order to make him aware 3. Counsel of the police
not only of the privilege, but also of the 4. A municipal attorney whose interest is
consequences of forgoing it. (Miranda v. Arizona, admittedly adverse to that of the accused
384 U.S. 436, June 13, 1966) 5. Barangay captain
6. Lawyer applying for a position in the NBI where
RIGHT TO COMPETENT AND INDEPENDENT it was NBI conducting the investigation
COUNSEL (People v. Reyes, G.R. No. 178300, March 17,
2009; People v. Tomaquin, G.R. No. 133188,
Purpose July 23, 2004; People v. Januario, G.R. No.
The right to counsel at all times is intended to 98252, Feb. 7, 1997)
preclude the slightest coercion as would lead the
accused to admit something false. The lawyer, Competent Counsel: Effective and Vigilant
however, should never prevent an accused from A competent counsel is an effective and vigilant
freely and voluntarily telling the truth. (People v. counsel. An "effective and vigilant counsel"
Mojello, G.R. No. 145566, March 9, 2004) necessarily and logically requires that the lawyer
be present and able to advise and assist his client
Mandatory; Must be Provided if Person Cannot from the time the confessant answers the first
Afford question asked by the investigating officer until the
The right to counsel is mandatory. Thus, if the signing of the extrajudicial confession. (People v.
person under custodial investigation cannot afford Tomaquin, G.R. No. 133188, July 23, 2004)
the services of a competent and independent
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RIGHT TO BE INFORMED issuing an ‘invitation’ to a person who is

investigated in connection with an offense he is
Transmission of Meaningful Information suspected to have committed, without prejudice to
An accused's right to be informed of the right to the liability of the ‘inviting’ officer for any violation of
remain silent and to counsel contemplates the law. This means that even those who voluntarily
transmission of meaningful information rather than surrendered before a police officer must be
just the ceremonial and perfunctory recitation of an apprised of their Miranda rights. For one, the same
abstract constitutional principle. (People v. pressures of a custodial setting exist in this
Januario, G.R. No. 98252, Feb. 7, 1997) scenario. (People v. Bitancor, GR. No. 207950;
Sept. 22, 2014)
Effective Communication on the Part of the
Police The circumstances surrounding the appearance of
The right of a person under custodial investigation the accused in the police station falls within the
to be informed of his rights to remain silent and to definition of custodial investigation. He was
counsel implies a correlative obligation on the part identified as a suspect and when he was given a
of the police investigator to explain and to “request for appearance”, he was already singled
contemplate an effective communication that out as the probable culprit. When he appeared
results in an understanding of what is conveyed. before the police station, the pressure of custodial
Short of this, there is a denial of the right, as it setting was present. Furthermore, based on his
cannot then truly be said that the person has been testimony, the police was inside the station during
truly ‘informed’ of his rights. (People v. Januario, the confrontation. A "request for appearance"
G.R. No. 98252, Feb. 7, 1997) issued by law enforcers to a person identified as a
suspect is akin to an "invitation." Thus, he is
When accused was merely told of his constitutional covered by the rights of an accused while under
rights but was never asked whether he understood custodial investigation. Any admission obtained
what he was told or whether he wanted to exercise from the "request for appearance" without the
or avail of such rights is an ineffective and assistance of counsel is inadmissible in evidence.
inadequate compliance with the mandates of the (Lopez v. People, G.R. No. 212186, June 29, 2016)
constitution. Any confession obtained under these
circumstances is flawed and cannot be used as Does Not Apply to Police Lineups
evidence not only against the declarant but also As a rule, a police lineup is not part of the custodial
against his co-accused. (People v. Verano, G.R. investigation. The right to be assisted by counsel
No. 181474, July 26, 2017) attaches only during custodial investigation and
cannot be claimed by the accused during
1. AVAILABILITY identification in a police line-up because it is not
part of the custodial investigation process. This is
Custodial Investigation because during a police line-up, the process has
The invocation of these rights applies during not yet shifted from the investigatory to the
custodial investigation, which begins when the accusatory and it is usually the witness or the
police investigation is no longer a general inquiry complainant who is interrogated and who gives a
into an unsolved crime but has begun to focus on statement in the course of the line-up. (People v.
a particular suspect taken into custody by the Lara, G.R. No. 199877, Aug. 13, 2012)
police who starts the interrogation and propounds
questions to the person to elicit incriminating However, the moment there is a move or even an
statements. (People v. Chavez, G.R. No. 207950, urge of said investigators to elicit admissions or
Sept. 22, 2014) confessions or even plain information which may
appear innocent or innocuous at the time, from said
Applies to Invitation, “Request for suspect, he should then and there be assisted by
Appearance” & Voluntary Surrender counsel, unless he waives the right, but the waiver
Republic Act No. 7438 expanded the definition of shall be made in writing and in the presence of
custodial investigation to “include the practice of
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counsel. (Gamboa v. Judge Cruz, G.R. No. L- accused's being booked and of the date which
56291 June 27, 1988) accompanies the fact of an arrest. (People v.
Bandin, G.R. No. 104494, Sept. 10, 1993)
NON-AVAILABILITY
1. The rights are not available before When Rights End
government investigators become involved. The Criminal Process includes:
Thus, admissions made in an administrative 1. Investigation prior to the filing of charges
investigation conducted by officials of the 2. Preliminary examination and investigation after
Philippine Airlines do not come under Section charges are filed
12. (People v. Ayson, G.R. No. 85215, July 7, 3. Period of trial
1989)
2. The rights are not available when the The Miranda rights or the Section 12(1) rights were
confession or admission is made to a private conceived for the first of these three phases, that
individual. (People v. Tawat, G.R. No. L- is, when the inquiry is under the control of police
62871, May 25, 1984) officers. It is in this situation that the psychological
3. The rights do not apply to a person if not physical atmosphere of custodial
undergoing audit because an audit examiner
investigations, in the absence of proper
is not a law enforcement officer. (Navallo v.
Sandiganbayan, G.R. No. 97214, July 16, safeguards, is inherently coercive. Outside of this
1994) situation, Section 12(1) no longer applies and
4. The rights do not apply to a verbal admission Sections 14 and 17 come into play instead.
made to a radio announcer who was not part (Bernas, The 1987 Constitution of the Republic of
of the investigation. (People v. Ordono, G.R. the Philippines, 2009)
No. 132154, June 29, 2000)
5. The rights do not apply to an admission made The right to counsel under Section 12 (1) of Article
to a mayor who is approached not as mayor III of the Constitution applies in criminal
but as confidante. (People v. Zuela, G.R. No. proceedings, but not in administrative proceedings.
112177, Jan. 28, 2000)
Any proceeding conducted by an administrative
6. The rights do not apply to an interview
recorded on video in the presence of body is not part of the criminal investigation or
newsmen, but the Supreme Court warned that prosecution. While investigations conducted by an
trial courts should admit similar confessions administrative body may at times be akin to a
with extreme caution. (People v. Endino, G.R. criminal proceeding, the fact remains that under
No. 133026, Feb. 20, 2001) existing laws, a party in an administrative inquiry
7. The rights do not apply to persons who may or may not be assisted by counsel,
voluntarily surrender, where no written irrespective of the nature of the charges and of the
confession was sought to be presented in respondent's capacity to represent himself, and no
evidence as a result of a formal custodial duty rests on such body to furnish the person being
investigation. (People v. Taylaran, G.R. No. L-
investigated with counsel. In an administrative
49149, Oct. 23, 1981)
8. The rights do not apply to spontaneous proceeding, a respondent has the option of
statements, not elicited through questioning engaging the services of counsel or not. Thus, the
by the authorities, but given in an ordinary right to counsel is not always imperative in
manner whereby the accused orally admits administrative investigations because such
having committed the crime. (People v. inquiries are conducted merely to determine
Baloloy, G.R. No. 140740, April 12, 2002) whether there are facts that merit disciplinary
9. Person in a police line-up not entitled to measure against erring public officers and
counsel. (Gamboa v. Judge Cruz, G.R. No. L- employees, with the purpose of maintaining the
56291 June 27, 1988) dignity of government service. As such, the hearing
10. Administrative proceedings. (Cudia v.
conducted by the investigating authority is not part
Superintendent of the PMA, G.R. No. 211362,
Feb. 24, 2015) of a criminal prosecution. (Gutierrez v COA, G.R.
11. Signing of arrest reports and booking sheets. No. 200628, Jan. 13, 2015, citing Remolona v
It is not an extra-judicial statement and cannot CSC, G.R. No. 137473, Aug. 2, 2001)
be the basis of a judgment of conviction. The
Booking Sheet is merely a statement of the Summary of Availability and Non-Availability
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AVAILABLE NOT AVAILABLE 2. Signed by such person in the presence of

1. After a person has 1. During a police line- his counsel or in the latter's absence:
been taken into up [Exception: a. Upon a valid waiver, and
custody Once there is a b. In the presence of any of the following
2. When a person is move among the as chosen by him/her:
deprived of his investigators to • Parents
freedom of action elicit admissions or • Elder brothers and sisters
in any significant confessions from • Spouse
way the suspect] • Municipal mayor
3. When a person is 2. During • Municipal judge
issued an invitation administrative • District school supervisor
for an investigation investigations • Priest or minister of the gospel
in connection with 3. Confessions made
an offense he is by an accused at RA 7438 does not propose that the persons
suspected to have the time he mentioned above appear in the alternative or as a
committed voluntarily
substitute for counsel without any condition or
4. When a person surrendered to the
voluntarily police or outside the clause. It is explicitly stated therein that before the
surrenders to the context of a formal above-mentioned persons can appear two (2)
police investigation conditions must be met:
5. The investigation is 4. Statements made to 1. Counsel of the accused must be absent, and
being conducted a private person 2. A valid waiver must be executed. (People v.
by the government 5. Signing of arrest Ordono, G.R. No. 132154, June 29, 2000)
with respect to a reports and booking
criminal offense sheets Extrajudicial Confession
(police, DOJ, NBI) Under the present laws, a confession to be
admissible must be: (WAVES)
2. REQUISITES 1. Made in Writing, and in the language known to
and understood by the confessant;
The Miranda doctrine requires that: (S3A) 2. Made with the Assistance of competent and
1. Any person under custodial investigation has independent counsel;
the right to remain Silent; 3. Given Voluntarily and intelligently where the
2. Anything he says can and will be used Against accused realized the legal significance of his
him in a court of law; act;
3. He has the right to talk to an Attorney before 4. Express and categorical; and
being questioned and to have his counsel 5. Signed, or if the confessant does not know how
present when being questioned; and to read and write, thumbmarked by him. (People
4. If he cannot Afford an attorney, one will be v. Olivarez, Jr., G.R. No. 77865, Dec. 4, 1998)
provided before any questioning if he so
desires. (People v. Cabanada, G.R. No. Burden of Proof: Lies With the Prosecution
221424, July 19, 2017) Whenever a protection given by the Constitution is
3. WAIVER waived by the person entitled to that protection, the
presumption is always against the waiver.
The rights of persons under custodial investigation Consequently, the prosecution must prove with
cannot be waived except: strongly convincing evidence to the satisfaction of
1. In writing; and this Court that indeed:
2. In the presence of counsel. (PHIL. CONST., art. 1. The accused willingly and voluntarily submitted
III, § 12[1]) his confession; and
2. Knowingly and deliberately manifested that he
R.A. 7438 Extrajudicial Confession (Sec. 2) was not interested in having a lawyer assist him
Any extrajudicial confession made by a person during the taking of that confession. (People v.
arrested, detained or under custodial investigation: Jara, G.R. No. L-61356-57, Sept. 30, 1986)
1. Shall be in writing; and
Effect of Absence of a Valid Waiver: Confession
Inadmissible in Evidence
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In the absence of a valid waiver, any confession obtained or taken in the course of custodial
obtained during the police custodial investigation investigation.
relative to the crime, including any other evidence
secured by virtue of the said confession is The fact that that accused was not assisted by
inadmissible in evidence even if the same was not counsel during the investigation and inquest
objected to during the trial by the counsel of the proceedings does not in any way affect his
appellant. (People v. Samontañez, G.R. No. culpability. It has already been held that "the
134530, Dec. 4, 2000) infractions of the so-called Miranda rights render
inadmissible only the extrajudicial confession or
EXCLUSIONARY RULE admission made during custodial investigation."
Any confession or admission obtained in violation Here, appellant's conviction was based not on his
of the rights of a person under custodial alleged uncounseled confession or admission but
investigation hereof shall be inadmissible in on the testimony of the prosecution witness.
evidence against him. (PHIL. CONST., art. III, § (People v. Bio, G.R. No. 195850, Feb. 16, 2015)
12[3])
However, there is merit in Juanito’s claim that his
Nature constitutional rights during custodial investigation
According to the exclusionary rule, once the were violated by Judge Dicon when the latter
primary source (the "tree") is shown to have been propounded to him incriminating questions without
unlawfully obtained, any secondary or derivative informing him of his constitutional rights. It is settled
evidence (the "fruit") derived from it is also that at the moment the accused voluntarily
inadmissible. Stated otherwise, illegally seized surrenders to, or is arrested by, the police officers,
evidence is obtained as a direct result of the illegal the custodial investigation is deemed to have
act, whereas the "fruit of the poisonous tree" is the started. So, he could not thenceforth be asked
indirect result of the same illegal act. The "fruit of about his complicity in the offense without the
the poisonous tree" is at least once removed from assistance of counsel. Judge Dicon’s claim that no
the illegally seized evidence, but it is equally complaint has yet been filed and that neither was
inadmissible. The rule is based on the principle that he conducting a preliminary investigation deserves
evidence illegally obtained by the State should not scant consideration. The fact remains that at that
be used to gain other evidence because the time Juanito was already under the custody of the
originally illegally obtained evidence taints all police authorities, who had already taken the
evidence subsequently obtained. (People v. statement of the witnesses who were then before
Samontañez, G.R. No. 134530, Dec. 4, 2000) Judge Dicon for the administration of their oaths on
their statements. At any rate, while it is true that
Covers Both Confession & Admission Juanito’s extrajudicial confession before Judge
• Admission – an act, declaration or omission of Dicon was made without the advice and assistance
a party as to a relevant fact. of counsel and hence inadmissible in evidence, it
• Confession – a declaration of an accused could however be treated as a verbal admission of
acknowledging his guilt of the offense charged, the accused, which could be established through
or of any offense necessarily included therein. the testimonies of the persons who heard it or who
(Aquino v. Paiste, G.R. No. 147782, June 25, conducted the investigation of the accused.
2008)
(People v. Baloloy, G.R. No. 140740, April 12,
2002)
Only Covers Confession or Admission Made
During Custodial Investigation
Exclusionary Rule Not Applicable to the
Infractions of the so-called Miranda rights render
Violator of the Right
inadmissible only the extrajudicial confession or
The constitutional provision makes the confessions
admission made during custodial investigation.
and admissions inadmissible “against him,” that is,
The admissibility of other evidence, provided they
against the source of the confession or admission.
are relevant to the issue and is not otherwise
And it is he alone who can ask for exclusion. They
excluded by law or rules, is not affected even if
are, however, admissible against the person
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violating the constitutional prohibition, to the extent impaired even when the privilege of the writ of
that admissibility is allowed by the ordinary rules on habeas corpus is suspended. Excessive bail
evidence. (Bernas, The 1987 Constitution of the shall not be required. (PHIL. CONST., art. 3, §
Republic of the Philippines, 2009) 13)
Inter Alios Acta Rule 2. (1) No person shall be held to answer for a
General Rule: An extrajudicial confession is criminal offense without due process of law.
binding only on the confessant and is not
admissible against his or her co-accused because (2) In all criminal prosecutions, the accused
it is considered as hearsay against them. The rights shall be presumed innocent until the contrary
of a party cannot be prejudiced by an act, is proved, and shall enjoy the right to be heard
declaration, or omission of another. by himself and counsel, to be informed of the
nature and cause of the accusation against
• Exception: An admission made by a him, to have a speedy, impartial, and public
conspirator under Section 31, Rule 130 of the trial, to meet the witnesses face to face, and
Rules of Court. This provision states that the to have compulsory process to secure the
act or declaration of a conspirator in attendance of witnesses and the production of
furtherance of the conspiracy and during its evidence in his behalf. However, after
existence may be given in evidence against arraignment, trial may proceed
the co-conspirator after the conspiracy is
notwithstanding the absence of the accused
shown by evidence other than such act of
declaration. It is admissible against a co- provided that he has been duly notified and his
accused when it is used as circumstantial failure to appear is unjustifiable. (PHIL.
evidence to show the probability of CONST., art. 3, § 14)
participation of said co-accused in the crime.
Thus, in order that the admission of a conspirator Rights of the Accused

may be received against his or her co-conspirators, 1. Criminal due process
it is necessary that: 2. Bail
1. The conspiracy be first proved by evidence 3. Presumption of innocence
other than the admission itself; 4. Right to be heard
2. The admission relates to the common object; 5. Assistance of counsel
and 6. Right to be informed of the nature and cause
3. It has been made while the declarant was of accusation
engaged in carrying out the conspiracy. (People
7. Right to speedy, impartial, and public trial
v. Cachuela, G.R. No. 191752, June 10, 2013)
8. Right to confrontation
In order that an extra-judicial confession may be 9. Compulsory process
used against a co-accused of the confessant, there 10. Trials in absentia
must be a finding of other circumstantial evidence
3. CRIMINAL DUE PROCESS
which when taken together with the confession
would establish the guilt of a co-accused beyond Concept
reasonable doubt. (People v. Constancio, G.R. No. As to procedural due process, the requirement that
206226, April 04, 2016) no person shall be held to answer for a criminal
offense without due process of law simply requires
N. RIGHTS OF THE ACCUSED that the procedure established by law be followed.
If that procedure fully protects life, liberty and
1. All persons, except those charged with
property of the citizens in the state, then it will be
offenses punishable by reclusion perpetua
held to be due process of law. (U.S. v. Ocampo,
when evidence of guilt is strong, shall, before
G.R. No. L-5527, Dec. 22, 1910)
conviction, be bailable by sufficient sureties,
or be released on recognizance as may be
provided by law. The right to bail shall not be
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This presupposes that the penal law being applied extended by the right to bail. But the person
satisfies the substantive requirements of due seeking provisional release need not wait for a
process. (Bernas, The 1987 Philippine formal complaint or information to be filed against
Constitution: A Comprehensive Reviewer, 2011) him. (Paderanga v. Court of Appeals, G.R. No.
115407, Aug. 28, 1995)
Another aspect of due process is the right to be
tried by an impartial judge (cold neutrality of an General Rule: All persons actually detained shall,
independent, wholly-free, disinterested and before conviction be entitled to bail. (PHIL. CONST.,
impartial tribunal). (Bernas, The 1987 Philippine art. 3, § 13).
Constitution: A Comprehensive Reviewer, 2011).
Since bail is constitutionally available to “all
Due Process and Military Tribunal persons”, it must be available to one who is
A military commission or tribunal cannot try and detained even before formal charges are filed.
exercise jurisdiction, even during the period of
martial law, over civilians for offenses allegedly Exceptions:
committed by them as long as civil courts are open (1) Persons charged with offenses punishable by
and functioning, and that any judgement rendered reclusion perpetua, life imprisonment and
by such body relating to a civilian is null and void death, when evidence of guilt is strong
for lack of jurisdiction on the part of the military
tribunal concerned. (Bernas, The 1987 Constitution • For the purpose of determining whether an
offense is punishable by reclusion
of the Republic of the Philippines, 2009)
perpetua, what is determinative is the
4. BAIL penalty provided for by law regardless of
the attendant circumstances. To require
Concept more than that would practically entail a
Bail is the security given for the release of a person full-dress trial thereby defeating the
in custody of the law, furnished by him or a purpose of bail which is to enable the
bondsman, to guarantee his appearance before accused to obtain liberty pending trial.
any court as required under the conditions • Strong evidence means “proof evident” or
hereinafter specified. Bail may be given in the form “presumption great.”
of corporate surety; property bond, cash deposit, or
(2) Persons who are members of the AFP facing a
recognizance. (ROC, Rule 114, § 1)
court martial
Purpose
(0) To honor the presumption of innocence until his Trial Court Conviction
guilt is proven beyond reasonable doubt If convicted by the trial court, bail is only
discretionary pending appeal (Magno v. Abbas,
(1) To enable him to prepare his defense without
G.R. No. L-19361, Feb.y 26, 1965; Comendador,
being subjected to punishment before
et al. v. Villa, G.R. No. 93177, Aug. 2, 1991)
conviction (Cortes v. Catral, A.M. No. RTJ-97-
1387, Sept. 10, 1997)
When a person who is out on bail is convicted, the
bondsman must surrender him for execution of the
The main purpose of bail is to relieve an accused final judgement. (ROC, Rule 114, § 2[d])
from the rigors of imprisonment until his conviction
and secure his appearance at the trial. Thus, as Under Section 13, Article 3, Before Conviction,
bail is intended to secure one’s provisional liberty, Bail is Either:
the same cannot be posted before custody over A. A matter of right: When the offense charged
him has been acquired by the judicial authorities, is punishable by any penalty lower than
either by lawful arrest or voluntary surrender. Only reclusion perpetua. To this extent, the right is
those who have been either arrested, detained, or absolute.
otherwise deprived of their freedom, will ever have
the occasion to seek the protective mantle
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B. A matter of discretion: When the offense

charged is punishable by reclusion perpetua, it BUT SEE: The currently fragile state of Enrile’s
shall be denied if the evidence of guilt is strong. health presents another compelling justification for
Once it is determined that the evidence of guilt his admission to bail.
is not strong, bail becomes a matter of right.
(People v. Nitcha, G.R. No. 113517, Jan. 19, Bail for the provisional liberty of the accused,
1995) regardless of the crime charged, should be allowed
• Discretion refers to the court’s discretion to independently of the merits of the charge, provided
determine whether or not the evidence of his continued incarceration is clearly shown to be
guilt is strong. injurious to his health or to endanger his life.
Indeed, denying him bail despite imperiling his
• Do not confuse interpretation of Bail under
health and life would not serve the true objective of
Bill of Rights with the interpretation of Bail
preventive incarceration during the trial.
under Rule 114 of the Revised Rules of
Criminal Procedure as to:
Accordingly, we conclude that the Sandiganbayan
i. Bail as a Matter of Right (Sec 4), arbitrarily ignored the objective of bail to ensure the
ii. Bail as a Matter of Discretion (Sec appearance of the accused during the trial; and
5), unwarrantedly disregarded the clear showing of the
iii. Non-Bailable offenses (Sec 7). fragile health and advanced age of Enrile. As such,
the Sandiganbayan gravely abused its discretion in
denying Enrile’s Motion to Fix Bail. (Juan Ponce
Strong Evidence Means Evident Proof or
Enrile v. Sandiganbayan, G.R. No. 213847, Aug.
Presumption is Great
18, 2015)
Evident proof means clear, strong evidence which
leads a well-guarded dispassionate judgment to
A person is considered to be “in the custody of
the conclusion that the offense has been
law” when:
committed as charged, and that the accused is the
guilty agent. (1) He is arrested by virtue of a warrant of arrest or
by warrantless arrest.
Presumption is great when the circumstances (2) He has voluntarily submitted himself to the
testified to are such that the inference of guilt jurisdiction of the court by surrendering to the
naturally to be drawn therefrom is strong, clear, and proper authorities.
convincing to an unbiased judgment and excuses
all reasonable probability of any other conclusion. The Court held that when the person has actually
(People v. Judge Cabral, G.R. No. 131909, Feb. posted a bail bond, which was accepted by the
18, 1999) court, he has effectively submitted himself to the
jurisdiction of the court over his person.
Since the grant of bail is discretionary and can only (Paderanga v. Court of Appeals, G.R. No. 115407,
be determined by judicial findings, such discretion Aug. 28, 1995)
can only be exercised after evidence is submitted
to the court, the petitioner has the right of cross Other Rights in Relation to Bail:
examination and to introduce his own evidence in A. The right to bail shall not be impaired even
rebuttal. (Santos v. Judge How, A.M. No. RTJ-05- when the privilege of the writ of habeas corpus
1946, Jan. 26, 2007) is suspended
B. Excessive bail shall not be required (PHIL.
Health Considerations CONST., art. 3, § 13).
A mere claim of illness is not a ground for bail. Bail
is not a sick pass for an ailing or aged detainee or Factors to be considered in setting the amount
prisoner needing medical care outside the prison of bail: (F3P3 CAWN)
facility. (People v. Fitzgerald, G.R. No. 149723, 1. Financial Ability of the accused to give bail
Oct. 27, 2006)
2. Forfeiture of other bail
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3. The accused was a Fugitive from justice Apart from bail, a person may attain provisional
when arrested liberty through recognizance, which is an obligation
4. Probability of the accused appearing at the of record entered into by a third person before a
trial court, guaranteeing the appearance of the accused
5. Penalty for the offense charged for trial. It is in the nature of a contract between the
6. Pendency of other cases where the accused surety and the state. (People v. Abner, G.R. No. L-
is on bail 2508, Oct. 27, 1950)
7. Character and reputation of the accused
8. Age and health of the accused Dismissal of Appeal in Criminal Cases Due to
Jumping of Bail
9. Weight of the evidence against the accused
The Court of Appeals/Supreme Court may, upon
10. Nature and circumstance of the offense
motion of the appellee or motu proprio, dismiss the
(ROC, Rule 114, § 9) appeal if the appellant:
1. If appellant escapes from prison or
Where the right to bail exists, it should not be
confinement;
rendered nugatory by requiring a sum that is
2. If appellant jumps bail; or
excessive. (De La Camara v. Enage, G.R. Nos. L-
3. If appellant flees to another country during the
32951-2, Sept. 17, 1971)
pendency of the appeal
To fix bail at an amount equivalent to the civil (ROC, Rule 124, § 8; Rule 125, § 1)
liability of which petitioner is charged is to permit
the impression that the amount paid as bail is an Bail in Deportation Proceedings
exaction of the civil liability that accused is charged As a general rule, the constitutional right to bail is
of; this we cannot allow because bail is not available only in criminal proceedings. Thus, they
intended as a punishment, nor as a satisfaction of do not apply in deportation proceedings, which are
civil liability which should necessarily await the administrative in nature. However, see Mejoff v.
judgment of the appellate court. (Yap v. CA, G.R. Director of Prisons, where the court applied the
141529, June 6, 2001) general principles of international law found in the
UDHR and ordered released under a bond in a
Courts Cannot Strictly Require Cash Bond Habeas Corpus petition. (Bernas, The 1987
The condition that the accused may have Philippine Constitution: A Comprehensive
provisional liberty only upon his posting of a cash Reviewer, 2011)
bond is abhorrent to the nature of bail and
transgresses our law on the matter. The allowance Bail in Extradition Cases
of a cash bond in lieu of sureties is authorized in Our extradition law does not provide for the grant
this jurisdiction only because our rules expressly of bail to an extraditee. There is no provision
provide for it. And even where cash bail is allowed, prohibiting him or her from filing a motion for bail, a
the option to deposit cash in lieu of a surety bond right to due process under the Constitution.
primarily belongs to the accused.
However, an extradition proceeding, while
Recognizance ostensibly administrative, bears all earmarks of a
An obligation of record entered into before a court criminal process. A potential extraditee may be
guaranteeing the appearance of the accused for subject to arrest, to a prolonged restraint of liberty,
trial. It is in the nature of a contract between the and forced to transfer to the demanding state
surety and the state. The details on how following the proceedings.
recognizance can be obtained or when it is
applicable is left to legislation. (Bernas, The 1987 The standard used in granting bail in extradition
Constitution of the Republic of the Philippines, cases is “clear and convincing evidence.” This
2009) standard should be lower than proof beyond
reasonable doubt but higher than preponderance
of evidence.
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The potential extraditee must prove by “clear and facts proved have a reasonable connection to the
convincing evidence” that : ultimate fact presumed. (U.S. v Luling, G.R. No. L-
i. he is not a flight risk and will abide with all 11162, Aug. 12, 1916)
the orders and processes of the extradition
court, and Accusation Not Synonymous With Guilt
ii. that there exist special, humanitarian, and An accusation, according to the fundamental law,
compelling reasons for him to be released is not synonymous with guilt. The challenged
on bail. (Government of Hong Kong v. proviso contravenes the constitutional presumption
Olalia, Jr., G.R. No.153675, April 19, 2007) of innocence, as a candidate is disqualified from
running for public office on the ground alone that
Right to a Hearing charges have been filed against him before a civil
In cases where the accused is charged with an or military tribunal. It condemns before one is fully
offense punishable by reclusion perpetua, a heard. A person disqualified to run for public office
hearing, mandatory in nature and which should be on the ground that charges have been filed against
summary or otherwise in the discretion of the court, him is virtually placed in the same category as a
is required with the participation of both the person already convicted of a crime with the
defense and a duly notified representative of the penalty of arresto, which carries with it the
prosecution for the purpose of ascertaining accessory penalty of suspension of the right to hold
whether or not the evidence of guilt is strong. office during the term of the sentence (REVISED
PENAL CODE, art. 44) (Dumlao v. COMELEC, G.R.
The constitutional right to bail necessarily includes No. L-52245, Jan. 22, 1980)
the right to a hearing. When bail is denied without
a hearing, a fundamental right is violated. Hence, Conviction in Illegal Drugs Cases
the presentation of evidence for the prosecution in To convict an accused of the illegal sale of
private inquiry, in the absence of the detainee, and dangerous drugs, the prosecution must not only
the subsequent issuance of an order on the basis prove that the sale took place, but also present the
of the private inquiry, cannot be allowed. The corpus delicti in evidence. The only time that
hearing, however, need not be separate and conviction may be sustain despite noncompliance
distinct from the trial itself. And it need only be with the chain of custody requirements is if there
summary. The right to a prompt hearing is waived were justifiable grounds provided. Before the
by agreeing to postponements. courts may consider the seized drugs as evidence
despite noncompliance with the legal
Parallel to the accused’s right to a hearing is the requirements, justifiable grounds must be identified
prosecution’s right to present evidence. If the and proven. The prosecution must establish the
prosecution is denied such right, the grant of bail is steps taken to ensure that the integrity and
void. (Bernas, The 1987 Constitution of the evidentiary value of the seized items were
Republic of the Philippines, 2009) preserved. It is the positive duty to establish its
reason for the procedural lapses. (People v.
3. PRESUMPTION OF INNOCENCE Ternida y Munar, G.R. No. 212626, June 3, 2019)
Concept Continues Pending Appeal

Its principal effect is that no person shall be Presumption of innocence persists even when
convicted unless the prosecution has proved him there is conviction by lower court and case is still
guilty beyond reasonable doubt. (Bernas, The on appeal. Such presumption is not destroyed until
1987 Constitution: A Comprehensive Reviewer, there is proof that accused is guilty beyond
2011) reasonable doubt based on evidence. (Bernas,
The 1987 Constitution: A Comprehensive
Prima Facie Presumption Reviewer, 2011)
The Constitution does not prohibit the legislature
from providing that proof of certain facts leads to a Equipoise Rule
prima facie presumption of guilt, provided that the
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Where the evidence in a criminal case is evenly Duty of Court to Inform Accused of his Right to
balanced, the constitutional presumption of Counsel
innocence tilts the scales in favor of the accused. 1. Inform accused that he has the right to have his
(People v. Erguiza, G.R. No. 171348, Nov. 26 own counsel before being arraigned;
2008) 2. After giving such information, to ask accused
whether he desires the aid of counsel;
Anti-Hazing Law 3. If he so desires to procure the services of
Section 14 of the Anti-Hazing Law provides that an
counsel, the court must grant him reasonable
accused's presence during a hazing is prima facie time to do so; and
evidence of his or her participation. However, this
4. If he so desires to have counsel but is unable
does not violate the constitutional presumption of
to employ one, the court must assign a counsel
innocence. The constitutional presumption of
de officio to defend him.
innocence is not violated when there is a logical
(People v. Agbayani, G.R. No. 122770, Jan 16,
connection between the fact proved and the
1998) (ROC, Rule 116, § 6)
ultimate fact presumed. When such prima facie
evidence is unexplained or not contradicted by the
When an accused unaided by counsel qualifiedly
accused, the conviction founded on such evidence
admits his guilt to an ambiguous or vague
will be valid. However, the prosecution must still
information from which a serious crime can be
prove the guilt of the accused beyond reasonable
deduced, it is not prudent for the trial court to
doubt. The existence of a disputable presumption
render a serious judgment finding the accused
does not preclude the presentation of contrary
guilty of a capital offense without absolutely any
evidence. Neither has it been shown how Section
evidence to determine and clarify the true facts of
14 does away with the requirement that the
the case. (People v. Holgado, G.R. No. L-2809,
prosecution must prove the participation of the
March 22, 1950)
accused in the hazing beyond reasonable doubt.
(Fuertes v. Senate of the Philippines, G.R. No. 6. RIGHT TO BE INFORMED OF THE
208162, Jan. 07, 2020)
NATURE AND CAUSE OF ACCUSATION
4. RIGHT TO BE HEARD
Purpose
Includes the right to be present at the trial from
arraignment to promulgation of sentence. (U.S. 1. To furnish the accused with a description of the
Beecham, G.R. No. 5161 & 5162, Oct. 9, 1912) charge against him as will enable him to make
his defenses.
After arraignment, trial may proceed 2. To avail himself of his conviction or acquittal
notwithstanding absence of accused. against a further prosecution for the same
cause.
Elements: (PIC3) 3. To inform the court of the facts alleged. (U.S.
v. Karelsen, G.R. No. 1376, Jan. 21, 1904)
1. Right to be Present at the trial;
2. Right to Counsel;
Sufficiency of Complaint or Information
3. Right to an Impartial judge; A complaint or information is sufficient if it states
4. Right of Confrontation; the:
5. Right to Compulsory process to secure the 1. Name of the accused;
attendance of witnesses. 2. Designation of the offense given by the statute;
(Bernas, The 1987 Constitution: A 3. Acts or omissions complained of as constituting
Comprehensive Reviewer, 2011) the offense;
4. Name of the offended party;
5. ASSISTANCE OF COUNSEL 5. Approximate date of the commission of the
offense; and
6. Place where the offense was committed.
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information. (People v. Begino, G.R. No. 181246,

When an offense is committed by more than one March 20, 2009)
person, all of them shall be included in the
complaint or information. (ROC, Rule 110, § 6) Date of Commission of the Crime
General Rule: It is unnecessary to state in the
If the information fails to allege the material information the precise date that the offense was
elements of the offense, the accused cannot be committed
convicted thereof even if the prosecution is able to
• Exception: When it is an essential element of
present evidence during the trial with respect to
the offense. (People v. Bugayong, G.R. No.
such elements.
126518, Dec. 2, 1998)
The real nature of the crime charged is determined
When the time given in the complaint is not
from the recital of facts in the information. It is not
essential, it need not be proven as alleged. The
based on the caption, preamble or from the cited
complaint will be sustained if there is proof that the
provision of law allegedly violated. (People v.
offense was committed at any time within the
Labado, G.R. No. L-38548, July 24, 1980)
period of the statute of limitations and before the
commencement of the action. The date of
In a situation where a court (in a fused action for
commission is not an element of rape. The
the enforcement of criminal and civil liability) may
gravamen of rape is carnal knowledge of a woman.
validly order an accused-respondent to pay an
(People v. Rafon, G.R. No. 169059, Sept. 5, 2007)
obligation arising from a contract, a person’s right
to be notified of the complaint, and the right to have
The Supreme Court has upheld complaints and
the complaint dismissed if there is no cause of
information in prosecutions for rape which merely
action, are completely defeated. If the accused-
alleged the month and year of its commission.
respondent is completely unaware of the nature of
(People v. Ching, G.R. No. 177150, Nov. 22, 2007)
the liability claimed against him or her at the onset
of the case, he is blindsided. It is a clear violation 7. RIGHT TO SPEEDY, IMPARTIAL, AND
of a person's right to due process. (Gloria S. Dy v. PUBLIC TRIAL
People of the Philippines, GR No. 189081, August
10, 2016) a. Right to Speedy Trial
Qualifying and Aggravating Circumstances Factors Used in Determining Whether the Right
Must be Alleged to a Speedy Trial Has Been Violated: (TL-RAP)
The complaint or information shall state the 1. Time expired from the filing of the information
designation of the offense given by the statute, 2. Length of delay involved
aver the acts or omissions constituting the offense, 3. Reasons for the delay
and specify its qualifying and aggravating 4. Assertion or non-assertion of the right by the
circumstances. If there is no designation of the accused
offense, reference shall be made to the section or 5. Prejudice caused to the defendant (Bernas,
subsection of the statute punishing it. (ROC, Rule The 1987 Constitution: A Comprehensive
110, § 8) Reviewer 2011)
Since the qualifying circumstance of “common law Remedy if the Right to Speedy Trial was
spouse” was not alleged in the Information for rape violated:
against appellant, he could not be convicted of rape
1. He can move for the dismissal of the case
in the qualified form as he was not properly
2. If he is detained, he can file a petition for the
informed of the nature and cause of accusation
issuance of writ of habeas corpus. (Bernas,
against him. In a criminal prosecution, it is a
fundamental rule that every element of the crime
Reviewer, 2011)
charged must be alleged in the complaint or
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The right to speedy trial is considered violated only When a judge has previously convicted a person of
when the proceeding is attended by vexatious, a crime i.e., arson, he should disqualify himself
capricious and oppressive delays. Courts are from hearing another case involving the same
required to do more than a mathematical person, but with a different crime, i.e., malversation
computation of the number of postponements of (Ignacio v. Villaluz, G.R. No. L-37527-52, May 25,
the scheduled hearings of the case and to give 1979)
particular regard to the facts and circumstances
peculiar to each case. (Nelson Imperial, et al. v. c. Right to Public Trial
Maricel M. Joson, et al.; Santos O. Francisco v.
Spouses Gerard and Maricel Joson Nelson; The attendance at the trial is open to all irrespective
Imperial, et al. v. Hilarion C. Felix, et al., G.R. Nos. of their relationship to the accused. However, if the
160067, 170410, 171622, Nov. 17, 2010) evidence to be adduced is offensive to decency or
public morals, the public may be excluded. (Garcia
v. Domingo, G.R. No. L-30104, July 25, 1973)
Where a prosecuting officer, without good cause,
secures postponements of the trial of a defendant
The purpose is to serve as a “safeguard against
against his protest beyond a reasonable period of
any attempt to employ our courts as instruments of
time, as in this instance for more than a year, the
prosecution.” The knowledge that every trial is
accused is entitled to relief by a proceeding in
subject to the contemporaneous review in the
mandamus to compel a dismissal of the
forum of the public opinion is an effective restraint
information, or if he be restrained of his liberty, by
on possible abuse of judicial power. (Garcia v.
habeas corpus to obtain his freedom. (Conde v.
Domingo, G.R. No. L-30104, July 25, 1973)
Rivera, G.R. No. L-21741, Jan. 25, 1924)
The right of the accused to a public trial is not
Dismissal Based on the Right to Speedy Trial
violated if the hearings are conducted on
If the dismissal is valid, it amounts to an acquittal
Saturdays, either with the consent of the accused
and can be used as basis to claim double jeopardy.
or if he failed to object thereto.
This would be the effect even if the dismissal was
made with the consent of the accused. (Bernas,
An accused is entitled to a public trial, at least to
the extent of having his friends, relatives and
Reviewer, 2011)
counsel present – no matter with what offense he
may be charged. (In Re: Oliver, 333 U.S. 257,
Speedy Trial v. Speedy Disposition of Cases
March 8, 1948)
The right to a speedy trial is available only to an
accused and is a peculiarly criminal law concept, 8. RIGHT OF CONFRONTATION
while the broader right to a speedy disposition of
cases may be tapped in any proceedings Purpose
conducted by state agencies. In this case, the 1. To afford the accused an opportunity to cross-
appropriate right involved is the right to a speedy examine the witness
disposition of cases, the recovery of ill-gotten 2. To allow the judge the opportunity to observe
wealth being a civil suit. (Coconut Producers the conduct or demeanor of the witness
Federation, Inc. et al. v. Republic of the Philippines; (Bernas, The 1987 Constitution: A
Wigberto E. Tanada, et al., intervenors; Danilo S. Comprehensive Reviewer, 2011)
Ursua v. Republic of the Philippines, G.R. Nos.
177857-58 & G.R. No. 178193, Jan. 24, 2012) Exceptions to the right to face witnesses:
1. The admissibility of “dying declarations”
b. Right to Impartial Trial
2. Trial in absentia under Section 14(2)
The accused is entitled to the “cold neutrality of an 3. With respect to child testimony
impartial judge.” It is an element of due process. (Bernas, The 1987 Constitution: A
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Notes: 4. That no similar evidence could be obtained.

• Where a party has had the opportunity to cross- (Bernas, The 1987 Constitution: A
examine an opposing witness but failed to avail Comprehensive Reviewer, 2011)
himself of it, he necessarily forfeits the right to
cross-examine and the testimony given on direct
10. TRIALS IN ABSENTIA
examination of the witness will be received or
Requisites (ANU)
allowed to remain in the record. (People v.
Seneris, G.R. No. L-48883, Aug. 6, 1980) 1. The accused has been validly Arraigned and
2. Accused has been duly Notified; and
• It is demandable only during trials. Thus, it
3. His failure to appear is Unjustifiable. (Parada
cannot be availed of during preliminary
v. Veneracion, A.M. No. RTJ-96-1353, March
investigations.
11, 1997)
• Right of confrontation is available during trial
which begins only upon arraignment. This is allowed to speed up disposition of criminal
• Section 7 of the Special Rules of Procedure cases. (People v. Salas, G.R. No. L-66469, July 29,
prescribed for Shari’a courts aforecited provides 1986)
that if the plaintiff has no evidence to prove his
claim, the defendant shall take an oath and Voluntary Waiver
judgment shall be rendered in his favor by the Trial in absentia can also take place when the
Court. On the other hand, should defendant accused voluntarily waives his right to be present.
refuse to take an oath, plaintiff may affirm his The right may be waived provided that after
claim under oath, in which case judgment shall arraignment he may be compelled to appear for the
be rendered in his favor. Said provision purpose of identification by the witnesses of the
effectively deprives a litigant of his constitutional prosecution, or provided he unqualifiedly admits in
right to due process. It denies a party his right to open court after his arraignment that he is the
confront the witnesses against him and to cross- person named as the defendant in the case on trial.
examine them. It should have no place even in
the Special Rules of Procedure of the Shari’a Thus, for an accused to be excused from attending
courts of the country. (Tampar v. Usman, G.R. trial, it is not enough that he vaguely agrees to be
No. 82077, Aug. 16, 1991) identified by witnesses in his absence. He must
unqualifiedly admit that every time a witness
mentions as name by which he is known, the
witness is to be understood as referring to him.
9. COMPULSORY PROCESS (Bernas, The 1987 Constitution of the Republic of
the Philippines, 2009)
Compulsory process to secure:
1. The attendance of witnesses
Judgement In Absentia
2. The production of evidence in his behalf
While the accused is entitled to be present during
promulgation of judgment, the absence of his
The 1973 and 1987 Constitutions expanded the
counsel during such promulgation does not affect
right to compulsory process which now includes the
its validity.
right to secure the production of evidence in one's
behalf. By analogy, U.S. v. Ramirez which laid
Promulgation of judgment in absentia is valid
down the requisites for compelling the attendance
provided that the essential elements are present:
of witnesses, may be applied to this expanded
concept. Thus, the movant must show: 1. That the judgment be recorded in the criminal
docket; and
1. That the evidence is really material;
2. That a copy be served upon the accused or
2. That he is not guilty of neglect in previously
counsel. Recording the decision in the criminal
obtaining the production of such evidence;
docket of the court satisfies the requirement of
3. That the evidence will be available at the time
notifying the accused of the decision wherever
desired; and
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he may be. (Estrada v. People, G.R. No. delay was inordinate. (Baya v. Sandiganbayan,
162371, Aug. 25, 2005) G.R. Nos. 204978-83, July 6, 2020)
In evaluating criminal cases invoking the right to

WHEN PRESENCE OF THE ACCUSED IS A speedy disposition of cases, a case is deemed to
DUTY have commenced from the filing of the formal
1. Arraignment and Plea complaint and the subsequent conduct of the
2. During Trial, for identification preliminary investigation. (Republic v.
3. Promulgation of Sentence Sandiganbayan, G.R. No. 231144, Feb. 19, 2020)
• Exception: Light offense where accused
need not personally appear. A mere mathematical reckoning of the time
involved, therefore, would not be sufficient. In the
It is important to state that the provision of the application of the constitutional guarantee of the
Constitution authorizing the trial in absentia of the right to speedy disposition of cases, particular
accused in case of his non-appearance after regard must also be taken of the facts and
arraignment despite due notice simply means that circumstances peculiar to each case. (Binay v.
he thereby waives his right to meet the witnesses Sandiganbayan, G.R. 120681, Oct. 1, 1999)
face to face among others. An express waiver of
appearance after arraignment, as in this case, is of Waiver
the same effect. However, such waiver of The person must invoke his or her constitutional
appearance and trial in absentia does not mean right to speedy disposition of cases in a timely
that the prosecution is thereby deprived of its right manner and failure to do so even when he or she
to require the presence of the accused for has already suffered or will suffer the
purposes of identification by its witnesses which is consequences of delay constitutes a valid waiver
vital for the conviction of the accused. Such waiver of that right. (Baya v. Sandiganbayan, G.R. Nos.
of a right of the accused does not mean a release 204978-83, July 6, 2020)
of the accused from his obligation under the bond
to appear in court whenever so required. The Remedy
accused may waive his right but not his duty or The remedy for violation of the right to a speedy
obligation to the court. (Carredo v. People, G.R. disposition of a case is dismissal obtained through
No. 77542, March 19, 1990) mandamus. (Lumanlaw v. Hon. Peralta, G.R. No.
164953, Feb. 13, 2006)
O. RIGHT TO THE SPEEDY DISPOSITION Speedy Trial v. Speedy Disposition of Cases

OF CASES SPEEDY TRIAL SPEEDY DISPOSITION
(Sec. 14) (Sec. 16)
All persons shall have the right to a speedy Only applies to the Covers all phases of
disposition of their cases before all judicial, quasi- trial phase of judicial, quasi-judicial
judicial, or administrative bodies. (PHIL. CONST., art. criminal cases and administrative
III, § 16) proceedings
Concept
Application
The right to speedy disposition of cases is a relative
From the time the Complaint was filed on January
and flexible concept. To determine whether or not
18, 2005, until the Resolution was finally approved
a person's right to speedy disposition of cases is
by the Ombudsman on June 23, 2008, it took the
violated, there are four factors to consider. The four
prosecution three (3) and a half years to conclude
(4) factors — (1) the length of the delay; (2) the
the preliminary investigation. The multiple
reason for the delay; (3) the respondent's assertion
respondents and numerous documents involved
of the right; and (4) prejudice to the respondent —
made the case more complex and difficult to
are to be considered together, not in isolation. The
resolve. Verily, there were 10 respondents charged
interplay of these factors determine whether the
in the Complaint before the Office of the
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Ombudsman and the documents involved, disposition of cases under Section 16 of Article III
consisting of certifications, affidavits of completion, applies to all cases pending before all judicial,
disbursement slips signed by each accused, would quasi-judicial or administrative bodies. Thus, the
require verification. The investigating officer fact-finding investigation should not be deemed
needed to evaluate whether each accused separate from the preliminary investigation
impleaded is probably guilty of the charges. While conducted by the Ombudsman if the aggregate
it took 10 years from the filing of the Complaint until time spent for both constitutes inordinate and
the Information was filed before the oppressive delay in the disposition of the case.
Sandiganbayan, the Sandiganbayan failed to take (People v. Sandiganbayan, G.R. Nos. 188165 &
into account that there was a pending petition for 189063, Dec. 11, 2013)
certiorari filed before the Supreme Court. Thus, the
delay was inevitable. It was only after the resolution P. RIGHT AGAINST EXCESSIVE FINES
of the petition for certiorari that the information was AND CRUEL, DEGRADING, AND INHUMAN
ordered to be filed. Furthermore, it must be PUNISHMENTS
stressed that it was also the respondent who filed
a motion before the Sandiganbayan to suspend the (1) Excessive fines shall not be imposed, nor cruel,
proceedings pending the resolution of the petition degrading or inhuman punishment inflicted. Neither
for certiorari. Furthermore, the respondent is shall death penalty be imposed, unless, for
deemed to have waived his right. In the span of 3 compelling reasons involving heinous crimes, the
years of preliminary investigation, he never raised Congress hereafter provides for it. Any death
this contention and instead, he allowed the penalty already imposed shall be reduced to
investigation to drag on. Even if the approval of the reclusion perpetua.
Resolution took a protracted time of almost 2 years,
the respondent still did not raise the issue. Finally, (2) The employment of physical, psychological, or
after the Information was filed before the degrading punishment against any prisoner or
Sandiganbayan, it took one and a half years before detainee or the use of substandard or inadequate
the respondent brought it up. In fact, it was only penal facilities under subhuman conditions shall be
after the Supreme Court’s denial of the Motion for dealt with by law. (PHIL. CONST., art. III, § 19)
Reconsideration that the respondent decided to
question the preliminary investigation. Thus, there “Cruel and unusual,” as these words are found in
is no violation of the respondent’s right to speedy the Constitution, do not have the same meaning as
disposition of cases. (Republic v. Sandiganbayan, “clearly excessive” found in Article 5 of the Revised
G.R. No. 231144, Feb. 19, 2020) Penal Code. The fact that the punishment
authorized by the statute is severe does not make
The fact finding investigation of the Ombudsman it cruel and unusual. Thus, to be “cruel and
lasted nearly 5 years and 5 months. It is clear that unusual” or “excessive” within the meaning of the
the Ombudsman had taken an unusually long constitution, the penalty must be flagrantly
period just to investigate the criminal complaint and disproportionate to the offense no matter under
to determine whether cases be filed against the what circumstances the offense may be
respondents. It is incumbent for the State to prove committed; but to be “clearly excessive” under
that the delay was reasonable which it failed. At no Article 5 of the Revised Penal Code, it need only
time should the progress and success of the be disproportionate to the circumstances of the
preliminary investigation of a criminal case be offense and of the offender.
made dependent upon the ratification of a treaty by
the Senate that would provide to the prosecutorial It has been held that to come under the
arm of the State, already powerful and constitutional ban on excessive and inhuman
overwhelming in terms of its resources, an undue punishment, the punishment must be ‘flagrantly
advantage unavailable at the time of the and plainly oppressive,’ ‘wholly disproportionate to
investigation. To allow the delay under those terms the nature of the offense as to shock the moral
would definitely violate fair play and nullify due sense of the community.’ (People v. Estoista, G.R.
process of law. The guarantee of speedy No. L-5793, Aug. 27, 1953)
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constitutional prohibition is not violated. (Fuertes v.

Cruel and Inhuman Senate of the Philippines, G.R. No. 208162, Jan.
Involves torture or lingering suffering (e.g., being 07, 2020)
drawn and quartered).
DEATH PENALTY
Degrading
It exposes a person to public humiliation (e.g., Death penalty was abolished because:
being tarred and feathered, then paraded • It inflicts traumatic pain not just on the convict
throughout town). but also on his family, even if the penalty is not
carried out.
Excessive Fine • There was no convincing evidence that it is
When under any circumstance, the fine is effective as a deterrent of serious crime.
disproportionate to the offense. • Penology favors reformative rather than
vindictive penalties.
Guides for Determining Whether a Punishment • Life is too precious a gift to be placed at the
is “Cruel and Unusual”: discretion of a human judge.
1. It must not be so severe as to be degrading to • The law itself, by imposing so many safeguards
the dignity of human beings. before such is carried out, manifests a
2. It must not be applied arbitrarily. reluctance to impose it. (Bernas, The 1987
3. It must not be unacceptable to contemporary Philippine Constitution: A Comprehensive
society. Reviewer, 2011)
4. It must not be excessive.
Legislature may re-impose it, subject to the
Note: following conditions:
• It must serve a penal purpose more effectively 1. That Congress defines what is meant by
than a less severe punishment would. (Brennan heinous crimes;
concurring in Furman v. Georgia, 408 U.S. 238, 2. That Congress specify and penalize by death,
1972) only those crimes that qualify as heinous in
• R.A. 9346 prohibited the imposition of the death accordance with the definition set in heinous
penalty. Only by an Act of Congress can it be crimes law or death penalty law; and
reborn. (Bernas, The 1987 Philippine 3. That Congress, in enacting this death penalty
Constitution: A Comprehensive Reviewer, 2011) bill, be singularly motivated by “compelling
reasons involving heinous crimes.” (People v.
Echegaray, G.R. No. 117472, Feb. 7, 1997)
Anti-Hazing Law
The Anti Hazing Law does not violate the
Heinous Crimes
prohibition on cruel and unusual punishment. The
Heinous crimes are those which are grievous,
prohibition contemplates "extreme corporeal or
odious, and hateful; and by reason of their manifest
psychological punishment.“ Penalties like fines or
wickedness, viciousness, atrocity, and perversity,
imprisonment may be cruel, degrading, or inhuman
are repugnant and outrageous to the common
only when they are "flagrantly and plainly
standards and norms of decency and morality in a
oppressive and wholly disproportionate to the
just, civilized, and ordered society. (People v.
nature of the nature of the offense as to shock the
Echegaray, G.R. No. 117472, Feb. 7, 1997)
moral sense of the community." However, if the
penalty has a legitimate purpose, then the
punishment is proportionate, and the constitutional Instances When Death Penalty Shall Not Be
prohibition is not violated. The Anti-Hazing Law Imposed:
seeks to punish the conspiracy of silence and 1. Guilty person is 70 years old and above;
secrecy, tantamount to impunity, that would 2. Guilty person is below 18 years old; and
otherwise shroud the crimes committed. Hence, 3. Where upon appeal or automatic review of the
the penalty has a legitimate purpose, and the case by the SC, the required majority vote is
Page 255 of 568
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not obtained for the imposition of the death as a personal identification instrument. (Bernas,
penalty. (REVISED PENAL CODE, art. 47) The 1987 Philippine Constitution: A
The duty of a judge when an accused pleads guilty
to a capital offense is to look into the evidence to R. RIGHT AGAINST DOUBLE JEOPARDY
see if death is the proper penalty. (People v.
Vinuya, G.R. No. 125925, Jan. 28, 1999) No person shall be twice put in jeopardy of
punishment for the same offense. If an act is
Q. NON-IMPRISONMENT FOR DEBTS punished by a law and an ordinance, conviction or
acquittal under either shall constitute a bar to
No person shall be imprisoned for debt or non- another prosecution for the same act. (PHIL.
payment of a poll tax. (PHIL. CONST., art. 3, § 20) CONST., art. 3, § 21)
Debt Kinds of Jeopardy

A contractual obligation, whether express or Same Offense Same Act
implied, resulting in any liability to pay money. “No person shall be “When an act is
Thus, all other types of obligations are not within twice put in jeopardy punished by a law and
the scope of this prohibition. (Bernas, The 1987 of punishment for the an ordinance,
Philippine Constitution: A Comprehensive same offense.” conviction or acquittal
Reviewer, 2011) under either shall
constitute a bar to
Imprisonment for Fraudulent Debt another prosecution
1. The fraudulent debt constitutes a crime (e.g. for the same act.”
estafa); and Conviction, acquittal, Only conviction or
2. The debtor has been duly convicted. or dismissal of the acquittal – not
(Bernas, The 1987 Philippine Constitution: A case without the dismissal without the
Comprehensive Reviewer, 2011) express consent of the express consent of the
accused will bar a accused – will bar a
BP 22 subsequent subsequent
The gravamen of the offense punished by BP 22 is prosecution. prosecution.
the act of making and issuing a worthless check or
a check that is dishonored upon its presentation for
payment. It is not the non-payment of an obligation
which the law punishes. The law is not intended or 1. REQUISITES TO RAISE THE DEFENSE OF
designed to coerce a debtor to pay his debt. The DOUBLE JEOPARDY:
thrust of the law is to prohibit, under pain of penal
a. A first jeopardy attached prior to the second;
sanctions, the making of worthless checks and
b. The first jeopardy has been validly
putting them in circulation. (Lozano v. Martinez,
terminated; and
G.R. No. L-63419, Dec. 18, 1986)
c. A second jeopardy is for the same offense
Subsidiary Imprisonment as in the first. (Cerezo v. People, G.R. No.
If an accused fails to pay the fine imposed upon 185230, June 1, 2011)
him, this may result in his subsidiary imprisonment
a. A first jeopardy attached prior to the
because his liability is ex delicto and not ex
second
contractu. (Alejo v. Judge Inserto, A.M. No. 1098
CFI, May 31, 1976)
WHEN JEOPARDY WHEN JEOPARDY
Poll Tax ATTACHES DOES NOT ATTACH
It is a capitation tax imposed on all persons of a
certain age. At present it is the tax one pays for his
or her residence certificate which generally serves
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[ICAPA] pending before the RTC, the MeTC clearly had no

1. If information does
jurisdiction over the criminal case filed before it, the
1. After a valid not charge any
RTC having retained jurisdiction over the offense
Indictment; offense.
to the exclusion of all other courts. The requisite for
2. Before a (People v. Judge
jeopardy to attach that the judgment be rendered
Competent court; Consulta, G.R. No.
by a court of competent jurisdiction is therefore
3. After L-41251, March 31,
absent. A decision rendered without jurisdiction is
Arraignment; 1976)
not a decision in contemplation of law and can
4. When a valid Plea 2. If, upon pleading never become executory. Hence, the remand of the
has been entered; guilty, the accused
case to the RTC for trial would not amount to
and presents evidence
double jeopardy. (People v. Honrales, G.R. Nos.
5. When the accused of complete self-
182651 & 182657, Aug. 25, 2010)
has been defense, and the
Acquitted or court thereafter
The RTC issued its September 5, 2006 order in
convicted, or the acquits him without
defiance of the TRO issued by the CA. The records
case dismissed or entering a new plea
show that the CA had issued a TRO on April 19,
otherwise of not guilty for
2006, which should have prohibited the RTC from
terminated without accused. There is
further proceeding on the case. But the RTC,
his express no valid plea here.
instead, continued with the presentation of the
consent. (People v. prosecution’s evidence and issued the assailed
(Cerezo v. People, Balisacan, G.R. No. September 5, 2006 order. Under this circumstance,
G.R. No. 185230, L-26376, Aug. 31, the RTC’s September 5, 2006 order was actually
June 1, 2011) 1966) without force and effect and would not serve as
3. If the information for basis for the petitioners to claim that their right
an offense against double jeopardy had been violated. The
cognizable by the RTC, clearly, acted with grave abuse of discretion
RTC is filed with the in issuing its September 5, 2006 order in view of
MTC. There is no the earlier TRO issued by the CA. (Villalon v. Chan,
jurisdiction here. G.R. No. 196508, Sept. 24, 2014)
(People v. Ibasan,
Sr., G.R. No. L- The RTC clearly exceeded its jurisdiction when it
61652, June 22, entertained the joint Motion for Reconsideration
1984) with respect to the accused-respondents who were
4. If a complaint filed at large. Being at large, accused-respondents have
for preliminary not regained their standing in court. Once an
investigation is accused jumps bail or flees to a foreign country, or
dismissed. escapes from prison or confinement, he loses his
(People v. Daco, standing in court; and unless he surrenders or
G.R. No. L-17210, submits to the jurisdiction of the court, he is
Nov. 30, 1962) deemed to have waived any right to seek relief from
the court. Thus, accused-respondents were not
Judgement Must be Rendered by a Court of placed in double jeopardy because, from the very
Competent Jurisdiction beginning, the lower tribunal had acted without
The MeTC took cognizance of the Information for jurisdiction. Verily, any ruling issued without
reckless imprudence resulting in parricide while the jurisdiction is, in legal contemplation, necessarily
criminal case for parricide was still pending before null and void and does not exist. In criminal cases,
the RTC. We held that once jurisdiction is acquired it cannot be the source of an acquittal. (People v.
by the court in which the Information is filed, it is De Grano, G.R. No. 167710, June 5, 2009)
there retained. Therefore, as the offense of
b. The first jeopardy has been validly
reckless imprudence resulting in parricide was
terminated
included in the charge for intentional parricide
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1. Acquittal; However, this applies only in a more general

2. Conviction; or sense, hence it is the test laid down under Section
3. Dismissal without the express consent of the 9 of Rule 117 of the Revised Rules of Criminal
accused Procedure that should apply. This states that one
a. Dismissal based on violation of the right to offense must necessarily be included in the other,
a speedy trial amounts to an acquittal i.e., whether one offense is identical with the other
b. Dismissal based on demurrer to evidence or whether one offense necessarily includes or is
is a dismissal on the merits necessarily included in the other. Identity of
c. Dismissal on motion of the prosecution, offenses does not require one-to-one
correspondence between the facts and law
subsequent to a motion for reinvestigation
filed by the accused involved in the two charges. (Bernas, The 1987
Philippine Constitution: A Comprehensive
d. Discharge of an accused to be a state
Reviewer, 2011)
witness. This amounts to an acquittal
e. Dismissal on the merits
Supervening Facts
A conviction for an offense will not bar a
If the first dismissal was based on the merits, there
prosecution for an offense which necessarily
should be no second prosecution. If the first
includes the offense charged in the former
dismissal was not based on the merits and was
information where:
erroneous, one should look at whether the
1. The graver offense developed due to a
dismissal was with the consent of the accused. If
supervening fact arising from the same act or
not, there should be no second prosecution.
omission constituting the former charge.
(Bernas, The 1987 Philippine Constitution: A
2. The facts constituting the graver offense
became known or were discovered only after
c. A second jeopardy is for the same offense the filing of the former information.
as in the first 3. The plea of guilty to the lesser offense was
made without the consent of the prosecutor
Same Offense and the offended party. (ROC, Rule 117, § 7)
1. Exact identity between the offenses charged in
the first and second cases. If the facts could have been discovered by the
2. One offense is an attempt to commit or a prosecution but were not discovered because of
frustration of the other offense. the prosecution’s incompetence, it would not be
3. One offense is necessarily included or considered a supervening event.
necessary includes the other. (Bernas, The
1987 Constitution of the Republic of the Quasi Offense
Philippines, 2009) Once convicted or acquitted of a specific act of
4. The situation is different when one act violates reckless imprudence, the accused may not be
two different statutes or two different provisions prosecuted again for that same act. For the
of a statute. The rule in such a case is that if essence of the quasi offense of criminal negligence
the one act results in two different offenses, under Article 365 of the Revised Penal Code lies in
prosecution under one is a bar to prosecution the execution of an imprudent or negligent act that,
under the other. (Bernas, The 1987 if intentionally done, would be punishable as a
Constitution of the Republic of the Philippines, felony. The law penalizes thus the negligent or
2011). careless act, not the result thereof. The gravity of
the consequence is only taken into account to
Same Evidence Test determine the penalty, it does not qualify the
Whether the evidence needed in one case will substance of the offense. And, as the careless act
support a conviction in the other. (U.S. v. Tan Oco, is single, whether the injurious result should affect
G.R. No. 11338, Aug. 15, 1916) one person or several persons, the offense
(criminal negligence) remains one and the same,
and cannot be split into different crimes and
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prosecutions. To do so would be a violation of the Appeals

mantle of protection afforded by the Double Any party may appeal from a judgment or final
Jeopardy Clause. (Ivler v. San Pedro, G.R. No. order, unless the accused will be placed in double
172716, Nov. 17, 2010) jeopardy. (ROC, Rule 122, § 1)
Continuous Crimes General Rule: The prosecution may not appeal an

Petitioner’s acts of allegedly preventing Ms. acquittal, and an acquittal is immediately final.
Magsigay from appearing and testifying in a (ROC, Rule 120, § 7)
preliminary investigation proceeding and offering in
evidence a false affidavit were clearly motivated by Exception: The prosecution may appeal an order
a single criminal impulse in order to realize only of dismissal when:
one criminal objective, which is to obstruct or 1. The dismissal is on motion or with the
impede the preliminary investigation proceeding in express consent of the accused. (ROC,
I.S. Case No. 04-1238. Thus, applying the principle Rule 117, § 7)
of delito continuado (continuous crime), petitioner a. Exception to the Exception: If
should only be charged with one (1) count of motion is based on violation of the
violation of PD 1829 which may be filed either in right to a speedy trial or on a
Jagna, Bohol where Ms. Magsigay was allegedly demurrer to evidence. (People v.
prevented from appearing and testifying in I.S. Velasco, G.R. No. 140633, Feb. 4,
Case No. 04-1238, or in Tagbilaran City, Bohol 2002)
where petitioner allegedly presented a false 2. The dismissal does not amount to an
affidavit in the same case. However, since he was acquittal or dismissal on the merits.
already charged – and in fact, convicted in a (People v. Salico, G.R. No. L-1567, Oct.
Judgment dated July 3, 2007 – in the MTCC- 13, 1949)
Tagbilaran, the case in MCTC-Jagna should be 3. The question to be passed upon is purely
dismissed as the events that transpired in Jagna, legal. (People v. Desalisa, L-15516,
Bohol should only be deemed as a partial Dec.17, 1966)
execution of petitioner’s single criminal design.
4. The dismissal violates the right of due
Consequently, the criminal case in MCTC-Jagna
process of the prosecution. (People v.
must be dismissed; otherwise, petitioner will be
Sandiganbayan et. al., G.R. No. 164577,
unduly exposed to double jeopardy, which the July 5, 2010)
Court cannot countenance. (Navaja v. De Castro
5. The dismissal or acquittal was made with
G.R. No. 180969, Sept. 11, 2017)
grave abuse of discretion. (People v.
2. LIMITATIONS Sandiganbayan et. al., G.R. No. 164577,
July 5, 2010)
a. Motions for Reconsideration and Appeals
Although, as a rule, dismissal of a criminal case
Motions for Reconsideration may be used to abate an administrative case based
At any time before a judgment of conviction on the same facts, the same does not hold true if it
becomes final, the court may, upon motion of the were the other way around, that is, the dismissal of
accused or at its own instance, but with the consent the administrative case is being invoked to abate
of the accused, grant a new trial or reconsideration. the criminal case. However, if the two actions are
(ROC, Rule 121, § 1) based on the same facts and evidence, such as in
this case, dismissal in administrative case may be
From the phraseology of the rule, it is evident that used to negate criminal liability. (People v.
a motion for new trial or a motion for Sandiganbayan et. al., G.R. No. 164577, July 5,
reconsideration applies when the judgment is one 2010).
of conviction; and it is the accused, not the
prosecution which avails of the same. (Riano, Effect of an accused’s appeal of his conviction
Criminal Procedure, 583, 2014) 1. Waiver of right to double jeopardy
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2. The appellate court may place a penalty higher

than that of the original conviction. (Trono v. A motion of the accused for a provisional dismissal
United States, 199 U.S. 521, 26 S.C.T. 121, 50 of a case is an express consent to such provisional
L. Ed. 2920, 1905) dismissal. If a criminal case is provisionally
dismissed with the express consent of the accused,
An appeal in a criminal case opens the entire case the case may be revived only within the periods
for review on any question including one not raised provided in the new rule. On the other hand, if a
by the parties. When an accused appeals from the criminal case is provisionally dismissed without the
sentence of the trial court, he waives the express consent of the accused or over his
constitutional safeguard against double jeopardy objection, the new rule would not apply. The case
and throws the whole case open to the review of may be revived or refiled even beyond the
the appellate court, which is then called upon to prescribed periods subject to the right of the
render such judgment as law and justice dictate, accused to oppose the same on the ground of
whether favorable or unfavorable to the appellant. double jeopardy or that such revival or refiling is
(People v. Torres, G.R. No. 189850, Sept. 22, barred by the statute of limitations. (People v.
2014) Panfilo Lacson, G.R. 149453, Oct. 7, 2003)
Res Judicata
c. Cybercrime Prevention Act
Res judicata is a doctrine of civil law and thus has Section 7 of RA 10175 which provides for
no bearing on criminal proceedings. Res judicata
prosecution under both the Revised Penal Code
applies only when there is a final judgment on the and the Cybercrime Prevention Act was assailed
merits of a case; it cannot be availed of in an
as unconstitutional for violating the rule on double
interlocutory order even if the order is not
jeopardy. The provision was declared
appealed. Even if the argument is expanded to unconstitutional as to Section 4(c)(4) on Libel and
contemplate double jeopardy, double jeopardy will
Section 4(c)(2) on Child Pornography. However,
not apply because it requires that the accused has with respect to the other prohibited acts, the Court
been convicted or acquitted or that the case
left the determination of the correct application of
against the accused has been dismissed or
Section 7 to actual cases. In relation to Section
terminated without his express consent. (People v. 4(c)(4) on Libel, the Court said that if the published
Escobar, G.R. No. 214300, July 26, 2017)
material on print, said to be libelous, is again
posted online or vice versa, that identical material
b. Dismissal with Consent of Accused
cannot be the subject of two separate libels. The
General Rule: Equivalent to a waiver of the two offenses, one a violation of Article 353 of the
defense of double jeopardy. Revised Penal Code and the other a violation of
Section 4(c)(4) of R.A. 10175 involve essentially
Exception: When motion is based on Provisional the same elements and are in fact one and the
Dismissal - A case shall not be provisionally same offense. Charging the offender under both
dismissed except with the express consent of the laws would be a blatant violation of the proscription
accused and with notice to the offended party. against double jeopardy. As to Section 4(c)(2) on
(ROC, Rule 117, § 8). Child Pornography, the Court said that Section
4(c)(2) merely expands the ACPA’s scope so as to
The provisional dismissal of offenses punishable include identical activities in cyberspace. As
by imprisonment not exceeding 6 years or a fine of previously discussed, ACPA’s definition of child
any amount, or both, shall become permanent 1 pornography in fact already covers the use of
year after issuance of the order without the case “electronic, mechanical, digital, optical, magnetic or
having been revived. With respect to offenses any other means.” Thus, charging the offender
punishable by imprisonment of more than 6 years, under both Section 4(c)(2) and ACPA would
their provisional dismissal shall become permanent likewise be tantamount to a violation of the
2 years after issuance of the order without the case constitutional prohibition against double jeopardy.
having been revived.
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(Disini v. Sec. of Justice, G.R. No. 203335, Feb. 18, 1. Makes an action done before the passing of
2014) the law, and which was innocent when done,
criminal, and punishes such action.
S. RIGHT AGAINST INVOLUNTARY 2. Aggravates the crime or makes it greater than
SERVITUDE when it was committed.
3. Changes the punishment and inflicts a greater
(1) No person shall be detained solely by reason of punishment than that which the law annexed to
his political beliefs and aspirations. the crime when it was committed.
4. Alters the legal rules of evidence and receives
(2) No involuntary servitude in any form shall exist
less testimony than the law required at the time
except as a punishment for a crime whereof the
of the commission of the offense in order to
party shall have been duly convicted. (PHIL.
convict the accused.
CONST., art. 3, § 18)
5. Assumes to regulate civil rights and remedies
but in effect imposes a penalty or deprivation
Involuntary Servitude
of a right, which when done was lawful.
Every condition of enforced or compulsory service
of one to another no matter under what form such 6. Deprives a person accused of a crime of some
servitude may be disguised. (Rubi v. Provincial lawful protection to which he has become
Board, G.R. No. L-14078, March 7, 1919) entitled such as the protection of a former
conviction or acquittal, or a proclamation of
amnesty. (Bernas, The 1987 Philippine
Political Prisoners Constitution: A Comprehensive Reviewer,
A state cannot hold “political prisoners”. (Bernas, 2011)
Reviewer, 152, 2011) The prohibition on ex post facto laws only applies
to retrospective penal laws. (Bernas, The 1987
Exceptions: Philippine Constitution: A Comprehensive
1. Punishment for a crime. Reviewer, 2011)
2. Personal military or civil service in the interest
of national defense. When Laws are Penal
3. In naval enlistment, a person who enlists in a 1. When it prescribes a criminal penalty imposable
merchant ship may be compelled to remain in in a criminal trial.
service until the end of the voyage. 2. If it prescribes a burden equivalent to a criminal
penalty (e.g. disqualification from the practice of
4. Posse Comitatus (every able-bodied person is
a profession) even in administrative
ultimately responsible for keeping peace) for
proceedings. (Bernas, The 1987 Philippine
the apprehension of criminals.
5. Return to work order issued by the DOLE
2011)
Secretary or the President.
6. Minors under patria potestas are obliged to
Characteristics of an Ex Post Facto Law:
obey their parents. (Bernas, The 1987
1. Refers to criminal matters
Philippine Constitution: A Comprehensive
Reviewer, 152, 2011) 2. Retrospective
3. Causes prejudicial to the accused
T. EX POST FACTO LAWS AND BILLS OF (Bernas, The 1987 Philippine Constitution: A
ATTAINDER Comprehensive Reviewer, 2011)
No ex post facto law or bill of attainder shall be Instances when the prohibition on ex-post facto
enacted. (PHIL. CONST., art. 3, § 22) laws is inapplicable:
1. Extradition treaty - As the Court of Appeals
1. EX POST FACTO LAW correctly concluded, the Treaty is neither a
piece of criminal legislation nor a criminal
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procedural statute. "It merely provides for the fact, if acquitted, the official concerned shall be
extradition of persons wanted for prosecution of entitled to reinstatement and to the salaries and
an offense or a crime which offense or crime benefits which he failed to receive during
was already committed or consummated at the suspension (Bayot v. Sandiganbayan, G.R.
time the treaty was ratified." (Wright v. CA, G.R. Nos. L-61776 to No. L-61861, March 23, 1984)
No. 113213, Aug. 15, 1994)
IRR of RA 10951; Class-A Light Weapons
2. Probation Law and its amendments - There is no retroactive application mandated in the
Presidential Decree No. 1990, like the Rules Implementing RA 10951. On the contrary,
Probation Law that it amends, is not penal in firearm licenses to possess Class-A light weapons
character. It may not be considered as an ex issued before the passage of RA 10591 are still
post facto law. (Fajardo v. CA, G.R. No. recognized both under RA 10591 and its
128508, Feb. 1, 1999) Implementing Rules. If the IRR were indeed in the
nature of an ex post facto law, then private
3. Change of court jurisdiction - R.A 7975, individuals who possess Class-A light weapons
which amended P.D. 1606 as regards the under the old law must be expressly punished
Sandiganbayan's jurisdiction, its mode of under the new law because the new law only allows
appeal and other procedural matters, has been them to own and possess small arms. Yet, as
declared by the Court as not a penal law, but expressly provided in the law, existing license
clearly a procedural statute, i.e. one which holders of Class-A light weapons may renew their
prescribes rules of procedure by which courts licenses under the new law and Implementing
applying laws of all kinds can properly Rules. Therefore, the IRR of RA No. 10591 is not
administer justice. Not being a penal law, the an ex post facto law. (Acosta v. Ochoa, G.R. Nos.
retroactive application of R.A. 8249 cannot be 211559, 211567, 212570 & 215634, Oct. 15, 2019)
challenged as unconstitutional. On the removal
of the intermediate review of facts, the Supreme 2. BILL OF ATTAINDER
Court still has the power of review to determine
if he presumption of innocence has been A bill of attainder is a legislative act which inflicts
convincing overcome. (Lacson v. Executive punishment without a judicial trial. If the
Secretary, G.R. No. 128096, Jan. 20, 1999) punishment be less than death, the act is termed a
bill of pains and penalties. (Cummings v. Missouri,
4. House rental law - The petitioner's contention 4 Wall 277, 323 US, 1867)
that BP 877 is an ex post facto law must also be
rejected. It is not penal in nature and the mere The constitutional ban against bills of attainder
fact that it contains penal provisions does not serves to implement the principle of separation of
make it so. At any rate, she is not being powers by confining legislatures to rule-making
prosecuted under the said penal provisions. and thereby forestalling legislative usurpation of
(Juarez v. CA, G.R. No. 93474, Oct. 7, 1992) the judicial function. (People v. Ferrer, G.R. Nos. L-
32613-14, Dec. 27, 1972)
5. Preventive suspension pendente lite -
Section 13 of Republic Act 3019, as among the Elements (LINaW)
crimes subjecting the public officer charged 1. There must be a Law
therewith with suspension from office pending 2. The law Imposes a penal burden
action in court, is not a penal provision which 3. On a Named individual or easily ascertainable
violates the constitutional prohibition against the members of a group
enactment of ex post facto law. The RPC clearly 4. The penal burden is imposed directly by the
states that suspension from the employment or law Without judicial trial. (Bernas, The 1987
public office during the trial or in order to Philippine Constitution: A Comprehensive
institute proceedings shall not be considered as Reviewer, 2011)
penalty. It is not a penalty because it is not
imposed as a result of judicial proceedings. In
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The bill of attainder does not need to be directed at To What Habeas Corpus Extends
a specifically named person. It may also refer to Except as otherwise expressly provided by law, the
easily ascertainable members of a group in such a writ of habeas corpus shall extend to all cases of
way as to inflict punishment on them without illegal confinement or detention by which any
judicial trial. (Cummings v. Missouri, 4 Wall 277, person is deprived of his liberty, or by which the
323 US, 1867) rightful custody of any person is withheld from the
person entitled thereto. (ROC, Rule 102, Sec. 1)
For a law to be considered a bill of attainder, it must
contain all the following: a specification of certain Habeas corpus is the proper remedy for a person
individuals or a group of individuals, the imposition deprived of liberty due to mistaken identity. In such
of a punishment, penal or otherwise, and the lack cases, the person is not under any lawful process
of judicial trial. (Fuertes v. Senate of the and is continuously being illegally detained. (In the
Philippines, G.R. No. 208162, Jan. 07, 2020) Matter of the Petition for Habeas Corpus of
Datukan Malang Salibo, G.R. No. 197597, April 8,
Anti-Hazing Law 2015).
The Anti-Hazing Law is not a bill of attainder. There
Purpose of the Writ
is no lack of judicial trial. The mere filing of an
The primary purpose of the writ is to inquire into all
Information against the accused is not a finding of
guilt. The accused is not being charged merely manner of involuntary restraint as distinguished
from voluntary, and to relieve a person therefrom if
because he/she is a member of a fraternity/sorority,
but because he/she is allegedly a principal in the such restraint is illegal. (Agcaoili v. Hon. Farinas,
G.R. No. 232395, July 3, 2018)
hazing that led to the victim’s death. These are
matters for the trial court to decide. The
prosecution must still prove the offense. (Fuertes v. What is Suspended: The Privilege, Not The Writ
The writ is never suspended. It always issues as a
Senate of the Philippines, G.R. No. 208162, Jan.
07, 2020) matter of course. What is suspended is the
privilege of the writ, i.e., once the officer making the
J. PRIVILEGE OF THE WRIT OF HABEAS return shows to the court that the person detained
CORPUS is being detained for an offense covered by the
suspension, the court may not inquire further.
The privilege of the writ of habeas corpus shall not (Bernas, The 1987 Constitution of the Republic of
be suspended except in cases of invasion or the Philippines, 2009)
rebellion when the public safety requires it. (PHIL.
CONST., art. 3, § 15) Remedy Becomes Moot When Restraint
Becomes Legal
The arrest warrants against the accused were
Privilege of the Writ of Habeas Corpus issued by the court that has jurisdiction over the
The right to have an immediate determination of offense charged. Since the restraint on the
the legality of the deprivation of physical liberty. accused has become legal, the remedy of habeas
(Bernas, The 1987 Constitution of the Republic of corpus has already become moot and academic.
the Philippines, 2009) The "great writ of liberty" of habeas corpus "was
devised and exists as a speedy and effectual
Writ of Habeas Corpus remedy to relieve persons from unlawful restraint,
A writ directed to the person detaining another, and as the best and only sufficient defense of
commanding him to produce the body of the personal freedom." Habeas corpus is an
prisoner at a designated time and place, with the extraordinary, summary, and equitable writ,
day and cause of his caption and detention, to do, consistent with the law's "zealous regard for
submit to, and receive whatever the court or judge personal liberty." Its primary purpose is “to inquire
awarding the writ shall consider in the behalf. into all manner of involuntary restraint as
(Sombong v. CA, G.R. No. 111876, Jan. 31, 1996) distinguished from voluntary, and to relieve a
person therefrom if such restraint is illegal. Any
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restraint which will preclude freedom of action is the court that has appellate jurisdiction over
sufficient." The restraint of liberty need not be decisions of the lower court. (In the Matter of the
confined to any offense so as to entitle a person to Petition for Habeas Corpus of Datukan Malang
the writ. Habeas corpus may be availed of as a Salibo, G.R. No. 197597, April 8, 2015)
post-conviction remedy or when there is an alleged
violation of the liberty of abode. (Osorio v Navera, National Bilibid Inmates; Standing
G. R. No. 223272, February 26, 2018) The inmates' allegations of suddenly being
transferred from the National Bilibid Prisons in
When Writ Not Allowed or Discharge Muntinlupa City to the National Bureau of
Authorized Corrections in Manila City for the purpose of
The writ shall not be allowed if it appears that the conducting an inspection on their living quarters, if
person alleged to be restrained of his liberty is in proven, are sufficient to clothe the party with
the custody of an officer under process issued by a standing to file an application for a writ of habeas
court or judge or by virtue of a judgment or order of corpus, provided that they invoke a violation of a
a court of record, and that the court or judge had fundamental right granted to all citizens, regardless
jurisdiction to issue the process, render the of whether they are incarcerated or not. However,
judgment, or make the order. mere allegation of a violation of one's constitutional
right is not enough. The violation of constitutional
If the jurisdiction appears after the writ is allowed, right must be sufficient to void the entire
the person shall not be discharged by reason of proceedings. (In the Matter of the Petition for Writ
any informality or defect in the process, judgment, of Habeas Corpus/Data v. De Lima, G.R. Nos.
or order. Nor shall anything in this rule be held to 215585 & 215768, Sept. 8, 2020).
authorize the discharge of a person charged with
or convicted of an offense in the Philippines, or of Suspension of the Privilege of the Writ of
a person suffering imprisonment under lawful Habeas Corpus
judgment. (ROC, Rule 102, Sec. 4)
The President may suspend the privilege for a
Process period not exceeding 60 days. The grounds for the
An application for a writ of habeas corpus may be suspension of the privilege are:
made through a petition filed before the: 1. Actual invasion or actual rebellion; and
1. Supreme Court or any of its members; 2. When the public safety requires the
2. Court of Appeals, or any of its members in suspension
instances authorized by law; or
3. Regional Trial Court or any of its presiding
The suspension of the privilege of the writ shall
judges.
apply only to persons judicially charged for
rebellion or offenses inherent in or directly
The court or judge grants the writ and requires the
connected with the invasion.
officer or person having custody of the person
During the suspension of the privilege of the writ,
allegedly restraining of liberty to file a return of the
any person thus arrested or detained shall be
writ. A hearing on the return of the writ is then
judicially charged within three days, otherwise he
conducted.
shall be released. (PHIL. CONST., art. 7, § 18)
The return of the writ may be heard by a court apart
Inapplicability of the Writ of Habeas Corpus
from that which issued the writ. Should the court
1. To question the conditions of confinement
issuing the writ designate a lower court to which the
writ is made returnable, the lower court shall 2. Once charges have been filed in court
proceed to decide the petition of habeas corpus. By
virtue of the designation, the lower court acquires Limitations to the Writ of Habeas Corpus
the power and authority to determine the merits of DOES NOT EXTEND
EXTENDS TO
the petition for habeas corpus. Therefore, the TO
decision on the petition is a decision appealable to
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All cases of illegal Questions of

confinement or conditions of Two-fold Burden for Public Authorities
detention by which confinement; but only The burden for the public authorities to discharge
any person is deprived to the fact and in these situations, under the Rule on the Writ of
of his liberty, or by duration of Amparo, is two-fold.
which the rightful confinement. 1. The first is to ensure that all efforts at
custody of any person disclosure and investigation are undertaken
is withheld from the It is not a means for under pain of indirect contempt from this Court
person entitled to it. the redress of when governmental efforts are less than what
grievances or to seek the individual situations require.
It is essential to inquire injunctive relief or 2. The second is to address the disappearance,
into all manner of damages. (In re: Major so that the life of the victim is preserved and his
involuntary restraint Aquino, G.R. 174994, or her liberty and security restored. (Razon v.
and to relieve a person Aug. 31, 2007) Tagitis, G.R. No. 182498, Dec. 3, 2009)
from it if such restraint
is illegal. The remedy of the writ of amparo provides rapid
judicial relief as it partakes of a summary
proceeding that requires only substantial evidence
WRIT OF AMPARO to make the appropriate reliefs available to the
petitioner; it is not an action to determine criminal
A remedy available to any person whose right to guilt requiring proof beyond reasonable doubt, or
life, liberty and security is violated or threatened liability for damages requiring preponderance of
with violation by an unlawful act or omission of a evidence, or administrative responsibility requiring
public official or employee, or of a private individual substantial evidence that will require full and
or entity. (Sec. of National Defense v. Manalo, G.R. exhaustive proceedings. (Razon v. Tagitis, G.R.
No. 180906, Oct. 7, 2008) No. 182498, Dec. 3, 2009)
The Writ of Amparo does not cover threats to The framers of the Amparo Rule never intended
property. To be entitled to a Writ of Amparo, Section 5(c) to be complete in every detail in stating
petitioners must prove that their rights to life, the threatened or actual violation of a victim’s
liberty, and security are being violated or rights. As in any other initiatory pleading, the
threatened by an unlawful act or omission. The pleader must of course state the ultimate facts
intrusion into their farm was merely a violation of constituting the cause of action, omitting the
property rights. (Pador v. Arcayan, G.R. No. 18346, evidentiary details. In an Amparo petition, however,
March 12, 2013) this requirement must be read in light of the nature
and purpose of the proceeding, which addresses a
situation of uncertainty; the petitioner may not be
Examples of Property Rights Not Covered: able to describe with certainty how the victim
• Right to be restituted of personal belongings. It exactly disappeared, or who actually acted to
is already subsumed under the general rubric of kidnap, abduct or arrest him or her, or where the
property rights which are no longer protected by victim is detained, because these information may
the writ of amparo. (Roxas v. Arroyo, G.R. No. purposely be hidden or covered up by those who
189155, Sept. 7, 2010) caused the disappearance. Section 5(e) merely
• Merely seeking protection of property rights, like requires that the Amparo petitioner (the respondent
land in possession of the petitioners. (Castillo v. in the present case) allege “the actions and
Cruz, G.R. No. 182165, Nov. 25, 2009) recourses taken to determine the fate or
whereabouts of the aggrieved party and the identity
• Violent incidents purely property-related such as
of the person responsible for the threat, act or
acts of terrorism in relation to a disputed land
omission.” (Razon v. Tagitis, G.R. No. 182498,
(Tapuz v. Hon. Judge del Rosario, G.R. No.
Dec. 3, 2009)
182484, June 17, 2008)
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Indispensable Element of Gov’t Participation The remedy of the writ of amparo may be available
The petitioner in an amparo case has the burden of even to convicted national inmates, as long as the
proving by substantial evidence the indispensable alleged abduction was made for the purpose of
element of government participation. (Spouses placing the national inmate outside the protection
Martin and Santiago v. Tulfo, G.R. No. 205039, of the law. However, considering that the Secretary
Oct. 21, 2015) of Justice has the authority to determine the
movement of national inmates between penal
Coverage facilities, there is no compelling reason to grant the
The writ shall cover (1) extralegal killings and (2) writ of amparo in situations where there is an
enforced disappearances or threats thereof. (The urgent need to remove the national inmates from
Rule on Writ of Amparo, A.M. No. 07-9-12-SC, Sec. their place of confinement and to transfer them to
1) another detention facility. (In the Matter of the
Petition for Writ of Habeas Corpus/Data v. De
Extralegal Killings Lima, G.R. Nos. 215585 & 215768, Sept. 8, 2020).
Extralegal killings are killings committed without
due process of law, i.e., without legal safeguards ————- end of topic ————-
or judicial proceedings. (Mison v. Gallegos, G.R.
No. 210759, June 23, 2015)
Enforced Disappearance
Enforced disappearances are attended by the
following characteristics:
1. An arrest, detention or abduction of a person by
a government official or organized groups or
private individuals acting with the direct or
indirect acquiescence of the government.
2. The refusal of the State to disclose the fate or
whereabouts of the person concerned or a
refusal to acknowledge the deprivation of liberty
which places such persons outside the
protection of law. (Mison v. Gallegos, G.R. No.
210759, June 23, 2015)
Elements of an Enforced Disappearance

1. That there be an arrest, detention, abduction or
any form of deprivation of liberty;
2. That it be carried out by, or with the
authorization, support or acquiescence of, the
State or a political organization;
3. That it be followed by the State or political
organization’s refusal to acknowledge or
give information on the fate or whereabouts of
the person subject of the amparo
petition; and
4. That the intention for such refusal is to remove
the subject person from the protection of the
law for a prolonged period of time. (Section
3(g) R.A. No. 9851; Mison v. Gallegos, G.R.
No. 210759, June 23, 2015)
National Bilibid Inmates

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LAW ON PUBLIC
OFFICERS
Political Law
ATENEO CENTRAL
X. LAW ON PUBLIC OFFICERS A. GENERAL PRINCIPLES
TOPIC OUTLINE UNDER THE SYLLABUS: Public Office

The right, authority, and duty created and conferred
X. LAW ON PUBLIC OFFICERS by law, by which for a given period, either fixed by
law or enduring at the pleasure of the appointing
A. General principles power, an individual is invested with some portion
of the sovereign functions of the government, to be
B. Modes of acquiring title to public office exercised by him for the benefit of the public.
(Fernandez v. Santo Tomas, GR No. 116418, 7
C. Modes and kinds of appointment March 1995)
D. Eligibility and qualification requirements Office refers, within the framework of

governmental organization, to any major
E. Disabilities and inhibitions of public officers functional unit of a department or bureau
including regional offices (e.g. Office of the
F. Powers and Duties of Public Officers Secretary). It may also refer to any position held
or occupied by individual persons, whose functions
G. Rights of Public Officers are defined by law or regulation (e.g. Secretary).
[Section 2(9), Introductory Provisions,
H. Liabilities of Public officers Administrative Code of 1987]
1. Preventive Suspension and back salaries
2. Illegal dismissal, reinstatement, and back Public Office Not a Property Right
salaries It is not a property right but a protected right. It
cannot be taken from its incumbent without due
I. Immunity of Public Officers process. It is property in the broad sense since the
right to hold office includes everything of pecuniary
J. Distinguish: de facto vs. de jure officers value to its possessor. The right to public office is
protected by the right to security of tenure, which is
K. Termination of official relation
guaranteed by the Constitution. A public office is
personal to the public officer and is not
L. The Civil Service
transmissible to his heirs upon his death. No heir
1. Scope
may be allowed to continue holding his office in his
2. Appointments to the Civil Service
place. (Segovia v. Noel, 47 Phil. 543, 1925)
3. Personnel Actions
Public office is not a property. It is, however, well
M. Accountability of public officers
settled x x x that a public office is not property within
1. Types of Accountability
the sense of the constitutional guaranties of due
a. Administrative
process of law, public trust or agency. x x x The
b. Criminal
basic idea of the government x x x is that of a
2. The Ombudsman and the Office of the
popular representative government, the
Special Prosecutor
3. The Sandiganbayan officers being mere agents and not rulers of the
people, one where no one man or set of men
N. Term Limits has a proprietary or contractual right to an
office, but where every officer accepts office
pursuant to the provisions of the law and holds
the office as a trust for the people he
represents. (Montesclaros v. COMELEC, GR No.
152295, 2002)
Public Office Not a Contract

The right of an incumbent of an office does not
depend on any contract in the sense of an
arrangement or bargain between him and the
public. Generally speaking, the nature of the
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relation of a public officer to the public is Public Officer v. Employee, Definitions

inconsistent with either a property or a contract
right. (De Leon, The Law on Public Officers and Public Officer
Election Law, 6-7, 2011) A person whose duties, not being clerical in nature,
involves the exercise of discretion in the
How created: performance of the functions of the government
1. By the Constitution (e.g. Office of the President) when used with reference to a person having
2. By valid statutory enactments (e.g. Office of the authority to do a particular act or perform a
Insurance Commissioner) particular function in the exercise of government
3. By authority of the law (e.g. the Davide power, officer includes any government employee,
Commission, Philippine Truth Commission) agent, or body having authority to do so the act or
exercise that function. (Executive Order No. 292,
Elements of Public Office: (LSCIP) 1987 Administrative Code)
1. Created by Law or by authority of law;
2. Possesses a delegation of portion of Sovereign Public Officer, Criminal Law context
powers of government, for benefit of the public; Any person, by direct supervision of the law,
3. Powers conferred and duties imposed defined popular election, or appointment by competent
by Constitution, legislature, or by its authority; authority, shall take part in the performance of
4. Duties performed Independently and only public functions in the RP or shall perform in said
controlled by law unless placed under general government or for any of its branches public duties
control of superior office or body; as an employee, agent, or subordinate official, of
5. Permanent or continuous. (State v. Taylor, 144 any rank or class is deemed a public officer.
N.W. 2d. 289,1966; Javier v. Sandiganbayan, Temporary performance of public function is
G.R. No.147026-27, 2009) sufficient to constitute a person a public official.
(Art. 203, Revised Penal Code)
Sovereign Functions. The functions of Veterans
Federation of the Philippines enshrined in Section Includes elective and appointive officials and
4 of Rep. Act No. 2640 should most certainly fall employees, permanent or temporary, whether in
within the category of sovereign functions. The the classified or unclassified or exempt service
protection of the interests of war veterans is not (non-career or career), receiving compensation,
only meant to promote social justice, but is also even nominal, from the government. (RA 3019,
intended to reward patriotism. All of the functions in Anti-Graft and Corrupt Practices Act)
Section 4 concern the well-being of war veterans,
our countrymen who risked their lives and lost their Includes elective and appointive officials and
limbs in fighting for and defending our nation. It employees, permanent or temporary, whether in
would be injustice of catastrophic proportions to the career or non-career service, including military
say that it is beyond sovereignty's power to reward and police personnel, whether or not they receive
the people who defended her. (Veterans compensation, regardless of amount. (RA, 6713,
Federation of the Philippines v. Reyes, GR No. Code of Conduct and Ethical Standards of Public
155027, 2006) Officers)
Officer means any person holding any public office

A salary is a usual but not a necessary criterion
in the govt. of the RP by virtue of an appointment,
for determining the nature of the position. It is
election, or contract (executed bet. private person
not conclusive. The salary is a mere incident and
and government. (R.A. 7080, Office of the
forms no part of the office. Where a salary or fees
Ombudsman)
is annexed, the office is provided for it is a naked
or honorary office, and is supposed to be accepted
Employee
merely for the public good. Hence, the office of the
A person in the service of government or any of its
[National Centennial Commission] Chair may be
agencies, divisions, subdivisions, or
characterized as an honorary office, as opposed to
instrumentalities. (Executive Order No. 292, 1987
a lucrative office or an office of profit, i.e., one to
Administrative Code)
which salary, compensation or fees are attached.
But it is a public office, nonetheless. (Laurel v.
Desierto, G.R. No. 145368, 2002)
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Public Officer v. Employee, Distinguished retaining Sec. 66) of the Omnibus Election Code
An officer is distinguishable from a mere employee through Sec. 14 of RA 9006, elective officials are
in the sense that: not deemed resigned (but appointive officials are)
upon the filing of a certificate of candidacy.
1. Position has greater importance, dignity and
(Fariñas v. Executive Secretary, G.R. Nos. 147387
independence
& 152161, 2003)
2. Required to take an official oath, and to give an
official bond;
Designation
3. Greater liability to account for misfeasance or
The mere imposition of new or additional duties
nonfeasance in office;
upon an officer to be performed by him in a special
4. Tenure of office is usually different from that of
manner. It presupposes that the officer is already
an ordinary employee
in the service by virtue of an earlier appointment,
5. Public officer must be invested by law with a
performing other functions. The implication is that
portion State’s sovereignty, and authorized to
he/she shall hold office only in a temporary
exercise functions either of an executive,
capacity and may be replaced at will by the
legislative, or judicial character (De Leon, The
appointing authority. It does not confer security of
Law on Public Officers and Election Law, 15,
tenure on the person designated. (Tapispisan v.
2011)
CA, G.R. No.120082, June 8, 2005)
Public officer v. Clerk, Distinguished
Commission
An officer, as distinguished from the clerk, refers to
a person whose duties, not being of a clerical or A written authority from a competent source given
manual nature, involves the exercise of discretion to the officer as his/her warrant for the exercise of
in the performance of the functions of the the powers and duties of the office to which he is
government. (Section 2, Executive Order No. 292, commissioned. It is the written evidence of the
1987 Administrative Code) appointment, but not the appointment itself. (De
Leon, The Law on Public Officers and Election
Law, 81, 2011)
B. MODES OF ACQUIRING TITLE TO
Appointment vs. Designation
PUBLIC OFFICE
APPOINTMENT DESIGNATION
Election
Elective officials occupy their office by virtue of As to nature
the mandate of the electorate. They are elected to
an office for a definite term and may be removed Executive, Irrevocable Legislative, revocable
therefrom only upon stringent conditions. (Fariñas
v. Executive Secretary, G.R. Nos. 147387 & As to Effect
152161, 2003)
Selection of an Mere imposition by law
Appointment individual who is to of additional duties on
Appointive officials hold their office by virtue of exercise the functions an incumbent official
their designation thereto by an appointing of a given office
authority. Some appointive officials hold their office Results in security Does not result in
in a permanent capacity and are entitled to security of tenure security of tenure
of tenure while others serve at the pleasure of the when completed
appointing authority. (Fariñas v. Executive
Secretary, G.R. Nos. 147387 & 152161, 2003) Can be subject of a Cannot be subject of a
protest before the protest before the CSC
NOTE: Since the classification justifying Section 14 CSC
of Rep. Act No. 9006 (Fair Election Act), i.e., As to Effectivity
elected officials vis-a-vis appointive officials, is
anchored upon material and significant distinctions connoted permanency implies temporariness
and all the persons belonging under the same
classification are similarly treated, the equal
protection clause of the Constitution is, thus, not
infringed. Thus, with the repeal of Sec. 67 (but
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Appointments (In case of Presidential

Nature of Appointments appointments, this confirmation applies only
It is essentially a discretionary power and cannot to numbers 1 to 5 in the list of Officers that the
be delegated, it must be performed by the officer President shall appoint (see below))
upon whom it is vested according to his best lights, 3. Issuance of the commission or the written
the only condition being that the appointee should authority from a competent source given to
possess the qualifications required by law. If he the officer as his warrant for the exercise of
does, then the appointment cannot be faulted on the powers and duties of the office to which
the ground that there are others better qualified he is commissioned.
who should have been preferred. (Luego v. Civil 4. Acceptance by the appointee
Service Commission, G.R. No. 69137, August 5, 5. Oath and assumption (De Leon, The Law on
1986) Public Officers and Election Law, 78-81,
2011)
Limits to Discretion
Hence, although, the terms of the law creating the Ad interim appointments are made while
authority confer upon the officer general Congress is NOT in session or during its recess,
discretionary power without qualification, his whether such recess is voluntary (before
authority is not deemed to be an unlimited one. adjournment) or compulsory (when Congress
The exercise of the officer’s discretion is still adjourns). The appointment shall cease to be
limited, by legal construction, to the evident effective upon rejection by the COA, or if not acted
purposes of the act, and to what is known as a upon, at the adjournment of the next session of
sound and legal discretion, excluding all arbitrary, Congress, whether regular or special. (De Leon,
capricious, inquisitorial and oppressive The Law on Public Officers and Election Law, 73-
proceedings. (De Leon, The Law on Public 76, 2011)
Officers and Election Law, 139, 2011)
It is well settled in this jurisdiction that the
Requisites for a Valid appointment President can renew the ad
The following elements should always concur in interim appointments of by-passed appointees.
the making of a valid (which should be understood Justice Roberto Concepcion, Jr. lucidly explained
as both complete and effective) appointment: in his concurring opinion in Guevara vs.
(1) Authority to appoint and evidence of the Inocentes why by-passed ad interim appointees
exercise of the authority; could be extended new appointments, thus: "In
(2) Transmittal of the appointment paper and short, an ad interim appointment ceases to be
evidence of the transmittal; effective upon disapproval by the Commission,
(3) Vacant position at the time of appointment; because the incumbent can not continue holding
and office over the positive objection of the
(4) Receipt of the appointment paper and Commission. It ceases, also, upon "the next
acceptance of the appointment by the adjournment of the Congress," simply because the
appointee who possesses all the President may then issue new appointments — not
qualifications and none of the because of implied disapproval of the Commission
disqualifications. deduced from its inaction during the session of
Congress, for, under the Constitution, the
The concurrence of all these elements Commission may affect adversely the interim
should always apply, regardless of when the appointments only by action, never by omission. If
appointment is made, whether outside, just before, the adjournment of Congress were an implied
or during the appointment ban. These steps in the disapproval of ad interim appointments made prior
appointment process should always concur thereto, then the President could no longer appoint
and operate as a single process. There is no those so by-passed by the Commission. But, the
valid appointment if the process lacks even one fact is that the President may reappoint them, thus
step. (Velicaria-Garafil v. OP, GR No. 203372, clearly indicating that the reason for said
2015) termination of the ad interim appointments is not
the disapproval thereof allegedly inferred from said
Steps in a regular appointment (NCIAO) omission of the Commission, but the circumstance
that upon said adjournment of the Congress, the
1. Nomination by President President is free to make ad interim appointments
2. Confirmation by Commission on
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or reappointments." [Matibag v. Benipayo, G.R.

No. 149036, 2002]
Temporary or acting appointments are those Steps in an ad-interim appointment (AIAC)

which last until a permanent appointment is issued. 1. Appointment by the appointing authority
The Commission on Appointments cannot confirm 2. Issuance of the commission
their appointments because confirmation 3. Acceptance by the appointee
presupposes a valid nomination or ad-interim 4. Confirmation by the CA
appointment. Thus, the appointee has no
personality to bring a quo warranto proceeding Steps for appointments that do not require
because he is not entitled to office. (De Leon, The confirmation: (AIA)
Law on Public Officers and Election Law, 76, 2011) 1. Appointment by the appointing authority
2. Issuance of the commission
The essence of an appointment in an acting 3. Acceptance by the appointee
capacity is its temporary nature. It is a stop-gap
measure intended to fill an office for a limited time Absolute Appointment v. Conditional
until the appointment of a permanent occupant to Appointment
the office. 16 In case of vacancy in an office It is long settled in the law that where the power of
occupied by an alter ego of the President, such as appointment is absolute, and the appointee has
the office of a department secretary, the President been determined upon, no further consent or
must necessarily appoint an alter ego of her choice approval is necessary, and the formal evidence of
as acting secretary before the permanent the appointment, the commission, may issue at
appointee of her choice could assume office. once. However, where the assent or confirmation
Congress, through a law, cannot impose on the of some other officer or body is required, the
President the obligation to appoint automatically commission can issue or the appointment may be
the undersecretary as her temporary alter ego. complete only when such assent or confirmation is
An alter ego, whether temporary or permanent, obtained. In either case, the appointment becomes
holds a position of great trust and confidence. complete when the last act required of the
Congress, in the guise of prescribing qualifications appointing power is performed. Until the process is
to an office, cannot impose on the President who completed, the appointee can claim no vested right
her alter ego should be. in the office nor invoke security of tenure. (Corpuz
v. CA, G.R. No. 123989, 1998)
The office of a department secretary may become
vacant while Congress is in session. Since a Where the power of appointment is absolute and
department secretary is the alter ego of the the appointee has been determined upon, no
President, the acting appointee to the office must further consent or approval is necessary and the
necessarily have the President's confidence. Thus, formal evidence of the appointment, the
by the very nature of the office of a department commission, may issue at once. The appointment
secretary, the President must appoint in an acting is deemed complete once the last act required of
capacity a person of her choice even while the appointing authority has been complied with. A
Congress is in session. That person may or may written memorial that can render title to public office
not be the permanent appointee, but practical indubitable is required. This written memorial is
reasons may make it expedient that the acting known as the commission. For purposes of
appointee will also be the permanent appointee. appointments to the judiciary, therefore, the date
the commission has been signed by the President
The law expressly allows the President to make is the date of the appointment. Such date will
such acting appointment. Section 17, Chapter 5, determine the seniority of the members of the
Title I, Book III of EO 292 states that "[t]he Court of Appeals in connection with Section 3,
President may temporarily designate an officer Chapter I of BP 129, as amended by RA 8246. In
already in the government service or any other other words, the earlier the date of the commission
competent person to perform the functions of an of an appointee, the more senior he is over the
office in the executive branch." Thus, the President other subsequent appointees. (Re: Seniority
may even appoint in an acting capacity a person among the four most recent appointments to the
not yet in the government service, as long as the position of Associate Justices of the Court of
President deems that person competent. Appeals, A.M. 10-4-22-SC, 2010)
[Pimentel, Jr. v. Ermita, G.R. No. 164978, 2005]
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non-civil service eligible is without a

definite tenure and is dependent upon
C. MODES AND KINDS OF the pleasure of the appointing power.
APPOINTMENTS ○ Acquisition of civil service eligibility
during tenure of a temporary
General Rule: Acceptance of appointment is not appointee does not necessarily
necessary for the completion or validity of translate to permanent appointment.
appointment. A new appointment which is
Exception: Acceptance is necessary to permanent is necessary. (Province of
possession of office, and to enable appointee to the Camarines Sur v. CA, G.R. No.
enjoyment and responsibility of an office. 104639, 1995)
○ Power of President to make
General Rule: An appointment to an office, once temporary appointment: The
made and complete, is not subject to President may temporarily designate
reconsideration or revocation. an officer already in the government
Exception: An officer is removable at the will of the service or any other competent
appointing power. person to perform the functions of an
office in the executive branch,
Forms of Acceptance appointment to which is vested in him
1. Express – done verbally or in writing. by law, when:
2. Implied - without formal acceptance, the 1. The officer regularly
appointee enters upon the exercise of the duties appointed to the office is
and functions of an office. (De Leon, The Law on unable to perform his duties
Public Officers and Election Law, 65, 2011) by reason of illness, absence
or any other cause; or
Kinds of Appointment under the Civil Service 2. there exists a vacancy
Law ● Instances of Temporary Appointment
1. Permanent appointments - issued to a 1. appointee does not possess civil
person who meets all the requirements for the service eligibility
position to which he is being appointed, 2. appointment by the President in an
including the appropriate eligibility prescribed, executive office during the absence
in accordance with the provisions of the laws, or incapacity of the incumbent
rules, and standards promulgated in 3. designation as officer in charge
pursuance thereof. 4. appointment held at the pleasure of
2. Temporary appointments - issued in the the appointing power
absence of any eligibles, when necessary to
public interest, in order to fill a vacancy with a 3. Regular Appointment — made by the
person who meets all the requirements for the President while Congress is in session and
position to which he/she is being appointed, becomes effective after the nomination is
except the appropriate civil service eligibility. confirmed by the Commission on
● Appointment in an acting capacity is Appointments.
merely temporary, one which is good only
until another appointment is made to take 4. Provisional appointment - A person who has
its place not qualified in an appropriate examination but
● Temporary appointments shall not exceed who otherwise meets the requirements for
12 months. appointment to a regular position in the
○ The appointee may be replaced competitive service, whenever a vacancy
sooner if a qualified civil service occurs and the filling thereof is necessary in the
eligible becomes available. interest of the service and there is no
○ Where a temporary appointee appropriate register of eligibles at the time of
acquires civil service eligibility during appointment.
his tenure as such, his temporary
appointment does not thereby 5. Ad Interim Appointment— it is made while
automatically become permanent. Congress is not in session, before confirmation
What is required is a new appointment. by the CA; it is immediately effective, and
○ Temporary appointment given to a ceases to be valid if disapproved or by-passed
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by the CA or until the next adjournment of the after a complete appointment is tantamount to
Congress. removal. (De Leon, The Law on Public Officers
6. Midnight Appointment — made by the and Election Law, 68-69, 2011)
President or acting president within 2 months
immediately before the next presidential Exception: Where the appointment is temporary.
elections and up to the end of his term, whether (Ong v. Office of the President, GR No 184219,
or not it is confirmed by the Commission. January 30, 2012)
Officers that the President Shall Appoint: (E- Nepotism

MA2C- JC2AR-NL2) The word “relative” and members of the family
referred to are those related within the third degree
1. Heads of Executive departments
either of consanguinity or affinity. Since a public
2. Ambassadors
office is a public trust, created for the benefit and in
3. Other public Ministers and consuls
the interest of the people, appointments thereto
4. Officers of the Armed forces from the ranks of
should be based solely on merit and fitness
colonel or naval captain
uninfluenced by any personal or filial
5. Other officers whose appointment are vested
consideration. (De Leon, The Law on Public
in him in the Constitution
Officers and Election Law, 46, 417, 2011)
a. Regular members of the Judicial and
1. The Constitution prohibits the president from
Bar Council
appointing his close relatives (within the 4th
b. The Chairman and Commissioners of
civil degree by consanguinity or affinity to the
the Civil Service Commission
president or his spouse) to high positions in
c. The Chairman and Commissioners of
government during his tenure. No relative of
the COMELEC
the President, within the 4th civil degree, shall
d. The Chairman and Commissioners of
be appointed to/as:
the Commission on Audit
a. Constitutional Commissions
e. Members of the Regional Consultative
b. The Office of the Ombudsman
Commission (De Leon, The Law on
c. Secretary of a Department
Public Officers and Election Law, 71, d. Undersecretary of a Department
2011) e. Chairman or Head of Bureaus of
6. Officers whose appointments are Not Offices
otherwise provided for by law f. Any GOCC
7. Officers whom the president may be authorized g. Any GOCC subsidiary
by Law to appoint 2. Under the Civil Service Decree, all
8. Officers Lower in rank whose appointments appointments in the national, provincial, city,
the Congress, by law, vested in the President and municipal governments or in any branch
(PHIL. CONST., art. VII, § 16) or instrumentality, including GOCCs, made in
favor of the appointing or recommending
Constitutional Limitations on the Presidential authority, or of the chief of the bureau of the
Power to Appoint: office, or of persons exercising immediate
1. Nepotism (see discussion and exceptions supervision over him, are prohibited. As used
below) in the Civil Service Law, the term “relative” and
2. Midnight appointments members of the family referred to those within
3. Those relating to an Acting President (PHIL. the 3rd degree of consanguinity or affinity. (De
CONST., art. VII, §§ 13-15) Leon, The Law on Public Officers and Election
Law, 46, 2011)
The constitutional limitations refer to appointments
in the executive and not the judicial branch of Exceptions: (CTAP)
government. (De Castro v. JBC, G.R. No.191002, 1. Persons employed in Confidential capacity
2010) 2. Teachers
3. Physicians
Revocability of Appointment 4. Members of AFP (De Leon, The Law on Public
General Rule: Appointment to an office once Officers and Election Law, 47, 2011)
made and completed, is not subject to
reconsideration or revocation because revocation The restriction shall not be applicable to any
Page 274 of 568
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member who, after his or her appointment to any (Costin v Quimbo, GR No 32271, January 27,
position in an office or bureau, contracts marriage 1983) Such appointment is considered null
with someone in the same office or bureau. In this and void ab initio. (General Manager, PPA v.
event, the employment or retention therein of both Monserate, G.R. No. 129616, Apr. 17, 2002)
husband and wife may be allowed. (De Leon, The 2. One who is legally dismissed from office is, by
Law on Public Officers and Election Law, 46, 2011) fiction of law, deemed not to have vacated his
office (Fernandez v Cuneta, GR No 14392,
The mere issuance of appointment in favor of a May 30, 1960)
relative within the third degree of consanguinity or
affinity is sufficient to constitute nepotism. Also, D. ELIGIBILITY AND QUALIFICATION
even if the case is one of falsification of public REQUIREMENTS
document, the requirement of disclosure of
relationship to the appointing power in the local Eligibility
government units simply aims to ensure strict The state of being legally fit to be chosen. It is
enforcement of the prohibition against nepotism.
(Galeos v. People, G.R. No. 174730-37, 2011) of a continuing nature and must exist both at
the commencement and during the occupancy
The rule on nepotism also applies to designations of an office. (De Leon, The Law on Public Officers
made in favor of a relative of the authority making and Election Law, 19, 2011)
a designation. A designation accomplishes the
same purpose as appointment. (Laurel v. Civil
Service Commission, G.R. No. 71562, 1991) Eligible
Under the Admin Code, it is used to refer to a
Vacancy person who obtains a passing grade in a civil
There is a vacancy when an office is empty and service examination and whose name is entered in
without a legally qualified incumbent appointed or the register of eligibles from which appointments
elected to it with a lawful right to exercise its must be made. (ADMIN CODE, Book V, Title 1-a,
powers and perform its duties. There can be no Sec.5, Par. (8))
appointment to a non-vacant position. (De Leon,
The Law on Public Officers and Election Law, 104, Nature of right to hold Public Office
2011) The right to hold public office is not a natural right.
It exists only because and by virtue of some law
CAUSES: (I RACED PAR2C) expressly or impliedly creating and conferring it.
1. Impeachment The qualifications which relate to an office must be
2. Removal from office or resignation of the complied with by persons seeking that office. An
incumbent election or appointment to office of a person who is
3. Abandonment ineligible or unqualified gives him no right to hold
4. Conviction of a crime the office. (De Leon, The Law on Public Officers
5. Expiration of term and Election Law, 20-21, 2011)
6. Death
7. Permanent disability Qualifications
8. Acceptance of incompatible office Acts which a person is required to do before
9. Reaching the age limit entering upon position. Means two things:
10. Recall 1. Endowments, qualities, or attributes that make
11. Creation of a new office an individual eligible for public office
12. Failure of person to accept 2. Acts, which a person, before entering upon the
performance of his duties, is by law required to
For appointments not needing confirmation, do, such as taking, subscribing, and filing of an
removal may be by President or officer designated official oath, and giving an official bond (De
by law. If the appointment is permanent, removal is Leon, The Law on Public Officers and Election
allowed only for cause. Law, 20, 2011)
Principles of Vacancy Subject to constitutional limitations, Congress may
1. A person no matter how qualified cannot be determine the eligibility and qualifications of
appointed to an office which is not vacant
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officers and provide for the methods of filling

offices. Formal Qualifications: (CAP CARES)
1. Citizenship
2. Age
Two Meanings of Qualifications 3. Political affiliation
WHEN REFERRING 4. Civil service examination
WHEN USED IN THE TO THE ACT OF 5. Ability to read and write
6. Residence
SENSE OF ENETRING INTO
7. Education
ENDOWMENTS, THE 8. Suffrage
QUALITIES OR PERFORMANCE OF
ATTRIBUTES THE FUNCTIONS OF Only accountable public officers or those who are
A PUBLIC OFFICE entrusted with the collection and custody of public
money, and public ministerial officers whose
The individual must Failure of an officer to actions may affect the rights and interests of
possess the perform an act individuals are required to give an official bond.
qualifications at the required by law could
time of appointment affect the officer’s title Improper notarization is not among the grounds for
or election and to the office. disqualification as stated under the OEC and LGC.
continuously for as Apart from the qualifications provided for in the
long as the official Note: Constitution, the power to prescribe additional
relationship ● Prolonged qualifications for elective office and grounds for
continues. failure or refusal disqualification therefrom, consistent with the
to take the office constitutional provisions, is vested in Congress.
Note: could result in (Amora v. COMELEC, G.R. No. 19228, 2011)
● Property forfeiture of
qualifications office. An officer who misrepresented his or her
may not be ● An oath of office qualification, e.g. educational attainment and
imposed for the taken before one eligibility for government service, is guilty of plain
exercise of the who has no and simple dishonesty as it refers to the act of
right to run for authority to intentionally making a false statement on any
public office. administer oath material fact in securing one’s appointment.
● Loss of any of is no oath at all. (Momongan v. Sumayo, A.M. No. P-10-2767,
the qualifications ● Once 2011)
during proclaimed and
incumbency will duly sworn in All public officers and employees shall take an oath
be a ground for office, a public or affirmation to uphold and defend the
termination. officer is entitled Constitution. (PHIL. CONST., art. IX-B, § 4)
to assume office
and to exercise
the functions Limits on Legislature’s Power to Prescribe
thereof. The Qualifications:
pendency of an 1. The legislature may not reduce or increase the
election protest qualifications prescribed in an exclusive
is not sufficient manner by the Constitution.
basis to enjoin 2. The legislature may prescribe only general
him from qualifications.
assuming office. 3. The qualifications must be relevant to the office
for which they are prescribed.
The qualifications for public office are continuing
requirements and must be possessed not only at Holding more than one office
the time of appointment or election or assumption There is no constitutionally protected right to hold
incompatible offices. The manifest purposes of a
of office but during the officer’s entire tenure. Once
restriction on multiple holdings are to prevent
any of the required qualifications is lost, his title offices of public trust from accumulating in a single
may be reasonably challenged. person, and to prevent individuals from deriving,
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directly or indirectly, any pecuniary benefit by virtue

1. A natural-born
of their dual position-holding.
citizen of the
Philippines
Where a person is prohibited from holding two
2. On the day of the
offices at the same time, his appointment or
election, is at least
election to a second office may operate to vacate
25 years of age
the first or he may be ineligible for the second.
3. Able to read and
write
A person who accepts and qualifies for a second
Members of the 4. Except the party-list
and incompatible office is deemed to vacate, or by
House of representatives, a
implication, to resign from the first office. The same
Representatives registered voter in
rule obtains where the holding of more than one
the district in which
position is prohibited by constitutional or statutory
he shall be elected;
provision although the second position is
and
compatible with the first. (De Leon, The Law on
5. A resident thereof
Public Officers and Election Law, 44, 2011)
for a period of not
less than 1 year
In the absence of constitutional inhibition,
immediately
Congress has the same right to provide
preceding the day of
disqualifications that it has to provide qualifications
the election.
for office. (De Leon, The Law on Public Officers
and Election Law, 23, 2011) 1. A natural-born
citizen of the
Those Prescribed by the Constitution Philippines
2. A Member of the SC
POSITION QUALIFICATION must be at least 40
years of age; and
1. A natural-born 3. Must have been for
citizen of the Members of the 15 years or more, a
Philippines SC and lower judge of a lower
2. A registered voter court or engaged in
collegiate court
3. Able to read and the practice of law in
write the Philippines.
President and Vice 4. At least 40 years of 4. A member of the
President age on the day of judiciary must be a
the election; and person of proven
5. A resident of the competence,
Philippines for at integrity, probity and
least 10 years independence.
immediately
1. Natural-born
preceding such
citizens of the
election.
Philippines and
1. Philippines 2. At the time of their
2. On the day of the appointment, at
election, is at least least 35 years of
35 years of age age
3. Able to read and Chairman and the 3. With proven
write Commissioners of capacity for public
Senators 4. A registered voter; the CSC administration; and
and 4. Must not have been
5. A resident of the candidates for any
Philippines for not elective position in
less than 2 years the elections
immediately immediately
preceding the day of preceding their
the election. appointment.
Page 277 of 568
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1. Natural-born of the Commission 2. A majority of whom

citizens of the on Human Rights shall be members of
the Bar.
Philippines and
3. The term of office
2. At the time of their
appointment, at and other
qualifications and
least 35 years of
age disabilities of the
3. Holders of a college Members of the
Commission shall
degree; and
be provided by law.
Chairman and the 4. Must not have been
Commissioners of candidates for any 1. Natural-born
the COMELEC elective positions in citizens of the
the immediately Philippines; and
preceding elections 2. At the time of
5. However, a majority appointment, at
thereof, including least 40 years old, of
the Chairman, shall recognized probity
be members of the and independence,
Philippine Bar who and members of the
have been engaged Ombudsman and Philippine Bar
in the practice of law his/her Deputies 3. Must not have been
for at least 10 years. candidates for any
1. A natural-born elective office in the
immediately
citizens of the
Philippines preceding elections
2. At the time of their 4. Ombudsman must
appointment, at have, for 10 years
least 35 years of and more, been a
judge or engaged in
age
the practice of law in
3. Certified Public
the Philippines
Accountants with
not less than 10 (De Leon, The Law on Public Officers and Election
years of auditing Law, 35-37, 2011)
experience, or
members of the E. DISABILITIES AND INHIBITIONS OF
Chairman and the Philippine Bar who PUBLIC OFFICERS
Commissioners of have been engaged
the COA in the practice of law Disqualification
for at least 10 years; It is the presence of circumstances and qualities
and which makes an individual ineligible from holding a
4. Must not have been public office. Lack of disqualifications is itself a
candidates for any qualification.
elective position in
the elections Disqualifications: (IM RIPE C2ORN LG)
immediately 1. Mental or physical Incapacity
preceding their 2. Misconduct or crime
appointment 3. Removal or suspension from office
5. At no time shall all 4. Impeachment
Members of the 5. Previous tenure of office
Commission belong 6. Being an Elective official
to the same 7. Consecutive terms
profession. 8. Having been a Candidate for any elective
Chairman 1. Natural-born position
citizens of the 9. Holding more than One office
and Members
Philippines; and 10. Relationship with the appointing power
Page 278 of 568
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11. Office Newly created or the emoluments of provided in the Constitution, hold any other
which have been increased office or employment during their tenure.
12. Grounds under the Local Government Code (PHIL. CONST., art. VIII, § 13)
(De Leon, The Law on Public Officers and 2. No Senator or Member of the House of
Election Law, 40-49, 2011) Representatives may hold any other office or
employment in the Government, or any
General Rule: Appointive and elective officials subdivision, agency or instrumentality
cannot hold multiple employment or office during thereof, including government-owned or
their tenure. controlled corporations or their subsidiaries,
during his term, without forfeiting his seat.
Exception: Appointive officials may hold other Neither shall he be appointed to any office
office when allowed by law or by the primary which may have been created or the
functions of their positions. (PHIL. CONST., art. XI- emoluments thereof increase during the term
B, § 7) for which he was elected. (PHIL. CONST., art.
VI, § 13)
Exception to holding multiple offices: 3. The Members of the Supreme Court and of
1. Those provided for under the Constitution, other courts established by law shall not be
such as: designated to any agency performing quasi-
a. President as head of NEDA (PHIL. judicial or administrative functions. (PHIL.
CONST., art. XII, § 9) CONST., art. VIII, § 12)
b. VP may be appointed as Cabinet 4. No Member of a Constitutional Commission
Member (PHIL. CONST., art. VII, § 3) shall, during his tenure, hold any other office
c. VP as Acting President (PHIL. CONST., or employment. (PHIL. CONST., art. IX-A, § 2)
art. VII, § 7) The same disqualification applies to the
d. In and ex-officio capacity (CLU v. Ombudsman and his deputies. (PHIL.
Exec. Sec., G.R. No. 83896, 1991); CONST., art. XI, § 8)
and 5. The Ombudsman and his Deputies shall not
2. Posts occupied by Executive officials specified be qualified to run for any office in the
in Section 13, Article VII without additional election immediately succeeding their
compensation in ex officio capacities as cessation from office. (PHIL. CONST., art. XI,
provided by law and as required by the primary § 11)
functions of the officials’ offices. (Funa v. Agra, 6. Members of Constitutional Commissions, the
G.R. No. 191644, 2013) Ombudsman and his deputies must not have
been Candidates for any elective position in
General Disqualifications under the the elections immediately preceding their
Constitution: appointment. (PHIL. CONST., art. IX-B, IX-C,
IX-D, § 1; art. XI, § 8)
1. No candidate who lost in an election shall, 7. Members of the Constitutional Commissions,
within one year after such election, be the Ombudsman and his deputies are
appointed to any office in Government. (PHIL. appointed to a term of seven (7) years,
CONST., art. IX-B, § 6) without reappointment. (PHIL. CONST., art.
2. No elective official shall be eligible for IX-B, § 1 (2); art. IX-C, § 1 (2); art. IX-D, §. 1
appointment or designation in any capacity (2); art. IX, § 11)
to any public office or position during his 8. The spouse and relatives by consanguinity
tenure. (PHIL. CONST., art. IX-B, § 7 (1)) or affinity within the fourth civil degree of the
3. Unless otherwise provided by law or by the President shall not during his tenure be
primary functions of his position, no appointed as Members of the Constitutional
appointive official shall hold any other Commissions, or the Office of the
position in Government. (PHIL. CONST., art. Ombudsman, or as Secretaries,
IX-B, § 7 (2)) Undersecretaries, chairmen or heads of
bureaus or offices, including government-
Special Disqualifications under the owned or controlled corporations (PHIL.
Constitution: CONST., art. VII, § 13, art. VII)
1. The President, Vice-president, the Members
of the Cabinet, and their deputies or P.D. 807, Sec. 49 prohibits the appointment of a
assistants shall not, unless otherwise Senator or Congressman to any office which may
Page 279 of 568
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have been created or emoluments thereof Undersecretaries, chairmen or heads of

increased during the term for which he was bureaus of offices, including government-
elected. owned or -controlled corporations and their
subsidiaries.
9. Under the Civil Service Decree, all
When the Constitution has attached a appointments in the national, provincial, city,
disqualification to the holding of any office, and municipal governments or in any branch
Congress cannot remove it under the power to or instrumentality thereof, including
prescribe qualifications as to such offices as it may government-owned or controlled
create. The Constitution imposes limitations on the corporations, made in a favor or a relative of
right of certain officials to hold more than one office the appointing or recommending authority, or
at the same time. of the chief of the bureau or office, or of
1. The President, Vice President, Members of persons exercising immediate supervision
the Cabinet, their deputies or assistants shall over him, are prohibited. As used in the law,
not, unless otherwise provided in the the word "relative" and members of the
Constitution, hold any other office or family referred to are those related within the
employment during their tenure. third degree either of consanguinity or of
2. A Senator or Member of the House of affinity. The restriction shall not be applicable
Representatives may not hold any office or to the case of a member of any family who,
employment in the Government, or any after his or her appointment to any position
subdivision, agency, or instrumentality, in an office or bureau, contracts marriage
including GOCCS or their subsidiaries, with someone in the same office or bureau,
during his term (not tenure) without forfeiting in which event the employment or retention
his seat. therein of both husband and wife may be
3. The members of the Supreme Court and of allowed.
other courts established bylaw shall not be 10. The following are exempted from the
designated to any agency performing quasi- operation of the rules on nepotism: 1)
judicial or administrative functions. persons employed in a confidential capacity;
4. A member of the Constitutional Commission 2) teachers; 3) physicians; and 4) members
shall not, during his tenure, hold any other of the Armed Forces of the Philippines.
office or employment.
5. During their tenure, the Ombudsman and his Spoils System and Political Lame Ducks
deputies are subject to the same
SPOILS SYSTEM POLITICAL LAME
disqualifications and prohibitions as
provided for members of the DUCKS
Constitutional Commissions. No elective official No candidate who
6. Unless otherwise allowed by law or by the shall be eligible for has lost in any
primary functions of his position, no appointment of election shall, within
appointive official shall hold any other office
or employment in the government or any
designation in any one year after such
subdivision, agency, or instrumentality, capacity to any election, be
including GOCCs or their subsidiaries. public office or appointed to any
7. No member of the armed forces in the active position during his office in the
service shall, at any time, be appointed or
designated in any capacity to a civilian tenure (PHIL. Government of any
position in the government including GOCCs CONST. art. IX-B, government-owned
or any of their subsidiaries. §7) or controlled
8. The Constitution prohibits the President from corporations or in
appointing his close relatives to high
positions in the government. Thus: "The The disqualification any of its
spouse and relatives by consanguinity or subsists only during subsidiaries. (PHIL.
affinity within the fourth civil degree of the the tenure in office CONST., art. IX-B,
President shall not, during his tenure, be
of the elective §6)
appointed as members of the Constitutional
Commissions, or the Office of the official. He may be
Ombudsman, or as Secretaries,
Page 280 of 568
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appointed provided Members of the to prescribe qualifications as to such offices

he forfeits his seat. Civil Service shall as it may create
(De Leon, The Law on Public Officers and
not have been Election Law, 21, 2019)
candidates for any
Examples of elective position in
Congress cannot validly amend or otherwise
exceptions: the elections modify the qualification standards (under the
1. The Vice immediately Constitution), as it cannot disregard, evade, or
President may preceding their weaken the force of a constitutional mandate,
be appointed as or alter or enlarge the Constitution. The
appointment. (PHIL.
a cabinet Constitution is the basic law to which all laws must
CONST., art. IX-B, conform; no act shall be valid if it conflicts with the
member.
§1) Constitution. In the discharge of their defined
2. A
functions, the three departments of government
Congressman have no choice but to yield obedience to the
may sit in the Except for losing commands of the Constitution. Whatever limits it
Judicial and Bar candidates in imposes must be observed. Congress' inherent
Council. barangay elections, legislative powers, broad as they may be, are
3. To be eligible no candidate who subject to certain limitations. [SJS v. DDB, GR No.
to hold any other 157870, 2008]
lost in any election
office, the
elected official shall, within 1 year Divestment
must first resign after such election, When a public official is in a conflict-of-interest
from his office. be appointed to any situation. Such official must resign from his position
in any private business enterprise within 30 days
office in the from his assumption of office and/ or divest himself
Government or any of his shareholdings or interest within 60 days from
government-owned such assumption. (RA 6713, Office of the
or controlled Ombudsman)
corporations or in Duration of Qualification
any of their Eligibility to an office should be construed as of a
subsidiaries.” (Local continuing nature and must exist at the
Government Code, commencement of the term and during occupancy
of the office. The reckoning point in determining the
§94). qualifications of an appointee is the date of
issuance of the appointment and not the date of its
Power of Congress to Prescribe approval by the CSC or the date of resolution of the
Disqualifications protest against it (CSC v de la Cruz, G.R. No.
In the absence of constitutional inhibition, 158737, August 31, 2004)
Congress has the same right to provide Persons required to take an Oath of Office
disqualifications that it has to provide under the Constitution
qualifications for office. (De Leon, The Law on 1. All public officers and employees
Public Officers and Election Law, 21, 2019) 2. President, VP, or the acting President
3. All members of the AFP
Restrictions
1. Congress may not add disqualifications Oath of Office
where the Constitution has provided them in It is a qualifying requirement for a public office.
such a way as to indicate an intention that the Only when the public officer has satisfied this
disqualifications provided shall embrace all prerequisite can his right to enter into the position
that are to be permitted; and be considered plenary and complete. Until then, he
2. When the Constitution has attached a has none at all and for as long as he has not
disqualification to the holding of any office, qualified, the holdover officer is the rightful
Congress cannot remove it under the power occupant. (De Leon, The Law on Public Officers
Page 281 of 568
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and Election Law, 110, 2011) teach in schools, except during session
hours, Sanggunian members who are also
Inhibitions members of the Bar shall not:
It is a restraint upon the public officer against the a. Appear as counsel before any court
doing of certain acts which may be legally done by in any civil case wherein a local
others. government unit or any office,
agency or instrumentality of the
Inhibitions under the Constitution government is the adverse party;
b. appear as counsel in any criminal
1. The President, Vice-President, Cabinet
case wherein an officer or employee
Members and their deputies and assistants
of the national or local government is
shall not, during tenure, directly or indirectly
accused of an offense committed in
practice any other profession, participate in
relation to his office;
any business or be financially interested in
c. collect any fee for their appearance
any contract with the Government. They shall
in administrative proceeding
strictly avoid conflict of interest in the conduct
involving the local government until
of their office.
of which he is an official; and
2. No Senator or Member of the House may
d. use property and personnel of the
hold any other office or employment in the
Government except when the
Government during his term without forfeiting
Sanggunian member concerned is
his seat.
defending the interest of the
3. No Senator or Member of the House may
government
personally appear as counsel before any
3. Doctors of medicine may practice their
court of justice or before the Electoral
profession even during official hours of work
Tribunal, or quasi-judicial and other
only on occasions of emergency, provided
administrative bodies.
that officials concerned do not derive
4. No Senator or Member of the House shall
monetary compensation therefrom.
directly or indirectly, be interested financially
(Section 90, Local Government Code)
in any contract with, or in any franchise or
special privilege granted by the Government,
While, as already discussed, certain local elective
during his term of office
5. No Member of the Constitutional officials (like governors, mayors, provincial board
Commission shall, during his tenure, hold any members and councilors) are expressly subjected
other office or employment. Neither shall he to a total or partial proscription to practice their
engage in the practice of any profession or in profession or engage in any occupation, no such
the active management or control of interdiction is made on the punong barangay and
business which in any way may be affected the members of the sangguniang barangay.
by the functions of his office, nor shall he be
financially interested, directly or indirectly, in Expressio unius est exclusio alterius. Since they
any contract with, or in any franchise or are excluded from any prohibition, the
special privilege granted by the Government presumption is that they are allowed to practice
during his term of office. This inhibition their profession. And this stands to reason
applies as well to the Ombudsman and his because they are not mandated to serve full time.
deputies. In fact, the sangguniang barangay is supposed to
6. No officer or employee in the civil service shall
hold regular sessions only twice a month. (Catu v.
engage, directly or indirectly, in any
electioneering or partisan political campaign. Rellosa, GR No. 5738, 2008)
Practice of Profession A civil service officer or employee whose

1. All governors, city and municipality mayors, responsibilities do not require his time to be fully
are prohibited from practicing their at the disposal of the government can engage in
profession or engaging in any occupation the private practice of law only with the written
other than the exercise of their functions as permission of the head of the department
local chief executives; concerned (i.e. DILG). (Section 12, Rule XVIII of
2. Sanggunian members may practice their
the Revised Civil Service Rules)
professions, engage in any occupation, or
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F. POWERS AND DUTIES OF PUBLIC Note: The law through the intervening
OFFICERS exacting its mind of another.
discharge
Extent of Powers or Authority prescribes and
1. Expressly conferred upon him by the law defines the time,
under which he has been appointed or elected mode, and
2. Expressly annexed to the office by the law occasion of its
which created it or some other law referring to performance with
it such certainty
3. Attached to the office as an incident to it that nothing is left
(De Leon, The Law on Public Officers and Election for judgement or
Law, 119, 2019) discretion.
Consequence of Holding Office It is susceptible of

General Rule: It cannot be
To hold an office means to possess or to occupy the delegation anddelegated to another
office, or to be in possession and administration of can be compelled Exception: Power of the
the office, which implies nothing less than the by judicial action.President to conclude
actual discharge of the functions and duties of the treaties may be assigned to
office. (Funa v. Agra, G.R. No. 191644, 2013) a treaty panel, which can
negotiate the treaty on his
Doctrine of necessary implication behalf, under his
instructions and subject to
All powers necessary to the exercise of the power
his approval.
expressly granted are deemed impliedly granted.
The fact that a particular power has not been (De Leon, The Law on Public Officers and Election
expressly conferred does not necessarily mean Law, 122-123, 2019)
that it is not possessed by the officer claiming it.
(Robustum Agricultural Corporation v. Department Constitutional Duties of Public Officers
of Agrarian Reform, G.R. No. 221484, Nov. 19, 1. To be accountable to the people, to serve them
2018) with utmost responsibility, integrity, loyalty, and
efficiency; to act with patriotism and justice;
No statute can be enacted that can provide all the and to lead modest lives. (PHIL. CONST., art. XI,
details involved in its application. There is always § 1);
an omission that may not meet a particular 2. Submit a declaration under oath of assets,
situation. What is thought, at the time of liabilities, and net worth upon assumption of
enactment, to be an all-embracing legislation may officer and thereafter as may be required;
be inadequate to provide for the unfolding events (PHIL. CONST., art. XVIII, § 7)
of the future. So-called gaps in the law develop as 3. Owe the State and Constitution allegiance at
the law is enforced. One of the rules of statutory all times. (PHIL. CONST., art. XI, § 18);
construction used to fill in the gap is the doctrine of
necessary implication. (Chua v. CSC,GR No. Duties of Public officers, In General
88979, 1992) 1. Duty to obey the law
2. Duty to accept and continue in office;
Ministerial v. Discretionary Powers 3. Duty to accept burden of office;
MINISTERIAL DISCRETIONARY 4. Duty as to diligence and care in the
performance of official duties;
POWERS POWERS
5. Duty in choice and supervision of
When it is When it requires the subordinates;
absolute, certain, exercise of reason and 6. Duty to perform official acts honestly, faithfully,
and imperative discretion in determining and to the best of his ability;
involving merely how or whether the act 7. Duty not to use his official power to further his
execution of a shall be done or the course own interest (De Leon, The Law on Public
specific duty pursued. Officers and Election Law, 152-44, 2011)
arising from fixed
and designated Note: The officer is Territorial Limitation and Duration of Authority
facts. expected to discharge the The authority of all public officers is limited and
duty directly and not
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confined to that territory over which the law, by Effect when law fixes specific date for the end of
virtue of which they claim, has sovereign force. The a term
authority is limited in its exercise to that term during When the law fixes a specific date for the end of the
which he is by law invested with the rights and term, there is an implied prohibition against hold-
duties of the office. (De Leon, The Law on Public over (Nueno v Angeles, GR no 89, February 1,
Officers and Election Law, 132-33, 2011) 1946)
Alter Ego Principle Nature of Officer during Hold-Over

The acts of the Secretaries of the departments, During the period of hold-over, the public officer is a
performed and promulgated in the regular course de jure officer (Bautista v Fajardo, GR No 13799,
of business are, unless disapproved or reprobated September 23, 1918)
by the President, presumptively the acts of the
President. (Carpio v Executive Secretary, GR No Classifications of Powers and Duties
96409, February 14, 1992) As to their Nature
1. Ministerial — the law exacting its discharge
Doctrine of Qualified Political Agency prescribes and defines the time, mode and
All executive and administrative organizations are occasion of its performance and requires
adjuncts of the Executive department, the heads of neither judgment nor discretion. This kind of
the various executive departments are assistants duty is susceptible of delegation.
and agents of the Chief Executive, and, except in 2. Discretionary — a public officer has the right
to decide how and when the duty shall be
cases where the Chief Executive is required by the
performed. A public officer cannot delegate
Constitution or law to act in person or in the this kind of duty.
exigencies of the situation demand that he act (De Leon, The Law on Public Officers and Election
personally, the multifarious executive and Law, 135-36, 2011)
administrative functions of the Chief Executive are
performed by and through the executive General Rule: Mandamus will not lie for the
departments, and the acts of the secretaries, performance of a discretionary duty
performed and promulgated in the regular course
Exceptions:
of business, are, unless disapproved or reprobated a. When the discretion granted is only as to the
by the Chief Executive, presumptively the acts of manner of its exercise and not the discretion
the Chief Executive (Villena v. Secretary of Interior, to act or not to act, the court may require a
GR No. L-46570, 1939) general action
b. Grave abuse of discretion
Limits of the Alter Ego Doctrine
As to the obligation of the officer to perform his
There are certain powers that are reserved to the
powers and duties
President which cannot be exercised by the
1. Mandatory — where the provisions of a
Secretaries of the departments such as:
statute relating to public officers are intended
1. Declaration of Martial Law
for the protection of the citizen and to prevent
2. Suspension of the privilege of writ of habeas
a sacrifice of his property, and by a disregard
corpus
of such provision, his rights might be and
3. Pardoning Power;
generally would be injuriously affected
4. Purely discretionary powers
2. Permissive — statutes define the time and
mode in which the public officers will
Principle of Hold-Over discharge their duties, and those which are
In the absence of any express of implied obviously designed merely to secure order,
constitutional or statutory provision to the contrary, uniformity, system and dispatch in public
the public officer is entitled to hold office until his business.
successor shall have been duly chosen and shall (De Leon, The Law on Public Officers and
have qualified. (Lecaroz v. Sandiganbayan, GR No Election Law, 135, 2011)
130872, March 25, 1999)
As to the relationship of the officer to his
subordinates
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1. Power of Control — power of an officer to deemed inconsistent with their public

manage, direct or govern, including the status and duties. (De Leon, The Law
power to alter or modify or set aside what a on Public Officers and Election Law,
subordinate had done in the performance of 157, 2019)
his duties and to substitute his judgment for
that of the latter 1. Right to Wages;
2. Power of Supervision — it is the power of 2. Right to Preference in Promotion subject to
mere oversight over an inferior body and the discretion of the appointing authority;
does not include any restraining authority 3. Right to vacation and sick leave;
over such body. The officer merely sees to it 4. Right to Maternity Leave;
that rules are followed but he himself does 5. Right to Retirement Pay;
not lay down such rules, nor does he have 6. Other rights:
the discretion to modify or replace them. a. Right to reimbursement for expenses
(De Leon, The Law on Public Officers and incurred in due performance of duty
Election Law, 135-36, 2011) (but this does not include transportation
allowance for those using government
G. RIGHTS OF PUBLIC OFFICERS vehicles);
b. Right to be indemnified against liabilities
In General they may incur in bona fide discharge of
1. Rights incident to public office duties;
a. The rights of one elected or appointed c. Right to longevity pay.
to office are, in general, measured by d. Right to self-organization
the Constitution or the law under which he
was elected or appointed Salary not subject to garnishment
b. Right to office –The just and legal claim to Reasons:
exercise the powers and the 1. While the money is still in the hands of the
responsibilities of the public office. disbursing officer, it belongs to the government
2. Public policy forbids such practice since it
2. Rights as a citizen would be fatal to the public service
a. Protection from publication commenting 3. The garnishment or attachment of an officer’s
on his fitness and the like salary is tantamount to a suit against the State
• The mere fact that one occupies a in its own court, which is prohibited except with
public office does not deprive him his consent
of the protection accorded to (De Leon, The Law on Public Officers and
citizens by the Constitution and the Election Law, 168-169, 2019)
laws.
• However, by reason of the public Prohibition on Double Compensation
character of his employment or office, The purpose of the prohibition against additional or
a public officer is, in general, held double compensation for public officials: to
notentitled to the same protection manifest a commitment to the fundamental
from publications commenting on his principle that a public office is a public trust. It is
fitness and the like, as is accorded expected of a government official or employee that
to the ordinary citizen. he keeps uppermost in mind the demands of public
b. Engaging in certain political and welfare. He is there to render public service. He is
business activities entitled to be rewarded for the performance of the
• The governmental interest in functions entrusted to him, but that should not be
maintaining a high level service by the overriding consideration. The temptation to
assuring the efficiency of its further personal ends, public employment as a
employees in the performance of means for the acquisition of wealth, is to be
their tasks may require public resisted. There must be awareness on the part of
employees to suspend or refrain from the officer or employee of the government that he
certain political or business activities will receive only such compensation as may be fixed
that are embraced within the by law. With such a realization, he is expected not to
constitutional rights of others, when avail himself of devious or circuitous means to
such activities are reasonably increase the remuneration attached to his position.
(Veloso v. COA, G.R. 193677, 2011)
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responsibilities, status or rank, which may or may

Claims for double retirement benefits fall under the not involve a reduction in salary. Where an
prohibition against the receipt of double employee is appointed to a position with the same
compensation when they are based on exactly the
duties and responsibilities but with rank and salary
same services and on the same creditable period.
(Ocampo v. Commission on Audit, G.R 188716, higher than those enjoyed in his previous position,
2013) there is no demotion and the appointment is valid.
(Bautista v. CSC, G.R. 185215, 2010)
The prohibition on double compensation does not Demotion to a lower rate of compensation is
apply where: equivalent to removal if no cause is shown for it
1. The payment of additional or double when it is not part of any disciplinary action. In this
compensation to a particular officer or case, demotion is not proper. (De Leon, The Law
employee is specifically authorized by law in on Public Officers and Election Law, 191, 2019)
individual instances where the payment of
such compensation appears not only just but NEXT-IN-RANK RULE
necessary. (Sadueste v. Municipality of The person next in rank shall be given preference
Surigao, G.R. 47380, 1941) in promotion when the position immediately above
2. The additional compensation is received not his is vacated.
from the government or any of its entities.
3. The public officer or employee has two distinct The concept of next-in-rank does not import any
offices, each of which has its own duties and mandatory or peremptory requirement that the
compensation. person next in rank must be appointed to the
vacancy.
Right to Organization
This shall not be denied to government employees. One who is “next-in-rank” to a vacancy is only
The constitution grants to government employees given preferential consideration to a vacant
in the civil service the right to form unions enjoyed position, but it does not necessarily follow that he
by workers in the private sector. alone and no one else can be appointed. The
appointing authority has the discretion to fill the
Section 8 of Article 3 – “Right of the people vacancy under the next-in-rank rule or by any other
including those employed in the public and private method authorized by law (e.g. by transfer).
sectors to form associations, unions, or societies (De Leon, The Law on Public Officers and Election
for purposes not contrary to law shall not be Law, 182-183, 2019)
abridged”
HOLD-OVER
Section 3 Par 2 of Article 13 which mandates the When a public officer’s term has expired or his
State to “guarantee the rights of all workers to self services are terminated, but he should continue
organization, collective bargaining and holding his office until his successor is appointed
negotiations and peaceful concerted activities, or chosen and qualifies. (Mechem, A Treatise on
including the right to strike in accordance with law” the Law of Public Offices and Officers)
(De Leon, The Law on Public Officers and Election
Law, 174-175, 2019) RETIREMENT
Retirement has been defined as a withdrawal from
PROMOTION office, public station, business, occupation, or
The movement from one position to another with public duty. It involves bilateral act of the parties, a
increase in duties and responsibilities as voluntary agreement between the employer and
authorized by law and usually accompanied by an the employee whereby the latter, after reaching a
increase in pay.(Section 26, Chapter 5, Executive certain age, agrees and/or consents to sever his
Order No. 292) employment with the former. Retirement plans
create a contractual obligation in which the
DEMOTION promise to pay benefits is made in consideration of
There is demotion when an employee is appointed the continued faithful service of the employee for
to a position resulting in diminution of duties, the requisite period. Before a right to retirement
benefits vests in an employee, he must have met
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the stated conditions of eligibility with respect to It is enough that the act was contrary to the
the nature of employment, age, and length of established norms of conduct for government
service. This is a condition precedent to his service. However, an employee of GSIS who
acquisition of rights thereunder. (Reyes v. CA, altered IP addresses without authority, not in the
G.R. 167002, 2011) performance of his duties, will not be guilty of grave
misconduct but conduct prejudicial to the best
If retirement benefits have been given to an entity interest of service. To constitute misconduct, the
disqualified to receive the same, there is an act or acts must have a direct relation to and be
obligation to return the amounts under the principle connected with the performance of official duties.
of solutio indebiti (GSIS v. COA, G.R. No. 138381, (GSIS v. Mayordomo, G.R. No. 191218, 2011)
2004)
Presumption of good faith in the discharge of
H. LIABILITIES OF PUBLIC OFFICERS official duties.
Every public official is entitled to the presumption
General Rule: A public officer is not liable for of good faith in the discharge of official duties.
injuries sustained by another due to official acts Although a public officer is the final approving
done within the scope of his authority. (REVISED authority and the employees who processed the
PENAL CODE, art. 11 (5)). transaction were directly under his supervision,
personal liability does not automatically attach to
Exceptions: (BM-NID) him but only upon those directly responsible for the
1. Bad faith; unlawful expenditures. (Dimapilis-Baldoz v.
2. Malice; Commission on Audit, G.R. 199114, 2013)
3. Negligence;
4. Death or Injury to persons or damage to Concept of public office is a public trust
property
The concept of public office is a public trust and
the corollary requirement of accountability to the
Administrative liability is separate from and
people at all times, as mandated under the 1987
independent of criminal and civil liability. Constitution, is plainly inconsistent with the idea
It is a fundamental principle in the law on public that an elective local official's administrative
officers that administrative liability is separate and liability for a misconduct committed during a prior
distinct from penal and civil liabilities for the same term can be wiped off by the fact that he was
act or omission. A simple act or omission can give elected to a second term of office, or even another
rise to criminal, civil or administrative liability, each elective post. Election is not a mode of condoning
independently of the others. This is known as the an administrative offense, and there is simply no
threefold liability rule. constitutional or statutory basis in our jurisdiction to
support the notion that an official elected for a
Thus, absolution from a criminal charge is not a bar different term is fully absolved of any
to an administrative prosecution, and vice versa. administrative liability arising from an offense done
The dismissal of the administrative cases against during a prior term. (Carpio-Morales v. CA and
the petitioners will not necessarily result in the Binay, G.R. 217126-27, 2015)
dismissal of the criminal complaints filed against
them. Liability for acts done by direction of superior
officer
In the same vein, the finding of civil liability against No accountable officer shall be relieved from
a public officer will not necessarily lead to a similar liability by reason of his having acted under the
finding in the administrative action; nor will a direction of a superior officer in paying out,
favorable disposition in the civil action absolve him applying, or disposing of the funds of property with
from administrative liability. which he is chargeable, unless prior to that act, he
(Regidor, Jr. v. People, G.R. 166086-92, 2009; notified the superior officer in writing of the illegality
Office of the President v. Cataquiz, G.R. 183445, of the payment, application, or disposition. (De
2011) Leon, The Law on Public Officers and Election
Law, 306-307, 2019)
Proof of damage or actual injury
Proof of damage or actual injury is not required for Liability of Subordinate Officers
administrative liability to attach to a public officer. No subordinate officer or employee shall be
civilly liable for acts done by him in good faith
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in the performance of his duties. However, he shall hesitate to penalize insidious acts of sexual
be liable for wilful or negligent acts done by harassment, especially when committed by high-
him which are contrary to law, morals, ranking public officers. In the government, the
publicpolicy and good customs even if he acted CSC promulgated CSC Resolution No. 01-0940
under orders or instructions ofhis superiors (Sec. which applies to all government officials and
39, Chapter 9, Book I, Admin. Code) employees. The said resolution provides for the
definition of sexual harassment, how it may take
Non-Applicability of the Doctrine of Command place, and the different forms it may be
Responsibility and the Principle of Respondeat demonstrated. The Court stated that casual
Superiorto Public Officers gestures of friendship and camaraderie, done
Neither the principle of command responsibility during festive or special occasions and with other
(in military or political structural dynamics) nor people present, do not constitute sexual
the doctrine of respondeat superior(in quasi harassment. However in this case, the Court found
delicts) applies in the law of public officers. The that the acts done by the petitioner such as
negligence of the subordinate cannot be ascribed grabbing her hand, kissing her, touching her thigh,
to his superior in the absence of evidence of the etc. constituted sexual harassment. (Escandor v.
latter’s own negligence (Reyes v. Rural Bank of People, G.R. No. 211962, July 06, 2020; Penned
San Miguel, G.R. No. 154499, 2004) by J. Leonen)
Exception: The President, being the commander- Liability of Ministerial Officers

in-chief of all armed forces, necessarily possesses 1. Nonfeasance -Neglect or refusal to perform
control over the military that qualifies him as a an act which is the officer’s legal obligation
superior within the purview of the command to perform
responsibility doctrine. (In the Matter of the 2. Misfeasance –Failure to use that degree of
Petition for Writ of Amparo and Habeas Data in care, skill, and diligence required in the
favor of Noriel H. Rodriguez; Rodriguez v. performance of official duty
Macapagal-Arroyo,G.R. No. 191805, 2011) 3. Malfeasance–The doing, through ignorance,
inattention or malice, of an act which he had
Three-Fold Responsibility of Public Officers nolegal right to perform
A public officer is under a three-fold responsibility (Nachura, Outline review in political Law)
for violation of duty or for wrongful act or omission:
Statutory Liability
1. Civil Liability:if the individual is damaged 1. Art. 32, Civil Code – liability for failure or
by such violation, the official shall, in some neglect to perform official duty
cases, be held liable civilly to reimburse the 2. Art. 33, Civil Code – liability for violating rights
injured party and liberties of private individuals
2. Criminal Liability:if the law has attached 3. Art. 34, Civil Code–liability of peaceofficers
a penal sanction, the officer may be for render aid or protection to a person;
punished criminally. The mere fact that an subsidiary liability of municipal corporations
officer is acting in an official capacity will not in such case4.Sec. 38(2), Chapter 9, Book I,
relieve him from criminal liability. Admin. Code–liability for neglecting to perform
3. Administrative Liability: such violation may a duty without just cause within (i) a period
also lead to imposition of fine, reprimand, fixed by law or regulation; or (ii)a reasonable
suspension or removal from office, as the period, if no period is fixed
case may be.
(De Leon, The Law on Public Officers and 1. PREVENTIVE SUSPENSION AND BACK
Election Law, 249-250, 2019) SALARIES
Sexual harassment engenders threefold PREVENTIVE SUSPENSION

liability. Under RA 7877, sexual harassment Merely a preventive measure, a preliminary step in
engenders three-fold liability, one of which is an administrative investigation. The purpose of the
administrative liability in order to protect public suspension order is to prevent the accused from
service. The purpose of an administrative action is using his position and the powers and prerogatives
to protect the public service by imposing of his office to influence potential witnesses or
administrative sanctions to an erring public officer. tamper with records which may be vital in the
Courts and administrative bodies should not prosecution of the case against him. If after such
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investigation, the charge is established and the suspension. That power is clearly confined under
person investigated is found guilty of acts Section 24 of R.A. No. 6770. The law sets forth two
warranting his suspension or removal, then, as a conditions that must be satisfied to justify the
penalty, he is suspended, removed or dismissed. issuance of an order of preventive suspension
(Villasenor v. Sandiganbayan, G.R. No. 180700, pending an investigation, to wit:
2008)
1. The evidence of guilt is strong; and
Two kinds of preventive suspension of 2. Either the following circumstance co-existing
government employees charged with offenses with the first requirement:
punishable by removal or suspension: a. The charge involves dishonesty,
oppression or grave misconduct or
1. Preventive suspension pending neglect in the performance of duty;
investigation; and b. The charge would warrant removal from
2. Preventive suspension pending appeal if the the service; or
penalty imposed by the disciplining authority c. The respondent’s continued stay in
is suspension or dismissal and, after review, office may prejudice the case filed
the respondent is exonerated. against him. (Ombudsman v. Valeroso,
G.R. 167828, 2007)
Effect of Decision on Suspension When Made
Before or After 90 Days: Prior notice and hearing are not required in the
IF THE CASE IS IF THE CASE IS issuance of a preventive suspension order.
DECIDED BEFORE DECIDED NOT Settled is the rule that prior notice and hearing are
90 DAYS DECIDED WITHIN 90 not required in the issuance of a preventive
DAYS suspension order. (Carabeo v. CA, G.R.
178000/178003, 2009)
The suspension will The suspension may
last less than 90 days. not exceed the GROUNDS FOR PREVENTIVE SUSPENSION
maximum period of 90 OF POLICE OFFICERS
days. (Preventive Suspension Pending Criminal
Case)
Preventive suspension is merely a preventive The court shall immediately suspend the accused
measure, a preliminary step in an administrative from office for a period not exceeding 90 days from
investigation; the purpose thereof is to prevent the arraignment:
accused from using his position and the powers 1. Upon the filing of a complaint or information
and prerogatives of his office to influence potential sufficient in form and substance against a
witnesses or tamper with records which may be member of the PNP;
vital in the prosecution of the case against him. 2. For grave felonies where the penalty
(Ombudsman v. Francisco, G.R. 172553, 2011) imposed by law is 6 years and 1 day or more.
It is now settled that Sec. 13 of Republic Act No. Exception: If it can be shown by evidence that the
3019 makes it mandatory for the Sandiganbayan to accused is harassing the complainant and/or
suspend any public official against whom a valid witnesses, the court may order the preventive
information charging violation of that law, Book II, suspension of the accused PNP member even if
Title 7 of the Revised Penal Code, or any offense the charge is punishable by a penalty lower than 6
involving fraud upon government or public funds or years and 1 day.
property is filed. The court trying a case has neither
discretion nor duty to determine whether preventive General Rule: The period of preventive
suspension is required to prevent the accused suspension shall not be more than 90 days.
from using his office to intimidate witnesses or Exception: If the delay in the disposition of the
frustrate his prosecution or continuing committing case is due to the fault, negligence or petitions of
malfeasance in office. (Villasenor v. the respondent.
Sandiganbayan, G.R. 180700, 2008)
The preventive suspension may be sooner lifted by
There is no dispute as to the power of the the court in the exigency of the service upon
Ombudsman to place a public officer charged with recommendation of the chief, PNP. Such case shall
an administrative offense under preventive be subject to continuous trial and shall be
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terminated within 90 days from arraignment of the PREVENTIVE

accused. PREVENTIVE
SUSPENSION
(SEC.55, RA 8551) SUSPENSION
PENDING
PENDING APPEAL
INVESTIGATION
Back salaries during preventive suspension
General Rule: A public official is not entitled to any Not a penalty. It is a If the penalty imposed
compensation if he has not rendered any service. measure intended to by the disciplining
(Reyes v. Hernandez, G.R. No. Apr. 8, 1941) enable the disciplining authority is
authority to suspension or
Two conditions before an employee may be investigate charges dismissal and, after
entitled to back salaries in preventive against respondent by review, the
suspension cases: preventing the latter respondent is
from intimidating or in exonerated.
1. The employee must be found innocent of the any way influencing
charges; and witnesses against
2. His suspension must be unjustified or the No back salaries shall
him. If the
official was innocent. (CSC v. Cruz, G.R. be due for the period
investigation is not
187858, 2011) of preventive
finished and a
suspension
decision is not
The reasoning behind these conditions runs this PENDING
rendered within that
way: although an employee is considered under INVESTIGATION but
period, the
preventive suspension during the pendency of a only for the period of
suspension will be
successful appeal, the law itself only authorizes preventive
lifted and the
preventive suspension for a fixed period; hence, suspension
respondent will
his suspension beyond this fixed period is PENDING APPEAL,
automatically be
unjustified and must be compensated. The rule on in the event the
reinstated. If after
payment of back salaries during the period of employee is
investigation,
suspension of a member of the civil service who is exonerated. (Gloria v.
respondent is found
subsequently ordered reinstated, is already settled CA, G.R. 131012,
innocent of the
in this jurisdiction. Such payment of salaries 1999)
charges and is
corresponding to the period when an employee is exonerated, he
not allowed to work may be decreed not only if he should be reinstated.
is found innocent of the charges that caused his (CSC v. Alfonso,
suspension (Sec. 35, RA 2260), but also when the G.R. 179452, 2009)
suspension is unjustified. (CSC v. Cruz, G.R.
187858, 2011)
2. ILLEGAL DISMISSAL, REINSTATEMENT
The mere reduction of the penalty on appeal does AND BACK SALARIES
not entitle a government employee to back salaries
if he was not exonerated of the charge against him. Reinstatement
If the exoneration of the employee is relative (as
the issuance of an appointment to a person who
distinguished from complete exoneration), an
has been previously appointed to a position in the
inquiry into the factual premise of the offense
career service and who has, through no
charged and of the offense committed must be
delinquency or misconduct, been separated
made. If the administrative offense found to have
therefrom, or to the restoration of one who has
been actually committed is of lesser gravity than
been exonerated of the administrative charges filed
the offense charged, the employee cannot be
against him. (Galang v. Land Bank, G.R. 175276,
considered exonerated if the factual premise for
2011)
the imposition of the lesser penalty remains the
The rule is settled that back salaries may be
same. (CSC v. Cruz, G.R. No. 187858, 2011)
awarded to civil servants only if they have been
illegally dismissed and thenceforth ordered
Preventive Suspension Pending Investigation
reinstated, or to those acquitted of the charge
v. Appeal against them. (Tanjay Water District v. Quinit, Jr.,
G.R. 160502, 2007)
When an official or employee was illegally

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dismissed and his reinstatement has later been I. IMMUNITY OF PUBLIC OFFICERS
ordered, for all legal purposes he is considered as
not having left his office. Therefore, he is entitled to Official immunity
all the rights and privileges that accrue to him by Only protects public officials from tort liability for
virtue of the office he held. (Galang v. Land Bank, damages arising from acts or functions in the
G.R. 175276, 2011) performance of their official duties.
A public officer is not entitled to reinstatement and Public officers may be sued to restrain them from
back salaries, when removal or suspension is enforcing an act claimed to be unconstitutional.
lawful. The denial of salary to an employee during
the period of his suspension, if he should later be Exceptions: when liability does not devolve
found guilty, is proper because he had given ultimately to the State such as:
ground for his suspension. It does not impair his 1. A petition to require official to do his duty;
constitutional rights because the Constitution itself 2. A petition to restrain him from doing an act;
allows suspension for cause as provided by law 3. To recover taxes from him;
and the law provides that an employee may be 4. Those where the officer impleaded may by
suspended pending an investigation or by way of himself alone comply with the decision of the
penalty. (Bangalisan v. CA, G.R. 124678, 1997) court;
5. Where the government itself has violated its
A public officer is entitled after his acquittal not only own laws.
to reinstatement but also to payment of the (De Leon, The Law on Public Officers and Election
salaries, allowances, and other benefits withheld Law, 246-247, 2019)
from him by reason of his discharge from the
service even if there has been valid suspension Where a public officer has committed an ultra vires
from the service pending the adjudication of the act, or where there is a showing of bad faith, malice
criminal case. (P/Chief Superintendent Calinisan v. or gross negligence, the officer can be held
SPO2 Roaquin, G.R. 159588, 2010) personally accountable even if such acts are
claimed to have been performed in connection with
Reinstatement v. Backwages: official duties. (Wylie v. Rarang, G.R. 74135, 1992)
REINSTATEMENT BACKWAGES
Immunity from suit cannot institutionalize
Restoration to a state A form of relief that irresponsibility and non-accountability nor grant a
or condition from restores the income privileged status not claimed by any other official of
which one had been that was lost by the Republic. (Republic v. Sandoval, G.R. 84607,
removed or separated. reason of unlawful 1993)
One who is reinstated dismissal.
assumes the position Where the public officer is sued in his personal
he had occupied prior capacity, state immunity will not apply. (Lansang v.
to the dismissal and is, CA, G.R. 102667, 2000)
as an ordinary rule,
entitled only to the last CONDONATION DOCTRINE
salary in that position. The condonation doctrine is the doctrine that
provides that a reelected official should no longer
Where to file claims for backwages: The claim for be made accountable for an administrative offense
recovery of back salaries involves settlement of committed during his previous term.
accounts or claims against the government and
should therefore be filed with the Commission on
Audit. (2009 Revised Rules of Procedures – BERNABE: In Carpio-Morales, the Court
Commission on Audit) abandoned the "condonation doctrine," explaining
that "election is not a mode of condoning an
Amount of Back Salaries administrative offense, and there is simply no
An illegally terminated civil service employee is constitutional or statutory basis in our jurisdiction to
entitled to back salaries limited only to a maximum support the notion that an official elected for a
period of five years, and not full back salaries from different term is fully absolved of any administrative
his illegal termination up to his reinstatement. liability arising from an offense done during a prior
(Galang v. Land Bank, G.R. 175276, 2011) term."
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[O]ne whose acts, though not those of a lawful

The abandonment should be prospectively applied. officer, the law, upon principles of policy and justice
(Dimapilis v. Commission on Elections, G.R. No. will hold valid so far as they involve the interest of
227158, [April 18, 2017]) the public and third persons, where the duties of
the office were exercised:
The ruling promulgated in Morales v. Court of
Appeals on the abandonment of the doctrine of
(a) Without a known appointment/election, but
condonation had, indeed, become final only on
under such circumstances of reputation or
April 12, 2016, and thus the abandonment should
acquiescence as were calculated to induce
be reckoned from April 12, 2016. [Crebello v.
people, without inquiry, to submit to or invoke
Sandiganbayan, GR No. 232325, 2019]
his action, supposing him to be the officer he
assumes to be;
PRESIDENTIAL IMMUNITY
Settled is the doctrine that the President, during his
tenure of office or actual incumbency, may not be (b) Under color of a known or valid
sued in any civil or criminal case…However, this appointment or election, where the officer has
does not mean that the President is not failed to conform to some precedent
accountable to anyone. Like any other official, he requirement or conditions, for example, a
remains accountable to the people but he may be failure to take the oath of give a bond or
removed from office only in the mode provided by similar defect;
law and that is by impeachment. (David v. Arroyo,
G.R. No. 171396, 2006) (c) Under color of a known election or
appointment, void because the officer was not
J. DE FACTO V DE JURE OFFICERS
eligible, or because there was a want of power
De Facto Officer in the electing or appointing body, or by
One who is in possession of the office and reason of some defect or irregularity in its
discharging its duties under color of authority. By exercise, such ineligibility, want of power or
color of authority is meant that derived from an defect being unknown to the public; and
election or appointment, however irregular or
informal, so that the incumbent is not a mere (d) Under color of an election, or appointment,
volunteer. [CSC v. Joson, GR No. 154674, 27 May by or pursuant to a public unconstitutional law,
2004 citing State v. Oates, 57 N.W. 296 (1983)] before the same is adjudged to be such.
[Citing State v. Carroll, 38 Conn., 449; Wilcox
Requisites of a De Factor Officer
v. Smith, 5 Wendell [N.Y. ], 231; 21 Am. Dec.,
The conditions and elements of de facto officership 213; Sheehan’s Case, 122 Mass., 445; 23
are the following: Am. Rep., 323.]
1) There must be a de jure office;
2) There must be color of right or general
acquiescence by the public; and The primordial concern that the doctrine seeks to
3) There must be actual physical possession address remains to be the protection of the public,
of the office in good faith. who rely on the acts of a person performing the
One can qualify as a de facto officer only if all the duties of an office pursuant to an irregular or
aforestated elements are present. There can be defective authority. Precluding its application to
no de facto officer where there is no de jure office, cases where there was no good faith possession of
although there may be a de facto officer in a de the office, despite having a color of authority or
jure office. [Tuanda v. Sandiganbayan, G.R. No. right to the office, would render the doctrine's
110544, 1995] purpose nugatory. [Arroyo v. CA, GR No. 202860,
10 April 2019]
De Facto Doctrine: Acts are Deemed Valid
In Luna v. Rodriguez, GR No. L-12647, 26
The treatment of a de facto officer’s acts is
November 1917, the Supreme Court
premised on the reality that third persons cannot
explained/described the doctrine as follows: always investigate the right of one assuming to
hold an important office and, as such, have a right
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to assume that officials apparently qualified and in

office are legally such. Public interest demands In Republic vs. Sereno, the Court held that if
that acts of persons holding, under color of title, an the petitioner is a private individual, the one-year
office created by a valid statute be, likewise, period applies. If it is the government itself seeking
deemed valid insofar as the public – as relief, the period does not apply. It is based on
distinguished from the officer in question – is
the basic principle that prescription does not lie
concerned. Indeed, it is far more cogently
acknowledged that the de facto doctrine has been against the State as found in the Civil code.
formulated, not for the protection of the de facto (Republic v. Sereno, G.R. No. 237428, 2018)
officer principally, but rather for the protection of the
public and individuals who get involved in the De Jure Officer
official acts of persons discharging the duties of an One who has the lawful right to the office in all
office without being lawful officers. [Laud v. People, respects, but who has either been ousted from it,
GR No. 199032, 19 November 2014] or who has never actually taken possession of it.
When the officer de jure is also the officer de facto,
Entitlement to Salary the lawful title and possession are united. (De
General Rule: Rightful incumbent may recover Leon, The Law on Public Officers and Election
from a de facto officer the salary received by the Law, 103-104, 2019)
latter during the time of wrongful tenure even
though the latter is in good faith and under color of Usurper
title. One who take possession of the office and
undertakes to act officially without any color of right
Exception: When there is no de jure officer, the de or authority, either actual or apparent. Note that it
facto officer is entitled to salaries for the period is the color of authority not the color of title, that
when he actually discharged functions. (Civil distinguishes an officer de facto from a usurper. It
Liberties Union v. Executive Secretary, GR No means that the authority to hold office is by some
83896, February 22, 1991) election or appointment, however irregular or
informal.
How is a De Facto Officer Ousted
A de facto officer may be ousted in a direct He is not an officer at all for any purpose.
proceeding where the title will be the principal (De Leon, The Law on Public Officers and Election
issue, not in a collateral action or in an action to Law, 105-106, 2019)
which he is not a party.
De Jure v. De Facto Officer
The proper remedy is to institute quo warranto A de jure officer has a legal right to the office but
proceeding under Rule 66 of the ROC. The title to he may not be in possession of the office; while a
a public office may not be contested except de facto officer possesses the office because of
directly, by quo warranto. color of authority. (De Leon, The Law on Public
(De Leon, The Law on Public Officers and Election Officers and Election Law, 105, 2019)
Law, 113-114, 2019)
De Facto v. Usurper
Prescription of Right to Office
Under the Rules of Court, quo warranto is the DE FACTO OFFICER USURPER
proper remedy against a public officer for his As to mode of acquiring possession of office
ouster from office. The petition should be filed
within one (1) year after the cause of such ouster Officer under any of the One who takes
4 circumstances possession of an office
or the right of the plaintiff to hold such office
mentioned. and undertakes to act
or position arose; otherwise, the action will be
officially without any
barred. The filing of an administrative action does authority, either actual
not suspend the period for filing the appropriate or apparent.
judicial proceeding.
As to color of authority
Rationale for the one year period: Title to public
office should not be subjected to uncertainties
but should be determined as speedily as possible.
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Has color of authority Has neither lawful title

3) Appointive Quo Warranto vs. Elective Quo
nor color of right or title
Warranto. Thus, quo warranto proceeding is the
to office
proper legal remedy to determine the right or title
As to validity of acts to the contested public office or to oust the holder
Acts are valid as to the Acts are absolutely void from its enjoyment. In quo warranto proceedings
public until such time as and can be impeached referring to offices filled by election, what is to be
his title to the office is in any proceeding at any determined is the eligibility of the candidates
adjudged insufficient time, unless and until elected, while in quo warranto proceedings
he continues to act for referring to offices filled by appointment, what is
so long a time as to determined is the legality of the appointment.
afford a presumption of [Republic v. Serreno, GR No. 237428, 2018]
his right to act
4) Consequence of a Bad Faith De Facto Officer.
If the de facto officer acquired title to the office
through bad faith (e.g. falsification of requirements
such as scholastic records): (a) Cannot institute
As to entitlement of salaries quo warranto as it can only be done by a de jure
officer; (b) De facto doctrine; hence, acts are
May be entitled to Not entitled to
deemed valid insofar as the public is concerned;
compensation for compensation
(c) Not entitled to compensation since not in good
services rendered
faith. [Arroyo v. CA, GR No. 202860, 10 April
(De Leon, The Law on Public Officers and Election 2019]
Law, 105-106, 2019)
K. TERMINATION OF OFFICIAL
Doctrines: RELATIONS
1) Quo Warranto as Legal Remedy. The title to a
public office may not be contested except General rule: Upon the expiration of the officer’s
directly, by quo warranto proceedings; and it term, his rights, duties and authority as a public
cannot be assailed collaterally, even through
officer must ipso facto cease.
certiorari, prohibition, mandamus or a motion to
Exception: Unless he is authorized by law to hold
annul or set aside order. Xxx A quo
warranto proceeding is the proper legal remedy to
over.
determine the right or title to the contested public
office and to oust the holder from its enjoyment. It Where an office is created, or an officer is
is brought against the person who is alleged to appointed, for the purpose of performing a
have usurped, intruded into, or unlawfully held single act or the accomplishment of a given
or exercised the public office, and may be result, the office terminates and the officer’s
commenced by the Solicitor General or a public authority ceases with the accomplishment ofthe
prosecutor, as the case may be, or by any person purposes which called it into being.
claiming to be entitled to the public office or
position usurped or unlawfully held or exercised
Term of office–the time during which the officer
by another. [Topacio v. Ong, GR No. 179895,
2008] may claim to hold the office as of right and fixes
the interval after which the several incumbents
2) Clear Right to the Office. For a quo shall succeed one another. It is a fixed and
warranto petition to be successful, definite period oftime to hold office, perform its
the private person suing must show a clear right functions and enjoy its privileges and emoluments
to the contested office. The rightful authority of until the expiration of said period
a public officer, in the full exercise of his public
functions, cannot be questioned by any merely Tenure of office–the period during which the
private suitor, or by any other, except in the form
incumbent actually holds office.
especially provided by law. [Topacio v. Ong, GR
No. 179895, 2008]
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Modes of Termination: (TAD PAIR CAIRR) office during the pendency of a case. Death,
1. Natural causes: (TAD) unless self-inflicted, is an involuntary cessation
a. Expiration of the Term or tenure of office - from office. It is unlike other forms of
his/her rights and duties ipso facto ceases, involuntary cessation from office such as
unless authorized to holdover.
compulsory retirement. Retirees know when
i. Tenure represents the term during which
the incumbent actually holds office. they will retire but no one knows when they will
ii. The tenure may be shorter (or, in case of die.
holdover, longer) than the term for reasons
within or beyond the power of the In administrative cases, the essence of
incumbent. However, a term, or the time procedural due process is one’s right to given
during which the officer may claim to hold the opportunity to be heard. This opportunity to
the office as of right, is not affected by the
be heard must be present at every single stage
holdover. (Valle Verde v. Africa, G.R.
151969, 2009) (See discussion on Part N. of proceedings. Administrative proceedings
Term Limits) require that Judge X be informed of the
charges and be given an opportunity to refute
them. Even after judgement is rendered, due
b. Reaching the Age limit (retirement) - 65 process requires that Judge X not only be
years for public officers and employees
informed of the judgement but also given the
This mode of termination results in the opportunity to seek reconsideration of that
compulsory and automatic retirement of a judgement. The opportunity to be heard can
public officer. only be exercised by those who have resigned
or retired. The reason is obvious: They are still
Compulsory Retirement Age alive. Even if they cease to hold public office,
a. Members of the Judiciary –70 yrs old they can still be made aware of the
b. Other government officers and employees –65
proceedings and actively submit pleadings.
yrs old [new GSIS Charter]
c. Optional retirement age –after rendition of the However, death forecloses any opportunity to
minimum number of years of service [RA 1616] be heard. Dead respondents will never know
c. Death or permanent disability how the proceedings will continue. They
The death of the incumbent of an office, which cannot submit responsive pleadings or plead
is by law to be filled by one person only, innocence of beg clemency. To continue with
necessarily renders the office vacant. The the proceedings is a violation of the right to due
public official cease to hold office upon his process. [Flores-Concepcion v. Castañeda,
death and all his rights, duties and A.M. No. RTJ-15-2438 (Resolution),
obligations pertinent to the office are September 15, 2020; Penned by J. Leonen]
extinguished.
2. Acts or neglect of officer: (PAIR)
Permanent disability covers both physical or a. Prescription of Right to Office - Quo
mental disability. warranto is the proper remedy against a
public officer or employee for his/her
ouster from office which should be
But where the authority to be exercised is
commenced within 1 year after the cause
conferred upon two or more officers, the death of such ouster; otherwise the action shall
of one does not result to the vacancy of the be barred.
whole office. Unless the joint action of all is
expressly required, the survivors may execute b. Abandonment of Office - the voluntary
the office. relinquishment of an office by the holder,
with the intention of terminating his
possession and control thereof.
It is a settled doctrine that a disciplinary case
against a court official or employee may
Requisites
continue even if the officer has ceased to hold
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1. Intention to abandon Exceptions to the rule on holding

2. Overt or “external” act by which the incompatible offices:
intention is carried into effect. i. Where the officer cannot vacate
the first office by his own act
Generally, a person holding a public office ii. Where the first office is held
may abandon such office by nonuser or under a different government
acquiescence. Non-user refers to a from that which conferred the
neglect to use a right or privilege or to second
exercise an office. However, iii. Where the officer is expressly
nonperformance of the duties of an office authorized by law to accept
does not constitute abandonment where another office
such nonperformance results from iv. Where the second office is
temporary disability or from involuntary temporary
failure to perform. Abandonment may also
result from an acquiescence by the officer d. Resignation – Formal renunciation or
in his wrongful removal or discharge, for relinquishment of office. To constitute a
instance, after a summary removal, an complete and operative act of resignation, the
unreasonable delay by an officer illegally officer or employee must show a clear intention
removed in taking steps to vindicate his to relinquish or surrender his position
rights may constitute an abandonment of accompanied by the act of relinquishment.
the office. (Canonizado v. Aguirre, G.R. Resignation implies an expression of the
133132, 2001) incumbent in some form, express or implied, of
the intention to surrender, renounce and
Distinguished from Resignation relinquish the office, and its acceptance by
While resignation in general is a formal competent and lawful authority. A "courtesy
relinquishment, abandonment is a voluntary resignation" cannot properly be interpreted as
relinquishment through non-user. Non-user refers resignation in the legal sense for it is not
to a neglect to use a privilege or a right orto necessarily a reflection of a public official's
exercise an easement or an office. (Municipality intention to surrender his position. Rather, it
of San Andres, Catanduanes v. CA, G.R. No. manifests his submission to the will of the
118883, 1998) political authority and the appointing power.
(Ortiz v. COMELEC, G.R. 78957, 1988)
c. Acceptance of an Incompatible office -
It is a well-settled rule that he who, while Cessation from office by virtue of intervening
occupying one office, accepts another resignation did not warrant the dismissal of the
incompatible with the first, ipso facto administrative complaint against the public
vacates the first office and his title is officer, for the act complained of had been
thereby terminated without any other act or committed when he or she was still in the
proceeding. Public policy considerations service. (Concerned Citizen v. Catena, A.M.
dictate against allowing the same OCA IPI 02-1321-P, 2013)
individual to perform inconsistent and
incompatible duties. The incompatibility Resignation
contemplated is not the mere physical
Resignation–the act of giving up or the act of
impossibility of one person’s performing
a public officer by which he declines his office
the duties of the two offices due to a lack of
time or the inability to be in two places at the and renounces the further right to use it. It is
same moment, but that which proceeds an expression of the incumbent in some form,
from the nature and relations of the two express or implied, of the intention to surrender,
positions to each other as to give rise to renounce and relinquish the office and the
contrariety and antagonism should one acceptance thereof by competent lawful authority
person attempt to faithfully and impartially (Ortiz v. COMELEC, G.R. No. 78957, 1988).
discharge the duties of one toward the
incumbent of the other. (Canonizado v. Requisites:
Aguirre, G.R. 133132, 2001).
a. Intention to relinquish a part of the term
b. Act of relinquishment
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c. Acceptance by the proper authority, Resigning Public Accepting Authority

either expressly or implied Officer
President and VP Congress
Forms of resignation Members of Congress Respective Houses
Governors, Vice- President
a. Where a law requires that resignation is to
Governors, and
be made in any particular form, that form must Mayors and Vice-
be substantially complied with Mayors of Highly
b. Where no such form is prescribed, no particular Urbanized Cities and
mode is required, but the resignation may Independent
be made by any method indicative of the Component Cities
purpose. It need not be in writing, unless so City Mayors and Vice Governor
required by law. A written resignation, delivered Mayors of
to the board or officer authorized to receive it Component Cities,
and fill the vacancy thereby created, is prima and Municipal Mayors
and Vice-Mayors
facie, but not conclusive evidence of the
intention to relinquish the office. Sanggunian Members Sanggunian
concerned
Courtesy resignation cannot properly be Elective Barangay Municipal or City
interpreted as a resignation in the legal sense for it Officials Mayors
is not necessarily a reflection of a public Appointive Public Appointing Authority
official’s intention to surrender his position. Officers
Rather, it manifests his submission to the will
3. Acts of the government or people: (CAIRR)
of the political authority and the appointing
a. Conviction of a crime - termination
power (Ortiz v. COMELEC, supra) results when the penalties of perpetual or
temporary absolute disqualification or
When resignation is effective penalties of perpetual or temporary special
a. Date specified in the tender disqualification are imposed upon
b. If no such date is specified, resignation shall be conviction by final judgment in a trial court
effective when the public officer receives
notice of the acceptance of his resignation, Conviction means conviction in a trial
NOT the date of the letter or notice of court. It contemplates a court finding guilt
acceptance (Gamboa v. CA, G.R. No. L- beyond reasonable doubt followed by a
judgment upholding and implementing
38068, 1981)
such finding.
Revocation of Resignation b. Abolition of office
A resignation can be validly withdrawn before c. Impeachment - way of removing the
the public official is notified of its acceptance President, Vice President, Members of the
(Republic v. Singun, G.R. No. 149356, 2008). Supreme Court and the Constitutional
Commissions and the Ombudsman.
Art. 238 of the RPC makes it an offense for any d. Removal – ouster of the incumbent before
public officer who, before acceptance of his the expiration of his/her term
resignation, abandons his office to the detriment
It is the forcible and permanent
of the public service.
separation of the incumbent from office
before the expiration of his term (Ingles
Acceptance of resignation v. Mutuc,G.R. No. L-20390, 1968)
a. As provided by law
b. If the law is silent on who shall accept and What constitutes removal?
the public officer is an appointive officer,
tender to the appointing authority. If
elective, tender to those authorized by law
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i. Appointment of another officer iii. Constitutional officers – only be

ii. Transfer of an officer to another office means of impeachment
without his consent iv. Judges of lower courts – not subject
iii. Demotion to a lower position with a to the removal power of the President
lower rate of compensation if no cause v. Civil Service officers – only for cause
is shown for it provided by law
iv. Constructive removal or dismissal –
when an act of clear discrimination, Grounds for removal:
insensibility, or disdain by an employer i. Members of Congress – each House
or superior becomes unbearable, may punish its members for disorderly
leaving him with no option but to forego behavior with the concurrence of 2/3
his continued employment. (De Leon) of ALL its members. Suspension if
imposed shall not exceed 60 days.
Limitations ii. The President, Vide-President,
a. Constitutional guarantee of security Members of the Supreme Court, the
of tenure. No officer or employee of Members of the Constitutional
the civil service shall be removed or Commission, and the Ombudsman –
suspended except for cause may be removed on impeachment for,
provided by law [Sec. 2(3), Art and conviction if, culpable violation of
the Constitution, treason, bribery,
IX-B, Constitution]
graft, and corruption, other high
b. Removal or resignation from office is crimes, or betrayal of public trust
not a bar to a finding of administrative iii. Members of the Judiciary – They shall
liability [Office of the President v. hold office during good behavior until
Cataquiz, G.R. No. 183445 (2011)] they reach the age of 70 or become
c. Removal not for a just cause, or non- incapacitated to discharge the duties
compliance with the prescribed of their office. As regards judges of
procedure constitutes a reversible lower courts, the determination by the
error and entitles the officer or Supreme Court as to whether there
employee to reinstatement with back has been a deviation or not from the
requirement of good behavior is
salaries and without loss of seniority
conclusive since it alone has the
rights. power to order their dismissal.
iv. Civil Service Officers or Employees
Elements of Removal for Cause – for causes provided by law
a. The cause is a legal cause, i.e.
determined by law and not the As a matter of law, a department
appointing power secretary’s decision confirming
b. As a general rule, the cause must be the removal of an officer under his
connected to the functions and duties authority is immediately
of the office executory, even pending further
c. The cause must be of a substantial remedy by the dismissed public
nature as to directly affect the interest officer. (Dimapilis- Baldoz v.
of the public Commission on Audit, G.R.
d. The removal must be after due 199114, 2013)
process
e. Recall - refers to the election itself by
Extent of President’s Power of Removal means of which voters decide whether
i. Non career officers exercising purely they should retain their local official or
executive functions whose tenure is elect replacement. The ground for
not fixed by law – may be removed recall is “loss of confidence.”
with or without cause
ii. Officers exercising quasi-legislative A petition for recall should be initiated
or quasi-judicial functions – may be by at least 25% of the total number of
removed only on grounds provided by registered voters of the concerned
law LGU.
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perform substantially the same function

Reorganization as the original offices;
involves the reduction of personnel, consolidation 5. Where the removal violates the order of
of offices, or abolition thereof by reason of separation provided in Section 3 hereof.
economy or redundancy of functions. It alters the (Cotiangco v. Province of Biliran, G.R.
existing structure of government offices or units 157139, 2011)
therein, including the lines of control, authority and
responsibility between them to make the L. THE CIVIL SERVICE
bureaucracy more responsive to the needs of the
public clientele as authorized by law. It could result 1. SCOPE
in the loss of one’s position through removal or
abolition of an office. A valid reorganization for the Civil Service Commission (CSC)
purpose of economy or for making the bureaucracy central personnel agency of the government.
more efficient must pass the test of good faith;
otherwise it is void ab initio. (Pan v. Pena, G.R. Composition
174244, 2009) ● Chairman and 2 commissioners
● Appointed by the President with consent of
If the reorganization was done in good faith, the the Commission on Appointments for a
abolition of positions, which resulted in loss of term of 7 years, without reappointment.
security of tenure of affected government Coverage of the Civil Service
employees, would be valid. Except those who hold All branches, subdivisions, instrumentalities, and
constitutional offices, which provide for special agencies of the government including GOCC with
immunity as regards salary and tenure, no one can original charters.
be said to have any vested right to an office or
salary. (Banda v. Ermita, G.R. No. 166620, 2010) Authority of the Civil Service Commission
The creation of the Truth Commission does not fall 1. Limited to reviewing appointments on the
within the President’s power to reorganize. Section basis of the Civil Service Law.
31 of the Revised Administrative Code refers to 2. Only allowed to check whether the appointee
reduction of personnel, consolidation of offices, or possesses the appropriate civil eligibility or
abolition thereof by reason of economy or the required qualification. CSC has no
redundancy of functions. These refer to situations discretionary power.
where a body or an office is already existent but a
modification or alteration thereof has to be effected. Limitations to the power to appoint
(Biraogo v. The Philippine Truth Commission, G.R. 1. The power does not include authority to make
192935-36, 2010). the appointment itself or to direct the
appointing authority to change the
The existence of any or some of the following employment status of an employee.
circumstances may be considered as evidence of 2. No authority to revoke appointment simply
bad faith in the removals made as a result of because it believed that another person is
reorganization, giving rise to a claim for better qualified.
reinstatement or reappointment by an aggrieved 3. No power to pass upon the qualifications or
party: tenure of the appointing officer or declare the
1. Where there is a significant increase in latter’s position vacant for an act that
the number of positions in the new produced forfeiture of his office.
staffing pattern of the department or 4. Cannot change the tenure of office granted to
agency concerned; appointee such as where the appointing
2. Where an office is abolished and others authority indicated permanent appointment
are performing substantially the same but CSC approved as temporary such
functions is created; appointment.
3. Where incumbents are replaced by those
less qualified in terms of status of 2. APPOINTMENTS TO THE CIVIL SERVICE
appointment, performance and merit;
4. Where there is a reclassification of Classifications
offices in the department or agency
concerned and the reclassified offices a. Career
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(i.e.Undersecretary, Assistant Secretary,

Characteristics: Bureau Director, Assistant Bureau Director,
1. Entrance based on merit and fitness to be Regional Director, Assistant Regional
determined by competitive examinations or Director, Chief of Department Service and
based on highly technical qualifications; other officers of equivalent rank as may be
2. Opportunity for advancement to higher identified by the Career Executive Service
career positions; and Board, all of whom are appointed by the
3. Security of tenure President) [Sec. 7, Chapter 1, Title IA,
Administrative Code of 1987]
General Rule: Appointments to the Career Service
is to be determined as far as practicable by The position of department manager is not a third
competitive examination. level position which is appointed by the President.
For said reason, a PEZA department manager only
Exceptions: Appointments to the following needs the approval of the PEZA Director-General
positions are exempt from the competitive to validate his appointment or re-appointment. As
examination requirement. he need not possess a CESO or CSEE eligibility,
the CSC has no valid and legal basis in invalidating
b. Policy determining - where the officer is his appointment or re-appointment. (Agyao v. CSC,
vested with the power of formulating G.R. 182591, 2011)
policies for the government or any of its
agencies, subdivisions, or instrumentalities Requisites
Two requisites must concur in order that an
c. Primarily Confidential – the officer enjoys employee in the career executive service may
primarily such close intimacy with the attain security of tenure, to wit:
appointing authority which insures freedom
intercourse without embarrassment or a) CES eligibility; and
freedom of misgiving of betrayal of personal b) Appointment to the appropriate CES rank.
trust on confidential matters of the state (De
Los Santos v. Mallare, G.R. No. L-3881, In addition, it must be stressed that the security of
1950). The position characterized by the tenure of employees in the career executive
close proximity of positions of the appointee as service (except first and second-level employees in
well as the high degree of trust and the civil service), pertains only to rank and not to
confidence inherent in their relationship the office or to the position to which they may be
(CSC v. Javier, G.R. No. 173264, 2008) appointed. Thus, a career executive service officer
may be transferred or reassigned from one position
d. Highly Technical – requires possession of to another without losing his rank which follows him
technical skill or training in a superior degree. wherever he is transferred or reassigned. (General
(e.g. City Legal Officer) v. Roco, G.R. No. 143366, 2001)
N.B. It is the nature of the position which First, in order to qualify an appointment as
determines whether a position is policy permanent, the appointee must possess the rank
determining, primarily confidential or highly appropriate to the position. Failure in this respect
technical will render the appointment merely temporary.
Second, security of tenure in the career executive
Levels of Positions service ("CES") is thus acquired with respect to
1. 1st level: clerical, trades, crafts and custodial rank and not to position. The guaranty of security
service positions involving non- of tenure to members of the career executive
professional/sub-professional in a non- service does not extend to the particular positions
supervisory or supervisory capacity requiring to which they may be appointed - a concept which
less than 4 years of collegiate studies. is applicable only to first and second-level
2. 2nd level: professional, technical and employees in the civil service - but to the rank to
scientific positions in a non- which they are appointed by the President.
supervisory/supervisory capacity requiring at (Dimayuga v. Benedicto, G.R. No. 144153, 2002)
least 4 years of college work up to division
chief level. b. Non-career
3. 3rd level: career executive service positions Characteristics:
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1. Entrance on bases other than those of the 3. PERSONNEL ACTIONS

usual test of merit and fitness;
2. Tenure which is limited to: Personnel action
a. Period specified by law; Any action denoting movement or progress of
b. Coterminous with that of appointing personnel in the civil service. (EO 292, Rule V, § 1,
authority; cited in City Mayor Debulgado v. CSC, G.R.
c. Subject to appointing authority’s 111471, 1994).
pleasure;
d. Limited to the duration of a particular Includes the following: (PART R2D2)
project.
1. Appointment through certification
3. They, however, enjoy constitutional
2. Promotion
guarantee that they cannot be removed
3. Transfer
except for cause and after due hearing.
4. Reinstatement
5. Reemployment
Oppositions to Appointment 6. Detail
Any person who feels aggrieved by the 7. Reassignment
appointment of a person may file a protest against 8. Demotion
the appointment.
It is the CSC which is empowered to look into the
Causes for protesting appointment
validity of creation of positions and appointments of
1. Appointee not qualified; personnel appointed by the Mayor which
2. Appointee is not the next-in-rank;
appointments were confirmed by the CSC. There
3. In the case of appointment by transfer,
reinstatement, or by original appointment, being a valid appointment confirmed by CSC and
that the protestant is not satisfied with the the concerned personnel having rendered
written special reason(s) given by the services, payment of their salaries is proper and
appointing authority. legal. (Tolentino v. Loyola, G.R. 153809, 2011)
Meaning of “For Cause” Valid personnel actions

For reasons which the law and sound public policy
recognized as sufficient warrant for approval, that 1. Extending temporary appointment, however,
is, legal cause, and not merely causes which this must not amount to removal.
appointing power in the exercise of discretion may 2. Transfer or re-assignment but this must not
deem sufficient. The cause must relate to and involve a reduction in rank, status, and
affect the administration of the office, and must be salary, without break in service.
restricted to something substantial in nature. 3. Detail must be made in the interest of public
service, absent showing of manifest abuse or
Revocation or Recall of Appointment improper motive or purpose.
General Rule: Appointment once made is
Personnel actions amounting to removal
irrevocable and not subject to reconsideration.
1. Shortening term is removal
Grounds when CSC has power to recall, on its 2. Control does not extend to removal
own initiative, an appointment initially 3. Demotion
approved: 4. Denial of optional retirement and refusal to
reinstate
1. Non-compliance with the procedures/criteria
provided in the agency’s merit promotional While a temporary transfer or assignment of
plan personnel is permissible even without the
2. Failure to pass through the agency’s employee’s prior consent, it cannot be done when
selection/promotion board the transfer is a preliminary step toward his
3. Violation of the existing collective agreement removal, or is a scheme to lure him away from his
between management and employees relative permanent position, or designed to indirectly
to promotion terminate his service, or force his resignation. Such
4. Violation of other existing civil service law, a transfer would in effect circumvent the provision
rules and regulations which safeguards the tenure of office of those who
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are in the Civil Service. (Garcia v. Lejano, G.R. L- Requisites for validity
12220, 1960). 1. Any permanent appointee of a career
service position
Waiver of security of tenure 2. No commission of delinquency or
Acceptance of temporary appointment or misconduct, and is not separated.
assignment, without reservations, is a waiver of 3. The reinstatement is to a position in the
security of tenure. same level for which the officer is qualified.
Automatic Reversion Rule Reinstatement has the same effect as executive

All appointments involved in a chain of promotions clemency, which completely obliterates the
must be submitted simultaneously for approval by adverse effects of the administrative decision
the Commission. which found him guilty of dishonesty. He is
restored ipso facto upon grant of such.
The disapproval of the appointment of a person Application for reinstatement = unnecessary.
proposed to a higher position invalidates the
promotion of those in the lower positions and Detail
automatically restores them to their former
positions. Affected persons are entitled to payment Detail – movement of an employee from one
of salaries for services rendered at a rate fixed in agency to another without the issuance of an
their promotional appointments. (Sec. 13 of the appointment.
Omnibus Rules Implementing Administrative
Code) Requisites for validity
1. Only for a limited period.
Requisites: 2. Only for employees occupying professional,
1. series of promotions technical and scientific positions.
2. all promotional appointments are 3. Temporary in nature.
simultaneously submitted to the Commission
for approval Reassignment
3. Commission disapproves the appointment of a An employee may be reassigned from one
person to a higher position organizational unit to another in the SAME agency.
Transfer It is a management prerogativeof the CSC and

Transfer – movement from one position to another anydepartment or agency embraced in the Civil
which is of equivalent rank, level or salary Service and does not constitute removal without
without break in service. cause.
This may be imposed as an administrative remedy. Requisites for validity

1. No reduction in rank, status or salary.
General Rule: If transfer is withoutconsent, it 2. The reassignment is from one organizational
violates security of tenure. unit to another in the same agency.
Exceptions 3. Should havea definite date or duration
1. Temporary Appointee (c.f.Detail). Otherwise, a floating assignment
2. Career Executive Service Personnel whose would be tantamount to a diminution in status
status and salaries are based on ranks, not on or rank
position.
Reemployment
Reinstatement Names of persons who have been appointed
permanently to positions in the career service
Reinstatement – technically the issuance of a and who have been separated as a result of
new appointment and is discretionary on the reduction in force and/or reorganization, shall be
part of the appointing power. entered in a list from which selection for
reemployment shall be made.
It cannot be the subject of an application for a writ
of mandamus.
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M. ACCOUNTABILITY OF PUBLIC the entries is to properly account or

OFFICERS negligence. explain his other
(Presidential Anti- sources of income
1. TYPES OF ACCOUNTABILITY Graft Commission does he become
and the Office of the susceptible to
a. Administrative Liability President v. Pleyto, dishonesty.
G.R. 176058, 2011) (Ombudsman v. Nieto,
Grounds for Discipline: (DOOD IPOD MINI G.R. 185685, 2011)
MUG)
Good Faith
1. Discourtesy in the course of official duties;
Good faith is ordinarily used to describe that state
2. Refusal to perform Official duty or render
of mind denoting honesty of intention and freedom
overtime service;
from knowledge of circumstances which ought to
3. Falsification of Official documents;
put the holder upon inquiry. In other words, good
4. Habitual Drunkenness;
faith is actually a question of intention. Although
5. Inefficiency and incompetence in the
this is something internal, one can ascertain a
performance of official duties;
person’s intention not from his own protestation of
6. Willful refusal to Pay just debts or willful
good faith, which is self-serving, but from evidence
failure to pay taxes due to the government;
of his conduct and outward acts. (Dumduma v.
7. Oppression;
CSC, G.R. 182606, 2011)
8. Dishonesty;
9. Misconduct;
Every public official who signs or initials documents
10. Disgraceful and Immoral conduct;
in the course of standard operating procedures
11. Neglect of duty;
does not automatically become a conspirator in a
12. .Physical or mental Incapacity due to immoral
crime that transpired at some stage in which the
or vicious habits;
official had no participation. (Peralta v. Desierto,
13. Conviction of a crime involving Moral
G.R. 153152, 2005)
turpitude;
14. Being notoriously Undesirable;
Even if the dishonest act was committed by the
15. Gambling.
employee prior to entering government service,
such act is still a ground for disciplinary action.
Negligence v. Dishonesty
(Orbase v. Ombudsman, G.R. 175115, 2009)
NEGLIGENCE DISHONESTY
Misconduct in office
In the case of public refers to "any unlawful behavior by a public officer
Dishonesty begins
officials, there is in relation to the duties of his office, willful in
when an individual
negligence when character. The term embraces acts which the office
intentionally makes a
there is a breach of holder had no right to perform, acts performed
false statement in any
duty or failure to improperly, and failure to act in the face of an
material fact, or
perform the affirmative duty to act." In grave misconduct, as
practicing or
obligation, and there is distinguished from simple misconduct, the
attempting to practice
gross negligence elements of corruption, clear intent to violate the
any deception or fraud
when a breach of duty law, or flagrant disregard of established rule must
in order to secure his
is flagrant and be manifest. Corruption as an element of grave
examination,
palpable. Failing to misconduct consists in the act of an official or
registration,
comply with his duty employee who unlawfully or wrongfully uses his
appointment or
to provide a detailed station or character to procure some benefit for
promotion. It should be
list of his assets and himself or for another, contrary to the rights of
emphasized only
business interests in others. (Gabon v. Merka, A.M. P-11-3000, 2011)
when the accumulated
his SALN and for
wealth becomes
relying on the family Grave misconduct
manifestly
bookkeeper/accounta consists in a government official’s deliberate
disproportionate to the
nt to fill out his SALN violation of a rule of law or standard of behavior. It
employee’s income or
and in signing the is regarded as grave when the elements of
other sources of
same without corruption, clear intent to violate the law, or flagrant
income and his failure
checking or verifying disregard of established rules are present. In
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particular, corruption as an element of grave authority. They are null and void and cannot be
misconduct consists in the official’s unlawful and given any effect. The doctrine of estoppel cannot
wrongful use of his station or character to procure operate to give effect to an act which is otherwise
some benefit for himself or for another person, null and void or ultra vires. (Acebedo Optical
contrary to duty and the rights of others. Rigging by Company v. CA, G.R. No. 100152, 2000)
a public official at a bidding in the organization
where he belongs is a specie of corruption. (NPC Jurisdiction in Disciplinary Cases (Cruz)
v. CSC, G.R. 152093, 2012) The Secretaries and heads of agencies and
instrumentalities, provinces, cities and
Simple neglect of duty municipalities shall have jurisdiction to
defined as the failure of an employee to give proper
investigate and decide matters involving
attention to a required task or to discharge a duty
due to carelessness or indifference. On the other disciplinary action against officers and employees
hand, gross neglect of duty is characterized by under their jurisdiction. Their decision shall be final
want of even the slightest care, or by conscious in case the penalty imposed is suspension for not
indifference to the consequences, and in cases more than 30 days or fine in an amount not
involving public officials, by flagrant and palpable exceeding 30 days’ salary.
breach of duty. It is the omission of that care that
even inattentive and thoughtless men never fail to In case the decision rendered by a bureau or
take on their own property. (Land Bank of the office head is appealable to the Commission, the
Philippines vs. San Juan Jr., G.R. 192890, 2013)
same may be initially appealed to the department
When demolition is proper and when improper and finally to the Commission and pending appeal,
that may constitute liability the same shall be executor except when the
penalty is removal, in which case the same
WHEN DEMOLITION WHEN DEMOLITION shall be executory only after confirmation by the
IS PROPER IS NOT PROPER Secretary concerned.
If a Sanggunian
A complaint for The Commission shall decide upon appeal
resolution only
damages and all administrative disciplinary cases involving
authorized a Mayor to
injunction against the the imposition of a penalty of suspension for more
file for unlawful
members of the
detainer in case of than 30 days, or fine in an amount exceeding 30
Philippine army cannot
resistance to obey the days’ salary, demotion in rank or salary transfer,
be held personally
order or to demolish removal or dismissal from office.
accountable for the
the building using
demolition since the
legal means, the act of A complaint may be filed directly with the
act was done in
demolition without
connection with their Commission by a private citizen against a
legal order is not
official duties in government official or employee in which case
proper. After all, the
carrying the AFP it may hear and decide the case or it may
present Local
program of “Oplan Government Code deputize any department, agency, official, or
Linis.” There was no does not expressly
showing that such acts group of officials to conduct the investigation.
provide for the
constitute ultra vires abatement of
acts nor was there a Disciplinary cases and cases involving
nuisance. (Asilo v. “personnel actions” affecting employees in the
showing of bad faith on People of the
the part of petitioners. civil service are within the exclusive jurisdiction
Philippines, G.R.
(Philippine Army, 5th 159017-18, 2011) of the Civil Service Commission, which is the
Infantry Division v. sole arbiter of controversies relating to the civil
Spouses Pamittan, et. service.
al., G.R. 187326,
2011) Executive Order No. 151, or the Presidential
Commission Against Graft and Corruption,
Ultra vires acts exercises jurisdiction to investigate all
acts which are clearly beyond the scope of one's administrative complaints involving graft and
Page 304 of 568
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corruption filed in any form or manner against iii. Limitation on cash advances
presidential appointees in the executive iv. Liability for acts done by
department of the government, including those direction of a superior officer
v. Prohibition against pecuniary
in GOCCs. Such jurisdiction extends to non-
interest
presidential appointees who may have acted in 6. Government Auditing Code
conspiracy or who may have been involved with 7. Local Government Code
a presidential appointee. 8. National Internal Revenue Code
9. Omnibus Election Code
The Sandiganbayan has exclusive original
jurisdiction over presidents, directors or trustees, or
managers of GOCCs, without any distinction with Public officers may not be held criminally liable for
respect to the manner of their creation, whenever failure to perform a duty commanded by law when,
charges of graft and corruption are involved. for causes beyond their control, performance is
impossible.
RA No. 4670, otherwise known as the Magna Carta
for Public School Teachers, covers and governs
However, the absence of corrupt intent is not a
administrative proceedings involving public
defense to an action against an officer for a
school teachers.
statutory penalty for misconduct such as taking
b. Criminal Accountability illegal fees, or for willful failure or refusal to perform
a mandatory ministerial duty
Crimes peculiar to certain public officers
Crimes committed by public officers are classified The mere expiration of his term of office will not
under: prevent the prosecution and punishment of a public
1. Revised Penal Code officer for a misdemeanor committed in office; nor
a. Malfeasance and misfeasance in the re-election of a public official extinguishes the
office criminal liability incurred by him during his previous
b. Frauds and illegal exactions and term of office.
transactions
c. Malversation of public IMPEACHMENT
d. Infidelity of public officers
e. Other offenses and irregularities Impeachment
committed by public officers which Pertains to the power of Congress to remove a
include disobedience, refusal of public official for serious crimes or misconduct as
assistance, maltreatment of prisoners, provided in the Constitution. It is a mechanism
anticipation, prolongation and designed to check abuse of power. (Chief Justice
abandonment of the duties and Renato C. Corona v. Senate of the Philippines
powers of public office, usurpation of sitting as an Impeachment Court, G.R. No. 200242,
powers and unlawful appointments 2012)
2. Anti-Graft and Corrupt Practices Act
3. Code of Conduct and Ethical Standards Who may be impeached: (VP-SOC)
a. Any violation hereof proven in a proper
administrative proceeding shall be 1. President
sufficient cause for removal or 2. Vice President
dismissal of a public official or 3. Supreme Court Justices
employee, even if no criminal 4. Constitutional Commission members
prosecution is instituted against him. 5. Ombudsman (Phil. Const., art. XI, sec. 2)
4. Forfeiture of Unexplained Wealth Act
5. Civil Service Decree Grounds: (GOT BBC)
a. For any violation of the provisions on: 1. Graft and corruption
i. Warrant and checks 2. Other high crimes
receivables for taxes or other 3. Treason
indebtedness of the 4. Betrayal of public trust
government 5. Bribery
ii. Issuance of official receipts 6. Culpable violation of the Constitution (Phil.
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Const., art. XI, sec. 2) 2. Inclusion of the complaint in the Order of

Business within 10 session days
It is an exclusive list. Congress cannot add to the 3. Referral to the proper Committee (i.e.
list of impeachable offenses. Committee on Justice) within 3 session
days
These officers cannot be charged in court with 4. Submission by the Committee of its report
offenses that have removal from office as penalty. with the corresponding resolution, after
But after an official has been impeached, he can be hearing and by a majority vote, to the House
charged with the appropriate offense. within 60 days from such referral
5. Calendaring of the resolution for
Resignation by an impeachable official does not consideration by the House within 10
place him beyond the reach of impeachment session days from receipt thereof
proceedings; he can still be impeached. 6. At least 1/3 vote of all the members of the
House shall be necessary to:
Disbarment. Members of the Supreme Court a. Affirm the resolution with the Articles of
must, under Article VIII (7) (1) of the Constitution, Impeachment of the Committee or
b. Override its contrary resolution (Phil.
be members of the Philippine Bar and may be
Const., art. XI, sec. 3, par. (2) to (4))
removed from office only by impeachment (Article
XI [2], Constitution). To grant a complaint for Roles of the 3 branches of Government in
disbarment of a Member of the Court during the impeachment:
Member's incumbency, would in effect be to 1. Senate has sole power to try and decide
circumvent and hence to ran afoul of the cases of impeachment (Phil. Const., art. XI,
constitutional mandate that Members of the Court sec. 3, par. (6));
may be removed from office only by impeachment 2. If the President is on trial, the Chief Justice
presides but does not vote (Id.);
for and conviction of certain offenses listed in
3. The Supreme Court can determine if
Article XI (2) of the Constitution. [Cuenco v. Congress committed grave abuse of
Fernan, GR No. 3135, 1988] discretion amounting to lack or excess of
jurisdiction (ex. recognizing two
Other public officers and employees - impeachment complaints).
They may be removed from office as provided by
law but, not by impeachment. (Phil. Const., art. XI, For impeachment, judgment of conviction requires
sec. 2) the concurrence of 2/3 of all the Members of the
Senate. (Phil. Const., art. XI, sec. 3, par. (6))
Who may initiate impeachment case
The House of Representatives has exclusive Limitation
power to initiate all cases of impeachment. (Phil. Only one impeachment proceeding should be
Const., art. XI, sec. 3, par. (1)) initiated against an impeachable officer within a
period of one year. (Gutierrez v. House Committee
Procedure: on Justice, G.R. 193459, 2011)
1. Filing of a verified complaint for
The SC found it well-within its power to determine
impeachment, which may be filed by:
whether Congress committed a violation of the
a. Any member of the House of
Constitution or gravely abused its discretion in the
Representatives or
exercise of its functions and prerogatives that could
● If the verified complaint or resolution
translate as lack or excess of jurisdiction in taking
is filed by at least 1/3 of all the
cognizance of two impeachment complaints that
Members of the House, the same
are inquisitorial in function, akin to a preliminary
shall constitute the Articles of
investigation. (Gutierrez v. House Committee on
Impeachment, and trial by the
Justice, G.R. 193459, 2011).
Senate shall proceed
b. Any citizen upon a resolution or
1-year period; When reckoned
endorsement by any Member of the
The 1-year period shall be counted from the time of
House
the filing of the first impeachment complaint.
Impeachment proceedings pertain to the
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proceedings in the House of Representative which power to investigate on its own, or on complaint by
commences from the initiation of the complaint, to any person, any act or omission of any public
the referral to proper committees, to submission of official, employee, office or agency, when such act
the report to the House, subsequent deliberation, or omission appears to be illegal, unjust, improper,
and ends with the transmittal of the Article of or inefficient.
Impeachment to the Senate. An impeachment
case pertains to a trial in the Senate which Statute. It shall be the mandate of the Ombudsman
commences at the time the Articles of and his or her Deputies, as protectors of the
Impeachment are transmitted to the Upper House. people, to act promptly on complaints filed in any
(Gutierrez v. House Committee on Justice, G.R. form or manner against officers or employees of
193459, 2011). the Government, or of any subdivision, agency or
instrumentality thereof, including government-
Effects of impeachment: (LDR) owned or controlled corporations, and to enforce
1. Removal from office of the official concerned their administrative, civil and criminal liability in
2. Disqualification to hold any public office every case where the evidence warrants in order to
3. Public officer still Liable to prosecution, trial, promote efficient service by the Government to the
and punishment if the impeachable offense people. (Sec. 13, R.A. 6770)
committed also constitutes a felony or crime.
(Phil. Const., art. XI, sec. 3, par. (7)) Scope
Sufficiency of form and substance of the Subject Officials. The Office of the Ombudsman
complaint shall have disciplinary authority over all elective
The determination of sufficiency of form and and appointive officials of the Government and its
substance of an impeachment complaint is an subdivisions, instrumentalities and agencies,
exponent of the express constitutional grant of rule- including Members of the Cabinet, local
making powers of the House of Representatives. In government, government-owned or controlled
the discharge of that power and in the exercise of corporations and their subsidiaries, except over
its discretion, the House has formulated officials who may be removed only by
determinable standards as to the form and impeachment or over Members of Congress,
substance of an impeachment complaint. and the Judiciary. [Sec. 21, RA 6770; Alejandro
Furthermore, the Impeachment Rules are clear in v. Office of the Ombudsman Fact-Finding and
echoing the constitutional requirements and Intelligence Bureau, G.R. 173121, 2013]
providing that there must be a "verified complaint
or resolution,” and that the substance requirement However, the Office of the Ombudsman shall have
is met if there is "a recital of facts constituting the the power to investigate any serious misconduct in
offense charged and determinative of the the office allegedly committed by officials
jurisdiction of the committee.” The Supreme Court removable by impeachment, for the purpose of
cannot look into the narration of facts constitutive filing a verified complaint for impeachment if
of the offenses, because such would require the warranted. [Sec. 22, RA 6670]
Court to make a determination of what constitutes
an impeachable offense. Such a determination is Full Disciplinary Administrative Authority. In
considered to be purely a political question and the exercise of his duties, the Ombudsman is given
thus left to the sound determination of the full administrative disciplinary authority. His power
legislature. (Gutierrez v. House Committee on is not limited merely to receiving, processing
Justice, G.R. 193459, 2011). complaints, or recommending penalties. He is to
conduct investigations, hold hearings, summon
witnesses and require production of evidence and
2. THE OMBUDSMAN AND THE OFFICE OF place respondents under preventive suspension.
THE SPECIAL PROSECUTOR This includes the power to impose the penalty of
removal, suspension, demotion, fine, or censure of
The Ombudsman a public officer or employee. The provisions in RA
6770 taken together reveal the manifest intent of
Legal Basis the lawmakers to bestow on the Office of the
Ombudsman full administrative disciplinary
Constitution. Section 13(1), Article XI of the 1987 authority. These provisions cover the entire gamut
Constitution provides that the Ombudsman has the of administrative adjudication which entails the
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authority to, inter alia, receive complaints, conduct election (either regular or special)
investigations, hold hearings in accordance with its 6. For Ombudsman: In addition to the above
rules of procedure, summon witnesses and require qualifications, he/she must have been for 10
the production of documents, place under years or more:
preventive suspension public officers and a. A judge OR
employees pending an investigation, determine the b. Engaged in the practice of law in the
appropriate penalty imposable on erring public Philippines. (Sec. 5, R.A. 6770)
officers or employees as warranted by the
evidence, and, necessarily, impose the said Appointment, Term, and Filling of vacancies
penalty. Thus, it is settled that the Office of the 1. Appointed by the President in a list of at
Ombudsman can directly impose administrative
least 3 nominees for each vacancy
sanctions. (Cabalit v. COA, G.R. 180236, 2012)
prepared by the Judicial and Bar Council
Plenary and Unqualified. The Ombudsman is (JBC). Said list must be published in a
clothed with authority to conduct preliminary newspaper of general circulation. (Sec.4,
investigation and to prosecute all criminal cases R.A. 6770).
involving public officers and employees, not only 2. Appointments do NOT require
those within the jurisdiction of the Sandiganbayan, confirmation
but those within the jurisdiction of the regular courts 3. All vacancies shall be filled within 3 months
as well. xxx The power to investigate and to after they occur. (Sec. 4)
prosecute granted by law to the Ombudsman is 4. Appointees shall serve a 7-year term
plenary and unqualified. It pertains to any act or without reappointment. (Sec. 7)
omission of any public officer or employee when 5. All other officers and employees of the
such act or omission appears to be illegal, unjust, Office of the Ombudsman and the Office of
improper or inefficient. The law does not make a the Special Prosecutor shall be appointed
distinction between cases cognizable by the by the Ombudsman in accordance with the
Sandiganbayan and those cognizable by regular Civil Service Law. (Sec. 11 (5))
courts. It has been held that the clause "any illegal 6. In the organization of the Office of the
act or omission of any public official" is broad Ombudsman for filling up of positions
enough to embrace any crime committed by a therein, regional, cultural or ethnic
public officer or employee. [Uy v. Sandiganbayan, considerations shall be taken into account
GR No. 105965-70, 2001] to the end that the Office shall be as much
NOTE: This modified the 1999 ruling of the as possible representative of the regional,
same case that initially said that the ethnic and cultural make-up of the Filipino
Ombudsman only has prosecutorial powers nation. (Sec. 4)
only in cases cognizable by the
Sandiganbayan and not before the RTC. Disqualifications and Prohibitions:
Thus, the 2001 ruling has confirmed the 1. Cannot hold any other office or employment
prosecutorial power of the Ombudsman in during his tenure;
both Sandiganbayan and RTC. 2. Cannot engage (directly or indirectly) in the
practice of any profession or in the active
Composition: management or control of any business
which may be affected by the functions of his
1. Ombudsman/Tanodbayan; office;
2. Overall Deputy (at least one Deputy each for 3. Cannot be financially interested, directly or
Luzon, Visayas and Mindanao); and indirectly, in any contract with or in any
3. Deputy for military establishment may be franchise or privilege granted by the
appointed. Government, any of its subdivisions,
agencies or instrumentalities, including
Qualifications (Ombudsman and Deputies): GOCCs or their subsidiaries;
1. Natural born citizen of the Philippines 4. Shall not be qualified to run for any office in
2. At least 40 years old at time of appointment the election immediately following their
3. Recognized probity and independence; cessation from office; and
4. Member of the Philippine bar 5. Shall not be allowed to appear or practice in
5. Must not have been candidate for any the Ombudsman for 2 years following their
elective office in the immediately preceding
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cessation from office. (Sec. 9. R.A. 6770) Special Prosecutor Not Entitled to the
Independence Enjoyed by the Ombudsman.
The Court resolved (by a vote of 8-7) to maintain
Removal from office the validity of Section 8 (2) of RA No.
6770 insofar as the Special Prosecutor is
1. The Ombudsman may be removed only by concerned. The Court did not consider the Office
way of impeachment. (Phil. Const., art. XI, of the Special Prosecutor to be constitutionally
sec. 2) within the Office of the Ombudsman and is,
2. Special Prosecutor may be removed from hence, not entitled to the independence the latter
office by the President for any of the grounds enjoys under the Constitution. [Gonzales v. OP,
provided for the Ombudsman after due GR No. 196231, 2014]
process. [Sec. 8(2), RA 6670]
3. A Deputy Ombudsman is not subject to the
discipline and removal of the President Deputy Ombudsman is Not an Impeachable
[Gonzales v. OP, GR No. 196231, 2014]. Official (Hence, Subject to the Administrative
Investigation of the Ombudsman). As
Deputy Ombudsman Not Subject to enumerated in Sec. 2 of Article XI of the 1987
Discipline and Removal of the President. Constitution, only the following are impeachable
Subjecting the Deputy Ombudsman to discipline officers: the President, the Vice President, the
and removal by the President, whose own alter members of the Supreme Court, the
egos and officials in the Executive Department members of the Constitutional Commissions,
are subject to the Ombudsman's disciplinary and the Ombudsman. Thus: 1) List of
authority, cannot but seriously place at risk the impeachable officials is exclusive; 2) Deputy
independence of the Office of the Ombudsman Ombudsman not part of the list; 3) Ruling in
itself. The Office of the Ombudsman, by express Cuenco v. Fernan (that Deputy Ombudsman is
constitutional mandate, includes its key officials, subject to impeachment) is an obiter; 4)
all of them tasked to support the Ombudsman in Ombudsman can investigate the Deputy
carrying out her mandate. Unfortunately, Ombudsman; 5) Removal, resignation,
intrusion upon the constitutionally-granted permanent disability, or retirement is not a bar to
independence is what Section 8 (2) of RA No. criminal prosecution in the courts. [Office of the
6770 exactly did. By so doing, the law directly Ombudsman v. Court of Appeals, G.R. No.
collided not only with the independence that 146486, 2005]
the Constitution guarantees to the Office of the
Ombudsman, but inevitably with the principle of Powers, Functions and Duties
checks and balances that the creation of an
Ombudsman office seeks to revitalize. What is 1. Investigate on its own, or on complaint by any
true for the Ombudsman must be equally and person, any act or omission of any public
necessarily true for her Deputies who act as official, employee, office or agency, when
agents of the Ombudsman in the performance of such act or omission appears to be illegal,
their duties. The Ombudsman can hardly be unjust, improper, or inefficient.
expected to place her complete trust in her a. May be done on its own initiative or on
subordinate officials who are not as independent complaint in any form.
as she is, if only because they are subject to b. Such may be delegated.
pressures and controls external to her Office. c. The power to investigate includes the
This need for complete trust is true in an ideal power to impose preventive suspension.
setting and truer still in a young democracy like But, this is not a penalty.
the Philippines where graft and corruption is still d. Investigate does not mean preliminary
a major problem for the government. For these investigation.
reasons, Section 8 (2) of RA 6670 (providing e. The complaint need not be drawn up in
that the President may remove a Deputy the usual form.
Ombudsman) should be declared void. f. The illegal act or omission need not be in
[Gonzales v. OP, GR No. 196231, 2014] NOTE: connection with the duties of the public
This 2014 Decision reversed the 2012 Decision officer or employee concerned.
that initially confirmed the President’s disciplinary g. ANY illegal act may be investigated by
jurisdiction over a Deputy Ombudsman. the Ombudsman. In this regard, the
Ombudsman’s jurisdiction is concurrent
with that of the regular prosecutors.
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prosecute.
NOTE: “This power of investigation d. The refusal by any officer without just
granted to the Ombudsman by the 1987 cause to comply with an order of the
Constitution and The Ombudsman Act is Ombudsman to remove, suspend,
not exclusive but is shared with other emote, fine, censure, or prosecute an
similarly authorized government officer or employee who is at fault or who
agencies such as the PCGG and judges neglects to perform an act or discharge a
of municipal trial courts and municipal duty required by law shall be a ground for
circuit trial courts. The power to conduct disciplinary action against said officer.
preliminary investigation on charges (RA 6770, Sec. 15 (3); Ledesma v. CA,
against public employees and officials is G.R. No. 161629, 2005; Article 11 Sec.
likewise concurrently shared with the 13(3), 1987 Constitution)
Department of Justice. Despite the 4. Direct the officer concerned, in any
passage of the Local Government Code appropriate case, and subject to such
in 1991, the Ombudsman retains limitations as may be provided by law to
concurrent jurisdiction with the Office of furnish it with copies of documents relating to
the President and the local Sanggunians contracts or transactions entered into by his
to investigate complaints against local office involving the disbursement or use of
elective officials.” [Biraogo v. PTC, GR public funds of properties, and report any
No. 192935, 2010 citing Ombudsman v. irregularity to COA for appropriate action
Galicia, GR No. 167711, 2008] 5. Request any government agency for
assistance and information necessary in the
2. Direct, upon complaint or at its own instance, discharge of its responsibilities, and to
any public official or employee of the examine, if necessary, pertinent records and
government, or any subdivision, agency or documents and public matters covered by its
instrumentality thereof, as well as of any investigation when circumstances so warrant
GOCC with original charter, to perform and and with due process.
expedite any act of duty required by law, or 6. Determine the cause of mismanagement,
to stop, prevent and correct any abuse or inefficiency, red tape, fraud and corruption in
impropriety in the performance of duties. the government and make recommendations
a. The Ombudsman has persuasive power, for their elimination and the observance of
and may require that proper legal steps high standards of ethics and efficiency.
are taken by the officers concerned. 7. Promulgate its rules of procedure and
b. The public official or employee must be exercise such other powers or perform such
employed in: functions or duties as may be provided by
i. The Government law.
ii. Any subdivision, agency, or 8. The Office of the Ombudsman enjoys fiscal
instrumentality autonomy. Its approved annual
iii. GOCCs with original charters appropriations should be automatically and
c. The Special Prosecutor may prosecute regularly released.
before the Sandiganbayan, judges
accused of graft and corruption, even if Administrative Complaints &
they are under the Supreme Court. Criminal Complaints
3. Direct the officer concerned to take the
appropriate action against a public official or Disposition of Administrative Complaints. Upon
employee at fault, and recommend his receipt of the complaint, the same shall be
removal, suspension, demotion, fine, evaluated to determine whether the same may be:
censure, or prosecution, and ensure
compliance therewith. 1) Dismissed outright for any of the grounds stated
a. The Ombudsman does not himself under Section 20 of RA 6770, provided, however,
prosecute cases against public officers that the dismissal thereof is not mandatory and
or employees. shall be discretionary on the part of the
b. Final say to prosecute still rests in the Ombudsman or the Deputy Ombudsman
executive department. concerned;
c. The Ombudsman or Tanodbayan may The Office of the Ombudsman may not conduct
use mandamus to compel the fiscal to the necessary investigation of any administrative
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act or omission complained of if it believes that: Judicial Review of the Dispositions of

(a) The complainant has an adequate remedy in Administrative and Criminal Complaints
another judicial or quasi-judicial body;
(b) The complaint pertains to a matter outside the 1) Administrative Complaints
jurisdiction of the Office of the Ombudsman;
(c) The complaint is trivial, frivolous, vexatious or a) Finding of Liability (not light penalties) – Rule
made in bad faith; 43 to CA [Fabian v. Desierto, GR No.
(d) The complainant has no sufficient personal
129742, 1998]
interest in the subject matter of the grievance; or
(e) The complaint was filed after one (1) year
b) Finding of liability (light penalties - any order,
from the occurrence of the act or omission
directive or decision imposing the penalty of
complained of. [Sec. 20, RA 6770)]
NOTE: Hence, in any of the above-enumerated public censure or reprimand, suspension of
instances, the Ombudsman can order the not more than one (1) month’s salary shall be
outright dismissal of the administrative final and unappealable – Sec. 27, RA 6770)
complaint. However, note that the word “may” is - Rule 65 to CA [Crebello v. Sandiganbayan,
merely directory pursuant to Ombudsman v. GR No. 232325, 2019]
Andutan, which ruled that the Ombudsman can
still investigate even after 1 year. c) Dismissal (effect is same as light penalties –
final and unappealable; RATIONALE: If light
2) Treated as a grievance/request for assistance penalties are final and unappealable, then an
which may be referred to the Public Assistance exoneration or dismissal should likewise be)
Bureau, this Office, for appropriate action under – Rule 65 to CA [Crebello v. Sandiganbayan,
Section 2, Rule IV of this Rules; GR No. 232325, 2019]
3) Referred to other disciplinary authorities under 2) Criminal Complaints

par. 2, Sec. 23, RA 6770 for the taking of
appropriate administrative proceedings; a) Finding of Probable Cause – Rule 65 to SC
[Gatchalian v. Ombudsman, GR No. 197613,
4) Referred to the appropriate office/agency or 2017; Ornales v. Deputy Ombudsman, GR
official for the conduct of further fact-finding No. 214312, 2018]
investigation; or
b) Dismissal – Rule 65 to SC [Enemecio v.
5) Docketed as an administrative case for the
Ombudsman, GR No. 146731, 2004; Estrada
purpose of administrative adjudication by the Office
of the Ombudsman. [Sec. 4, Rule III AO 7] v. Desierto, GR No. 156160, 2004; PAO v.
Ombudsman, GR No. 197613, 2017]
NOTE: Grounds for dismissal or non-investigation
under Sec. 20, RA 6770 apply only to the NOTE: A petition for certiorari under Rule 65 of
disposition of administrative complaints. Said the Rules of Court questioning the finding of
grounds cannot be applied to criminal complaints. the existence of probable cause - or the lack
[Espaldon v. Buban, GR No. 202784, 2018] thereof - by the Ombudsman should be filed
with the SC. [Gatchalian v. Ombudsman, GR
Disposition of Criminal Complaints. Upon No. 197613, 2017 citing Estrada v. Desierto,
evaluating the complaint, the investigating officer GR No. 156160, 2004]
shall recommend whether it may be:
1) Dismissed outright for want of palpable merit; 3) Interlocutory Orders (e.g. Preventive Suspension)
2) Referred to respondent for comment; – Rule 65 to CA [Ombudsman v. Capulong, GR
3) Indorsed to the proper government office or No. 201643, 2014; Carpio-Morales v. CA, G.R.
agency which has jurisdiction over the case; No. 217126-27, 2015]
4) Forwarded to the appropriate office or official for
fact-finding investigation;
5) Subjected to preliminary investigation. [Sec. 2, Doctrines:
Rule II, AO 7] 1. Public School Teachers. The Ombudsman
has jurisdiction over disciplinary cases
against government employees, which
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includes public school teachers. However, administrative complaint filed against a public
Section 9 of the Magna Carta for Public officer before the Ombudsman does not bar
School Teachers provides that it must first go an administrative investigation before the
to a committee appointed by the Secretary of Presidential Anti-Graft Commission. The
Education. (Ombudsman v. Estandarte, G.R. jurisdiction of the Ombudsman over
168670, 2007). administrative complaints are not exclusive, it
2. Ombudsman Authority to Impose may be exercised concurrently with an
Administrative Liability is Mandatory. The authorized agency. (Lacson v. Executive
Office of the Ombudsman has the authority Secretary, G.R. 165399, 2011).
to determine the administrative liability of an 7. Ombudsman Penalty Exeucutory Pending
erring public official or employee, and to Appeal. Appeals from decisions of the
direct and compel the head of the concerned Ombudsman in administrative cases do not
officer or agency to implement the penalty stay the execution of the penalty imposed.
imposed. This power to impose This is in accordance with Section 7 Rule III
administrative liability is not merely of the Rules of Procedure of the Ombudsman
recommendatory but actually mandatory. which explicitly states that an appeal shall not
(Ombudsman v. Delijero, G.R. 172635, stop the decision from being executory. No
2010). vested right is violated because pending
3. Ombudsman Powers Not Exclusive. The appeal the appellant is considered as
enumeration of the powers of the preventively suspended and will be paid back
Ombudsman in the Constitution is not wages in case he wins in his appeal. In
exclusive. Congress may add additional addition, under Section 13(8) Article XI of the
powers. The Ombudsman Act grants to the Constitution authorizes the Ombudsman to
Ombudsman fuller authority; he has the formulate its own rules. (Facura v. CA, G.R.
power to impose the penalty of suspension. 166495, 2011).
(Ombudsman v. CA, G.R. 160675, 2006). 8. Public Officer Resignation. Although the
4. No Qualified Political Agency Between Ombudsman is not precluded by Section
Ombudsman and Special Prosecutor. The 20(5) of RA 6770 from conducting the
doctrine of qualified political agency does not investigation, the Ombudsman can no longer
apply to the relationship between the institute an administrative case against a
Ombudsman and the Special Prosecutor. resigned public officer because the latter was
The Special Prosecutor may only file an not a public servant at the time the case was
information only when authorized by the filed. (Ombudsman v. Andutan, G.R. 164679,
Ombudsman. (Perez v. Sandiganbayan, 2011).
G.R. 166062, 2006). 9. Findings of fact by the Office of the
5. Ombudsman’s Exercise of Jurisdiction to Ombudsman when supported by
the Exclusion of Other Disciplining substantial evidence are conclusive. Any
Authority. In administrative cases involving order, directive or decision imposing the
the concurrent jurisdiction of two or more penalty of public censure or reprimand,
disciplining authorities, the body in which the suspension of not more than one (1) month's
complaint is filed first, and which opts to take salary shall be final and unappealable. In the
cognizance of the case, acquires jurisdiction same vein, the decision of the Ombudsman
to the exclusion of other tribunals exercising absolving a public officer of an administrative
concurrent jurisdiction. In this case, since the charge is final and unappealable. (Tolentino
complaint was filed first in the Ombudsman, v. Atty. Roy Loyola et. al., G.R. 153809,
and the Ombudsman opted to assume 2011).
jurisdiction over the complaint, the 10. It is worth stressing that the
Ombudsman’s exercise of jurisdiction is to Ombudsman's finding of probable cause
the exclusion of the Sangguniang Bayan does not touch on the issue of guilt or
exercising concurrent jurisdiction. innocence of the accused. It is not the
Jurisdiction could no longer be transferred to function of the Office of the Ombudsman to
the Sangguniang Bayan by virtue of a rule on such issue. Hence, Courts do not
subsequent complaint filed by the same interfere in the Ombudsman's exercise of
complainants. (Ombudsman vs. Rodriquez, discretion in determining probable cause
G.R. 172700, 2010). unless there are compelling reasons.
6. Not a bar to PAGC Investigation. An (Ganaden v. Ombudsman, G.R.
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170500/170510-11, 2011). Writ vs. Ombudsman. The second

11. Ombudsman has full discretion over the paragraph of Section 14 of RA 6770 is
filing of the Information. Once filed, declared invalid, and as such, the CA may
Sandiganbayan has full control. It is settled impose provisional injunctive writ over the
that the Office of the Ombudsman has the implementation of prevention suspension
sole power to investigate and prosecute on order by the Ombudsman. Furthermore, the
its own or on complaint by any person, any independence granted to the Ombudsman by
act or omission of any public officer or the Constitution means freedom from control
employee, office or agency, when such act or or supervision of the Executive Department,
omission appears to be illegal, unjust, not the Judiciary. (Carpio-Morales v. CA,
improper or inefficient. The power to G.R. No. 217126-27, 2015)
withdraw the Information already filed is a 15. Grant of Immunity. Under such terms and
mere adjunct or consequence of the conditions as it may determine, taking into
Ombudsman’s overall power to prosecute. account the pertinent provisions of the Rules
However, while it is the Ombudsman who has of Court, the Ombudsman may grant
the full discretion to determine whether or not immunity from criminal prosecution to any
a criminal case should be filed in the person whose testimony or whose
Sandiganbayan, once the case has been possession and production of documents or
filed with said court, it is the Sandiganbayan, other evidence may be necessary to
and no longer the Ombudsman, which has determine the truth in any hearing, inquiry or
full control of the case so much so that the proceeding being conducted by the
Information may not be dismissed without the Ombudsman or under its authority, in the
approval of said court. Further, it does not performance or in the furtherance of its
matter whether such filing of a motion to constitutional functions and statutory
dismiss by the prosecution is done before or objectives. The immunity granted under this
after the arraignment of the accused or that and the immediately preceding paragraph
the motion was filed after a reinvestigation. shall not exempt the witness from criminal
(City of Tuguerarao v. Ting, G.R. 192435-3, prosecution for perjury or false testimony nor
2011). shall he be exempt from demotion or removal
12. All kinds of malfeasance, misfeasance, from office. [RA 6770, Sec. 17(2)] The
and nonfeasance. The power of the Office Ombudsman has the power to grant
of the Ombudsman to investigate extends to immunity by itself and even prior to the filing
all kinds of malfeasance, misfeasance, and of information in court. RA 6770 fully
nonfeasance that have been committed recognizes this prosecutory prerogative by
during his tenure of office by any officer or empowering the Ombudsman to grant
employee of the Government, or of any immunity, subject to “such terms and
subdivision, agency or instrumentality conditions” as he may determine. The only
thereof, including government-owned or textual limitation imposed by law on this
controlled corporations. (Office of the authority is the need to take “into account the
Ombudsman v. De Leon, G.R. 154083, pertinent provisions of the Rules of Court,” –
2013). i.e., Section 17, Rule 119 of the Rules of
13. Preliminary Investigation is not Quasi- Court. The rule under RA 6770 clarifies that
Judicial Exercise. A preliminary in cases already filed with the courts, the
investigation partakes of an investigative or prosecution merely makes a proposal and
inquisitorial power for the sole purpose of initiates the process of granting immunity to
obtaining information on what future action of an accused-witness in order to use him as a
a judicial nature may be taken. Even the witness against his co-accused. If there is
action of the Secretary of Justice in reviewing any distinction at all between the public
a prosecutor’s order or resolution via appeal prosecutor and the Ombudsman in this
or petition for review cannot be considered a endeavor, it is in the specificity of and the
quasi-judicial proceeding. Hence, Section 14, higher priority given by law to the
Article VIII of the Constitution does not thus Ombudsman’s purpose and objective. This
extend to resolutions issued by the DOJ accounts for the Ombudsman’s unique
Secretary. (Bondoc v. Tan Tiong, G.R. No. power to grant immunity by itself and even
186652, 2010). prior to the filing of information in court, a
14. Court of Appeals can issue an Injunctive power that the public prosecutor himself
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generally does not enjoy. (Quarto v. elective national or local office in the
Ombudsman, G.R. 169042, 2011). immediately preceding election (either
regular or special). (Sec. 5, R.A. 6770)
Term
Office of the Special Prosecutor
The Special Prosecutor shall serve for a term of
Under PD 1487, as amended by PD 1607, seven (7) years without reappointment. (Sec. 7,
Tanodbayan was both prosecutor and R.A. 6770)
Ombudsman. Harmonisation of the laws left the
Special Prosecutor to continue to exercise powers Removal and Filling of Vacancy
of the former Tanodbayan except those specifically The Special Prosecutor may be removed from
passed on to the Ombudsman. office by the President for any of the grounds
provided for the removal of the Ombudsman (i.e.
Since the power to investigate has been vested to culpable violation of the Constitution, treason,
the Ombudsman, the Special Prosecutor can only bribery, graft and corruption, other high crimes, or
investigate and prosecute if authorised by the betrayal of public trust), and after due process.
Ombudsman. (Sec. 8 (2), R.A. 6770)
Moreover, the jurisdiction of the Office of the Prohibitions and Disqualifications (Note: Same
Ombudsman should not be equated with the limited with those of the Ombudsman and Deputy)
authority of the Special Prosecutor under Section
1. The Special Prosecutor shall not, during their
11 of RA 6770. The Office of the Special
tenure, hold any other office or employment.
Prosecutor is merely a component of the Office of
2. Shall not, during said tenure, directly or
the Ombudsman and may only act under the
indirectly practice any other profession,
supervision and control and upon authority of the
participate in any business, or be financially
Ombudsman. Its power to conduct preliminary
interested in any contract with, or in any
investigation and to prosecute is limited to criminal
franchise, or special privilege granted by the
cases within the jurisdiction of the Sandiganbayan.
government or any subdivision, agency or
[Uy v. Sandiganbayan, G.R. Nos. 105965-70,
instrumentality thereof, including
2001]
government-owned or controlled
corporations or their subsidiaries.
Composition: Supervision and Control
3. Shall strictly avoid conflict of interest in the
1. It shall be composed of the Special conduct of their office.
Prosecutor and his prosecution staff. 4. Shall not be qualified to run for any office in
2. The said office shall be an organic the election immediately following their
component of the Office of the Ombudsman cessation from office.
and under the supervision and control of the 5. Shall not be allowed to appear or practice
Ombudsman. (Sec. 11 (3), R.A. 6770 ) before the Ombudsman for two (2) years
following their cessation from office.
Appointment 6. No spouse or relative by consanguinity or
1. Appointed by the President from a list of 3 affinity within the fourth civil degree and no
nominees for each vacancy prepared by the law, business or professional partner or
JBC. Said list must be published in a associate the Special Prosecutor within one
newspaper of general circulation. (1) year preceding the appointment may
2. Each vacancy shall be filled within 3 months appear as counsel or agent on any matter
after it occurs. (Sec. 4, R.A. 6770) pending before the Office of the Ombudsman
or transact business directly or indirectly
therewith. (Sec. 9, R.A. 6770)
Qualifications:
1. Natural born citizens of the Philippines, This disqualification shall apply during the tenure of
2. At least forty (40) years old, the official concerned. This disqualification likewise
3. Of recognized probity and independence, extends to the law, business or professional firm for
4. Member of the Philippine Bar, and the same period.
5. Must not have been candidates for any
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Authority and Responsibilities special prosecutor;

The Office of the Special Prosecutor shall, under h. Presidents, directors or trustees, or
the supervision and control and upon the authority managers of government-owned or
of the Ombudsman, have the following powers: controlled corporations, state universities
1. To conduct preliminary investigation and or educational institutions or foundations;
prosecute criminal cases within the
jurisdiction of the Sandiganbayan; NOTE: GOCCs with original charters
2. To enter into plea bargaining and those organized and incorporated
agreements; and under the Corporation Code within the
3. To perform such other duties assigned to jurisdiction of the Sandiganbayan
it by the Ombudsman. (Sec. 11 (4)) whenever they are involved in graft and
corruption. (People v. Sandiganbayan,
3. THE SANDIGANBAYAN G.R. 147706-07, 2005). This is subject
now to the amendements under RA
SANDIGANBAYAN: 10660.
EXCLUSIVE ORIGINAL JURISDICTION i. Members of Congress and officials

1. Violations of Anti-graft and Corrupt Practices thereof classified as Grade 27 and up
Act; under the Compensation and Position
2. Republic Act No. 1379 Classification Act of 1989;
3. Chapter II, Section 2, Title VII, Book II of the j. Members of the judiciary without
Revised Penal Code prejudice to the provisions of the
4. One or more of the accused are officials Constitution;
occupying the following positions in the k. Chairmen and members of Constitutional
government whether in a permanent, acting Commissions, without prejudice to the
or interim capacity, at the time of the provisions of the Constitution;
commission of the offense: l. All other national and local officials
a. Officials of the executive branch classified as Grade 27 and higher under
occupying the positions of regional the Compensation and Position
director and higher, otherwise classified Classification Act of 1989.
as Grade '27' and higher, of the 5. Other offenses or felonies whether simple or
Compensation and Position complexed with other crimes committed by
Classification Act of 1989 (Republic Act the public officials and employees mentioned
No. 6758), specifically including: above in relation to their office.
b. Provincial governors, vice-governors,
members of the Sangguniang NOTE: The INFORMATION for the
Panlalawigan and provincial treasurers, aforementioned offenses committed by the
assessors, engineers and other covered public officers, in order to be under the
provincial department heads; EXCLUSIVE ORIGINAL JURISDICTION of the
c. City mayors, vice-mayors, members of Sandiganbayan, must allege damage to the
the Sangguniang Panlungsod, city government or bribery arising from the same
treasurers, assessors, engineers and or closely related transactions or acts in an
other city department heads; amount exceeding One million pesos
d. Officials of the diplomatic service (P1,000,000.00). [Sec. 4, RA 8249 as amended
occupying the position of consul and by RA 10660]
higher;
e. Philippine army and air force colonels, Otherwise, the Regional Trial Court shall have
naval captains, and all officers of higher EXCLUSIVE ORIGINAL JURISDICTION where
rank; the information: (a) does not allege any
f. Officers of the Philippine National Police damage to the government or any bribery; or
while occupying the position of provincial (b) alleges damage to the government or
director and those holding the rank of bribery arising from the same or closely
senior superintendent or higher; related transactions or acts in an amount not
g. City and provincial prosecutors and their exceeding One million pesos (P1,000,000.00).
assistants, and officials and prosecutors [Sec. 4, RA 8249 as amended by RA 10660]
in the Office of the Ombudsman and
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The modified exclusive original jurisdiction of the closely related transactions or acts in an
Sandiganbayan in relation to the expanded amount not exceeding One million pesos
exclusive original jurisdiction of the RTC shall be (P1,000,000.00). [Sec. 4, RA 8249 as amended
effective 05 May 2015. All offenses committed by by RA 10660]
covered public officers prior to 05 May 2015 shall
still be under the Sandiganbayan. [People v. 2) Subject to the rules promulgated by the
Bacaltos, GR No. 248701, 2020; Ampongan v. Supreme Court, the cases falling under the
Sandiganbayan, GR No. 234670, 2019] jurisdiction of the Regional Trial Court under this
section (Sec. 4 as amended) shall be tried in a
THUS: judicial region other than where the official
INFORMATION JURISDICTION holds office. [Sec. 4, RA 8249 as amended by
Damage + Sandiganbayan RA 10660] Failure to comply with this jurisdictional
more than PhP1M requirement as conferred by law shall cause the
Bribery + Sandiganbayan dismissal of the criminal case, with all the actions
more than PhP1M and proceedings undertaken declared as null and
Damage + RTC void, for lack of jurisdiction even if the Supreme
PhP1M and below Court has not yet promulgated the rules. [Non v.
Bribery + RTC Sandiganbayan, GR No. 251177, 2020]
more than PhP1M
No Damage or No RTC 3) In cases where none of the accused are
Bribery occupying positions corresponding to Salary
Grade ’27’ or higher, as prescribed in the said
EFFECTIVITY of RA 10660: 05 May 2015 Republic Act No. 6758 (now RA 11466), or military
and PNP officers mentioned above, exclusive
6. Civil and criminal cases filed pursuant to and original jurisdiction thereof shall be vested in
the proper regional trial court, metropolitan trial
in connection with Executive Order Nos. 1, 2,
court, municipal trial court, and municipal
14 and 14- A, issued in 1986. [Cases in circuit trial court, as the case may be, pursuant
connection with the ill-gotten wealth of to their respective jurisdictions as provided in Batas
Marcos and his family members and Pambansa Blg. 129, as amended. [Sec. 4, RA
cronies that are filed and prosecuted by 8249 as amended by RA 10660]
the PCGG]. [Sec. 4, RA 8249 as amended
Offenses committed in relation to public office
by RA 10660]
1. Accused is any one of the Public Officers and
The Sandiganbayan shall have exclusive original Employees in Subsection (a) of Section 4 of
jurisdiction over petitions for the issuance of RA 8249 or with Salary Grade 27 and above;
the writs of mandamus, prohibition, certiorari, 2. Accused commits any other offense/felony,
habeas corpus, injunctions, and other ancillary than those specified in Subsection (a),
writs and processes in aid of its appellate whether simple or complexed with other
jurisdiction and over petitions of similar nature, crimes;
including quo warranto, arising or that may 3. The offender commits such other
arise in cases filed or which may be filed under offense/felony in relation to his office.
Executive Order Nos. 1, 2, 14 and 14-A, issued
in 1986: Provided, That the jurisdiction over “In relation to his office” - WIC
these petitions shall not be exclusive of the 1. It cannot exist Without the office, or
Supreme Court. [Sec. 4, RA 8249 as amended by 2. If the office is a Constituent element of the
RA 10660] crime as defined in the statute, or
3. Must be Intimately connected with the office
of the offender
REGIONAL TRIAL COURT:
EXCLUSIVE ORIGINAL JURISDICTION In case private individuals are charged as co-
1) The Regional Trial Court shall have exclusive principals, accomplices or accessories with the
original jurisdiction where the information: (a) public officers or employees, including those
does not allege any damage to the government employed in government-owned or controlled
or any bribery; or (b) alleges damage to the corporations, they shall be tried jointly with said
government or bribery arising from the same or
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public officers and employees in the proper exercise of their own original jurisdiction or of their
courts which shall exercise exclusive appellate jurisdiction as herein provided. (Filomena
jurisdiction over them. [Sec. 4, RA 8249 as v. People, G.R. 188630, 2011)
amended by RA 10660]
While it is the Ombudsman who has the full
discretion to determine whether or not a criminal
SANDIGANBAYAN case should be filed in the Sandiganbayan, once
EXCLUSIVE APPELLATE JURISDICTION the case has been filed with said court, it is the
Sandiganbayan, and no longer the Ombudsman,
1) The Sandiganbayan shall exercise which has full control of the case so much so that
exclusive appellate jurisdiction over final the Information may not be dismissed without the
judgments, resolutions or orders of regional approval of said court. In this case, the
trial courts whether in the exercise of their own Sandiganbayan ordered the Special Prosecutor to
conduct a reinvestigation and subsequently
original jurisdiction or of their appellate
granted his motion to withdraw the informations,
jurisdiction as herein provided. after finding no probable cause against the latter on
reinvestigation. The Sandiganbayan thus gave its
2) The procedure prescribed in Batas approval to the withdrawal of the informations and
Pambansa Blg. 129, as well as the ordered the dismissal of the cases. Since no
implementing rules that the Supreme Court appeal was taken by the Special Prosecutor from
has promulgated and may hereafter the order of dismissal within the reglementary
promulgate, relative to appeals/petitions for period, the same had become final and executory.
review to the Court of Appeals, shall apply to (City Government of Tuguegarao v. Ting, G.R.
appeals and petitions for review filed with the 192435-36, 2011)
Sandiganbayan.
In all cases elevated to the Sandiganbayan and
from the Sandiganbayan to the Supreme Court, the
3) In all cases elevated to the Sandiganbayan Office of the Ombudsman, through its Special
and from the Sandiganbayan to the Supreme Prosecutor, shall represent the People, except in
Court, the Office of the Ombudsman, through cases filed pursuant to Executive Order Nos. 1, 2,
its special prosecutor, shall represent the 14 and 14-A. A private complainant in a criminal
People of the Philippines, except in cases filed case before the Sandiganbayan is allowed to
pursuant to Executive Order Nos. 1, 2, 14 and appeal only the civil aspect of the criminal case
14-A, issued in 1986. [Sec. 4, RA 8249 as after its dismissal by said court. (City Government
amended by RA 10660] of Tuguegarao v. Ting, G.R. 192435-36, Sept.14,
2011)
The legislature, in mandating the inclusion of
The special civil action of certiorari is not the proper
'presidents, directors or trustees, or managers of
remedy to challenge a judgment conviction
government-owned or controlled corporations'
rendered by the Sandiganbayan. Petitioner should
within the jurisdiction of the Sandiganbayan, has
have filed a petition for review on certiorari under
consistently refrained from making any distinction
Rule 45. Pursuant to Section 7 of Presidential
with respect to the manner of their creation.
Decree No. 1606, as amended by Republic Act No.
[People v. Sandiganbayan, GR No. 147706, 1999]
8249, decisions and final orders of the
NOTE: This ruling is now subject to the modified
Sandiganbayan shall be appealable to the
exclusive original jurisdiction of the Sandiganbayan
Supreme Court by petition for review on certiorari
and expanded original jurisdiction of the RTC
raising pure questions of law in accordance with
under Sec. 4, RA 8249 as amended by RA 10660
Rule 45 of the Rules of Court. (Icdang v.
(as discussed above).
Sandiganbayan, G.R. 185960, 2012)
Doctrines:
The Sandiganbayan has the authority to order the
It is the Sandiganbayan which has jurisdiction over
preventive suspension of an incumbent Senator
appeals from criminal cases where the accused is
charged with violation of the provisions of RA 3019
a government employee. Pursuant to RA 8249, the
or the Anti-Graft and Corrupt Practices Act.
Sandiganbayan shall exercise exclusive appellate
(Santiago vs. Sandiganbayan, G.R. 128055, 2001)
jurisdiction over final judgments, resolutions or
orders of regional trial courts whether in the
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ATENEO CENTRAL
N. TERM LIMITS Term limit for the President and Vice-President

The President is given a fixed term of six (6) years.
Term v. Tenure He or she is not eligible for reelection. (Phil. Const.,
Term is the period during which an official is art. VII, sec. 4, para. 1) However, a person who has
entitled to hold office. Tenure is the period during succeeded as President for a period not exceeding
which the official actually holds office. Tenure can four (4) years shall be qualified for election to the
be shortened, e.g., by death or removal, but term same office. (Id.)
is changed only by amendment. (Dimaporo v.
Mitra, Jr., G.R. No. 96859, 1991) On the other hand, the Vice-President shall have a
term of six (6) years, but shall not serve for more
Term limits for National and Local Elective than two successive terms. (Id., para. 2)
Officials
Term limit for Members of Congress
POSITION NO. OF TERM No senator shall serve for more than two
YEARS LIMIT consecutive terms. (Phil. Const., art. VI, sec. 4,
PER TERM para. 2)
President 6 years 1 term
This limitation means that a senator who has
served two consecutive terms could run again
Vice President 6 years 2 terms
three years after the expiration of his second term.
(Bernas, S.J., 2009 ed., p. 699) For example, a
Senator 6 years 2 terms
senator who has fully served two terms ending in
Member of the 3 years 3 terms 2019, may run again at the 2022 elections.
House of
Representatives On the other hand, Members of the House of
Representatives are allowed to serve for a term of
Governor 3 years 3 terms three years, but shall not serve for more than three
consecutive terms.. (Phil. Const., art. VI, sec. 7)
Vice Governor Voluntary renunciation for any length of time shall

not be considered as an interruption in the
continuity of his/her service for the full term for
Member of the which he was elected. (Phil. Const., art. VI, sec. &
Sangguniang 7) If one is elected to serve the unexpired term of
Panlalawigan another, that unexpired term, no matter how short,
will be considered one term for the purpose of
Mayor computing the number of successive terms
allowed. (Bernas, S.J., 2009 ed., p. 720)
Vice Mayor
CIVIL SERVICE COMMISSION. The Chairman
and the Commissioners shall be appointed by the
Member of the President with the consent of the Commission on
Sangguniang Appointments for a term of seven years without
Panlungsod / reappointment. Of those first appointed, the
Bayan Chairman shall hold office for seven years, a
Commissioner for five years, and another
Punong Barangay Commissioner for three years, without
reappointment. Appointment to any vacancy shall
be only for the unexpired term of the predecessor.
Members of the In no case shall any Member be appointed or
Sangguniang designated in a temporary or acting capacity. [Sec.
Barangay 1(2), Art. IX-B, 1987 Constitution]
Sangguniang COMMISSION ON ELECTIONS. The Chairman
Kabataan and the Commissioners shall be appointed by the
President with the consent of the Commission on
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Appointments for a term of seven years without one for which the official concerned was elected.
reappointment. Of those first appointed, three The purpose of this provision is to prevent a
Members shall hold office for seven years, two circumvention of the limitation on the number of
Members for five years, and the last Members for terms an elective local official may serve.
three years, without reappointment. Appointment Conversely, if he is not serving a term for which he
to any vacancy shall be only for the unexpired term was elected because he is simply continuing the
of the predecessor. In no case shall any Member service of the official he succeeds, such official
be appointed or designated in a temporary or cannot be considered to have fully served the term
acting capacity. [Sec. 1(2), Art. IX-C, 1987 notwithstanding his voluntary renunciation of office
Constitution] prior to its expiration." (Borja, Jr. v. Commission on
Elections, G.R. No. 133495, 1998)
COMMISSION ON AUDIT. The Chairman and the
Commissioners shall be appointed by the "The term limit for elective local officials must be
President with the consent of the Commission on taken to refer to the right to be elected as well as
Appointments for a term of seven years without the right to serve in the same elective position.
reappointment. Of those first appointed, the Consequently, it is not enough that an individual
Chairman shall hold office for seven years, one has served three consecutive terms in an elective
Commissioner for five years, and the other local office, he must also have been elected to the
Commissioner for three years, without same position for the same number of times before
reappointment. Appointment to any vacancy shall the disqualification can apply." (Id.)
be only for the unexpired portion of the term of the
predecessor. In no case shall any Member be [Situational examples lifted from the Borja, Jr.
appointed or designated in a temporary or acting case]
capacity. [Sec. 1(2), Art. IX-D, 1987 Constitution]
Case No. 1. Suppose A is a vice-mayor who
OMBUDSMAN. The Ombudsman and his becomes mayor by reason of the death of the
Deputies shall serve for a term of seven years incumbent. Six months before the next election, he
without reappointment. They shall not be qualified resigns and is twice elected thereafter. Can he run
to run for any office in the election immediately again for mayor in the next election?
succeeding their cessation from office. [Sec. 11,
Art. XI, 1987 Constitution] In case of death, Yes, because although he has already first served
resignation, removal, or permanent disability of the as mayor by succession and subsequently
Ombudsman, the new Ombudsman shall be resigned from office before the full term expired, he
appointed for a full term. Undoubtedly, Sec. 8(3), has not actually served three full terms in all for the
R.A. No. 6770 is consistent with Sec. 11, Art. XI of purpose of applying the term limit. Under Art. X, §8,
the 1987 Constitution in so far as it provides that voluntary renunciation of the office is not
the Ombudsman and the deputies shall serve for a considered as an interruption in the continuity of his
term of seven years. [Ifurung v. Carpio-Morales, service for the full term only if the term is one "for
GR No. 232131, 2018] which he was elected." Since A is only completing
the service of the term for which the deceased and
Term limit for local elective officials; When not he was elected, A cannot be considered to
considered fully served have completed one term. His resignation
The term of office of elective local officials (except constitutes an interruption of the full term.
barangay officials) shall be 3 years and no such
official shall serve for more than three consecutive Case No. 2. Suppose B is elected mayor and,
terms. (Phil. Const., art. X, sec. 8, para. 1) during his first term, he is twice suspended for
misconduct for a total of 1 year. If he is twice
Furthermore, the voluntary renunciation of office reelected after that, can he run for one more term
for any length of time shall not be considered as an in the next election?
interruption in the continuity of his service for the
full term for which he was elected. (Id., para. 2) Yes, because he has served only two full terms
successively.
The 2nd paragraph of Article X, Section 8 of the
Constitution "simply explains when an elective In both cases, the mayor is entitled to run for
local official may be deemed to have served his full reelection because the two conditions for the
term of office. The term served must therefore be application of the disqualification provisions have
Page 319 of 568
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not concurred, namely, that the local official barangay, while serving 3rd term, ran and won as
concerned has been elected three consecutive municipal councilor and served the full term.
times and that he has fully served three Considered as voluntary renunciation. [Bolos v.
consecutive terms. In the first case, even if the local COMELEC, GR No. 184082, 2009]
official is considered to have served three full terms
notwithstanding his resignation before the end of 2) CIRCUMVENTION. After serving 3 terms as
the first term, the fact remains that he has not been Punong Barangay, got elected as barangay
elected three times. In the second case, the local kagawad with sister elected as Punong Barangay,
official has been elected three consecutive times, who resigned the following day after oath of office
but he has not fully served three consecutive terms. to allow succession. Considered as a conspiracy
and hence, a circumvention of the 3-term limit.
Case No. 3. The case of vice-mayor C who [Aguilar v. Benlot, GR No. 232806, 2019]
becomes mayor by succession involves a total
failure of the two conditions to concur for the 3) CONVERSION. Conversion of a municipality to
purpose of applying Art. X, §8. Suppose he is twice a city with no break in the service as a local chief
elected after that term, is he qualified to run again executive. [Latasa v. COMELEC, GR No. 154829,
in the next election? 2003; Halili v. COMELEC, GR No. 231643, 2019]
Yes, because he was not elected to the office of 4) REAPPORTIONMENT OF DISTRICT. Served
mayor in the first term but simply found himself for 2 terms (2004, 2007) as Provincial Board
thrust into it by operation of law. Neither had he Member (BM) in the Cam. Sur 2nd dist. Cam. Sur
served the full term because he only continued the was reapportioned by RA9716. In 2010 and 2013
service, interrupted by the death, of the deceased he ran and won as BM in the 3rd dist (which is
mayor. essentially the same as the old 2nd dist). [Naval v.
COMELEC, GR No. 207851, 2014]
To consider C in the third case to have served the
first term in full and therefore ineligible to run a third 5) MERGER. Municipalities were merged and
time for reelection would be not only to falsify reality converted into a city, but the Punong Barangay
but also to unduly restrict the right of the people to from the former municipality is the same as that in
choose whom they wish to govern them. If the vice- the city as the new political unit with the same
mayor turns out to be a bad mayor, the people can territory and inhabitants (hence, same group of
remedy the situation by simply not reelecting him voters). [Laceda v. Limena, GR No. 182867, 2008]
for another term. But if, on the other hand, he
proves to be a good mayor, there will be no way the 6) PREVENTIVE SUSPENSION. Preventive
people can return him to office (even if it is just the suspension is not an interruption. Just a temporary
third time he is standing for reelection) if his service inability; not unseated and continued to hold office;
of the first term is counted as one for the purpose just temporarily barred to exercise functions.
of applying the term limit. (Id.) [Aldovino v. COMELEC, GR No. 184836, 2009]
NOT AN INTERRUPTION TO THE FULL TERM 7) ELECTION PROTEST. Election protest, but
(3-TERM LIMIT APPLIES – HENCE, BARRED) able to serve 3 full terms, including the 2nd term
(fully served) where the proclamation was voided.
CONSTITUTIONAL RULE: The term of office of [Ong v. COMELEC, GR N0. 163295, 2006; Rivera
elective local officials, except barangay officials, v. COMELEC, GR No. 167591, 2007]
which shall be determined by law, shall be three
years and no such official shall serve for more than AN INTERRUPTION TO THE FULL TERM (3-
three consecutive terms. Voluntary renunciation of TERM LIMIT DOES NOT APPLY – HENCE, NOT
the office for any length of time shall not be BARRED)
considered as an interruption in the continuity of his
service for the full term for which he was elected. 1) SUCCESSION. Assumption by succession is by
[Sec. 8, Art. X, 1987 Constitution; also Sec. 43(b), operation of law. To count as a term, one must
RA 7160] have been elected and fully served. Law allows the
severance to effectuate succession. [Borja v.
1) RUNNING, WINNING, AND SERVING A COMELEC, GR No. 133495, 1998; Montebon v.
DIFFERENT ELECTIVE POSITION IS COMELEC, GR No. 180444, 2008]]
VOLUNTARY RENUNCIATION. Punong
Page 320 of 568
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a) Vice Mayor to Mayor on 3rd term as Vice Mayor not barred to run in the subsequent election.
then served 2 more terms as mayor; not barred [Dizon v. COMELEC, GR No. 182088, 2009]
to run for another term as mayor. [Borja v.
COMELEC, GR No. 133495, 1998]
----- end of topic -----
b) Councilor served 3 consecutive terms, but
during 2nd term succeeded as Vice Mayor; not
barred to run again as councilor. [Montebon v.
COMELEC, GR No. 180444, 2008]
2) RECALL ELECTION. Previously served for 3

full terms as mayor, then participated in a recall
election; not barred. The prohibited election refers
to the next regular election for the same office
following the end of the third consecutive term.
Any subsequent election, like a recall election, is
no longer covered by the prohibition for two
reasons. First, a subsequent election like a recall
election is no longer an immediate reelection after
three consecutive terms. Second, the intervening
period constitutes an involuntary interruption in the
continuity of service. [Socrates v. COMELEC, GR
No. 154512, 2002] Previously served for 2 full
terms as mayor (1992-1998), ran for a 3rd term
(1998-2001) but lost, then subsequently
participated in a recall election (2000), which he
won served the unexpired term; not barred to run
again for another term – not elected for 3
consecutive terms, continuity as mayor was
disrupted with the defeat, and was a private citizen
for 2 years prior to the recall election. [Adormeo v.
COMELEC, 147927, 2002]
3) DISMISSAL AS PENALTY. Dismissals [as

penalties] were involuntary interruptions; not
considered to have fully served a 3rd successive
term of office. [Tallado v. COMELEC, GR No.
246679, 2019]
4) ELECTION PROTEST.
a) Unseated during 3rd term as mayor because of

an election protest; not barred as not deemed to
have been elected for that term – merely
assumed office as a presumptive winner.
[Lonzanida v. COMELEC, GR No. 135150, 1999]
b) Served as mayor in 2001, 2004, and 2007, but

the 2004 (2nd term) was by virtue of an election
protest and served only the remainder of the 2nd
term; not barred to run in 2010. [Abundo v.
COMELEC, GR No. 201716, 2013]
c) Unseated for running and winning a 4th term

(NOTE: 4th term was invalidated by the SC in
Rivera v. COMELEC), then relinquished office;
Page 321 of 568
ADMINISTRATIVE
LAW
Political Law
ATENEO CENTRAL
XI. ADMINISTRATIVE LAW A. GENERAL PRINCIPLES
TOPIC OUTLINE UNDER THE SYLLABUS: Administrative Law
1) Dean Roscoe Pound: It is the branch of modern

XI. ADMINISTRATIVE LAW
law under which the executive department of the
government, acting in a quasi-legislative or quasi-
A. General Principles
judicial capacity, interferes with the conduct of the
individual for the purposes of promoting the well-
B. Administrative Agencies being of the community, as under laws regulating
public interest, professions, trades and callings,
C. Powers of Administrative Agencies rates and prices, laws for the protection of public
1. Quasi-Legislative(Rule-Making) Power health and safety, and the promotion of public
a. Kinds of administrative convenience. (Carlo Cruz, Philippine
rules and regulations Administrative Law 1, 2016)
b. Requisites for validity
2. Quasi-judicial (adjudicatory) power 2) Professor Goodnow: That part of public law
a. Administrative due process
which fixes the organization of the government and
b. Administrative appeal and review
determines the competence of the authorities who
c. Administrative res judicata execute the law and indicates to the individual
remedies for the violation of rights. (Carlo Cruz,
D. Judicial Review Philippine Administrative Law 2, 2016)
1. Doctrine of Primary Administrative
Jurisdiction 3) Justice Frankfurter: That branch of the law
2. Doctrine of Exhaustion of Administrative which deals with the field of legal control exercised
Remedies by law-administering agencies other than courts,
3. Doctrine of Finality of (Administrative) and the field of control exercised by courts over
Action such agencies. (Carlo Cruz, Philippine
Administrative Law 2, 2016)
Administration: Internal or External.

INTERNAL EXTERNAL
ADMINISTRATION ADMINISTRATION
Covers those rules Defines the relations
defining the relations of of the public office with
public functionaries the public in general.
inter se and embraces
the whole range of the
law of public officers,
i.e. qualifications,
powers, rights, duties,
and liabilities.
(Carlo Cruz, Philippine Administrative Law 8,

2016)
Page 323 of 568

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Administration of Government v. execution. (Carlo Cruz, Philippine Administrative

Administration of Justice Law 12, 2016)
ADMINISTRATION OF ADMINISTRATION
Agency - refers to any of the various units of the
GOVERNMENT OF JUSTICE Government, including a department, bureau,
Administrative officers Work done consists in office, instrumentality, or government-owned or
must determine what is the decision of controlled corporations, or a local government or a
the law in order to controversies distinct unit therein. [Sec. 2(4), Introductory
determine whether they between individuals Provisions, Administrative Code of 1987]
are competent to act and government
and if it is wise to act. officers, as to the Department - refers to an executive department
applicability in the created by law. This shall include any
cases in question; all instrumentality, as herein defined, having or
that judicial officers assigned the rank of a department, regardless of
have to do is its name or designation. [Sec. 2(7), Introductory
determine what law is Provisions, Administrative Code of 1987; Section
applicable to the facts 3(h), GOCC Governance Act of 2011, Republic Act
brought before them. No. 10149]
(De Leon,
Administrative Law: Bureau - refers to any principal subdivision or unit
Text and Cases 19, of any department. This shall include any principal
2016) subdivision or unit of any instrumentality given or
assigned the rank of a bureau, regardless of actual
name or designation, as in the case of department-
ADMINISTRATION GOVERNMENT
wide regional offices. [Sec. 2(8), Introductory
Provisions, Administrative Code of 1987]
Refers to the aggregate Institution or
of persons in whose aggregate of
Office - refers, within the framework of
hands the reins of the institutions by which
governmental organization, to any major functional
government are an independent
unit of a department or bureau including regional
entrusted by the people society makes and
offices. It may also refer to any position held or
for the time being. (US carries out those rules
occupied by individual persons, whose functions
v. Dorr) of action which are
are defined by law or regulation. [Sec. 2(9),
necessary to enable
Introductory Provisions, Administrative Code of
men to live in a
1987]
civilized state, or
which are imposed
Government-Owned or -Controlled Corporation
upon the people
(GOCC) - refers to any agency organized as a
forming that society by
stock or non-stock corporation, vested with
those who possess
functions relating to public needs whether
the power or authority
governmental or proprietary in nature, and owned
of prescribing them.
by the Government of the Republic of the
Government is the
Philippines directly or through its instrumentalities
aggregate of
either wholly or, where applicable as in the case of
authorities which rule
stock corporations, to the extent of at least a
a society. (US v. Dorr,
majority of its outstanding capital stock: Provided,
GR No. 1051, 1903)
however, That for purposes of this Act, the term
"GOCC" shall include GICP/GCE and GFI. [Section
B. ADMINISTRATIVE AGENCIES 3(o), Republic Act No. 10149, GOCC Governance
Act of 2011]
DEFINITIONS
Government Financial Institutions (GFIs) - refer
Administrative Agency – May be described as a to financial institutions or corporations in which the
body endowed with quasi-legislative and quasi- government directly or indirectly owns majority of
legislative powers for the purpose of enabling it to the capital stock and which are either: (1)
carry out laws entrusted to it for enforcement or registered with or directly supervised by the
Page 324 of 568
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Bangko Sentral ng Pilipinas; or (2) collecting or and control as defined in this paragraph. [Section
transacting funds or contributions from the public 38(1), Book IV, Chapter VII, Administrative Code of
and places them in financial instruments or assets 1987]
such as deposits, loans, bonds and equity
including, but not limited to, the Government 2) Administrative supervision which shall govern
Service Insurance System and the Social Security the administrative relationship between a
System. [Section 3(m), Republic Act No. 10149, department or its equivalent and regulatory
GOCC Governance Act of 2011]
agencies or other agencies as may be provided by
Government Instrumentalities with Corporate law, shall be limited to the authority of the
Powers (GICP)/Government Corporate Entities department or its equivalent to generally oversee
(GCE) - refer to instrumentalities or agencies of the the operations of such agencies and to insure that
government, which are neither corporations nor they are managed effectively, efficiently and
agencies integrated within the departmental economically but without interference with day-to-
framework, but vested by law with special functions day activities; or require the submission of reports
or jurisdiction, endowed with some if not all
and cause the conduct of management audit,
corporate powers, administering special funds, and
enjoying operational autonomy usually through a performance evaluation and inspection to
charter including, but not limited to, the following: determine compliance with policies, standards and
the Manila International Airport Authority (MIAA), guidelines of the department; to take such action
the Philippine Ports Authority (PPA), the Philippine as may be necessary for the proper performance
Deposit Insurance Corporation (PDIC), the of official functions, including rectification of
Metropolitan Waterworks and Sewerage System violations, abuses and other forms of
(MWSS), the Laguna Lake Development Authority
maladministration; and to review and pass upon
(LLDA), the Philippine Fisheries Development
Authority (PFDA), the Bases Conversion and budget proposals of such agencies but may not
Development Authority (BCDA), the Cebu Port increase or add to them;
Authority (CPA), the Cagayan de Oro Port
Authority, the San Fernando Port Authority, the Such authority shall not, however, extend to: (1)
Local Water Utilities Administration (LWUA) and appointments and other personnel actions in
the Asian Productivity Organization (APO). accordance with the decentralization of personnel
[Section 3(n), GOCC Governance Act of 2011, functions under the Code, except appeal is made
Republic Act No. 10149]
from an action of the appointing authority, in which
NOTE: Being instrumentalities of the government, case the appeal shall be initially sent to the
GICPs/GCEs are not subject to real property tax department or its equivalent, subject to appeal in
imposed by the LGUs except when beneficial use accordance with law; (2) contracts entered into by
of the real property is granted to a taxable entity, the agency in the pursuit of its objectives, the
which shall be liable for the same. (MCIAA v. City review of which and other procedures related
of Lapu-Lapu, GR No. 181756, 2015; LRTA v. QC, thereto shall be governed by appropriate laws,
GR No. 221626, 2019; Phil. Heart Center v. QC,
rules and regulations; and (3) the power to review,
GR No. 225409, 2020)
reverse, revise, or modify the decisions of
ADMINISTRATIVE RELATIONSHIPS: regulatory agencies in the exercise of their
1) Supervision and control shall include authority regulatory or quasi-judicial functions; and
to act directly whenever a specific function is
entrusted by law or regulation to a subordinate; Unless a different meaning is explicitly provided in
direct the performance of duty; restrain the the specific law governing the relationship of
commission of acts; review, approve, reverse or particular agencies, the word "supervision" shall
modify acts and decisions of subordinate officials
encompass administrative supervision as defined
or units; determine priorities in the execution of
plans and programs; and prescribe standards, in this paragraph. [Section 38(2), Book IV, Chapter
guidelines, plans and programs. Unless a different VII, Administrative Code of 1987]
meaning is explicitly provided in the specific law
governing the relationship of particular agencies, 3) Attachment refers to the lateral relationship
the word "control" shall encompass supervision between the department or its equivalent and the
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ATENEO CENTRAL
attached agency or corporation for purposes of 2. Administrative Orders. - Acts of the

policy and program coordination. [Section 38(3), President which relate to particular aspect of
Book IV, Chapter VII, Administrative Code of 1987] governmental operations in pursuance of his
duties as administrative head shall be
PRESIDENT’S POWER OF CONTROL. The promulgated in administrative orders. [Section
President shall have control of all the executive 3, Chapter 2, Title I, Book 3, Administrative
departments, bureaus, and offices. He shall ensure Code of 1987]
that the laws be faithfully executed. [Sec. 17, Article
VII, 1987 Constitution; Sec. 1, Chapter 1, Book III,
Administrative Code of 1987] This includes the 3. Proclamations. - Acts of the President fixing a
power to reorganize the Office of the President and date or declaring a status or condition of public
the power to transfer any agency and function moment or interest, upon the existence of
between the Office of the President and any other which the operation of a specific law or
department or agency. [Section 31, Chapter 10, regulation is made to depend, shall be
Title III, Book III, Administrative Code of 1987] promulgated in proclamations which shall have
the force of an executive order. [Section 4,
NOTE: Thus, in Biraogo v. PTC, the SC recognized Chapter 2, Title I, Book 3, Administrative Code
the power of the President to create a public office of 1987]
pursuant to the Faithful Execution Clause (which
PTC, however, was declared as unconstitutional
for being violative of the Equal Protection Clause). 4. Memorandum Orders. - Acts of the President
on matters of administrative detail or of
ORDINANCE POWER OF THE PRESIDENT subordinate or temporary interest which only
The President's Ordinance Power is the concern a particular officer or office of the
Executive's rule-making authority in implementing Government shall be embodied in
or executing constitutional or statutory memorandum orders. [Section 5, Chapter 2,
powers. Indisputably, there are constitutional Title I, Book 3, Administrative Code of 1987]
powers vested in the Executive that are self-
executory. The President may issue "rules of a 5. Memorandum Circulars. - Acts of the
general or permanent character in implementation President on matters relating to internal
or execution" of such self-executory constitutional administration, which the President desires to
powers. The power to issue such rules is inherent bring to the attention of all or some of the
in Executive power. Otherwise, the President departments, agencies, bureaus or offices of
the Government, for information or
cannot execute self-executory constitutional
compliance, shall be embodied in
provisions without a grant of delegated power from memorandum circulars. [Section 6, Chapter 2,
the Legislature, a legal and constitutional Title I, Book 3, Administrative Code of 1987]
absurdity. (Abakada Guro Party List v. Purisima,
G.R. No. 166715, 2008) 6. General or Special Orders. - Acts and
commands of the President in his capacity as
Chapter 2, Title 1, Book III of the Administrative Commander-in-Chief of the Armed Forces of
Code of 1987, on the Ordinance Power of the the Philippines shall be issued as general or
Executive provides: special orders. [Section 7, Chapter 2, Title I,
Book 3, Administrative Code of 1987]
1. Executive Orders. - Acts of the President Manner of Creation

providing for rules of a general or permanent 1. Established by the Constitution
character in implementation or execution of ● If created by the Constitution itself, it can
constitutional or statutory powers shall be only be altered or abolished by the
promulgated in executive orders. [Section 2, constitution itself.
Chapter 2, Title I, Book 3, Administrative Code
of 1987] 2. Created by statute or law
● Legislature may amend or repeal the law
creating it, thereby affecting the agency
created by it.
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granted or delegated, expressly or impliedly, by

3. By authority of law law. And in determining whether an agency has
● This is a recognized exception to the certain powers, the inquiry should be from the law
principle of non-delegability of legislative itself. But once ascertained as existing, the
power. authority given should be liberally construed.
(Soriano v. MTRCB, G.R. 165785, 2009)
As a result of the growing complexity of the modern
society, it has become necessary to create more Appropriation
and more administrative bodies to help in the The Administrative Code of 1987 expressly
regulation of its ramified activities. Specialized in declares void a contract that fails to comply with the
the particular fields assigned to them, they can deal two requirements, namely: (1) an appropriation law
with the problems thereof with more expertise and funding the contract and (2) a certification of
dispatch than can be expected from the legislature appropriation and fund availability. The clear
or the courts of justice. This is the reason for the purpose of these requirements is to ensure that
increasing vesture of quasi-legislative and quasi- government contracts are never signed unless
judicial powers in what is now not unreasonably supported by the corresponding appropriation law
called the fourth department of the government. and fund availability. (PNR v. Kanlaon Construction
(Solid Homes v. Payawal, G.R. 84811, 1989) Enterprises Co. Inc., G.R. 182967, 2011).
Kinds of Administrative agencies (BIG GAP) C. POWERS OF ADMINISTRATIVE

1. Perform some Business for the public (e.g. AGENCIES
MWSS, PNR, NFA)
2. Regulate businesses affected with public Nature of Powers
Interest (e.g. LTFRB, ERB)
3. Offer some Gratuity, grant or special 1. Limited Jurisdiction - In general, the
privilege (e.g. GSIS, SSS, Philippine jurisdiction of administrative officers and
Veterans Administration) agencies is special and limited. They
4. Seek to carry on certain functions of the possess a limited jurisdiction, or purely
Government (e.g. BIR, Bureau of constitutional or statutory powers, and they
Customs, Bureau of Immigration) possess only such powers and authority as
5. Seek to Adjust individual controversies have been specifically conferred upon
because of some strong social policy them by the Constitution or specifically
involved (e.g. NLRC, DAR) granted to them by their enabling statutes
6. Seek under Police power to regulate private and those as may be necessarily implied in
businesses and individuals (e.g. SEC, the exercise thereof or incidental to the
MTRCB, Dangerous Drugs Board) attainment of their purposes or objectives.
(De Leon, Administrative Law: Text and Cases 2. Broad Powers within Jurisdiction -
However, the powers conferred on them
32, 2016)
must be commensurate with the duties to
be performed and the purposes to be
The MMDA is a development authority created for
lawfully effected. In various instances, the
the purpose of laying down policies and
powers of particular administrative bodies
coordinating with various agencies, organizations
have been held broad and plenary within
and the private sector, which may enforce, but not
their fields, and in such case, it is only
enact ordinances. RA 7924 does not grant the
where such power and authority have been
MMDA with the police power, let alone the
manifestly abused that a court may
legislative power, and that all its functions are
interfere.
administrative in nature. (MMDA v. Garin, G.R.
3. Powers Limited by Constitution, Law, and
130230, 2005).
Regulations - A government agency must
respect the presumption of constitutionality
Administrative agencies have powers and
and legality to which statutes and
functions which may be administrative,
administrative regulations are entitled until
investigatory, regulatory, quasi- legislative, or
such statute or regulation is repealed or
quasi-judicial, or a mix of the five, as may be
amended, or until set aside in an
conferred by the Constitution or by statute. They
appropriate case by a competent court,
have in fine only such powers or authority as are
and ultimately by the Supreme Court. It is
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not authorized to substitute its own and are often exercised for corrective purposes.
judgment for any applicable law or (e.g. installation of safety devises in common
administrative regulation with the wisdom carriers).
or propriety of which it does not agree, at
least not before such law or regulation is
set aside by the authorized agency of the Dispensing – Relaxes the general operation of
government. (De Leon, Administrative law or exempts the performance from a general
Law: Text and Cases 66, 2016) duty (e.g. exemption from taxes by certain
industries).
While it is a fundamental rule that an administrative
agency has only such powers as are expressly Summary – Uses force upon persons or things
granted to it by law, it is likewise a settled rule that without prior judicial warrant (e.g. padlocking by
an administrative agency has also such powers as Mayor of a business for lack of permit;
are necessarily implied in the exercise of its confiscation of items prohibited per se).
express powers. (LLDA v. CA, GR No. 110120,
1994) Examining – Inspects records and premises;
investigates persons, entities, and activities
The Laguna Lake Development Authority has
coming under its jurisdiction (e.g. DOLE visitorial
power to impose fines in the exercise of its function
power; Ombudsman powers).
as a regulatory and quasi-judicial body with respect
to pollution cases in the Laguna Lake region. (Carlo Cruz, Philippine Administrative Law 52-55,
(Public Hearing Committee of the Laguna Lake 2016)
Development Authority v. SM Prime Holding, G.R.
170599, 2010). NOTE: According to Professor Cruz, determinative
powers are part of the exercise of quasi-judicial
Discretionary vs. Ministerial authority. It is submitted, however, that these
1. Discretionary - The power or right conferred determinative powers can also be exercised as part
upon them by law to act officially under of the quasi-legislative authority and are very much
certain circumstances, according to the part of the executive and regulatory functions of
dictates of their own judgment and
administrative bodies whenever allowed by their
conscience, and not controlled by the
judgment or conscience of others. charters.
2. Ministerial - Nothing is left to discretion; a
simple, definite duty arising under conditions INVESTIGATORY POWERS
admitted or proved to exist, and imposed by
law; a duty performed in response to what Investigatory or inquisitorial powers include the
has been imposed by law under conditions power of an administrative body to inspect the
specified by law not being dependent upon records and premises, and investigate the activities
the officer’s judgment or discretion. of persons or entities coming under its jurisdiction,'
or to secure, or to require the disclosure of
DETERMINATIVE POWERS information by means of accounts, records,
reports, statements, testimony of witnesses,
To better enable the administrative body to
production of documents, or otherwise.2 They are
exercise its executive functions, it is also vested
conferred on practically all administrative agencies.
with Determinative powers classified generally by
Professor Freund as follows: In fact, the investigatory powers of administrative
agencies, or their power and facilities to
Enabling – Permits the doing of an act, without
investigate, initiate action, and control the range of
which it would be unlawful (e.g. issuing of licenses
investigation, is one of the distinctive functions
and permits).
which sets them apart from the court. (De Leon,
Administrative Law: Text and Cases 75, 2016)
Directing – Orders the doing or performance of
particular acts to ensure compliance with the law
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It has been essayed that the lifeblood of the Thus, in Cariño v. Commission on Human Rights,
administrative process is the flow of fact, the the CHR cannot try and resolve on the merits
gathering, the organization and the analysis of (adjudicate) as it only has the power to investigate
evidence. Investigations are useful for all under the 1987 Constitution.
administrative functions, not only for rule making,
adjudication, and licensing, but also for RATE-FIXING POWER
prosecuting, for supervising and directing, for
POLICE POWER. The regulation of rates to be
determining general policy, for recommending,
charged by public utilities is founded upon the
legislation, and for purposes no more specific than
police powers of the State and statutes prescribing
illuminating obscure areas to find out what if
rules for the control and regulation of public utilities
anything should be done. An administrative agency
are a valid exercise thereof. (Republic v.
may be authorized to make investigations, not only
MERALCO, GR No. 141314, 2002)
in proceedings of a legislative or judicial nature, but
also in proceedings whose sole purpose is to NOTE: Rate-fixing power does not necessarily
obtain information upon which future action of a include the right to impose fines unless expressly
legislative or judicial nature may be taken and may provided by its charter. (RCPI v. NTC, GR No.
require the attendance of witnesses in proceedings 93237, 1992; PAL v. CAB, GR No. 119528, 1997)
of a purely investigatory nature. It may conduct
general inquiries into evils calling for correction, NOT THE POWER TO DESTROY. The rule is that
and to report findings to appropriate bodies and the power of the State to regulate the conduct and
make recommendations for actions. (Evangelista business of public utilities is limited by the
v. Jarencio, GR No. L-29274, 1975) consideration that it is not the owner of the property
of the utility, or clothed with the general power of
Investigate vs. Adjudicate management incident to ownership, since the
private right of ownership to such property remains
The legal meaning of "investigate" is essentially the
and is not to be destroyed by the regulatory power.
same: "(t)o follow up step by step by patient inquiry
The power to regulate is not the power to destroy
or observation. To trace or track; to search into; to
useful and harmless enterprises, but is the power
examine and inquire into with care and accuracy;
to protect, foster, promote, preserve, and control
to find out by careful inquisition; examination; the
with due regard for the interest, first and foremost,
taking of evidence; a legal inquiry;" "to inquire; to
of the public, then of the utility and of its patrons.
make an investigation," "investigation" being in turn
Any regulation, therefore, which operates as an
described as "(a)n administrative function, the
effective confiscation of private property or
exercise of which ordinarily does not require a
constitutes an arbitrary or unreasonable
hearing. 2 Am J2d Adm L Sec. 257; . . . an inquiry,
infringement of property rights is void, because it is
judicial or otherwise, for the discovery and
repugnant to the constitutional guaranties of due
collection of facts concerning a certain matter or
process and equal protection of the laws.
matters." (Cariño v. Commission on Human Rights,
(Philippine Communications Satellite Corp. v.
G.R. No. 96681, 1991).
Alcuaz, G.R. No. 84818, 1989)
In the legal sense, "adjudicate" means: "To settle
PRESCRIBING RATES IS EITHER
in the exercise of judicial authority. To determine
LEGISLATIVE OR ADJUDICATIVE. The function
finally. Synonymous with adjudge in its strictest
of prescribing rates by an administrative agency
sense;" and "adjudge" means: "To
may be either a legislative or an adjudicative
pass on judicially, to decide, settle or decree, or to
function. If it were a legislative function, the grant
sentence or condemn. . . . Implies a judicial
of prior notice and hearing to the affected parties is
determination of a fact, and the entry of a
not a requirement of due process. As regards rates
judgment." (Cariño v. Commission on Human
prescribed by an administrative agency in the
Rights, G.R. No. 96681, 1991).
exercise of its quasi-judicial function, prior notice
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and hearing are essential to the validity of such of the investor and the consumer interests.
rates. When the rules and/or rates laid down by an (Republic v. MERALCO, GR No. 141314, 2002)
administrative agency are meant to apply to all
enterprises of a given kind throughout the country, SUBJECT TO JUDICIAL REVIEW. While the
they may partake of a legislative character. Where power to fix rates is (generally) a legislative
the rules and the rates imposed apply exclusively function, whether exercised by the legislature itself
to a particular party, based upon a finding of fact, or delegated through an administrative agency, a
then its function is quasi-judicial in character. determination of whether the rates so fixed are
(Philippine Consumers Foundation, Inc. v. reasonable and just is a purely judicial question
Secretary of Education, Culture and Sports, G.R. and is subject to the review of the courts. (Republic
No. 78385, 1987) v. MERALCO, GR No. 141314, 2002)
PROVISIONAL RATES. An administrative agency FINDINGS AND CONCLUSIONS ON THE RATE

may be empowered to approve provisionally, when ARE RESPECTED. The findings and conclusions
demanded by urgent public need, rates of public of the administrative body (e.g. ERB) on the rate
utilities without a hearing. The reason is easily that can be charged by MERALCO to the public
discerned from the fact that provisional rates are by should be respected. The function of the court, in
their nature temporary and subject to adjustment in exercising its power of judicial review, is to
conformity with the definitive rates approved after determine whether under the facts and
final hearing. [Padua v. Ranada, G.R. Nos. 141949 circumstances, the final order entered by the
& 151108, 2002]. administrative agency is unlawful or unreasonable.
Thus, to the extent that the administrative agency
SUBSEQUENT RATES. Subsequent toll rate has not been arbitrary or capricious in the exercise
adjustments are mandated by law to undergo both of its power, the time-honored principle is that
the requirements of public hearing and publication. courts should not interfere. The principle of
[Francisco, Jr. v. Toll Regulatory Board, G.R. Nos. separation of powers dictates that courts should
166910, 169917, 173630 & 183599, 2010] hesitate to review the acts of administrative officers
except in clear cases of grave abuse of
REASONABLE AND JUST RATE. In the fixing of discretion. [Republic v. MERALCO, GR No.
rates, the only standard which the legislature is 141314, 2002]
required to prescribe for the guidance of the
administrative authority is that the rate be 1. QUASI-LEGISLATIVE OR RULE-MAKING
reasonable and just. (Republic v. MERALCO, GR POWER
No. 141314, 2002)
DEFINITION. The authority delegated by the law-
AGAINST ARBITRARY AND EXCESSIVE making body to the administrative body to adopt
RATES. In regulating rates charged by public rules and regulations intended to carry out the
utilities, the State protects the public against provisions of a law and implement legislative
arbitrary and excessive rates while maintaining the policy. (Carlo Cruz, Philippine Administrative Law
efficiency and quality of services rendered. 36, 2016)
However, the power to regulate rates does not give
the State the right to prescribe rates which are so Administrative agencies are endowed with powers
low as to deprive the public utility of a reasonable legislative in nature or quasi-legislative (i.e., to
make rules and regulations), and, in practical
return on investment. Thus, the rates prescribed by effect, with the power to make law. However, the
the State must be one that yields a fair return on essential legislative functions may not be
the public utility upon the value of the property delegated to administrative agencies and in this
performing the service and one that is reasonable sense, it is said that administrative agencies have
to the public for the services rendered. The fixing no legislative power and are precluded from
of just and reasonable rates involves a balancing legislating in the strict sense.' What may be granted
to an administrative agency is rule-making power
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to implement the law it is entrusted to enforce. It TESTS OF DELEGATION. Two tests determine
necessarily includes the power to amend, revise, the validity of delegation of legislative power: (1)
alter, or repeal its rules and regulations. It is a the completeness test and (2) the sufficient
standard provision in administrative rules that prior
standard test. A law is complete when it sets forth
issuances that are inconsistent therewith are
declared repeated or modified. (De Leon, therein the policy to be executed, carried out or
Administrative Law: Text and Cases 90, 2016) implemented by the delegate. It lays down a
sufficient standard when it provides adequate
Authority delegated by Congress to the guidelines or limitations in the law to map out the
administrative body to adopt rules and regulations boundaries of the delegate's authority and prevent
intended to carry out the provisions of a law, and the delegation from running riot. To be sufficient,
implement legislative policy. This is a form of
the standard must specify the limits of the
delegated legislation. Valid regulations have the
force and effect of law. delegate's authority, announce the legislative
policy and identify the conditions under which it is
QUASI- to be implemented. (Abakada Guro v. Purisima,
LEGISLATIVE GR No. 166715, 2008)
LEGISLATIVE
Involves the discretion Only involves the TAKE NOTE: According to Atty. Kaw, to fail either
to determine what the discretion to of the tests would already be tantamount to undue
law shall be determine how the law delegation of legislative powers. Additionally, if the
shall be enforced law passes the completeness test, there is no need
Cannot be delegated Can be delegated to comply with the sufficient standard test.
Exceptions (To the Rule Requiring Standards;

NON-DELEGABILITY PRINCIPLE. The rule is When Not Required): (SPIRPE)
that what has been delegated cannot be delegated,
1. Handling of State property or funds
or as expressed in the Latin maxim: potestas 2. When the law does not involve Personal or
delegate non delegare potest. This rule is based property rights
upon the ethical principle that such delegated 3. Matters of Internal administration
power constitutes not only a right but a duty to be 4. Power of the board to make
performed by the delegate by the instrumentality of Recommendation
his own judgment acting immediately upon the 5. Matters involving Privileges (like use of
property, engaging in profession)
matter of legislation and not through the intervening
6. Regulation or Exercise of police power to
mind of another. This rule however admits of protect general welfare, morals and public
recognized exceptions such as the grant of rule- policy
making power to administrative agencies. They
have been granted by Congress with the authority Note: Still subject to reasonableness standard:
to issue rules to regulate the implementation of a 1. Bear reasonable relation to the purpose
sought to be accomplished
law entrusted to them. Delegated rule-making has
2. Supported by good reasons
become a practical necessity in modern 3. Free from constitutional infirmities or
governance due to the increasing complexity and charge of arbitrariness
variety of public functions. [Dagan v. Philippine
Racing Commission, GR No. 175220, 2009] EXAMPLES OF VALID DELEGATION
1) Issuance prohibiting selling of shares
Notably, the principle of non-delegability should not without prior license for public interest.
be confused as a restriction to delegate rule- (People v. Rosenthal, GR No. 46076, 1939)
making authority to implementing agencies for the
limited purpose of either filling up the details of the 2) Prohibition of animal drawn carriage to use
law for its enforcement (supplementary rule- the roads during certain times for public
making) or ascertaining facts to bring the law into convenience and welfare.
actual operation (contingent rule-making).
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3) Authorizing President to make reforms and principle of separation of powers and is an

changes in GOCCs for economy and exception to the nondelegation of legislative
efficiency. (Cervantes v. Auditor General, GR powers. Administrative regulations or "subordinate
No. L-4043, 1952) legislation" calculated to promote the public
interest are necessary because of "the growing
complexity of modern life, the multiplication of the
4) K to 12 Law implementation is complete in
subjects of governmental regulations, and the
conditions and parameters through the increased difficulty of administering the law." xxx
legislative policy on the power delegated to xxx xxx [Nevertheless, it must be emphasized that]
the DepEd, CHED, and TESDA. (Council of [t]he rule-making power must be confined to details
Teachers v. Secretary of Education, GR No. for regulating the mode or proceeding to carry into
216930, 2018) effect the law as it has been enacted. The power
cannot be extended to amending or expanding the
EXAMPLES OF INVALID/UNDUE DELEGATION statutory requirements or to embrace matters not
covered by the statute. Rules that subvert the
1) 2013 PDAF article – Post enactment statute cannot be sanctioned. (Belgica v. Ochoa,
identification of by the legislators. (Belgica v. GR No. 208566, 2013)
Ochoa, GR No. 208566, 2013)
Rule means any agency statement of general
2) Section 8, PD 910 (Malampaya Fund) - The applicability that (1) implements or (2) interprets a
phrase "and for such other purposes as may be law, (3) fixes and describes the procedures in, or
hereafter directed by the President" under Section practice requirements of, an agency, including its
8 of PD 910 constitutes an undue delegation of regulations. The term includes memoranda or
legislative power. (Belgica v. Ochoa, GR No. statements concerning the (4) internal
208566, 2013) administration or management of an agency not
affecting the rights of, or procedure available to, the
3) Section 12 of PD 1869, as amended by PD public. [Book VII, Chapter 1, Sec. 2 (2),
1993, indicates that the Presidential Social Fund Administrative Code of 1987]
may be used "to [first,] finance the priority
infrastructure development projects” which gives a Rule-making means an agency process for the
carte blanche authority to use the fund for any formulation, amendment, or repeal of a rule. [Book
infrastructure project that the President may deem VII, Chapter 1, Sec. 2 (4), Administrative Code of
as a priority. (Belgica v. Ochoa, GR No. 208566, 1987]
2013)
Nature of the Executive’s power of to adopt
rules and regulations to execute or implement
4) EO 626 s.1980 that authorized the distribution of
the law
confiscated carabao to charitable institutions that
The inherent power of the Executive to adopt rules
the Chairman of the National Meal Inspection
and regulations to execute or implement the law is
Commission “may see fit;” (Ynot v. IAC, GR No. different from the delegated legislative power to
74457, 1987) prescribe rules. The inherent power of the
executive to adopt rules to execute the law does
5) Act No. 2868 authorized Governor-General to not require any legislative standards for its exercise
issue “in his discretion” a proclamation fixing price while the delegated legislative power requires
of palay and making the violation a crime. (US v. sufficient legislative standards for its exercise.
Ang Tang Ho, GR No. L-17122, 1922) (Cervantes v. Auditor General, G.R. L-4043, 1952).
Limitations on the Rule-Making Power

DELEGATED RULE-MAKING. The conceptual A public administrative body may make only such
treatment and limitations of delegated rule-making
rules and regulations as are within the limits of the
were explained in the case of People v. Maceren
as follows: “The grant of the rule-making power to powers granted to it or what is found in the
administrative agencies is a relaxation of the
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legislative enactment itself; otherwise, they 2) Interpretative rules are intended to interpret,
become void. clarify or explain existing statutory regulations
1. Must not be inconsistent with the provisions of under which the administrative body operates.
the Constitution or a statute, particularly the Their purpose or objective is merely to construe the
statute it is administering or which created it, or statute being administered and purport to do no
which are in derogation of, or defeat, the more than interpret the statute. Simply, they try to
purpose of a statute. say what the statute means and refer to no single
2. It may not, by its rules and regulations, amend, person or party in particular but concern all those
alter, modify, supplant, enlarge or expand, belonging to the same class which may be covered
restrict or limit the provisions or coverage of the
by the said rules.
statute as this power belongs to the legislature.
3. There is no dispute that in case of discrepancy When an administrative rule is merely
between the basic law and a rule or regulation interpretative in nature, its applicability needs
issued to implement said law, the basic law nothing further than its bare issuance for it gives no
prevails because said rule or regulation cannot real consequence more than what the law itself has
go beyond the terms and provisions of the already prescribed. When, upon the other hand, the
basic law. administrative rule goes beyond merely providing
4. A rule or regulation should be uniform in for the means that can facilitate or render least
cumbersome the implementation of the law but
operation, reasonable, and not unfair or
substantially adds to or increases the burden of
discriminatory. (De Leon, Administrative Law:
those governed, it behooves the agency to accord
Text and Cases 96, 2016) at least to those directly affected a chance to be
heard, and thereafter to be duly informed, before
Rule-Making Making Principles: (CURLAP) that new issuance is given the force and effect of
1. It must be Consistent with the law and the law. (CIR v. Court of Appeals, G.R. No. 119761,
constitution. 1996)
2. It must be Uniform in operation, reasonable
and not unfair or discriminatory. 3) Contingent rules are those issued
3. It must have a Reasonable relationship to the by an administrative authority based on the
purpose of the law. existence of certain facts or things upon which the
4. It must be within the Limits of the powers enforcement of the law depends.
granted to administrative agencies.
5. May not Amend, alter, modify, supplant, Congress may provide that a law shall take effect
enlarge, limit or nullify the terms of the law.
upon the happening of future specified
6. Must be promulgated in accordance with the
Prescribed procedure. contingencies leaving to some other person or
body the power to determine when the specified
a. Kinds of Administrative Rules and contingency has arisen.
Regulations
1. It may delegate a power not legislative which it
An administrative regulation may be classified as f may itself rightfully exercise. The power to
ollows (Republic v. Drugmaker's Laboratories, Inc., ascertain facts is such power which may be
G.R. No. 190837, 2014): delegated.
2. The finding by an administrative authority of
1) Legislative rules are in the nature of the existence of conditions defined in the
statute under which its provisions shall become
subordinate legislation and designed to
operative comes under the head of rule-
implement a primary legislation by providing the making since it usually involves judgment, if
details thereof. They usually implement existing not discretion.
law, imposing general, extra-statutory obligations
pursuant to authority properly delegated by The true distinction, therefore, is between the
Congress and effect a change in existing law or delegation of power to make the law which
policy which affects individual rights and necessarily involves a discretion as to what it shall
obligations. be and conferring an authority of or discretion as to
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its execution, to be exercised under and in To be valid, an administrative issuance must

pursuance of the law. The first cannot be done, to comply with the following requisites (Executive
the latter, no valid objection can be made. (De Secretary v. Southwing Heavy Industries, Inc.,
Leon, Administrative Law: Text and Cases 108, G.R. Nos. 164171, 164172 & 168741, 2006 citing
2016) Carlo Cruz, Philippine Administrative Law):
Kinds of Administrative Rules 1) Its promulgation must be authorized by the

1. Non-Legislative Rule legislature
a. No force of law
b. No need for notice, comment and There is a delegation made by Congress subject to
publication the Completeness Test and the Sufficent Standard
c. Exception: When rule affects third Test..
persons (Tañada v. Tuvera)
d. Examples: (SIPI) 2) It must be promulgated in accordance with
i. Supplementary - Those which supply the prescribed procedure;
details, also known as detailed
legislation. a) Notice and Hearing
ii. Interpretative - Those that do no
more than to interpret a statute.
GENERAL RULE: Prior notice and hearing not
These are given weight and respect
but are not conclusive to the courts. required in the following (Provincial Bus Operators
v. DOLE, GR No. 78385, 2018, J. Leonen):
NOTE: Recall that administrative
agencies are possessed of i) Interpretative Rule - no real consequence more
specialized knowledge than what the law itself prescribes (Cawad v. Abad,
GR No. 207145, 2015);
iii. Procedural - Those which describe
the method by which the agency will ii) Administrative regulation or issuance is of
carry out its appointed functions general application (i.e. applies to all; not just to a
iv. Internal - Those issued by a superior selected class) (Philippine Consumers Foundation,
administrative or executive officer to
Inc. v. Secretary of Education, Culture and Sports,
his subordinates for the proper and
efficient administration of law. G.R. No. 78385, 1987);
2. Legislative/Substantive Rule iii) Internal in nature (Board of Trustees v. Velasco,

a. With force of law GR No. 170463, 2011)
b. Needs notice, comment, and publication
(Chap 2. Book VII, Administrative Code iv) Rule is procedural (Rules of Procedure; since
and Art. 2, Civil Code) it’s also of general application);
c. Examples: (PCS)
i. Penal - Those that carry out penal or v) Rule is merely a legal opinion (hence, advisory
criminal sanctions for violation of the and no adjudication; e.g. BIR or SEC opinions);
same.
ii. Contingent - Those which determine vi) Substantive rule where class affected is at large
when a statute will go into effect. and questions to be resolved require use of
Power to ascertain the happening of
discretion by the rule-making body. (Corona v.
such facts may be delegated to
administrative agencies United Harbor Pilots, GR No. 111953, 1997)
iii. Supplementary - Those which only
supply details, also known as EXCEPTIONS: Prior notice & hearing required if:
detailed legislation.
i) Legislature itself requires it and mandates that
b. Requisites of a Valid Administrative the regulation shall be based on certain facts as
Issuance, Rule, or Regulation determined at an appropriate hearing or
consultation (i.e. contained in the law itself);
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ii) Rule requires determination of past events or ii) Those merely internal in nature, that is,
facts (through a hearing or proceeding); regulating only the personnel of the administrative
agency and not the public, need not be published.
iii) Regulation is settlement of a controversy (Board of Trustees v. Velasco, GR No. 170463,
between specific parties (hence, considered as 2011; Tañada v. Tuvera, GR No. L-63915, 1986
adjudication) (Philcomsat v. Alcuaz, GR No.
84818, 1989); iii) Letters of instructions issued by administrative
superiors concerning the rules or guidelines to be
iv) Rate-fixing in the exercise of quasi-judicial followed by their subordinates in the performance
authority (Philippine Consumers Foundation, Inc. of their duties. (Tañada v. Tuvera, GR No. L-
v. Secretary of Education, Culture and Sports, G.R. 63915, 1986)
No. 78385, 1987)
Interpretative regulations and those merely internal
b) Publication in nature, that is, regulating only the personnel of
the administrative agency and not the public, need
GENERAL RULES: Publication required in the
not be published. Neither is publication required of
following:
i) Administrative rules and regulations must also be the so-called letters of instructions issued by
published if their purpose is to enforce or administrative superiors concerning the rules on
implement existing law pursuant also to a valid guidelines to be followed by their subordinates in
delegation. (Tañada v. Tuvera, GR No. L-63915, the performance of their duties. (VFP v. Reyes,
1986) G.R. No. 155027, 2006)
ii) If the administrative rule substantially adds or Summary Rules on the Publication and Notice
increases the burden of those governed,
and Hearing Requirements of Administrative
publication is required. (Manila Public School
Rules and Regulations
Teachers v. Garcia, GR No. 192708, 2017)
KIND NOTICE
PUB.
iii) Every rule establishing an offense or defining (Code: SIC GRANT AND
REQ.
an act which, pursuant to law, is punishable as a PIP) COMMENT
crime or subject to a penalty shall in all cases be
published in full text. [Sec. 6(2), Chapter 2, Book Legislative Express Yes Yes/No
VII, Administrative Code of 1987] (Supplementa or
ry/Subordinat Implied
e)
Special Requisites of Penal Rules: - (PFPO)
1. The law which authorizes the promulgation of Interpretative Express No No
rules and regulations must itself Provide for the or
imposition of a penalty for their violation; Implied
2. The law must Fix or define such penalty;
3. The violation for which the rules and
Contingent Express Yes Yes
regulations impose a Penalty must be
punishable under the law itself; and
4. The rules and regulations must be published in Procedural Express Yes No
the Official Gazette or Newspaper of General or
Circulation and archived at the UP Law Center. Implied
EXCEPTIONS: Publication not required in the Internal Express No No

following: or
Implied
i) Interpretative rule/circular/regulations, which add
no real consequence more than what the law itself Penal Express Yes Yes
prescribes (Cawad v. Abad, GR No. 207145, 2015;
Tañada v. Tuvera, GR No. L-63915, 1986)
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c) Filing with the UP Law Center-Office of the The DOH’s power under the Milk Code to control
Administrative Registrar information regarding breast milk vis-a-vis breast
milk substitutes is not absolute, as the power to
Every agency shall file with the University of the control does not encompass the power to
Philippines Law Center three (3) certified copies of absolutely prohibit the advertising, marketing, and
every rule adopted by it. Each rule shall become promotion of breast milk substitutes. Neither the
effective fifteen (15) days from the date of filing. Milk Code nor the Revised Administrative Code
[Secs. 3-4, Chapter 2, Book VII, Administrative grants the DOH the authority to fix or impose
Code of 1987] administrative fines. Without any express grant of
power to fix or impose such fines, the DOH cannot
According to the Administrative Code, 3 copies of
provide for those fines in the RIRR. The DOH
every rule should be filed in the Office of the
National Administrative Register (ONAR) of the UP exceeded its authority by providing for such fines
Law Center. Failure to comply with this makes the or sanctions in the RIRR. (Pharmaceuticals and
administrative issuance ineffective & may not be Health Care Association of the Philippines v.
enforced. (GMA v. MTRCB, G.R. 148579, 2007) Duque, G.R. 173034, 2007)
This registration requirement is part of publication.
4) It must be reasonable.
Not all rules and regulations adopted by every (DE LEON, Administrative Law: Text and Cases)
government agency are to be filed with the UP Law
Center. Only those of general or of permanent 2.QUASI-JUDICIAL OR ADJUDICATORY
character are to be filed. Internal rules which are POWER
meant to regulate the personnel of the GSIS are not
subject to filing with the UP Law Center. (Board of Powers and functions which involve the decision or
Trustees v. Velasco, G.R. 17046, 2011).
determination by administrative agencies of the
NOTE: Whenever publication is required, it is the rights, duties, and obligations of specific individuals
and persons, as contrasted with powers (i.e., rule
condition sine qua non that will make the regulation
making) of administrative agencies which, while
effective. Thus, filing alone without publication is
they may involve decisions or determinations in the
not the operative act that will make the
broadest sense, involve persons generally rather
administrative rule effective. [Republic v. Express
than specially, and usually operate only
Telecommunications, GR No. 147096, 2002] prospectively. (De Leon, Administrative Law: Text
and Cases 172, 2016)
3) It must be within the scope of the authority
given by the legislature (must not be ultra
DEFINITION. The Quasi-Judicial Power has been
vires);
defined as the power of the administrative
This simply means that the resulting IRRs must not authorities to make determinations of facts in the
be ultra vires as to be issued beyond the limits of performance of their official duties and to apply the
the authority conferred. It is basic that an law as they construe it to the facts so found. The
administrative agency cannot amend an act of exercise of this power is only incidental to their
Congress, 32 for administrative IRRs are solely main function, which is the enforcement of the law.
intended to carry out, not to supplant or to modify, (Carlo Cruz, Philippine Administrative Law 49,
the law. The administrative agency issuing the 2016)
IRRs may not enlarge, alter, or restrict the
QUASI-JUDICIAL BODY. A quasi-judicial body
provisions of the law it administers and enforces,
has been defined as "an organ of government other
and cannot engraft additional non-contradictory
than a court and other than a legislature, which
requirements not contemplated by the Legislature.
affects the rights of private parties through either
(Lokin, Jr. v. Commission on Elections, G.R. Nos.
adjudication or rule making." The most common
179431-32 & 180443, 2010)
types of such bodies have been listed as follows
[Presidential Anti-Dollar Salting Task Force v.
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Court of Appeals, G.R. No. 83578, March 16, 1989

citing GONZALES, ADMINISTRATIVE LAW, A Quasi-Legislative v. Quasi-Judicial:
TEXT 13-15 (1979)]: QUASI- QUASI-
LEGISLATIVE JUDICIAL
(1) Agencies created to function in situations
wherein the government is offering some Grant Express or Express
gratuity, grant, or special privilege, like the Implied (SIC
defunct Philippine Veterans Board, Board on PIP)
Pensions for Veterans, and NARRA, and Philippine
Veterans Administration. Parties All / Sectors Particular
involved
(2) Agencies set up to function in situations
wherein the government is seeking to carry on
Adversarial No Yes
certain government functions, like the Bureau of
Immigration, the Bureau of Internal Revenue, the
Board of Special Inquiry and Board of Controversy None Exists
Commissioners, the Civil Service Commission, the
Central Bank of the Philippines. Notice and Nor Required Required
Hearing (unless
(3) Agencies set up to function in situations requires it;
wherein the government is performing some there is a
business service for the public, like the Bureau radical
of Posts, the Postal Savings Bank, Metropolitan change)
Waterworks & Sewerage Authority, Philippine
National Railways, the Civil Aeronautics
Primary J./ Not applicable Applicable
Administration.
Exhaustion of (Judicial
(4) Agencies set up to function in situations A.R. Review at first
wherein the government is seeking to regulate instance)
business affected with public interest, like the
Fiber Inspections Board, the Philippine Patent Time Future Past/Present
Office, Office of the Insurance Commissioner.
Publication Depends on Not
(5) Agencies set up to function in situations type of rule Required
wherein the government is seeking under the (SIC PIP)
police power to regulate private business and
individuals, like the Securities & Exchange Res Judicata Not Applicable Applicable
Commission, Board of Food Inspectors, the Board
of Review for Moving Pictures, and the
Professional Regulation Commission.
The Presidential Electoral Tribunal (PET) does
NOT exercise quasi-judicial functions. When the
(6) Agencies set up to function in situations
Supreme Court, as the PET, resolves a presidential
wherein the government is seeking to adjust or vice-presidential election contest, it performs
individual controversies because of some what is essentially a judicial power. (Macalintal v.
strong social policy involved, such as the Presidential Electoral Tribunal, G.R. 191618,
National Labor Relations Commission, the Court of 2010).
Agrarian Relations, the Regional Offices of the
The classification of positions in career service is a
Ministry of Labor, the Social Security Commission,
quasi- legislative, not a quasi-judicial, issuance.
Bureau of Labor Standards, Women and Minors This distinction determines whether prior notice
Bureau. and hearing are necessary. It was an internal
matter which did not need prior publication. It had
QUASI-JUDICIAL & QUASI-LEGISLATIVE been issued as an incident of the administrative
POWERS DISTINGUISHED body’s power to issue guidelines for government
officials to follow in performing their duties. (Abella
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v. CSC, G.R. 152574, 2004). with respect to acts involving the exercise of
judgment or discretion, and findings of fact. There
The fact that the Toll Regulatory Board is should be no thought of disregarding the traditional
exercising its administrative or executive functions
line separating judicial and administrative
such as the granting of franchises or awarding of
contracts and at the same time exercising its quasi- competence, the former being entrusted with the
legislative and/or quasi-judicial functions (e.g., determination of legal questions and the latter
rate-fixing), does not support a finding of a violation being limited as a result of its expertise to the
of due process or the Constitution. (Francisco, Jr., ascertainment of the decisive facts." [Presidential
et al. vs. Toll Regulatory Board, G.R. 166910 / Commission on Good Government v. Peña, G.R.
169917 / 173630 / 183599, 2010). No. 77663, [April 12, 1988], 243 PHIL 93-135]
It is well settled that findings of fact of quasi-judicial The doctrine of judicial stability or non-interference
agencies, such as the COA, are generally
in the regular orders or judgments of a co-equal
accorded respect and even finality by this Court, if
supported by substantial evidence, in recognition court is an elementary principle in the
of their expertise on the specific matters under their administration of justice: no court can interfere by
jurisdiction. (Reyna v. Commission on Audit, G.R. injunction with the judgments or orders of another
167219, 2011). court of concurrent jurisdiction having the power to
grant the relief sought by the injunction. The
The doctrine of separate personality of a rationale for the rule is founded on the concept of
corporation finds no application in a government
agency. Also, the law states that expenditures of jurisdiction: a court that acquires jurisdiction over
government funds or uses of government property the case and renders judgment therein has
in violation of law or regulations shall be a personal jurisdiction over its judgment, to the exclusion of all
liability of the official or employee found to be other coordinate courts, for its execution and over
directly responsible therefore. (Verzosa, Jr. v. all its incidents, and to control, in furtherance of
Carague, G.R. 157838, 2011). justice, the conduct of ministerial officers acting in
connection with this judgment. [Barroso v. Omelio,
Doctrine of Non-Interference.
G.R. No. 194767 , 2015]
Another basic principle is the doctrine of non-
As a rule, where legislation provides for an appeal
interference which should be regarded as highly
from decisions of certain administrative bodies to
important in judicial stability and in the the Court of Appeals, it means that such bodies are
administration of justice whereby the judgment of a co-equal with the Regional Trial Courts, in terms of
court of competent jurisdiction may not be opened, rank and stature, and logically, beyond the control
modified or vacated by any court or tribunal of of the latter. [Presidential Anti-Dollar Salting Task
concurrent jurisdiction.([Freeman, Inc. v. Securities Force v. Court of Appeals, G.R. No. 83578, 1989]
and Exchange Commission, G.R. No. 110265,
Enforcement of decisions
[July 7, 1994], 304 PHIL 139-148 citing Mercado v.
It must be in accordance with the manner prescribed
Ubay, GR No. L-35830, 24 July 1990) by the statute. If there is no provision, resort to the
courts is necessary for enforcement.
Courts may not interfere with administrative and
discretionary functions of administrative agencies. Characteristics of Quasi-Judicial Proceedings
It should be emphasized here, as again stressed – (PJAC)
by the Court in the recent case of Republic, et al. 1. Adversarial in nature; every proceeding is
vs. De los Angeles, et al., G.R. No. L-30240, March adversary in substance if it may result in an
25, 1988, that "it is well-recognized principle that order in favor of one person against another.
purely administrative and discretionary functions 2. Such proceedings partake of the nature of
may not be interfered with by the courts. In general, Judicial proceedings if it involves taking and
courts have no supervising power over the evaluation of evidence, determination of facts
based upon evidence presented and
proceedings and actions of the administrative
rendering an order or decision supported by
departments of government. This is generally true the facts proved.
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3. Particular proceedings before an 2. Due Process — Doctrine of primary

administrative agency have been held Civil jurisdiction.
rather than criminal in nature. a. If the determination requires the
4. The proceeding for forfeiture while expertise, specialized skills and
administrative in character thus possesses a knowledge of the proper administrative
criminal or penal aspect. (Cabal v. bodies because technical matters or
Kapunan, G.R. L-19052, 1962). intricate questions of facts are involved,
then relief must first be obtained in an
Requisites of Quasi-Judicial Proceedings: (JD) administrative proceeding before remedy
1. Jurisdiction (defined by law/charter) - power will be supplied by the courts.
and authority given by law to hear and decide b. Failure to comply with this doctrine
a case; consists of TWO elements— renders the action open to a motion to
jurisdiction over subject-matter and over the suspend pending referral of the issues to
person. Without jurisdiction, acts are void and the administrative agency.
open to collateral attack.
a. Administrative agencies are tribunals of
specialized or limited jurisdiction, which
a. Administrative Due Process: (HIP DESK)
is dependent entirely upon the validity
1. The right to a Hearing, which includes the
and the terms of the statutes reposing
right to present one’s case and submit
power in them.
evidence in support thereof. However, a
b. An administrative agency cannot enlarge
“trial-type” proceeding is not required. The
its own jurisdiction nor can jurisdiction be
essence is the opportunity to be heard.
conferred upon an agency by parties
2. The tribunal or body or any of its judges must
before it.
act on its or his own Independent
c. When a particular statute authorizes an
consideration of the law and facts of the
administrative agency to act in a
controversy, and not simply accept the views
particular situation, it necessarily confers
of a subordinate in arriving at a decision.
upon such agency authority to determine
3. The decision must be based on the evidence
whether the situation is such as to
Presented at the hearing or at least
authorize the agency to act; an
contained in the record and disclosed to the
administrative agency’s determination as
parties affected.
to its jurisdiction is not conclusive to the
4. The Decision must have something to
courts.
support itself.
d. Expiration of a statute may be held not to
5. The tribunal must consider the Evidence
deprive an administrative agency of
presented.
jurisdiction to enforce the statute as to
6. Evidence supporting the conclusion must be
liabilities incurred while the statute was in
Substantial.
force, where a general saving statute
7. The board or body should, in all controversial
continues such liabilities.
questions, render its decision in such a
e. Administrative agencies are creatures of
manner that the parties to the proceeding can
the law and they have no general powers
Know the various issues involved and the
but only such as conferred by law; where
reasons for the decision rendered. (Ang
the law confines in an administrative
Tibay v. CIR, G.R. L-46496, 1940)
officer the power to determine particular
questions or matters upon facts
presented, the jurisdiction of such office Doctrines:
shall prevail over courts. 1. For as long as the parties were given fair and
f. In order for the Court to acquire reasonable opportunity to be heard and to
jurisdiction over an administrative case, submit evidence in support of their
the complaint must be filed during the arguments before judgment was rendered,
incumbency of the respondent. Once the demands of due process are sufficiently
jurisdiction is acquired, it is not lost by met. (Casimiro v. Tandog G.R. 146137, 2005)
reason of respondent’s cessation from 2. Procedural due process is the constitutional
office. (Office of the Court Administrator standard demanding that notice and an
v. Andaya, A.M. RTJ-09-2181, 2013). opportunity to be heard be given before
judgment is rendered. As long as a party is
Page 339 of 568
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given the opportunity to defend his interests giving the party an opportunity to be heard.
in due course, he would have no reason to Motion for reconsideration is a means to cure
complain; the essence of due process is in the defect of notice.
the opportunity to be heard. A formal or trial- 11. Non-filing of any administrative charge
type hearing is not always necessary. against the accused preparatory to his
(Imperial v. GSIS, G.R. 191224, 2011) dismissal, and therefore the dismissal
3. A decision is void for lack of due process if, as effected without any administrative
a result, a party is deprived of the opportunity complaint, violated the right of the accused to
to be heard. A void decision may be assailed substantive and procedural due process. He
or impugned at any time either directly or is entitled to reinstatement and to payment of
collaterally by means of a separate action, or the salaries, allowances, and other benefits
by resisting such decision in any action or withheld from him by reason of his discharge
proceeding where it is invoked. (Uy vs. Court from the service. (Calinisan v. Roaquin, G.R.
of Appeals, G.R. 109557, 2000) 159588, 2010)
4. The rule requiring an administrative officer to 12. The subsequent desistance by complainant
exercise his own judgment and discretion does not free the respondent from liability, as
does not preclude him from utilizing the aid of the purpose of an administrative proceeding
his subordinates in the hearing and reception is to protect the public service based on the
of evidence. time-honored principle that a public officer is
5. When an administrative agency acts as a a public trust. (Encinas v. Agustin Jr., G.R.
collegiate body, its power and duties cannot 187317, 2013)
be exercised by the members individually. 13. The Revised Rules on Administrative Cases
6. The essence of due process in administrative in the Civil Service themselves provide that
proceedings is the opportunity to explain administrative investigations shall be
one’s side or seek a reconsideration of the conducted without strict recourse to the
action or ruling complained of. (Antonio v. technical rules of procedure and evidence
Villa, G.R. 114694, 2005) applicable to judicial proceedings. (Adalin v.
7. There is no denial of due process just Taninas, G.R. L-198682, 2013)
because no cross-examination took place. 14. The dismissal of the criminal complaint does
What is important is that she was given the not affect the administrative case arising from
opportunity to do so. (Vertudes v. Buenaflor, the same incident which gave rise to said
G.R. 153166, 2005) criminal case. (Gabriel v. Ramos, A.M. P-06-
8. In administrative proceedings, the filing of 2256, 2013)
charges and giving reasonable opportunity 15. The essence of due process in administrative
for the person charged to answer the proceedings is the opportunity to explain
accusation against him constitute the one's side or seek a reconsideration of the
minimum requirements of due process. action or ruling complained of. As long as the
(Cayago v. Lina, G.R. 149539, 2005) parties are given the opportunity to be heard
9. Some proceedings are instituted by simple ex before judgment is rendered, the demands of
parte applications. Others are instituted by due process are sufficiently met. What is
filing of a charge or complaint by an offensive to due process is the denial of the
aggrieved person. Under other statutes, opportunity to be heard. Nothing is irregular
particular administrative agencies may in considering the investigation terminated
institute proceedings on their own initiative, and submitting the case for resolution based
motion, or complaint. on available evidence upon failure of the
10. Due Process requirements are usually in the respondent to file his counter-affidavit or
statute, but if none is provided, the answer despite giving him ample opportunity
Constitutional guarantee of due process of to do so. Moreover, Section 14, Article VIII of
law must be upheld. (Notice, to enable a party
to be heard and to present evidence, is not a
mere technicality or a trivial matter in any
judicial or quasi-judicial proceedings. The
service of summons is a very vital and
indispensable ingredient of Due Process).
When an agency fails to afford previous
notice, it may be cured by subsequently
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the 1987 1 Constitution need not apply to over the person is conferred even though there
decisions rendered in administrative was no proper notice or process.
proceedings. Said section applies only to - Personal notice is not required where it is
decisions rendered in judicial proceedings. It impossible to give such notice.
would be error to hold or even imply that
decisions of executive departments or Exceptions to Requirement of Notice and
administrative agencies are obliged to meet Hearing: (UTOS CLAPP)
the requirements under Section 14, Article
1. Urgency of immediate action
VIII. (Flores v. Montemayor, G.R. 170146,
2. Tentativeness of the administrative action
2011)
16. A respondent in an administrative case is not 3. Right was previously Offered but not claimed
entitled to be informed of the preliminary 4. Summary abatement of a nuisance per se
findings and recommendations; he is entitled 5. Cancellation of a passport of a person sought
for criminal prosecution
only to a reasonable opportunity to be heard,
6. Summary proceedings of Levy upon
and to the administrative decision based on
properties of a delinquent taxpayer
substantial evidence. (Velasquez v. CA, G.R.
No. 150732, 2004) 7. Replacement of a temporary or Acting
17. There is no denial of due process if any appointee
irregularity in the premature issuance of a 8. Preventive suspension of a public servant
decision has been remedied through an facing administrative charges
Order giving petitioners the right to 9. Padlocking of filthy restaurants/ theaters
participate in the hearing of the MR. The showing obscene movies
opportunity granted by, technically, allowing
petitioners to finally be able to file their Investigation v. Hearing:
comment in the case, resolves the procedural INVESTIGATION HEARING
irregularity previously inflicted upon
petitioners. (NASECORE v. ERC, G.R. By government officials, There are parties and
190795, 2011) which may be held in issues of law and of
18. The Board of Medicine can properly admit private are informal fact to be tried and at
formal offer of evidence to prove that a proceedings to obtain the conclusion of the
person’s kidneys were in their “proper Information to govern hearing, action is
anatomical locations” at the time she was future actions, have no taken which may
operated and that the BOM shall determine
parties, and are not affect the parties’
the probative value thereof, if the original
documentary evidence cannot be produced. proceedings in which rights and parties are
The rules of evidence are merely the means action is taken against entitled to be present
for ascertaining the truth respecting a matter anyone. in person and by
of fact. Rules of evidence are not strictly counsel, participate
applied in proceedings before administrative in the hearing, and
bodies such as the BOM. (Atienza v. Board
entitled to be
of Medicine, G.R. 177407, 2011)
furnished a record of
the proceedings.
WAIVER OF RIGHT TO NOTICE
- A failure to comply with the requirements may The filing of formal charges against the
result in failure to acquire jurisdiction. respondents without complying with the mandated
- Generally, the right to notice in an preliminary investigation (provided by law) or at
administrative proceeding may be waived. least giving the respondents the opportunity to
- If a general appearance is made, jurisdiction comment violated their right to due process.
1 No petition for review or motion for reconsideration of a decision of

Section 14. No decision shall be rendered by any court without
expressing therein clearly and distinctly the facts and the law on the court shall be refused due course or denied without stating the
which it is based. legal basis therefor.
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Accordingly, the formal charges are void ab initio The (Securities and Exchange) Commission
and may be assailed directly or indirectly at empowered the Prosecution And Enforcement
anytime. (Garcia v. Molina, G.R. 157383/174137, Department (PED) to conduct the hearing and to
2010) decide on the revocation of a certificate of
registration. The provisions of Pres. Decree No.
A formal charge is a written specification of the
902-A as amended do not prohibit the respondent
charge(s) against an employee. While its form may
vary, it generally embodies a brief statement of the Commission from designating an officer or a
material and relevant facts constituting the basis of division to hear a case. The Court reiterates that in
the charge(s); a directive for the employee to the absence in the rules of the Commission of a
answer the charge(s) in writing and under oath, provision designating a particular officer or
accompanied by his/her evidence; and advice for department that should try a particular action, the
the employee to indicate in his/her answer whether Commission can validly call upon any of its
he/she elects a formal investigation; and a notice qualified departments to try a particular action,
that he/she may secure the assistance of a counsel including the PED to hear and make a preliminary
of his/her own choice. (PAGCOR v. CA, G.R. ruling on the case. This was what the Commission
185668, 2011)
did to meet the demands or orderly and responsible
In administrative proceedings, the complainant administration of all the task assigned to it as a
bears the onus of establishing, by substantial government agency. [Skyworld v. SEC, GR No.
evidence, the averments of his complaint. A 95778, 1992]
complainant cannot rely on mere conjectures and
suppositions. (Sasing v. Gelbolingo, A.M. No. P- Preliminary Investigation is not a quasi-judicial
12-3032, 2013; Re: Letter Complaint of Merlita B. proceeding. The prosecutor in a preliminary
Fabiana Against Presiding Justice Andres B. investigation does not determine the guilt or
Reyes, A.M. No. CA-13-51-J, 2013) innocence of the accused. He does not exercise
adjudication nor rule-making functions. Preliminary
The AMLC’s investigation of money laundering
investigation is merely inquisitorial, and is often the
offenses and its determination of possible money
laundering offenses, specifically its inquiry into only means of discovering the persons who may be
certain bank accounts allowed by court order, does reasonably charged with a crime and to enable the
not transform it into an investigative body fiscal to prepare his complaint or information. It is
exercising quasi-judicial powers. Hence, Section not a trial of the case on the merits and has no
11 of the AMLA, authorizing a bank inquiry court purpose except that of determining whether a crime
order, cannot be said to violate SPCMB’s has been committed and whether there is probable
constitutional right to procedural process. (Subido cause to believe that the accused is guilty thereof.
Pagente Certeza Mendoza and Binay Law Offices While the fiscal makes that determination, he
v. CA, G.R. No. 216914, 2017) cannot be said to be acting as a quasi-court, for it
is the courts, ultimately, that pass judgment on the
Authority to hear can be delegated. This
accused, not the fiscal. [Bautista v. Court of
subdelegation of power has been justified by
Appeals, GR No. 143375, 2001]
"sound principles of organization" which demand
Contempt Power. "The power to punish for
that "those at the top be able to concentrate their
contempt is inherent in all courts; its existence is
attention upon the larger and more important
questions of policy and practice, and their time be essential to the preservation of order in judicial
freed, so far as possible, from the consideration of proceedings, and to the enforcement of judgments,
the smaller and far less important matters of detail." orders and mandates of courts, and, consequently,
Thus, it is well-settled that while the power to in the administration of justice" (Slade
decide resides solely in the administrative agency Perkins vs. Director of Prisons, 58 Phil., 271; U.
vested by law, this does not preclude a delegation S. vs. Loo Hoe, 36 Phil., 867; In Re Sotto, 46 Off.
of the power to hold a hearing on the basis of which Gaz. 2570; In Re Kelly, 35 Phil., 944). The exercise
the decision of the administrative agency will be of this power has always been regarded as a
made. (American Tobacco v. Director of Patents, necessary incident and attribute of courts (Slade
GR No. 26803, 1975) Perkins vs. Director of Prisons, Ibid.). [Guevara v.
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Commission on Elections, G.R. No. L-12596, [July within 30 days following the submission.
31, 1958], 104 PHIL 268-278)] 9. Finality of Order - decision shall be final and
executory 15 days after the receipt of a copy
Its exercise by administrative bodies has been thereof.
invariably limited to making effective the power to 10. Publication and Compilation of decisions -
Every agency shall publish and make available
elicit testimony (People vs. Swena, 296 P., 271).
for public inspection all decisions and final
And the exercise of that power by an administrative orders. It shall be the duty of the records officer
body in furtherance of its administrative function of the agency to prepare a register or
has been held invalid (Langenberg vs. Decker, 31 compilation of those decisions or final orders.
N.E. 190; In Re Sims 37 P., 135;
Roberts vs. Hacney, 58 S.W., 810). [Guevara v. b. Administrative Appeal and Review Appeal
Commission on Elections, G.R. No. L-12596, [July
An appeal from a final decision of the agency may
31, 1958], 104 PHIL 268-278)] be taken to the department head.
The power to hold in contempt, it has time and Perfection of Administrative Appeals
again been held, must be exercised, not on the Appeals shall be perfected within 15 days after the
vindictive, but on the preservative principle. It is not receipt of a copy of the decision complained of by
to be meted out of pique, or from an imperial sense the party adversely affected.
of the nature and functions of judicial office.
[Dumarpa v. Dimaporo, G.R. Nos. 87014-16, Effect
[September 13, 1989], 258 PHIL 272-288] The appeal shall stay the decision appealed from if
the appellate agency does not direct otherwise.
NOTE: Exercise by the quasi-judicial body of the
Action on Appeal
power to hold in contempt is through the Rules of
The appellate agency may review record and
Court. receive additional evidences.
Rules on adjudication (EO 292, Book VII) Finality of Decision of Appellate Agency
1. Compromise and Arbitration - every agency becomes final 15 days after receipt of the decision
shall, in the public interest, encourage by the parties.
amicable settlement, compromise and
arbitration. Judicial Review
2. All parties shall be entitled to notice and Agency decisions shall be subject to judicial
hearing; the notice shall be served at least 5 review. The action may be brought against the
days before the date of hearing and shall state agency, its officers, and all indispensable and
the date, time, and place of the hearing. necessary parties.
3. Parties shall be given opportunity to present
evidence and argument on all issues. Perfection of Appeal
4. Rules on Evidence - May admit evidence 1. The appeal shall be perfected by filing with
commonly accepted by reasonably prudent the agency within 15 days from receipt of
men. copy; copies shall be served upon the agency
5. Right to cross-examine witnesses. and all parties of records.
6. Agency may make judicial notice to any 2. A petition for review shall be perfected within
technical or scientific facts within in its 15 days from receipt of the final
specialized knowledge. administrative decision; 1 month’s extension
7. The agency shall have the power to require the may be allowed.
attendance of witnesses or the production of
books, papers, documents and other pertinent Controversies among Government Offices and
data; may invoke the aid of the RTC within
Corporations
whose jurisdiction the contested case falls.
All disputes of government agencies and
8. Decision - every decision rendered by the
corporations are settled administratively in the
agency in a contested case shall be in writing
manner provided by the Administrative Code. (EO
and shall state clearly and distinctly the facts
292, Book IV, Chap. 14)
and the law on which it is based; shall decide
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legal technicalities obtaining in courts of law.”

Submission for Decision for Questions of Law (Rules and Regulations Implementing the Labor
v. Questions of Fact and Law Code, Sec. 5, Rule XIII, Book V).
QUESTIONS OF QUESTIONS OF
LAW FACT AND LAW Not Applicable
Submitted to 1. Solicitor-General - 1. When the question of citizenship is resolved by
Secretary of Justice as if the dispute, claim a court or an administrative body as a material
or controversy issue in the controversy after a full-blown
Attorney- General. His
involves only hearing. (Zita Ngo Burca v. Republic, G.R.
ruling shall be binding 122226, 1998; United Pepsi Cola v. Laguesma,
departments,
on all the parties bureaus, offices, G.R. L-24252, 1973)
concerned. and other agencies 2. When WCC Referee awards the employee
of the National less than what the law provides (BF Goodrich
Government as v. WCC, G.R. L-42319, 1978)
well as the GOCCs.
Principle of res judicata in the mode of
2. Secretary of
Justice, in all other "conclusiveness of judgment"
cases not The principle of res judicata in the mode of
mentioned above. "conclusiveness of judgment" applies when the
NLRC ruling was affirmed by the Court of Appeals.
The determination of factual issues may be made It was a judicial affirmation through a decision duly
by arbitration panel composed of representatives promulgated and rendered final and executory
from each party, presided over by Secretary of when no appeal was undertaken within the
Justice. reglementary period. The jurisdiction of the NLRC,
which is a quasi-judicial body, was undisputed.
General Rule: the decision of Solicitor-General Neither can the jurisdiction of the Court of Appeals
and Secretary of Justice is binding and final. over the NLRC decision be the subject of a dispute.
The NLRC case was clearly decided on its merits;
Exception: When the claim involves 1 million likewise on the merits was the affirmation of the
pesos, in which case, the dispute is appealed to the NLRC by the Court of Appeals. With respect to the
Office of the President. fourth element of identity of parties, we hold that
there is substantial compliance. The parties in SSC
c. Administrative Res Judicata and NLRC cases are not strictly identical.
Jurisprudence however does not dictate absolute
Decisions and orders of administrative agencies identity but only substantial identity. There is
have upon their finality, the force and effect of a substantial identity of parties when there is a
final judgment within the purview of the doctrine of community of interest between a party in the first
res judicata. case and a party in the second case, even if the
latter was not impleaded in the first case. (SSC v.
The extent of whether an administrative decision Rizal Poultry and Livestock Association, G.R.
operates as res judicata also depends on the 167050, 2011)
interpretation of the enabling statute.
Inherent v. Implied v. Expressed:
The application of the doctrine of res judicata is INHERENT IMPLIED EXPRESSED
dependent upon the type of determination and
proceedings. It is applicable in administrative
actions that have been characterized as
“adjudicatory,” “judicial,” or “quasi- judicial.” On the
other hand, it is inapplicable in administrative
determinations which are of “administrative,”
“executive,” “legislative,” or “ministerial” nature.
Example: The principle of res judicata is applicable

in labor relations proceedings which are “non-
litigious and summary in nature without regard to
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Requires 1. Fact- 1. Issue a LICENSING RATE FIXING

disclosure of finding subpoena
books, etc. 2. Visitorial 2. Cite a person Licensing is a • Quasi-legislative - If the
powers in contempt quasi-judicial rules and rates are
3. Ocular 3. Search and function meant to apply to all
inspection Seizure enterprises of a given
4. Clearance 4. Adjudicate kind throughout the
5. Investigati 5. Impose country, prior notice and
ve coercive hearing is not required.
Anomalies measures (General Application)
(CSC)
• Quasi-judicial - If the
rules and rates imposed
The rule is that findings of fact of administrative
apply exclusively to a
bodies, if based on substantial evidence, are particular party, based
controlling on the reviewing authority. (Reyna v. upon a finding of fact,
COA, G.R. 167219, 2011)
prior notice and hearing
is required. (Particular
The SEC Hearing Officer had the optimum
Application)
opportunity to review the pieces of evidence
presented before him and to observe the demeanor
A license may not be withdrawn, except for a
of the witnesses. Administrative decisions on
violation of pertinent laws, rules and regulation, or
matters within his jurisdiction are entitled to respect
when public health and safety requires. An existing
and can only be set aside on proof of grave abuse
license shall not expire if the licensee makes a
of discretion, fraud, or error of law. (Queensland-
timely application for the renewal.
Tokyo Commodities, Inc. v. George, G.R. 172727,
2010) D. JUDICIAL REVIEW OF
The right to counsel under Section 12 of the Bill of ADMINISTRATIVE DECISIONS
Rights is meant to protect a suspect during custodial
General Rule: The courts accord great weight and
investigation. While investigations conducted by an
respect to factual findings of administrative bodies.
administrative body may at times be akin to a
criminal proceeding, the rule under existing laws is Exceptions: (FIG-SEC)
that a party in an administrative inquiry may or may 1. The findings are vitiated by Fraud, mistake,
not be assisted by counsel, irrespective of the illegality, collusion or imposition;
nature of the charges and of petitioner’s capacity to 2. Where the procedure which led to the factual
represent herself, and no duty rests on such body findings is Irregular;
to furnish the person being investigated with 3. When Grave abuse of discretion, arbitrariness
counsel. As such, the admissions made by or capriciousness is manifest and
4. The findings are not supported by Substantial
petitioner during the investigation may be used as
evidence;
evidence to justify her dismissal. (Carbonel v. CSC, 5. Where palpable Errors are committed;
G.R. 187689, 2010) 6. When there is a Conflict in the factual
findings.
Licensing v. Rate Fixing:
The determination of where, as between two
possible routes, to construct a road extension is
obviously not within the province of the Court.
Such determination belongs to the executive
branch. There can be no judicial review of a
question of executive policy. (Torrecampo v.
MWSS, G. R. 188296, 2011)
Doctrines:
1. Finality of Administrative Action - The
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decision of the tribunal must be final first Caneba, March 17, 1988, that "(T)he thrust of the
before it may be reviewed by the courts. related doctrines of primary administrative
2. Primary Jurisdiction - Not concerned with jurisdiction and exhaustion of administrative
judicial review but determines in some
remedies is that courts must allow administrative
circumstances whether initial action should be
taken by a court or by an administrative agencies to carry out their functions and discharge
agency their responsibilities within the specialized areas of
3. Exhaustion of Administrative Remedies - their respective competence. Acts of an
Designed primarily to control the timing of administrative agency must not casually be
judicial relief from adjudicative action of an overturned by a court, and a court should as a rule
agency. It is customarily applied to not substitute its judgment for that of the
adjudication and not to rule-making.
administrative agency acting within the perimeters
4. Ripeness for Review - The same as that of
exhaustion of administrative remedies, except of its own competence." [Presidential Commission
that it applies to the rule making and to on Good Government v. Peña, G.R. No. 77663,
administrative action which is embodied [April 12, 1988], 243 PHIL 93-135]
neither in rules or regulations nor in
adjudication or final order. Courts cannot, and will not, resolve a controversy
involving a question which is within the jurisdiction
Only an exercise of a quasi-judicial function is of an administrative agency, especially where the
reviewable by Rule 65 Petition for Certiorari. question demands the exercise of sound
Where an administrative body or officer does not administrative discretion requiring the special
exercise judicial or quasi-judicial knowledge, experience and services of the
power, certiorari does not lie. [Villanueva v. administrative agency to determine technical and
Palawan Council for Sustainable Development, intricate matters of fact.
G.R. No. 178347, 2013 citing Doran v. Judge
Luczon, Jr., 534 Phil. 198, 204-205 (2006)] Relief must first be obtained in an administrative
proceeding before a remedy will be supplied by the
1. DOCTRINE OF PRIMARY court, even if the matter is within the jurisdiction of
(ADMINISTRATIVE) JURISDICTION a court. (Republic v. Martinez, G.R. No. 158253,
2007)
Courts will respect the sense-making a.k.a. primary
jurisdiction of administrative agencies. Under the Exceptions to Doctrine of Primary Jurisdiction:
"sense-making and expeditious doctrine of primary
1. Congress does not intend that the issues be
jurisdiction . . . the courts cannot or will not left solely to the administrative agency for
determine a controversy involving a question which initial determination; (De Leon, Administrative
is within the jurisdiction of an administrative Law: Text and Cases 400, 2016)
tribunal, where the question demands the exercise 2. When issues purely involve questions of law
of sound administrative discretion requiring the (Aklan v. Jody King Construction &
special knowledge, experience, and services of the Development Corp, G.R. No. 197592, 2013) ;
3. When courts and administrative agencies
administrative tribunal to determine technical and have concurrent jurisdiction. (Republic v.
intricate matters of fact, and a uniformity of ruling is Martinez, G.R. No. 158253, 2007)
essential to comply with the purposes of the 4. In deportation proceedings, immediate judicial
regulatory statute administered. [Presidential intervention is allowed where the claim of
Commission on Good Government v. Peña, G.R. citizenship is so substantial that there are
No. 77663, [April 12, 1988], 243 PHIL 93-135] reasonable grounds to believe that the claim is
Courts must allow specialized competence of

administrative agencies through Primary
Jurisdiction and Exhaustion of Administrative
Remedies. The Court recently had occasion to
stress once more, in G.R. No. 82218, Reyes vs.
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correct.2 (Guy v. Ignacio, G.R. Nos. 167824 & is not an ironclad rule. An exception to this rule is
168622, 2010) where there is already estoppel on the part of the
party invoking the doctrine. In this case, the Puerto
The Doctrine of Primary Jurisdiction does not
Princesa LGU neither objected to the RTC’s
apply in a case seeking to enjoin the Senate
jurisdiction over the money claim filed by Company
Committee from conducting further hearings
X nor did it invoke the doctrine of primary
against Senator Villar on the alleged double
jurisdiction of the COA over the money claim. In
insertion of P200 million for the C-5 Road
fact, it even actively participated in the
Extension Project in the 2008 General
proceedings. Moreover, after the RTC decision
Appropriations Act. The issues presented here do
became final and executory, Puerto Princesa did
not require the expertise, specialized skills and
not even avail of the remedies under the Rules of
knowledge of respondent for their resolution. On
Court to assail the RTC’s jurisdiction such as an
the contrary, the issues here are purely legal
annulment of judgment under Rule 47. Hence,
questions which are within the competence and
Puerto Princesa is already barred by laches from
jurisdiction of the Court, and not an administrative
invoking the primary jurisdiction of the COA. (Star
agency or the Senate to resolve. (Pimentel v.
Special Corporate Management Inc. v. COA, G.R.
Senate, G.R. No. 187714, 2011)
No. 225366, J. Leonen, September 1, 2020)
The Supreme Court may defer to the competence
2. DOCTRINE OF EXHAUSTION OF
and expertise of the SEC if there are supervening
ADMINISTRATIVE REMEDIES
events which could have substantially changed the
factual backdrop of the case while it was pending General Rule: An administrative decision must
before the Court. (Nestle v. Uniwide, G.R. 174674, first be appealed to the administrative superiors up
2010). However, complaints for criminal violations to the highest level before it may be elevated to a
of the Securities Regulation Code must be filed court of justice for review. It is a condition
with the SEC, not DOJ or the courts, because it is precedent that must be complied with. (Sps.
considered a specialized dispute. (Baviera v. Sadang v. CA, G.R. No. 140138, 2006)
Paglinawan, G.R. 168380, 2007).
Non-observance of the doctrine of exhaustion of
The court may raise the issue of primary administrative remedies would result in lack of
jurisdiction motu proprio and its invocation cannot cause of action, and consequently, the dismissal
be waived by the failure of the parties to argue it, of the case. (Ejera v. Merto, 725 Phil. 180, 2014).
as the doctrine exists for the proper distribution of Exhaustion of administrative remedies is a
power between judicial and administrative bodies prerequisite for judicial review. It is a condition
and not for the convenience of the parties. In such precedent which must be complied with.
a case, the court may (1) suspend the judicial
process pending referral of such issues to the Applicability of the doctrine3
administrative body for its view, or (2) if the parties EXERCISE OF EXERCISE OF
would not be unfairly disadvantaged, dismiss the QUASI- JUDICIAL RULE-MAKING
case w/o prejudice. (Euro-Med Laboratories Phil. FUNCTION POWER
v. Province of Batangas, G.R. 148106, 2006) In case the subject of However, if the rule
The doctrine of primary administrative jurisdiction controversy is the or regulation was
2 above-cases admits of an exception, at least

Note: There is no question that the Bureau of
Immigration (BI) has the exclusive authority and insofar as deportation proceedings are concerned.
jurisdiction to try and hear cases against an alleged
3
alien, and in the process, determine also their Note: This rule also applies to the doctrine of
citizenship. However, the rule enunciated in the primary administrative jurisdiction.
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validity or issued pursuant to 5. When there was No decision rendered

constitutionality of a the administrative 6. When there are special circumstances
rule or regulation agency’s quasi- demanding immediate Judicial intervention
7. When the administrative remedy is
issued by the legislative (or rule-
Permissive or concurrent
administrative agency making) function, a 8. When the question raised is essentially and
in the performance of party need not purely Legal
its quasi-judicial exhaust 9. When strong public Interest is involved
function (or administrative 10. Where the issue raised is the
administrative remedies. Constitutionality of the statute, rule or
adjudicatory power), regulation
11. Where it is a civil action for Damages
the assailing party
12. Where the officer acted in utter disregard of
must exhaust Due process
The determination of
administrative 13. When there is no other plain, speedy,
whether a specific
remedies before going adequate Remedy
rule or set of rules 14. When act complained of is patently Illegal
to court. (Smart
issued by an 15. When the administrative body or the person
Communications v.
administrative invoking the doctrine is in Estoppel
NTC, G.R. No.
agency contravenes 16. When there is long-continued and
151908, 2003) unreasonable Delay
the law or the
constitution is within 17. When the subject of controversy is private
Land
the jurisdiction of the
18. When the controversy involves Possessory
regular courts. (Id.) action involving public lands
19. When the claim involved is Small so that to
require exhaustion would be oppressive and
RATIONALE: unreasonable
1. To enable the administrative superiors to 20. In Quo warranto proceedings
correct the errors committed by their 21. When to require exhaustion of administrative
subordinates; remedies would be unreasonable
2. Courts should refrain from disturbing the
findings of administrative bodies in deference A case where the issue raised is a purely legal
to the doctrine of separation of powers; question, well within the competence and the
3. Courts should not be saddled with the review jurisdiction of the court and not the administrative
of administrative cases; agency, would clearly constitute an exception.
4. Judicial review of administrative cases is Resolving questions of law, which involve the
usually done through special civil actions interpretation and application of laws, constitutes
which are available only if there is no other
essentially an exercise of judicial power that is
plain, speedy and adequate remedy.
5. Availment of administrative remedy entails exclusively allocated to the Supreme Court and
lesser expenses and provides for a speedier such lower courts the Legislature may establish.
disposition of controversies (Ongsuco v. Malones, G.R. 182065, 2009)
EXCEPTIONS: (DARNN JP LICD DRIED LPS It bears stressing that the remedies of mandamus
Quo) and prohibition may be availed of only when there
is no appeal or any other plain, speedy and
1. If it should appear that an irreparable Damage
will be suffered by a party unless resort to the adequate remedy in the ordinary course of law.
court is immediately made. Moreover, being extraordinary remedies, resort
2. When the respondent is the Alter ego of the may be had only in cases of extreme necessity
President where the ordinary forms of procedure are
3. When no administrative Review is provided as powerless to afford relief. Thus, instead of
a condition precedent for court action immediately filing a petition with the CA, petitioners
4. Where insistence on its observance would
should have first brought the matter to the CSC
result in the Nullification of the claim asserted
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which has primary jurisdiction over the case. confronted with a special and technical
(Cabungcal v. Lorenzo, G.R. 160367, 2009) case under the expertise of the
jurisdiction of an administrative agency,
The special civil actions against administrative administrative agency, courts must yield to
officers should not be entertained if there are has no option but to the administrative
superior administrative officers who could grant dismiss it. (Provincial agency by suspending
relief. (Dimson v. Local Water Utilities Bus Operators the proceedings. As
Administration, G.R. 168656, 2010) Association of the such, parties must
Philippines v. DOLE, exhaust all the
The validity and the enforceability of the “Contract
G.R. No. 202275, remedies within the
of Agreement” entered into by the parties are
2018) administrative
questions purely of law and clearly beyond the
machinery before
expertise of the Commission on Audit or the
resort to courts is
DPWH. (Vigilar v. Aquino, G.R. 180388, 2011)
allowed. (Id.)
The rule on exhaustion of administrative remedies
may be discarded when to require exhaustion of
administrative remedies would be unreasonable,
such as in cases when the Comelec En Banc
already approved the award of the bid to MPC, EFFECT OF FAILURE TO OBSERVE E.A.R.
without the BAC informing the bidders, thus However, failure to observe the doctrine of
depriving the bidders of their opportunity to avail of exhaustion of administrative remedies does not
administrative remedies. (Information Technology affect the court's jurisdiction. Thus, the doctrine
Foundation of the Philippines v. COMELEC (citing may be waived as in Soto v. Jareno: Failure to
Paat v. CA), G.R. No. 159139, 2004). observe the doctrine of exhaustion of
administrative remedies does not affect the
Doctrine of Primary Jurisdiction v. Doctrine of jurisdiction of the court. We have repeatedly
Exhaustion of Administrative Remedies stressed this in a long line of decisions. The only
DOCTRINE OF effect of non-compliance with this rule is that it will
DOCTRINE OF
EXHAUSTION OF deprive the complainant of a cause of action,
PRIMARY
ADMINISTRATIVE which is a ground for a motion to dismiss. If not
JURISDICTION
REMEDIES invoked at the proper time, this ground is deemed
Though both concepts In contrast, exhaustion waived and the court can then take cognizance of
aim to maximize the of administrative the case and try it. [Republic v. Felix, G.R. No.
special technical remedies requires 203371, [June 30, 2020] citing Republic v. Gallo,
knowledge of parties to exhaust all GR No. 207074, 2018, J. LEONEN]
administrative the remedies in the
agencies, the doctrine administrative WHEN THERE IS NO SPECIAL LAW, APPEAL
of primary machinery before TO OP.
administrative resorting to judicial Decisions of the various agencies of government
jurisdiction requires remedies. The have been appealed to the OP, consistent with the
courts to not resolve doctrine of exhaustion President's power of control over all the executive
or determine a presupposes that the departments, bureaus, and offices. The doctrine of
controversy involving court and the exhaustion of administrative remedies empowers
a question which is administrative agency the OP to review any determination or disposition
within the jurisdiction have concurrent of a department head. The doctrine allows, indeed
of an administrative jurisdiction to take requires, an administrative decision to first be
tribunal. The issue is cognizance of a appealed to the administrative superiors up to the
highest level before it may be elevated to a court of
jurisdictional and the matter. However, in
justice for review.
court, when deference to the
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evidence. (Matienzo v. Abellera, G.R. No. L-

In Phillips Seafood (Philippines) Corporation v. 45839, 1988) The doctrine of finality of judgement
Board of Investments, we recognized that under is equally applicable to quasi-judicial agencies.
the Office of the President’s Administrative Order (Mendiola v. CSC, G.R. No. 100671, 1993)
No. 18, a decision or order issued by a department
or agency need not be appealed to the OP when EXCEPTIONS: (SPA DIVE)
there is a special law that provides for a different
mode of appeal. R.A. No. 9295 does not provide In the following cases, the action is considered ripe
for an appeal procedure; thus, the assailed for judicial review despite lack of final order or
decision and resolution from the MARINA should decision from the administrative agency:
have been appealed with the OP. [Peñafrancia v.
168 Shipping, GR No. 188952, 2016] 1. To grant relief to preserve Status quo pending
further action by the administrative agency;
2. Essential to the Protection of rights asserted
WHEN THERE IS A SPECIAL LAW, GO TO
from the injury threatened;
COURT. 3. When Allowed by law;
1) Did not resort to court as per special law. In the 4. When the order is not reviewable in any other
instant case, the enabling law of respondent BOI, way and the complainant will suffer great and
E.O. No. 226, explicitly allows for immediate obvious Damage if the order is carried out;
judicial relief from the decision of respondent BOI 5. An Interlocutory order affecting the merits of
involving petitioner's application for an ITH. E.O. a controversy;
No. 226 is a law of special nature and should 6. Where an administrative officers acts in
prevail over A.O. No. 18. (NOTE: Otherwise, filed Violation of constitution and other laws; and
out of time that will result to dismissal.) [Phillips 7. To an order made in Excess of power,
contrary to specific prohibitions in the statute
Seafood (Philippines) Corp. v. Board of
governing the agency.
Investments, G.R. No. 175787, 2009]
Appeal to the CA is allowed because a quasi-
2) Correct resort to court as per special law. In this judicial agency is equivalent in rank with the RTC.
case, a special law, RA 7394, likewise expressly (Rules of Court, Rule 43) The CA has the
provided for immediate judicial relief from decisions
discretion on whether to allow the appeal or not.
of the DTI Secretary by filing a petition
for certiorari with the "proper court." Hence, private Factual findings made by quasi-judicial bodies and
respondent should have elevated the case directly administrative agencies when supported by
to the CA through a petition for certiorari. In filing a substantial evidence are accorded great respect
petition for certiorari before the CA raising the and even finality by the appellate courts. This is
issue of the OP's lack of jurisdiction, complainant
because administrative agencies possess
Moran, Jr. thus availed of the proper remedy.
specialized knowledge and expertise in their
(Moran, Jr. v. OP, G.R. No. 192957, 2014]
respective fields. As such, their findings of fact are
3. DOCTRINE OF FINALITY OF binding upon this Court unless there is a showing
(ADMINISTRATIVE) ACTION of grave abuse of discretion, or where it is clearly
shown that they were arrived at arbitrarily or in
Courts are reluctant to interfere with actions of an disregard of the evidence on record. The SSS and
administrative agency prior to its completion or CSC found the evidence for the complainants
finality. Absent a final order or decision, power has credible and proved that petitioner committed the
not been fully and finally exercised, and there can acts complained of. Moreover, the CA sustained
usually be no irreparable harm. It is only after these factual findings. The Court finds no reason
judicial review is no longer premature that the court to disturb these findings, and therefore adopts the
will ascertain in proper cases whether the same. (Japson v. Civil Service Commission, G.R.
administrative findings are not in violation of law, 189479, 2011).
whether they are free from fraud or imposition and
whether they find substantial support from the DOCTRINE OF IMMUTABILITY OF
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(ADMINISTRATIVE) JUDGMENTS Guidelines for the Judicial Review of

Administrative Agencies Exercising Quasi-
The orderly administration of justice requires that Judicial Power. In Montemayor v. Bundalian, this
the judgments/resolutions of a court or quasi- Court laid down the guidelines for the judicial
judicial body must reach a point of finality set by the review of decisions rendered by administrative
law, rules and regulations. The noble purpose is to agencies in the exercise of their quasi judicial
write finis to disputes once and for all. This is a powers, as follows:
fundamental principle in our justice system, without
which there would be no end to litigations. Utmost First, the burden is on the complainant to prove by
respect and adherence to this principle must substantial evidence the allegations in his
always be maintained by those who wield the complaint. Substantial evidence is more than a
power of adjudication. Any act which violates such mere scintilla of evidence. It means such relevant
principle must immediately be struck down. [Fortich evidence as a reasonable mind might accept as
v. Corona, G.R. No. 131457, 1998] adequate to support a conclusion, even if other
minds equally reasonable might conceivably opine
The decision of an administrative body becomes otherwise.
final and executory for failure of a party to perfect
an appeal within the reglementary period in the Second, in reviewing administrative decisions of
manner provided for in rules. Hence, such decision
the executive branch of the government, the
became immutable; it can no longer be amended
nor altered. Otherwise, any amendment or findings of facts made therein are to be respected
alteration made which substantially affects the final so long as they are supported by substantial
and executory judgment would be null and void for evidence. Hence, it is not for the reviewing court
lack of jurisdiction. [Peña v. Government Service to weigh the conflicting evidence, determine
Insurance System, G.R. No. 159520, 2006] the credibility of witnesses, or otherwise
substitute its judgment for that of the
This Court had stated before that administrative
administrative agency with respect to the
decisions must end sometime, as fully as public
policy demands that finality be written on judicial sufficiency of evidence.
controversies. Public interest requires that
proceedings already terminated should not be Third, administrative decisions in matters within the
altered at every step, for the rule of non quieta executive jurisdiction can only be set aside on
movere prescribes that what had already been proof of gross abuse of discretion, fraud, or
terminated should not be disturbed. A disregard of error of law. These principles negate the power
this principle does not commend itself to sound of the reviewing court to re-examine the
public policy. [Peña v. Government Service sufficiency of the evidence in an administrative
Insurance System, G.R. No. 159520, 2006]
case as if originally instituted therein, and do
The rule on finality of decisions, orders or not authorize the court to receive additional
resolutions of a judicial, quasi-judicial or evidence that was not submitted to the
administrative body is “not a question of administrative agency concerned. [emphases
technicality but of substance and merit,” the ours] [Cited in Miro v. Vda. de Erederos, G.R. Nos.
underlying consideration therefore, being the 172532 & 172544-45, November 20, 2013]
protection of the substantive rights of the winning
party. Nothing is more settled in law than that a Modes of Judicial Review of Administrative
decision that has acquired finality becomes
Agencies Exercising Quasi-Judicial Power
immutable and unalterable and may no longer be
modified in any respect even if the modification is
1) Rule 43, Rules of Court
meant to correct erroneous conclusions of fact or
law and whether it will be made by the court that
a) Scope. This Rule shall apply to appeals from
rendered it or by the highest court of the
land. [Peña v. Government Service Insurance judgments or final orders of the Court of Tax
System, G.R. No. 159520, 2006] Appeals and from awards, judgments, final orders
or resolutions of or authorized by any quasi-judicial
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agency in the exercise of its quasi-judicial NOTE: Enumeration of quasi-judicial under

functions. Among these agencies are the Civil Rule 43 is not exclusive; hence, appeal from the
Service Commission, Central Board of decisions of quasi-judicial bodies like the
Assessment Appeals, Securities and Exchange Professional Regulatory Commission and the
Commission, Office of the President, Land Food and Drug Administration, even if not in
Registration Authority, Social Security the list, can be appealed to the CA via Rule 43.
Commission, Civil Aeronautics Board, Bureau of The fact that the FDA is not among the agencies
Patents, Trademarks and Technology Transfer, enumerated in Rule 43 as subject of a petition for
National Electrification Administration, Energy review to the CA is of no consequence. In Cayao-
Regulatory Board, National Telecommunications Lasam v. Ramolete, the Court disagreed with the
Commission, Department of Agrarian Reform opinion of the CA that the enumeration of the
under Republic Act No. 6657, Government Service agencies mentioned in Section 1 of Rule 43 was
Insurance System, Employees Compensation exclusive. Thus: Indeed, the PRC is not expressly
Commission, Agricultural Invention Board, mentioned as one of the agencies which are
Insurance Commission, Philippine Atomic Energy expressly enumerated under Section 1, Rule 43 of
Commission, Board of Investments, Construction the Rules of Court. However, its absence from the
Industry Arbitration Commission, and voluntary enumeration does not, by this fact alone, imply its
arbitrators authorized by law. [Sec. 1, Rule 43, exclusion from the coverage of said Rule. The Rule
Rules of Court] expressly provides that it should be applied to
appeals from awards, judgments, final orders or
b) Cases Not Covered. This Rule shall not apply resolutions of any quasi-judicial agency in the
to judgments or final orders issued under the Labor exercise of its quasi-judicial functions. The phrase
Code of the Philippines. [Sec. 2, Rule 43, Rules of "among these agencies" confirms that the
Court] enumeration made in the Rule is not exclusive to
the agencies therein listed. [Alliance for the Family
c) Where to Appeal. An appeal under this Rule
Foundation, Philippines, Inc. v. Garin, G.R. Nos.
may be taken to the Court of Appeals within the
217872 & 221866, August 24, 2016]
period and in the manner herein provided, whether
the appeal involves questions of fact, of law, or 2) Rule 65, Rules of Court
mixed questions of fact and law. [Sec. 3, Rule
43, Rules of Court] When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted
d) Period of Appeal. The appeal shall be taken without or in excess its or his jurisdiction, or
within fifteen (15) days from notice of the award, with grave abuse of discretion amounting to
judgment, final order or resolution, or from the date lack or excess of jurisdiction, and there is no
of its last publication, if publication is required by appeal, or any plain, speedy, and adequate
law for its effectivity, or of the denial of petitioner's remedy in the ordinary course of law, a person
motion for new trial or reconsideration duly filed in aggrieved thereby may file a verified petition in the
accordance with the governing law of the court or proper court, alleging the facts with certainty and
agency a quo. Only one (1) motion for praying that judgment be rendered annulling or
reconsideration shall be allowed. Upon proper modifying the proceedings of such tribunal, board
motion and the payment of the full amount of the or officer, and granting such incidental reliefs as
docket fee before the expiration of the law and justice may require. [Sec. 1, Rule 65, Rules
reglementary period, the Court of Appeals may of Court]
grant an additional period of fifteen (15) days only
within which to file the petition for review. No further Special Notes on COMELEC, COA, and CSC
extension shall be granted except for the most
compelling reason and in no case to exceed fifteen 1) COMELEC and COA – Rule 64 via Rule 65
(15) days. [Sec. 4, Rule 43, Rules of Court]
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A judgment or final order or resolution of the discretion + WITH plain, adequate, speedy
Commission on Elections and the Commission on remedy, which is through CA)
Audit may be brought by the aggrieved party to the 2) Quasi-Judicial Agency to SC – Rule 65
(quasi-judicial power + with grave abuse of
Supreme Court on certiorari under Rule 65, except
discretion + WITHOUT plain, adequate,
as hereinafter provided. [Sec. 1, Rule 64, Rules of speedy remedy; hence, direct resort to SC.)
Court citing Bar Matter No. 803, 17 February 1998] 3) COMELEC and COA to SC – Rule 64 via Rule
65 (Petition for Certiorari)
2) CSC – via Rule 43; part of enumerated quasi-
judicial bodies. ------- end of topic -------
BUT: Why is COMELEC and COA under Rule 64

via Rule 65 while CSC is under Rule 43?
3) ART. IX-A, Sec. 7, 1987 CONSTITUTION
Unless otherwise provided by this Constitution or

by law, any decision, order, or ruling of each
Commission may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty
days from receipt of a copy thereof.
4) RA 7902 (Expanding the CA Jurisdiction) is

the law that expressly provided that the Exclusive
appellate jurisdiction over all final judgments,
decisions, resolutions, orders or awards of
Regional Trial Courts and quasi-judicial
agencies, instrumentalities, boards or
commissions, including xxx the Civil Service
Commission xxx. Thus, by special law, final
judgments, decisions, resolutions, orders or
awards of the CSC must be appealed to the CA;
hence, CSC under Rule 43.
Thus, the judicial review scenarios are as follows:
Ordinary Appeal (Rule 43)
1) Quasi-Judicial Agency to CA – Rule 43

(Question of Fact or Question of Law or Mixed
Question of Face and Question of Law)
2) Quasi-Judicial Agency to CA via Rule 43;
then CA to SC via Rule 45
3) Quasi-Judicial Agency to SC – Rule 45? –
NO! – Must go through CA even if only
Question of Law.
4) CSC to CA – Rule 43 (Question of Fact or
Question of Law or Mixed Question of Face
and Question of Law)
Special Civil Action (Rule 65)
1) Quasi-Judicial Agency to CA – Rule 65

(quasi-judicial power + with grave abuse of
Page 353 of 568

ELECTION LAW
Political Law
ATENEO CENTRAL
XII. ELECTION LAW A. GENERAL PRINCIPLES ON SUFFRAGE
TOPIC OUTLINE UNDER THE SYLLABUS: Theory of Popular Sovereignty

It finds constitutional basis on the following: the
Philippines is a democratic and republican State.
X. ELECTION LAW Sovereignty resides in the people and all
government authority emanates from them. [Sec.
A. General Principles on Suffrage
1, Art. II, 1987 Constitution]
B. Commission on Elections (COMELEC) So, a democratic and republican government
1. Composition
derives all its powers, directly and indirectly, from
2. Powers and Functions
the people at large. Its essence is indirect rule.
3. Jurisdiction
Actual sovereignty is exercised by the people by
means of suffrage through the ballot of the
C. Voters and Voting
registered voters in duly appointed elections held
1. Qualification and Disqualification of Voters
2. Registration of Voters from time to time. [H. De Leon, The Law on Public
3. Inclusion and Exclusion Proceedings Officers and Election Law, at 490 (2019)]
4. Local and Overseas Absentee Voting
5. Detainee Voting “As long as popular government is an end to be
6. Automated Election System achieved and safeguarded, suffrage, whatever
may be the modality and form devised, must
D. Candidates continue to be the means by which the great
1. Qualifications and Disqualifications of reservoir of power must be emptied into the
Candidates receptacular agencies wrought by the people
2. Filing of Certificates of Candidacy through their Constitution in the interest of
a. Effect of Filing good government and the common weal.
b. Substitution and Withdrawal of Republicanism, in so far as it implies the adoption
Candidates of a representative type of government, necessarily
c. Nuisance Candidates points to the enfranchised citizen as a particle of
d. Duties of the COMELEC popular sovereignty and as the ultimate source of
3. Political Parties the established authority. He has a voice in his
4. Party-List Government and whenever called upon to act in
justifiable cases, to give it efficacy and not to stifle
E. Campaign it. This, fundamentally, is the reason for the rule
1. Election Campaign or Partisan Political that ballots should be read and appreciated, if not
Activity with utmost, with reasonable, liberality.” [Moya v.
2. Election Campaign Acts Del Fierro, GR No. L-46863, 1939]
3. Election Propaganda
4. Contributions and Expenditures Definition, Suffrage
Suffrage is the right as well as obligation of
F. Election Controversies and Remedies qualified citizens to vote in the election of certain
1. Controversies and Remedies Before national and local officers of the government and in
Proclamation the decision of public questions submitted to the
a. Postponement of Election people. [H. De Leon, The Law on Public Officers
b. Failure of Election and Election Law, at 490 (2019)]
c. Petition to Deny Due Course or Cancel
a Certificate of Candidacy
The right to suffrage not only includes the right to
d. Petition for Disqualification
vote for one’s chosen candidate, but also the right
e. Pre-Proclamation Controversies
to vocalize that choice to the public in general, in
f. Annulment of Election
2. Controversies and Remedies After
the hope of influencing their votes. It may be said
Proclamation (Election Contests) that in an election year, the right to vote necessarily
a. Election Protest includes the right to free speech and
b. Quo Warranto expression. [Diocese of Bacolod v. COMELEC, GR
No. 205728, 2015]
G. Election Offenses
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The right to vote is different from the right to art. VI, § 32.)
register. A person may register even before he is 2. Recall — it is the termination of official
18 years old, but must be at least 18 years old on relationship of a local elective official for loss of
confidence prior to the expiration of his term
the day of the election. (PHIL CONST., art. III, § 9.)
through the will of the electorate. (PHIL CONST.,
art. X, § 3.)
Nature of Suffrage
3. Initiative — it is the power of the people to
propose amendments to the Constitution or to
1) Not a natural right. It is merely a privilege to be
propose and enact legislations through an
given or withheld by the lawmaking power subject
election called for the purpose. It is the people
to constitutional limitations. It is not a necessary
power feature of the Constitution. (PHIL
accompaniment of citizenship. It is granted to
CONST., art. VI, § 32.)
individuals only upon the fulfillment of certain
4. Plebiscite — it is the electoral process by which
minimum conditions deemed essential for the
an initiative on the Constitution is approved or
welfare of society.
rejected by the people. It is also the means by
2) Not an absolute right. It is subject to existing
which the voters in affected areas consent or
substantive and procedural requirements provided
object to the change in the form of local
in the Constitution, statutes, and valid rules and
government. (PHIL CONST., art.
regulations. Only on the most serious grounds and
X, § 10,11,18.)
upon clean and convincing proof may a citizen be
5. Election — it is the choice or selection of
deemed to have forfeited his right of suffrage.
candidates to public office by popular vote
3) A Constitutional right. Because it is an
through the use of the ballot. Specifically, it
expression of the sovereign will of the people. In
may refer to the conduct of the polls, including
the sense of a right conferred by the Constitution,
the listing of voters, the holding of the electoral
suffrage is classified as a political right, as well as
campaign and the casting and counting of
a bounden duty of every citizen, enabling him or
ballots and canvassing of returns. (Taule vs.
her to participate in the process of government to
Santos, G.R. No. 90336, Aug. 12, 1991.)
assure that it truly derives its powers solely from
the consent of the governed.
4) A burden and privilege. The right of suffrage Election
is based upon the theory that the people who bear Election means the choice or selection of
the burden of government should share in the candidates for public office by popular vote through
privilege of choosing the officials of the the use of the ballot. Specifically, it covers the
government. The principle is that of 1 man, 1 vote. conduct of the polls, including the listing of voters,
5) A Public Trust. As a patriotic duty of every the holding of the electoral campaign, the casting
qualified citizen, suffrage is in the nature of a public and counting of ballots, the consolidation and
trust and constitutes a voter as representative of transmission of results, and the canvassing of the
the whole people. This duty, while not compulsory, returns. [Sec. 3(b), AM. No. 10-4-1-SC]
requires that the privilege bestowed should be
exercised not exclusively for the benefit of the voter Election is the means by which the people choose
but in good faith and with intelligent zeal for the their officials for a definite and fixed period and to
general benefit and welfare of the state. [H. De whom they entrust for the time being the exercise
Leon, The Law on Public Officers and Election of the powers of the government. (Garchitorena v.
Law, at 491 (2019)] Crescini, G.R. No. L-14514, Dec. 18, 1918)
Regulation of Suffrage Kinds of Election

Congress has unlimited power to enact laws 1. Regular or General: provided by law for the
relative to the right of suffrage and in the exercise election of officers either nation-wide or in
of police power, to suppress whatever evils may be certain subdivisions thereof, after the expiration
incident to the election of public officers. (PHIL of the full term of the former officers;
CONST., art. VI, § 1.) 2. Special: one held to fill a vacancy before the
expiration of the term which the incumbent was
Scope of Suffrage elected. (Lucero v. Commission on Elections,
G.R. No. 113107, Jul. 20, 1994.)
1. Referendum — power of the electorate to
approve or reject legislation through an
election called for the purpose. (PHIL CONST.,
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Election Period executory, and not appealable.

Unless otherwise fixed by the Commission in
special cases, the election period shall commence 3) Decide, except those involving the right to vote,
90 days before the day of election and shall end 30 all questions affecting elections, including
days thereafter. (PHIL CONST., art. IX-C, § 9; determination of the number and location of polling
Omnibus Election Code, § 3.) places, appointment of election officials and
inspectors, and registration of voters.
B. COMMISSION ON ELECTIONS
(COMELEC) 4) Deputize, with the concurrence of the President,
law enforcement agencies and instrumentalities of
Composition of COMELEC the Government, including the Armed Forces of the
(1) There shall be a Commission on Elections Philippines, for the exclusive purpose of ensuring
composed of a Chairman and six Commissioners free, orderly, honest, peaceful, and credible
who shall be natural-born citizens of the Philippines elections.
and, at the time of their appointment, at least thirty-
five years of age, holders of a college degree, and 5) Register, after sufficient publication, political
must not have been candidates for any elective parties, organizations, or coalitions which, in
position in the immediately preceding elections. addition to other requirements, must present their
However, a majority thereof, including the platform or program of government; and accredit
Chairman, shall be Members of the Philippine Bar citizens’ arms of the Commission on Elections.
who have been engaged in the practice of law for Religious denominations and sects shall not be
at least ten years. registered. Those which seek to achieve their goals
through violence or unlawful means, or refuse to
(2) The Chairman and the Commissioners shall be uphold and adhere to this Constitution, or which are
appointed by the President with the consent of the supported by any foreign government shall likewise
Commission on Appointments for a term of seven be refused registration.
years without reappointment. Of those first
appointed, three Members shall hold office for Financial contributions from foreign governments
seven years, two Members for five years, and the and their agencies to political parties,
last Members for three years, without organizations, coalitions, or candidates related to
reappointment. Appointment to any vacancy shall elections constitute interference in national affairs,
be only for the unexpired term of the predecessor. and, when accepted, shall be an additional ground
In no case shall any Member be appointed or for the cancellation of their registration with the
designated in a temporary or acting capacity. [Sec. Commission, in addition to other penalties that may
1, Art. IX-C, 1987 Constitution] be prescribed by law.
Powers and Functions 6) File, upon a verified complaint, or on its own

The Commission on Elections shall exercise the initiative, petitions in court for inclusion or exclusion
following powers and functions: of voters; investigate and, where appropriate,
prosecute cases of violations of election laws,
1) Enforce and administer all laws and regulations including acts or omissions constituting election
relative to the conduct of an election, frauds, offenses, and malpractices.
plebiscite, initiative, referendum, and recall.
7) Recommend to the Congress effective
2) Exercise exclusive original jurisdiction over all measures to minimize election spending, including
contests relating to the elections, returns, and limitation of places where propaganda materials
qualifications of all elective regional, provincial, and shall be posted, and to prevent and penalize all
city officials, and appellate jurisdiction over all forms of election frauds, offenses, malpractices,
contests involving elective municipal officials and nuisance candidacies.
decided by trial courts of general jurisdiction, or
involving elective barangay officials decided by trial 8) Recommend to the President the removal of any
courts of limited jurisdiction. officer or employee it has deputized, or the
imposition of any other disciplinary action, for
Decisions, final orders, or rulings of the violation or disregard of, or disobedience to its
Commission on election contests involving elective directive, order, or decision.
municipal and barangay offices shall be final,
Page 357 of 568
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9) Submit to the President and the Congress a [COMELEC Resolution No. 9574]
comprehensive report on the conduct of each 10) Examination of the book of voters, ballot boxes
election, plebiscite, initiative, referendum, or recall. and their keys, ballots and other documents and
[Sec. 2, Art. IX-C, 1987 Constitution] the recounting of votes. [Sec. 255, Art. XXI, OEC]
11) To conduct Initiative, Referendum, Recall,
Summary of COMELEC Powers and Functions Plebiscite [Sec. 2, Art. IX-C, 1987 Constitution]
GENERAL POWERS: 12) To investigate and prosecute election offenses
1) Enforcement and administration of election laws [Sec. 265, Art. XXII, OEC]
and regulations [Sec. 2, Art. IX-C, 1987 13) To deputize, with the concurrence of the
Constitution] for the purpose of ensuring free, President, law enforcement agencies and
honest, orderly, credible, peaceful elections. [Sec. government instrumentalities. [Sec. 2, Art. IX-C,
52, Art. VII, OEC] 1987 Constitution]
2) Promulgate rules and regulations implementing
the Omnibus Election Code and other laws which Standby Power of COMELEC
the COMELEC is required to enforce Rule-Making If it shall no longer be reasonably possible to
Power) [Sec. 2, Art. IX-C, 1987 Constitution; Sec. observe the periods and dates prescribed by law
52, Art. VII, OEC] for certain pre-election acts, the Commission
3) Exclusive control and supervision over the shall fix other periods and dates in order to
Automated Election System [RA 8436] ensure accomplishment of the activities so
4) Issue a subpoena in the exercise of quasi- voters shall not be deprived of their suffrage.
judicial [Sec. 52(d), OEC] [Sec. 28, RA 8436]
5) Power to punish for contempt provided for in the
Rules of Court. [Sec. 52(e), OEC] However, this standby power relative to the
6) Power to issue auxiliary writs and processes fixing the date of registration of voters is
[Soller v. COMELEC, G.R. No. 139853], 5 subject to the system of continuing registration
September 2000] of voters under Sec. 8, RA 8189: “The personal
7) Power to decide election cases within its filing of application of registration of voters shall be
jurisdiction (i.e., regional, provincial, and city conducted daily in the office of the Election Officer
elective officials) in the exercise of its quasi-judicial during regular office hours. No registration shall,
functions [Sec. 2, Art. IX-C, 1987 Constitution] however, be conducted during the period
starting one hundred twenty (120) days before
SPECIFIC POWERS: a regular election and ninety (90) days before a
1) To declare a failure of elections and call for the special election.”
holding of the election not held or suspended. [Sec.
6, OEC] Disposition of Election Cases
2) To conduct special elections upon grant of The Commission on Elections may sit en banc or
authority by Congress [Kida v. Senate, GR No. in two divisions, and shall promulgate its rules of
196271, 18 October 2011] procedure in order to expedite disposition of
3) To postpone elections for any serious cause election cases, including pre-proclamation
such as violence, terrorism, loss or destruction of controversies. All such election cases shall be
election paraphernalia, force majeure, and other heard and decided in division, provided that
analogous causes. [Sec. 5, OEC] motions for reconsideration of decisions shall
4) To correct manifest error in election documents be decided by the Commission en banc. [Sec.
(administrative function) [De Leon v. Imperial, GR 3, Art. IX-C, 1987 Constitution]
No. L-5758, 30 March 1954]
5) To order re-canvass of votes if its suspension Supervising/Regulating Franchises or Permits
order is violated [Javier v. COMELEC, GR No. The Commission may, during the election
22248, 30 January 1965] period, supervise or regulate the enjoyment or
6) To annul or suspend, partially or totally, utilization of all franchises or permits for the
candidate proclamation [Salcedo v. COMELEC, operation of transportation and other public utilities,
GR No. L-16835, 26 July 1960] media of communication or information, all grants,
7) To annul an illegal canvass [Salcedo v. special privileges, or concessions granted by the
COMELEC, GR No. L-16835, 26 July 1960] Government or any subdivision, agency, or
8) Changing of the designation of polling places instrumentality thereof, including any government-
[Sec. 153, Art. XIII, OEC] owned or controlled corporation or its subsidiary.
9) To transfer venue of canvassing of votes
Page 358 of 568
ATENEO CENTRAL
PURPOSE: Such supervision or regulation shall regions), provincial, and city officials (NOTE:
aim to ensure equal opportunity, time, and space, Municipal officials not included here; jurisdiction is
and the right to reply, including reasonable, equal with Regional Trial Courts). [Sec. 1, Rule 6,
rates therefor, for public information campaigns COMELEC Resolution No. 8804 s.2010]
and forums among candidates in connection with
the objective of holding free, orderly, honest, 3) COMELEC EN BANC - Enforcement of laws
peaceful, and credible elections. [Sec. 4, Art. IX-C, and rules in relation to the conduct of elections.
1987 Constitution] [Zaldivar v. Estenzo, GR No. L-26065, 3 May 1968]
Election Period 4) COMELEC EN BANC - shall have the exclusive

Unless otherwise fixed by the Commission in power to conduct preliminary investigation of all
special cases, the election period shall election offenses punishable under the election
commence ninety days before the day of the laws and to prosecute the same, except as may
election and shall end thirty days after. [Sec. 9, otherwise be provided by law. [Sec.1, Rule 34,
Art. IX-C, 1987 Constitution] COMELEC Rules of Procedure]
Funding of Elections COMELEC DIVISION CASES

Funds certified by the Commission as necessary to 1) Petitions for Certiorari from the decisions,
defray the expenses for holding regular and special orders, resolution of the RTC and MTC in election
elections, plebiscites, initiatives, referenda, and protests. [Soller v. COMELEC, GR No. 139853, 5
recalls, shall be provided in the regular or special September 2000]
appropriations and, once approved, shall be
released automatically upon certification by the 2) Cases appealed from RTC and MTC. [Abad v.
Chairman of the Commission. [Sec. 11, Art. IX-C, COMELEC, GR No. 128877, 10 December 1999]
1987 Constitution]
3) Petitions to cancel certificate of candidacy.
Exclusive Original Jurisdiction of COMELEC [Bautista v. COMELEC, GR No. 154796, 23
1) COMELEC DIVISION – shall have exclusive October 2003]
jurisdiction in pre-proclamation controversies
arising from national, regional or local 4) All contests relating to the elections, returns, and
elections. [Sec. 242, OEC; Sec. 2, Rule 3, qualifications of all elective regional, provincial, and
COMELEC Resolution No. 8804 s.2010] city officials (including pre-proclamation
controversies). [Sec. 2(2), Art. IX-C, 1987
A pre-proclamation controversy refers to any Constitution]
question pertaining to or affecting the
proceedings of the board of canvassers which COMELEC EN BANC CASES
may be raised by any candidate or by any 1) MR of a decision rendered by a COMELEC
registered political party or coalition of political Division. [Sec. 3, Art. IX-C, 1987 Constitution]
parties before the board or directly with the
Commission (division only, not en banc), or any 2) Petition for correction of manifest errors from
matter raised under Sections 233, 234, 235, and erroneous copying of figures from the Election
236 (election returns are delayed, lost, destroyed, Return to the Statement of Votes by precinct.
falsified, tampered or have material defects or [Jaramilla v. COMELEC, GR No. 155717, 23
discrepancies) in relation to the preparation, October 2003] NOTE: Considered as an
transmission, receipt, custody and appreciation of ADMINISTRATIVE function; hence, en banc.
the election returns.
3) Cases involving violation of election laws.
NOTE: All pre-proclamation cases can only be [Baytan v. COMELEC, GR No. 153945, 4 February
heard by the COMELEC Division, not en banc; 2003]
otherwise, null and void. [Soller v. COMELEC, GR
No. 139853, 5 September 2000 citing Sarmiento v. 4) Where COMELEC exercises administrative and
COMELEC] does not exercise adjudicatory/quasi-judicial
powers. [Baytan v. COMELEC, GR No. 153945, 4
2) COMELEC DIVISION – shall have exclusive February 2003]
original jurisdiction over all election protests
involving elective regional (the autonomous NOTE: The COMELEC’s administrative powers
Page 359 of 568
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are found in Section 2 (1), (3), (4), (5), (6), (7), (8), political party only when necessary to the
and (9) of Article IX-C. Thus, the only quasi-judicial discharge of its constitutional functions [Atienza v.
function of the COMELEC is deciding all questions COMELEC, GR No. 188920, 16 February 2010],
affecting elections including determination of the such as the ascertainment of the identity of the
number and location of polling places, appointment political party and its legitimate officers [LDP v.
of election officials and inspectors, and registration COMELEC, GR No. 161265, 24 February 2004].
of voters EXCEPT those involving the right to vote.
Cases Involving the Right of Suffrage
Legal Consequence of Failure to Obtain The jurisdiction to decide controversies on
Majority Four (4) Votes in an MR to COMELEC inclusion or exclusion of voters belongs to the MTC
1) In Mendoza v. COMELEC, GR No. 191084, and MeTC [Sec. 138, Art. XII, OEC]
2010, the SC ruled that failure to obtain the
necessary majority vote of four (4) in an MR to the Jurisdiction Over Election Contests Involving
COMELEC en banc would lead to the dismissal of Municipal and Barangay Elective Officials
the election protest filed with the COMELEC COMELEC exercises appellate jurisdiction (not
division subject of the MR. original jurisdiction) over all contests involving
elective municipal officials decided by trial courts of
2) However, the SC reversed the Mendoza general jurisdiction or involving elective barangay
Doctrine in Legaspi v. COMELEC, GR No. 216572, officials decided by trial courts of limited
19 April 2016 as follows: jurisdiction. [Sec. 2(2), Art. IX-C, 1987 Constitution]
“The Mendoza doctrine, as reiterated in the Judicial Review of COMELEC Decisions

September 1, 2015 Decision, deviated from Unless otherwise provided by this Constitution or
the 1987 Constitution. Not only does it circumvent by law, any decision, order, or ruling of each
the four-vote requirement under Sec. 7, Art. IX-A of Commission [including COMELEC] may be
the Constitution, it likewise diminishes the brought to the Supreme Court on certiorari by the
adjudicatory powers of the COMELEC Divisions aggrieved party within thirty days from receipt of a
under Sec. 3, Article IX-C. 14. copy thereof. [Sec. 7, Art. IX, 1987 Constitution]
Under Sec. 3, Article IX-C of the 1987 Thus, a judgment or final order or resolution of the
Constitution, the COMELEC Divisions are Commission on Elections and the Commission on
granted adjudicatory powers to decide election Audit may be brought by the aggrieved party to the
cases, provided that the COMELEC en Supreme Court on certiorari under Rule 65, except
banc shall resolve motions for reconsideration as hereinafter provided. [Sec. 2, Rule 64, Rules of
of the division rulings. Further, under Sec. 7, Court]
Article IX-A of the Constitution, four (4) votes
are necessary for the COMELEC en banc to But for the SC to take cognizance of the case, it
decide a case. Naturally, the party moving for must be a decision by the COMELEC en banc
reconsideration, as the party seeking and not an interlocutory order by a COMELEC
affirmative relief, carries the burden of proving division [Cagas v. COMELEC, GR No. 194139, 24
that the division committed reversible error. January 2012].
The movant then shoulders the obligation of
convincing four (4) Commissioners to grant his COMELEC Supervision and Control over the
or her plea. Conduct of Automated Elections
The power and duty of the COMELEC to administer
This voting threshold, however, is easily rendered election laws and to have control and supervision
illusory by the application of the Mendoza ruling, over the automated elections is not incompatible
which virtually allows the grant of a motion for with the decision to subcontract services that may
reconsideration even though the movant fails to be better performed by those who are well-
secure four votes in his or her favor, in blatant equipped to handle complex technological matters
violation of Sec. 7, Art. IX-A of the Constitution.” with respect to the implementation of the AES. The
[Legaspi v. Commission on Elections, G.R. No. subcontractor cannot act independently of the
216572 (Resolution), April 19, 2016] COMELEC. [Roque v. COMELEC, GR No.
188456, 2009]
Intra-Political Party Disputes
COMELEC may intervene in disputes internal to a
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C. VOTERS AND VOTING Note: No literacy, property, or other substantive

requirement can be imposed on the exercise of
1. QUALIFICATION AND DISQUALIFICATION suffrage. (PHIL CONST., art. V, § 1)
OF VOTERS
Grounds for Disqualification to Register as
CONSTITUTIONAL RULES: Voter:
(a) Any person who has been sentenced by final
1) QUALIFICATIONS AND REQUIREMENTS. judgment to suffer imprisonment of not less than
Suffrage may be exercised by all citizens of the one (1) year, such disability not having been
Philippines not otherwise disqualified by law, who removed by plenary pardon or amnesty: Provided,
are at least eighteen years of age, and who shall however, That any person disqualified to vote
have resided in the Philippines for at least one year under this paragraph shall automatically reacquire
and in the place wherein they propose to vote for the right to vote upon expiration of five (5) years
at least six months immediately preceding the after service of sentence;
election. [Sec. 1, Art. V, 1987 Constitution]
(b) Any person who has been adjudged by final
2) PROHIBITED REQUIREMENTS. No literacy, judgment by a competent court or tribunal of having
property, or other substantive requirement shall be committed any crime involving disloyalty to the duly
imposed on the exercise of suffrage. [Sec. 1, Art. constituted government such as rebellion, sedition,
V, 1987 Constitution] violation of the firearms laws or any crime against
national security, unless restored to his full civil and
3) BALLOT SECRECY. The Congress shall political rights in accordance with law: Provided,
provide a system for securing the secrecy and That he shall automatically reacquire the right to
sanctity of the ballot as well as a system for vote upon expiration of five (5) years after service
absentee voting by qualified Filipinos abroad. [Sec. of sentence; and
2, Art. V, 1987 Constitution]
(c) Insane or incompetent persons declared as
4) DISABLED AND ILLITERATES. The Congress such by competent authority unless subsequently
shall also design a procedure for the disabled and declared by proper authority that such person is no
the illiterates to vote without the assistance of other longer insane or incompetent. [Sec. 11, RA 8189]
persons. Until then, they shall be allowed to vote
under existing laws and such rules as the NOTE:
Commission on Elections may promulgate to These qualifications are continuing requirements.
protect the secrecy of the ballot. [Sec. 2, Art. V, Congress may not add qualifications but can
1987 Constitution] provide for procedural requirements and
disqualifications. However, the disqualifications
Any person, who, on the day of registration may not must not amount to qualifications.
have reached the required age or period of
residence but, who, on the day of the election shall All these disqualifications presuppose that the
possess such qualifications, may register as a person was once qualified, but due to an
voter. [Sec. 9, RA 8189] intervening event, the person became disqualified.
The Congress cannot add disqualifications which
Qualifications (CD R2 18): can be characterized as a prior restraint.
(Mutuc v. Commision on Elections, G.R. No. L-
1. Citizen of the Philippines 32717, Nov. 26, 1970)
2. Not Disqualified by law
3. Resident of the Philippines for at least 1 Dual Citizenship Law — Former natural-born
YEAR Filipino citizens who acquired foreign citizenship
4. Resident of the place wherein he proposes to through naturalization are deemed not to have lost
vote for at least 6 months immediately their Philippine citizenship under conditions
preceding the election provided in this act. (Citizenship Retention and Re-
5. At least 18 years old acquisition Act of 2003, § 2.)
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Derivative Citizenship — The unmarried child, 2. REGISTRATION AND DEACTIVATION OF

whether legitimate, illegitimate, or adopted, under VOTERS
18 years of age, of those who re-acquire Philippine
citizenship under the Dual Citizenship Law shall be Registration — It does not confer the right to vote;
deemed citizens of the Philippines. (Citizenship it is just a condition precedent to the exercise of the
Retention and Re-acquisition Act of 2003, § 4.) right.
It is the act of accomplishing and filing of a sworn
Requirement for Naturalized Citizens: application for the registration by a qualified voter
To vote — swear an oath of allegiance. before the election officer of the city or municipality
To be elected to public office — renounce foreign wherein he resides and including the same in the
citizenship. book of registered voters upon approval by the
To be appointed to public office — swear an oath Election Registration Board (ERB). (R.A. No. 8189,
of allegiance to the Philippines and renounce § 3.)
foreign citizenship.
(Citizenship Retention and Re-acquisition Act of New System Of Registration — Continuing
2003, § 3.) registration of voters whereby application for
registration of voters shall be conducted daily in the
Residence — One’s domicile or legal residence. It office of the Election Officer during regular office
is where a party actually or constructively has his hours and all applications for registration shall be
permanent home, or where he, no matter where he heard and processed on a quarterly basis by the
may be found, eventually intends to return and Election Registration Board.
remain. (Romualdez-Marcos v. Commission on
Elections, G.R. No. 119976, Sep. 18, 1995.) List of Voters
It refers to an enumeration of names of registered
Residency Requirements: voters in a precinct duly certified by the Election
Domicile — This is in reference to the 1-year Registration Board for use in the election. (RA No
residency requirement in the Philippines. 8189)
Elements: (VARP) No Bio-No Boto Policy

1. Physical presence in the country Biometrics – refers to a quantitative analysis that
2. Intention to Remain provides a positive identification of an individual
3. Intention to Abandon the old domicile such as voice, photograph, fingerprint, signature,
4. It must be Voluntary, must concur. iris, and/or such other identifiable features. (R.A.
No. 10367s, § 2(b).)
Note: All elements must concur.
The biometrics registration requirement is not a
Temporary Residence — This is in reference to
"qualification" to the exercise of the right of
the 6- month residency requirement in the place
suffrage, but a mere aspect of the registration
where one wants to vote. In this case, residence
procedure, of which the State has the right to
can either mean domicile or temporary residence.
reasonably regulate. Unless it is shown that a
registration requirement rises to the level of a
To successfully effect a transfer of domicile,
literacy, property or other substantive requirement
one must demonstrate: as contemplated by the Framers of the
• An actual removal or change of domicile; Constitution—that is, one which propagates a
• A bona fide intention of abandoning the socio-economic standard which is bereft of any
former place of residence and establishing rational basis to a person's ability to intelligently
a new one; and cast his vote and to further the public good— the
• Acts which correspond with that purpose. same cannot be struck down as unconstitutional.
(Kabataan Party-list vs. COMELEC, G.R. No.
There must be animus manendi coupled with 221318, Dec. 16, 2015.)
animus non revertendi. (Asistio v. Canlas, G.R. No.
191124, Apr. 27, 2010). The public has been sufficiently apprised of the
implementation of RA 10367, and its penalty of
deactivation in case of failure to comply. Thus,
there was no violation of procedural due process.
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(Kabataan Partylist vs. COMELEC, G.R. No. No Election Officer shall hold office in a particular
221318, Dec. 16, 2015.) city/municipality for more than 4 years. COMELEC
has the authority to effect transfer.
However, the power of COMELEC to restrict a
citizen's right of suffrage should not be arbitrarily Can COMELEC change the registration period
exercised. (Timbol vs. COMELEC, G.R. No. by resolution?
206004, Feb. 24, 2015.) No. The period within which voters may register to
vote is set by law and cannot be changed by mere
Who shall submit for biometrics registration? resolution of the COMELEC.
1. New Voters — COMELEC shall implement a
mandatory biometrics registration system Book of voters — Classified as permanent
2. Registered voters whose biometrics have not whereby each precinct shall have a permanent list
been captured. (R.A. No. 10367). of all registered voters residing within the territorial
jurisdiction of that precinct. (R.A. No. 8189, § 3.)
Validation
Alteration of Book Of Voters: (DECANT)
It is the process of taking the biometrics of
registered voters whose biometrics have not yet 1. Deactivation/Reactivation
been captured. It shall be conducted by the City or 2. Exclusion/Inclusion
Municipal Election Officer. (R.A. No. 10367, § 2.) 3. Cancellation of registration in case of death
4. Annulment of book of voters
Registration of Illiterates/Persons With 5. New voters
Disabilities 6. Transfer of residence
Illiterate or PWD voters may register with the
assistance of the Election Officer or any member of Grounds for Deactivation of Voter Registration
an accredited citizen’s arms; application for
registration may be prepared by any relative within Deactivation — It is the removal of the registration
the fourth (4th) civil degree of consanguinity or records of certain persons from the corresponding
affinity or by the Election Officer or any member of precinct book of voters and placing the same in the
an accredited citizen’s arms using the data inactive file, properly marked “deactivated” and
supplied by the applicant. (R.A. No. 8189, § 14.) dated in indelible ink, after entering the cause of
deactivation. (R.A. No. 8189, § 27.)
Disqualifications to Register as Voter
The board shall deactivate the registration and
The same are grounds for disqualifications for
remove the registration records of the following
suffrage:
persons from the corresponding precinct book of
1. Sentence by final judgment to imprisonment
voters and place the same, properly marked and
of at least 1 year
dated in indelible ink, in the inactive file after
2. Conviction by final judgment of any of the
entering the cause or causes of deactivation:
following crimes:
a. crime involving disloyalty to the
(a) Any person who has been sentenced by final
government (i.e. rebellion, sedition)
judgment to suffer imprisonment for not less than
b. firearms law
one (1) year, such disability not having been
c. crimes against national security
removed by plenary pardon or amnesty: Provided,
3. Insanity or incompetence declared by
however, That any person disqualified to vote
competent court. (Omnibus Election Code, §
under this paragraph shall automatically reacquire
118.)
the right to vote upon expiration of five (5) years
after service of sentence as certified by the clerks
When is registration not allowed:
of courts of the Municipal/Municipal
1. 120 days before regular election
Circuit/Metropolitan/Regional Trial Courts and the
2. 90 days before special election. Sandiganbayan;
(R.A. No. 8189, § 8.) (b) Any person who has been adjudged by final
judgment by a competent court or tribunal of having
Each precinct shall have no more than 200 voters caused/committed any crime involving disloyalty to
and shall comprise contiguous and compact the duly constituted government such as rebellion,
territories except when precincts are clustered. sedition, violation of the anti-subversion and
firearms laws, or any crime against national
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security, unless restored to his full civil and political NOTE: Reactivation procedure here also applies to
rights in accordance with law; Provided, That he those deactivated for non-validation under RA
shall regain his right to vote automatically upon 10367.
expiration of five (5) years after service of
sentence; Rules on Transfer of Voter Registration
(c) Any person declared by competent authority to 1) Any registered voter who has transferred
be insane or incompetent unless such residence to another city or municipality may apply
disqualification has been subsequently removed by with the Election Officer of his new residence for
a declaration of a proper authority that such person the transfer of his registration records.
is no longer insane or incompetent; 2) The application for transfer of registration shall
(d) Any person who did not vote in the two (2) be subject to the requirements of notice and
successive preceding regular elections as shown hearing and the approval of the Election
by their voting records. For this purpose, regular Registration Board, in accordance with this Act.
elections do not include the Sangguniang 3) Upon approval of the application for transfer, and
Kabataan (SK) elections; after notice of such approval to the Election Officer
(e) Any person whose registration has been of the former residence of the voter, said Election
ordered excluded by the Court; and Officer shall transmit by registered mail the voter’s
(f) Any person who has lost his Filipino citizenship; registration record to the Election Officer of the
[Sec. 27, RA 8189] voter’s new residence. [Sec. 12, RA 8189]
(g) Voters who fail to submit for [Biometrics] 4) Any person who temporarily resides in another
validation on or before the last day of filing of city, municipality or country solely by reason of his
application for registration shall be deactivated occupation, profession, employment in private or
pursuant to the Biometrics Registration Act (RA public service, educational activities, work in the
10367) [Sec 7, RA 10367]. military or naval reservations within the Philippines,
service in the Armed Forces of the Philippines, the
Grounds for Deactivation: (IDI-2LE) National Police Forces, or confinement or
1. Convicted by final judgment to suffer detention in government institutions in accordance
Imprisonment of not less than 1 year; with law, shall not be deemed to have lost his
2. Disloyalty; original residence. [Sec. 9, RA 8189]
3. Insanity;
4. Loss of citizenship; Post-Approval Remedies: (AEI)
5. Failed to vote for 2 successive preceding Petition for Inclusion, Annulment of Book of Voters,
regular elections; and Petition for Exclusion
6. Registration was ordered Excluded by the (Omnibus Election Code, § 139, 142, 145.)
court; and
7. Failure to submit biometrics validation Annulment of book of voters — A voter, election
officer, or duly registered political party may file a
Reactivation of Voter Registration (STERN): verified petition for the annulment of a book of
1. Voter whose registration has been deactivated voters with the COMELEC. Last day for filing is
may file with the Election Officer a Sworn
within 90 days before an election. (Omnibus
application for reactivation of his registration in
the form of an affidavit stating that the grounds Election Code, § 145.)
for the deactivation no longer exist;
2. Any time but not later than 120 days before a Grounds for Annulment of Book of Voters (S2N-
regular election and 90 days before a special F3I2B):
election; 1. Not prepared in accordance with law
3. Election officer shall submit said application to 2. Prepared through:
the ERB for appropriate action; • Fraud
4. In case the application is approved, the Election • Forgery
officer shall retrieve the registration record • Force
from the inactive file and include the same in • Intimidation
the corresponding precinct book of voters; • Impersonation
5. Local heads or representatives of political • Bribery
parties shall be properly notified on approved • Similar irregularity
applications. (R.A. No. 8189, § 28.) • Contains data that are Statistically
improbable (R.A. No. 8189, § 39.)
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3. INCLUSION AND EXCLUSION who is abroad on the day of elections. [Sec. 3(j),
PROCEEDINGS RA 9189 as amended by RA 10590]
Jurisdiction Over All Cases of Inclusion and Overseas Voting refers to the process by which
Exclusion of Voters qualified citizens of the Philippines abroad exercise
1) The Municipal and Metropolitan Trial Courts their right to vote. [Sec. 3(k), RA 9189 as amended
shall have original and exclusive jurisdiction over
by RA 10590]
all cases of inclusion and exclusion of voters in
their respective cities or municipalities.
Qualifications
2) Decisions of the Municipal or Metropolitan Trial
All citizens of the Philippines abroad, who are not
Courts may be appealed by the aggrieved party to
the Regional Trial Court within five (5) days from otherwise disqualified by law, at least eighteen (18)
receipt of notice thereof. Otherwise, said decision years of age on the day of elections, may vote for
shall become final and executory. President, Vice-President, Senators and Party-List
3) The regional trial court shall decide the appeal Representatives, as well as in all national
within ten (10) days from the time it is received, and referenda and plebiscites. [Sec. 4, RA 9189 as
the decision shall immediately become final and
amended by RA 10590]
executory. No motion for reconsideration shall be
entertained. [Sec. 33, RA 8189]
Disqualifications
The following shall be disqualified from registering
INCLUSION CASES EXCLUSION CASES and voting under this Act:
May be filed any time, May be filed any time, (a) Those who have lost their Filipino citizenship in
except 105 days except 100 days accordance with Philippine laws;
before regular before regular (b) Those who have expressly renounced their
elections or 75 days elections or 65 days Philippine citizenship and who have pledged
before special before special allegiance to a foreign country, except those who
elections elections have reacquired or retained their Philippine
citizenship under Republic Act No. 9225, otherwise
Grounds: Grounds: known as the ‘Citizenship Retention and
Reacquisition Act of 2003’;
1. Application for Not qualified or (c) Those who have committed and are convicted
registration has been possessing in a final judgment by a Philippine court or tribunal
disapproved by the disqualification of an offense punishable by imprisonment of not
board less than one (1) year, such disability not having
Flying voters been removed by plenary pardon or
2. Name has been amnesty: Provided, however, That any person
stricken out Ghost voters disqualified to vote under this subsection shall
automatically acquire the right to vote upon the
expiration of five (5) years after service of
sentence; and
Requires a sworn (d) Any citizen of the Philippines abroad previously
petition declared insane or incompetent by competent
authority in the Philippines or abroad, as verified by
the Philippine embassies, consulates or foreign
4. OVERSEAS AND LOCAL ABSENTEE service establishments concerned, unless such
VOTING competent authority subsequently certifies that
such person is no longer insane or incompetent.
Overseas Voter refers to a citizen of the
[Sec. 5, RA 9189 as amended by RA 10590]
Philippines who is qualified to register and vote
under this Act, not otherwise disqualified by law,
NOTE: Under RA 10590, an overseas voter is no
longer required to execute an affidavit of intent to
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resume actual physical permanent residence in the Provided, That he/she is a duly registered voter.
Philippines that was previously required by RA [Sec. 1, EO 157 s.1987]
9189.
Act v. Effect 3) Members of the Media. The Commission on
Elections shall extend the right to vote under the
ACT EFFECT local absentee voting system provided under
existing laws and executive orders to members of
Failure to undertake Removal of name media, media practitioners, including the technical
affidavit from the list and and support staff, who are duly registered voters
permanent and who, on election day, may not be able to vote
disqualification due to the performance of their functions in
covering and reporting on the
Failure to undertake Imprisonment of not elections: Provided, That they shall be allowed to
affidavit yet voted less than 1 year vote only for the positions of President, Vice
President, Senators and Party-List Representative.
Failure to resume Removal of name
[Sec. 2, RA 10380]
residency from list
4) Overseas Voter. All citizens of the Philippines
Failure to resume Imprisonment of not
abroad, who are not otherwise disqualified by law,
residency yet voted less than 1 year
at least eighteen (18) years of age on the day of
elections, may vote for President, Vice-President,
A former natural-born Filipino citizen who has Senators and Party-List Representatives, as well
reacquired Filipino citizenship under the Dual as in all national referenda and plebiscites. [Sec. 4,
Citizenship law may vote even without the required RA 9189 as amended by Sec. 3, RA 10590]
(six months) residence, provided the person files
the affidavit as required in the Absentee Voting 5) Detainee Voter. Detainee voting (either through
Law. (Lewis v. COMELEC, G.R. No. 162759, Aug. the special polling place inside jails or escorted
4, 2006). voting) may be availed of by any registered
detainee whose registration record is not
POLLING PLACE: WHERE TO VOTE
transferred / deactivated / cancelled / deleted.
GENERAL RULE: Voter must vote at the polling

Vote in Absentia
place where registered.
Every qualified Filipino citizen abroad previously
registered as a voter may file with an embassy,
EXCEPTIONS: consulate or other foreign service establishment an
1) Board of Election Inspectors. Members of the application to vote in absentia. (R.A. No. 9189, §
board of election inspectors and their substitutes 11.1)
may vote in the polling place where they are
assigned on election day: Provided, That they are The application may be filed personally or by mail
registered voters within the province, city or (R.A. No. 9189, § 11.2).
municipality where they are assigned: and
The application shall be transmitted to COMELEC
Provided, finally, That their voting in the polling
(R.A. No. 9189, § 11.1)
places where they are not registered voters be
A. COMELEC shall act on the application not
noted in the minutes of the board of election later than 150 days before election day.
inspectors. [Sec. 169, OEC] B. In case of disapproval of the application, the
voter or his authorized representative may file
2) Government Employees and Officials. Any a motion for reconsideration personally or by
person who by reason of public functions and registered mail within 10 days from receipt of
duties, is not in his/her place of registration on notice.
election day, may vote in the city/municipality C. The decision of COMELEC is final. (R.A. No.
where he/she is assigned on election day: 9189, § 12.)
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the COMELEC from enforcing COMELEC

Resolution No. 9371 on the local level. This means
that detainee voters may only vote for the national
DETAINEE VOTING positions.
Detainee
Any person: Pursuant to this, the COMELEC issued COMELEC
1. Confined in jail, Resolution No. 10112, amending Resolution No.
a. formally charged for any crime/s and 10057. This provides that:
b. awaiting/undergoing trial; or
2. Serving a sentence of imprisonment for less The Board of Election Inspector (BEI) shall instruct
than one (1) year; or the DV, in clear terms, that pursuant to the TRO,
3. Whose conviction of a crime involving he or she can only vote for national candidates
disloyalty to the duly constituted government namely, candidates for Pres., VP, Senators and
such as rebellion, sedition, violation of the Party-lists.
firearms laws or any crime against national
security or for any other crime is on appeal All ballots that contain votes for local positions shall
[Sec. 2(a), COMELEC Resolution No. 9371 be separated and transmitted to COMELEC Manila
s.2012] in a sealed envelope. The votes appearing in said
ballots for national positions, if any, shall be
Escorted Voting counted.
This is a voting mechanism for
1. Detainee voters who are residents/ registered A Special Board of Election Inspectors for counting
voters of municipalities/cities other than the shall be established for the purpose.
town/city of incarceration; and/or for
2. Detainee voters in jail facilities where no Election Automation Law
special polling places are established. [Sec. (R.A. No. 8436 as amended by R.A. No. 9369)
2(a), COMELEC Resolution No. 9371
s.2012] THE AUTOMATED ELECTION SYSTEM (AES)
A system using appropriate technology which has
NOTE: The pertinent provisions of COMELEC been demonstrated in the voting, counting,
Resolution No. 9149, promulgated on February 22, consolidating, canvassing, and transmission of
2011 and other Resolutions as far as the
election results, and other electoral processes.
registration period, qualifications and
disqualifications of applicants for registration, the (R.A. No. 9369, § 2.)
procedures for filing, processing and hearing of
applications, and notices and publication The Automated Election System involves voting,
requirements are adopted. (COMELEC Resolution counting, consolidating, canvassing, and
No. 9371) transmission but not proclamation. (R.A. No. 9369)
Reckoning Period of Age and Residence Electronic Transmission v. Electronic Returns

Detainees. Those who shall be eighteen years of
ELECTRONIC ELECTRONIC
age on the day of election and/or are committed
TRANMISSION RETURNS
inside the detention centers for at least six (6)
months immediately preceding the election day Conveying data in A document in
may be registered as a voter. (COMELEC electronic form from electronic and printed
Resolution No. 9371) one location to another
form directly produced
Detainees who are already registered voters may by counting or voting
apply for transfer of registration records as machine, showing the:
warranted by the circumstances.
• Date of election
Detainee Voting for National Positions Only • The province,
In the case of Aguinaldo v. New Bilibid Prison, G.R. municipality and
No. 221201, April 19, 2016, the Supreme Court the precinct in
issued a Temporary Restraining Order enjoining which it is held
Page 367 of 568
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• Votes in figures Any difference between the automated and manual

for each count will result in the determination of root cause
candidate in a and initiate a manual count for those precincts
precinct where affected by the computer or procedural error. (R.A.
AES is utilized No. 9369, § 29.)
Paper-Based Election System v. Direct Record The COMELEC may conduct automated election
Election System even if there is no pilot testing. (Information
DIRECT RECORD Technology Foundation of the Philippines v.
PAPER-BASED
ELECTRONIC COMELEC, G.R. No. 159139, Jan. 13, 2004.)
ELECTION SYSTEM
ELECTION SYSTEM
A type of automated A type of automated The Voter Verification Paper Audit Trail (VVPAT)
election system that functionality is in the form of a printed receipt and
uses paper ballots, election system that a touch screen reflecting the votes in the vote-
records and counts uses electronic ballots counting machine. (Bagumbayan-VNP Movement,
votes, tabulates, records votes by Inc. v. COMELEC, G.R. No. 222731, Mar. 8, 2016.)
consolidates/canvasse
means of a ballot
s and transmits The VVPAT ensures that the candidates selected
electronically the display provided with
mechanical or electro- by the voter in his or her ballot are the candidates
results of the vote count
optical components voted upon and recorded by the vote-counting
that can be activated machine. (Bagumbayan-VNP Movement, Inc. v.
by the voter, COMELEC, G.R. No. 222731, Mar. 8, 2016.)
processes data by
The voter himself or herself verifies the accuracy of
means of a computer
the vote. In instances of Random Manual Audit and
program, records
election protests, the VVPAT becomes the best
voting data and ballot
source of raw data for votes. (Bagumbayan-VNP
images, and transmits
Movement, Inc. v. COMELEC, G.R. No. 222731,
voting results
Mar. 8, 2016.)
electronically
D. CANDIDATES
1. DEFINITION
The Commission on Elections may use either a
paper-based or a direct recording electronic The term "candidate" refers to any person aspiring
election system as it may deem appropriate and for or seeking an elective public office, who has
practical for the process of voting, counting of votes filed a certificate of candidacy by himself or through
and canvassing/consolidation and transmittal of an accredited political party, aggroupment, or
results of electoral exercises. (R.A. No. 9369, § 6.) coalition of parties. [Sec. 79(a), OEC]
Source Code For this purpose, the Commission shall set the
deadline for the filing of certificate of
Human readable instruction that defines what the candidacy/petition of registration/manifestation to
participate in the election. Any person who files
computer equipment will do. (R.A. No. 9369, § 2.)
his certificate of candidacy within this period
shall only be considered as a candidate at the
Random Manual Audit
start of the campaign period for which he filed
his certificate of candidacy: Provided, That,
Where the AES is used, there shall be a random
unlawful acts or omissions applicable to a
manual audit in one precinct per congressional candidate shall take effect only upon the start of the
district randomly chosen by the Commission in aforesaid campaign period: Provided, finally, That
each province and city. (R.A. No. 9369, § 24.) any person holding a public appointive office or
position, including active members of the armed
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forces, and officers and employees in government- he/ she, no matter where he/she may be found
owned or controlled corporations, shall be at any given time, eventually intends to return
considered ipso facto resigned from his/her office and remain (Japson v. COMELEC, G.R. No.
and must vacate the same at the start of the day of 180088, Jan. 19, 2009.)
the filing of his/her certificate of candidacy. [Sec.
13, RA 9369 amending Sec. 11 (and renumbered 2. Registered Voter
it to Sec. 15), RA 8436]
3. Citizenship
The term "candidate" refers to any person seeking
an elective public office, who has filed his certificate • For national elective positions, the candidate
of candidacy, and who has not died, withdrawn his must be a natural - born citizen. For local
certificate of candidacy, had his certificate of elective positions, the candidate may be
candidacy denied due course or cancelled, or has naturalized citizen.
been otherwise disqualified before the start of the • Natural - born citizens of the Philippines who
campaign period for which he filed his certificate of have lost their Philippine citizenship by reason
candidacy. Provided, that, unlawful acts or of their naturalization as citizens of a foreign
omissions applicable to a candidate shall take country can seek elective office provided
effect only upon the start of the aforesaid campaign they acquire Philippine citizenship by taking
period. It also refers to any registered national, the oath of allegiance to the Republic
regional, or sectoral party, organization or prescribed under the Citizenship Retention
coalition thereof that has filed a manifestation and Re - acquisition Act of 2003, and make a
of intent to participate under the party-list personal and sworn renunciation of any and
system, which has not withdrawn the said all foreign citizenship before any public officer
manifestation, or which has not been authorized to administer an oath.
disqualified before the start of the campaign • Use of Foreign Passport: The use of a
period. [Sec. 1(2), COMELEC Resolution No. foreign passport amounts to repudiation or
9615 s. 2013] recantation of the oath of renunciation.
Matters dealing with qualifications for public
There is no constitutional right to run for or hold elective office must be strictly complied with. A
public office. What is recognized is merely a candidate cannot simply be allowed to correct
privilege subject to limitations imposed by law. the deficiency in his qualification by submitting
another oath of renunciation. (Arnado v.
The right to run for public office is not inextricably COMELEC, G.R. No. 210164, Aug. 18, 2015.)
intertwined with the rights of expression and • Dual Citizens: Dual citizens are disqualified
association. One’s interest in seeking office, by from running for any elective local position.
itself, is not entitled to constitutional protection. They cannot successfully run and assume
One cannot bring one’s action under the rubric of office because their ineligibility is inherent in
freedom of association, absent any allegation that, them, existing prior to the filing of their
by running for an elective position, one is certificates of candidacy. Their certificates of
advancing the political ideas of a particular set of candidacy are void ab initio, and votes cast for
voters. [Quinto v. COMELEC, G.R. No. 189698, them will be disregarded. Consequently,
Dec. 1, 2009] whoever garners the next highest number of
votes among the eligible candidates is the
2. QUALIFICATIONS OF CANDIDATES
person legally entitled to the position (Arlene
Llena Empaynado v . COMELEC, G.R. No.
Qualifications
216607, Apr. 5, 2016.)
The 1987 Philippine Constitution prescribes the
qualifications (i.e., age, citizenship, residency,
• Foundlings: As a matter of law, foundlings
are as a class, natural-born citizens (Poe-
voter registration and literacy) for the following
positions: President, Vice-President, Senators and
Mar. 8, 2016). When the names of the parents
Representatives (District and Party - List) while
of a foundling cannot be discovered despite a
statutes set the qualifications of local officials:
diligent search, but sufficient evidence is
presented to sustain a reasonable inference
1. Residence — to be understood as domicile that
that satisfies the quantum of proof required to
is, the place where a party actually or
conclude that at least one or both of his or her
constructively has his permanent home, where
parents is Filipino, then this should be
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sufficient to establish that he or she is a - Offense for which he was sentenced to

natural-born citizen. (David v. Senate penalty of more than 18 months
Electoral Tribunal, G.R. No. 221538, Sep. 20, - Crime involving moral turpitude
2016.) (Omnibus Election Code, § 12.)
Note: Congress may not add to the qualifications
A permanent resident to or immigrant to
for elective officials provided in the Constitution.
However, they may do so for elective officials not foreign country unless he waives such status.
provided in the Constitution. [Pimentel, Jr. v. (Omnibus Election Code, § 68.)
COMELEC, G.R. No. 161658, Nov. 3, 2008] Revised Administrative Code - Municipal
Office
Disqualifications Ecclesiastics (Pamil v. Teleron, G.R. No. L-
Constitution 34854 Nov. 20, 1978.)
Three - term limit for local elective officials
(PHIL CONST., art. X, § 8.) Persons receiving compensation from
term limit rule is not a ground for a petition for provincial or municipal funds
disqualification, however, it is an ineligibility
which is a proper ground for a petition to deny Contractors for public works of the
due course to or to cancel a Certificate of municipality. (Revised Administrative Code, §
Candidacy under Section 78 of the OEC. 2175.)
(Albania v. COMELEC, G.R. No. 226792, Jun. Local Government Code
7, 2017.) Those sentenced by final judgment for an
offense involving moral turpitude or an offense
Two conditions must concur for the application punishable by imprisonment for at least one
of the disqualification of a candidate based on year, within 2 years after service of sentence.
violation of the three - term limit rule, which are:
(1) that the official concerned has been elected Those removed from office as a result of an
for three consecutive terms in the same local administrative case.
government post, and (2) that he has fully
served three consecutive terms. (Albania v. Those convicted by final judgment for violating
COMELEC, G.R. No. 226792, Jun. 7, 2017.) his oath of allegiance to the Republic.
When it was only upon the favorable decision Those with dual citizenship.
on his petition for correction of manifest error
that a candidate was proclaimed as the duly- Fugitives from justice in criminal or non-
elected official, he is deemed not to have political cases.
served office for the full term of three years to
which he was supposedly entitled, since he Permanent residents in foreign country or
only assumed the post and served the those who have the right to reside abroad and
unexpired term of his opponent. (Albania v. continue to avail of it (Caasi v. Court of
COMELEC, G.R. No. 226792, Jun. 7, 2017.) Appeals, G.R. No. 88831, Nov. 8, 1990.).
NOTE: See “3-Term Limit” Discussion under The insane or feeble - minded (Local
the section on Public Corporations and Local Government Code, § 40).
Government.
Omnibus Election Code
Any person declared by competent authority Holdover Principle - The term of all local officials
insane or incompetent is 3 years, but Section 3 of R.A. 11462 authorizes
that all incumbent barangay and sangguniang
Any person sentenced by final judgment for kabataan officials shall remain in office, unless
any of the following offenses: sooner removed or suspended for cause until their
- Insurrection, or rebellion successors are elected, Provided, That barangay
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and sangguniang kabataan officials who are ex No person shall be eligible for more than one office.
officio members of the sangguniang bayan, If he files more than 1 position, he shall not be
sangguniang panlungsod, or sangguniang eligible for all unless he cancels all and retains one.
(Omnibus Election Code, § 73.)
panlalawigan, as the case may be, shall continue
to serve as such members in the sanggunian Effect of Filing COC
concerned until the next barangay and Any person who files his certificate of candidacy
sangguniang kabataan elections. (Postponing the within this period shall only be considered as a
May 2020 Barangay and Sangguniang Kabataan candidate at the start of the campaign period for
Elections, Amending for the Purpose Republic Act which he filed his certificate of candidacy:
No. 9164, as amended, Republic Act No. 11462, Provided, That, unlawful acts or omissions
[December 3, 2019]) applicable to a candidate shall take effect only
upon the start of the aforesaid campaign period:
3. FILING OF CERTIFICATES OF Provided, finally, That any person holding a public
CANDIDACY (COC) appointive office or position, including active
members of the armed forces, and officers and
Certificate of Candidacy employees in government-owned or -controlled
corporations, shall be considered ipso facto
A statement of a person seeking to run for a public
office certifying that he announces his candidacy resigned from his/her office and must vacate the
for the office, the name of the political party to same at the start of the day of the filing of his/her
which he belongs if he belongs to any, and his post certificate of candidacy. [Sec. 13, RA 9369
office address for all election purposes being amending Sec. 11 (and renumbering it to Sec. 15),
stated. (Sinaca v. Mula, G.R. No. 135691, Sep. 27, RA 8436]
1999.)
On Public APPOINTIVE Officials. Any person
No person shall be elected into public office unless holding a public appointive office or position,
he files his COC within the prescribed period. including active members of the armed forces, and
(Omnibus Election Code, §. 68) officers and employees in government-owned or -
controlled corporations are considered ipso facto
The COC shall be filed by the candidate personally resigned from his/her office and must vacate the
or by his duly authorized representative. No COC same at the start of the day of the filing of his/her
certificate of candidacy. Said appointed officials
shall be accepted if filed by mail telegram or
would have unfair advantage over their rivals
facsimile. because they might use their office resources for
their campaign. [Quinto v. COMELEC, G.R. No.
Upon filing, an individual becomes a candidate. 189698, Dec. 1, 2009]
Thus, he is already covered by rules, restrictions
and processes involving candidates. On Public Elective Officials. Elective officials
continue to hold office, whether they run for the
The receiving officers shall have the ministerial
duty to receive and acknowledge receipt of the same or different position. [Fariñas v. Executive
COC. Secretary, GR No. 147387, December 10, 2003]
There is no law or case law stating that a COC will Unlawful Acts as Candidates Take Effect
be cancelled even if it failed to specify the position Only Upon Start of the Campaign Period. It is
sought if the information omitted is supplied in the a basic principle of law that any act is lawful
certificate of nomination and amended COC. Only unless expressly declared unlawful by law. This
those enumerated in Section 74 of the Omnibus is especially true to expression or speech, which
Election Code such as material misrepresentation Congress cannot outlaw except on very narrow
can be a ground for cancellation. (Engle v. grounds involving clear, present and imminent
Commision on Elections, G.R. No. 215995, Jan. danger to the State. The mere fact that the law
19, 2016) does not declare an act unlawful ipso facto
means that the act is lawful. Thus, there is no
Prohibition against multiple candidacies need for Congress to declare in Section 15 of RA
Page 371 of 568
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8436, as amended by RA 9369, that political political party

partisan activities before the start of the 5. Nominated by a registered political party but
campaign period are lawful. It is sufficient for such was not submitted to the COMELEC or
Congress to state that "any unlawful act or where such nomination was submitted after
omission applicable to a candidate shall take the last day of filing of the certificate of
effect only upon the start of the campaign candidacy
period." The only inescapable and logical result 6. Nominated by a party that nominated in
is that the same acts, if done before the start of excess of the number of persons to be voted
for an election position
the campaign period, are lawful. In layman’s
7. Accepted nominations from more than one
language, this means that a candidate is liable
registered political party
for an election offense only for acts done during
the campaign period, not before. The law is clear
Substitution of candidates Grounds for
as daylight — any election offense that may be
Substitution: (DWD)
committed by a candidate under any election law
1. Death
cannot be committed before the start of the
2. Withdrawal
campaign period. (Peñera vs. COMELEC, G.R.
3. Disqualification (Omnibus Election Code, §
No. 181613, Nov. 25, 2009)
77.)
Who is a candidate? Substitution is not allowed when the original
A “candidate” refers to any person aspiring for or candidate was disqualified based on:
seeking an elective public office, who has filed a • Ground of material misrepresentation (Fermin
certificate of candidacy by himself (herself) or v. COMELEC G.R. No. 179695, Dec 18, 2008.)
through an accredited political party, aggroupment, • When the certificate was cancelled because he
or coalition of parties. (Omnibus Election Code, § was running for the fourth consecutive term
79[a].) (Miranda v. Abaya, G.R. No. 136351, Jul. 28,
1999)
A candidate is “any person who files his certificate
• Failure to meet one-year residency
of candidacy within this period shall only be requirement (Tagolino v. HRET, G.R. No.
considered as a candidate at the start of the 202202, Mar. 19, 2013)
campaign period for which he filed his certificate of
candidacy.” Thus, under the law, a person only Note: In the case of Tagolino v. HRET (G.R. No.
becomes a candidate when he/ she has filed a 202202, Mar. 19, 2013), the COMELEC first ruled
certificate of candidacy and when the campaign that substitution is allowed because it held that a
period has commenced. One is not a candidate, candidate’s failure to meet the qualifications is a
despite having filed a certificate of candidacy, ground for disqualification. This was adopted by
before the start of the campaign period. The law the HRET. However, the Supreme Court ruled that
added, “unlawful acts or omissions applicable to a it is actually a cancellation of the certificate of
candidate shall take effect only upon the start of the candidacy. Thus, no substitution is allowed.
aforesaid campaign period.” (R.A. No. 9369 §15)
General Rule: No substitution is allowed for an
If the certificate of candidacy is void ab initio, the independent candidate. Only candidates who are
candidate is not considered a candidate from the members of and are nominated by a party can be
very beginning even if his certificate of candidacy substituted.
was cancelled after the elections. (H. Sohria
Pasagi Diambrang v. COMELEC, G.R. No. Exception: A candidate for a barangay elective
201809, Oct 11, 2016.)
office notwithstanding the policy that barangay
Independent Candidates: elections are nonpartisan can be substituted by
1. Not a member of a registered political party his/her spouse. (Rulloda v. COMELEC, G.R. No.
2. Member of an unregistered political party 154198, Jan. 20, 2003.)
3. Member of a registered political party but not
officially nominated as candidate by said Rules on Substitution:
party 1. Any candidate may withdraw his candidacy
4. Nominated by a person who is not the duly any time before election day.
authorized representative of a registered 2. A person without a valid certificate of candidacy
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cannot be considered a candidate and 6. Political party affiliation and support

therefore cannot be substituted. 7. Popularity
3. Substitute candidate may file his certificate of 8. Properties
candidacy no later than mid-day of election 9. Political exposure
day. 10. Intention to run for office
4. No person who has withdrawn his candidacy 11. Profession
for a position shall be eligible as a substitute 12. Educational attainment
candidate for any other position. 13. Similarity in name causes confusion
5. The substitute candidate must be qualified to 14. Income
hold office and must be a member of and 15. Qualifications and disqualifications
nominated by the same political party.
6. A public office is personal to the public officer COMELEC cannot motu proprio deny due course
and not a property transmissible to the heirs to or cancel an alleged nuisance candidate’s
upon death. The Court has allowed certificate of candidacy without providing the
substitution and intervention but only by a real
candidate his opportunity to be heard. (Timbol vs.
party in interest. The Protestant’s widow is not
a real party in interest to the election protest. COMELEC, G.R. No. 206004, Feb. 24, 2015.)
7. The filing of the withdrawal shall not affect the
civil, criminal or administrative liabilities the Petition to deny or cancel certificates of
substituted candidate may have already candidacy Who can file: Any Party
incurred. How: Petition to deny due course or Cancel
8. A candidate who is disqualified under Section certificate of candidacy under oath
68 of the Omnibus Election Code can be When: Any time not later than 25 days from filing
validly substituted pursuant to Section 77 of certificate of candidacy
because he remains a candidate until Where: COMELEC must decide the case not later
disqualified; but a person whose certificate of than 15 days before election (period is not
candidacy has been denied due course to mandatory however)
and/or cancelled under Section 78 cannot be
substituted because he is not considered a Exclusive Ground: material misrepresentation
candidate. (Tagolino v. HRET, G.R. No. (FMD)
202202, Mar. 19, 2013.) 1. Must be False.
2. Must be Material (goes into the qualifications).
Ministerial duty of COMELEC to receive 3. Must be Deliberate and there is an intention to
Certificate of Candidacy defraud the electorate.
It is the ministerial duty of COMELEC and its
officers to receive a certificate of candidacy. The COMELEC must determine whether or not the
(Omnibus Election Code, § 76.) While the candidate deliberately attempted to mislead,
COMELEC may look into patent defects in the misinform or hide a fact about his or her residency
Certificate of Candidacy, it may not go into matters that would otherwise render him or her ineligible for
not appearing on their face. The question of the position sought. The COMELEC gravely
eligibility or ineligibility of a candidate is thus abused its discretion in this case when, in
beyond the usual and proper cognizance of the considering the residency issue, it based its
COMELEC (Cerafica v. COMELEC, G.R. No. decision solely on very personal and subjective
205136, Dec. 2, 2014.) assessment standards, such as the nature or
design and furnishings of the dwelling place in
Nuisance candidates relation to the stature of the candidate. (Mitra v.
One who has no bona fide intention to run for the COMELEC, G.R. No. 191938, Jul. 19, 2010.)
office and would thus prevent a faithful
determination of the true will of the people. Misrepresentation of nickname is not a material
misrepresentation because the use of nickname is
Factors to Consider: (CROP5-PIPES-IQ) not a qualification of public office. The proper
1. Capability to wage nationwide campaign recourse is to file an election protest and pray that
2. Running under a slate votes be declared as stray votes (Villafuerte v.
3. Organization and machinery COMELEC, G.R. No. 206698, Feb. 25, 2014).
4. Performance in previous elections
5. Platform of government Material representation contemplated by Section
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78 refers to qualifications for elective office, such if the entries in the CoC as filled up by the
as the requisite residency, age, citizenship or any candidate will show that he is not.
other legal qualification necessary to run for a local • When the candidate, supported by a
elective office as provided for in the Local preponderance of evidence, believed that he
Government Code. Furthermore, aside from the was qualified since there was no intention to
requirement of materiality, the misrepresentation deceive the electorate as to one’s
must consist of a deliberate attempt to mislead, qualifications for public office.
misinform, or hide a fact, which would otherwise (Omnibus Election Code, § 78.)
render a candidate ineligible (Caballero v.
COMELEC, G.R. No. 209835, Sep. 22, 2015.) Effects of Disqualification
Any candidate who has been declared by final
If a candidate cannot be disqualified without a prior judgment to be disqualified shall not be voted for.
finding that she or he is suffering from a
disqualification “provided by law or the One who is disqualified under Section 68 is still
Constitution,” neither can the certificate of technically considered to have been a candidate,
candidacy be cancelled or denied due course on albeit proscribed to continue as such only because
grounds of false misrepresentation regarding his of supervening infractions which do not, however,
or her qualification, without a prior authoritative deny his or her statutory eligibility (Tagolino v.
finding that he or she is not qualified. (Poe- HRET, G.R. No. 202202, Mar. 19, 2013).
Mar. 8, 2016.) When a person who is not qualified is voted for and
eventually garners the highest number of votes,
The COMELEC cannot, in the same cancellation even the will of the electorate expressed through
case based on the ground of false material the ballot cannot cure the defect in the
representation, decide the qualification or lack qualifications of the candidate. To rule otherwise is
thereof of the candidate. (Poe-Llamanzares v. to trample upon and rent asunder the very law that
COMELEC, G.R. No. 221697, Mar. 8, 2016.) sets forth the qualifications and disqualifications of
candidates. When there are participants who turn
A CoC may be cancelled on the ground that the out to be ineligible, their victory is voided and the
“candidate” misrepresented his eligibility in his laurel is awarded to the next in rank who does not
CoC because he knew that he had been convicted possess any of the disqualifications nor lacks any
by final judgment for libel, a crime involving moral of the qualifications set in the rules to be eligible as
turpitude regardless of the fact that he was merely candidates. Knowledge by the electorate of a
the publisher of the libelous articles, and that his candidate’s disqualification is not necessary before
penalty was merely a fine. (Ty-Delgado v. HRET, a qualified candidate who placed second to a
G.R. No. 219603, Jan. 26, 2016) disqualified one can be proclaimed as the winner
(Maquiling v. Commission on Elections, G.R. No.
If the certificate of candidacy is void ab initio, the 195649, Apr. 16, 2013).
candidate is not considered a candidate from the
very beginning even if his certificate of candidacy A person whose COC was cancelled due to
was cancelled after the elections. (H. Sohria ineligibility for failure to prove Filipino citizenship
Pasagi Diambrang vs. COMELEC, G.R. No. and the one-year residence requirement could not
201809, Oct. 11, 2016). have been a valid candidate, and could not have
been validly proclaimed. Thus, she could not have
The summary nature of proceedings under Section validly assumed her position. (Velasco v.
Belmonte, G.R. No. 211140, Jan. 12, 2016)
78 only allows it to rule on patent material
misrepresentations of facts, not to make
The purpose of a disqualification proceeding is to
conclusions of law that are even contrary to
jurisprudence. (Dano vs. COMELEC, G.R. No. prevent the candidate from running or, if elected,
210200, Sep. 13, 2016). from serving, or to prosecute him for violation of the
election laws. A petition to disqualify a candidate
may be filed pursuant to Section 68 of the Omnibus
No False and Material Misrepresentation:
Election Code. Offenses that are punished in laws
• When a candidate uses the name of her long- other than in the Omnibus Election Code cannot be
time live-in partner or states a false profession. a ground for a Section 68 petition. (Ejercito v.
• When the candidate is actually qualified even COMELEC, G.R. No. 212398, Nov. 25, 2014).
Page 374 of 568
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to lack of qualification, such as residence. A

Effect of Re-Election on Administrative Liability petition for disqualification refers to
The concept of public office is a public trust and the commission of prohibited acts and possession
corollary requirement of accountability to the of permanent resident status in a foreign
people at all times, as mandated under the 1987 country.
Constitution, is plainly inconsistent with the idea b. A candidate whose certificate of candidacy
that an elective local official’s administrative liability was cancelled is not treated as a candidate. A
for a misconduct committed during a prior term can candidate who is disqualified cannot continue
be wiped off by the fact that he was elected to a as a candidate.
second term of office, or even another elective c. A candidate whose certificate of candidacy
post. Election is not a mode of condoning an was cancelled could be substituted. A
administrative offense, and there is simply no candidate who is disqualified cannot be
constitutional or statutory basis in our jurisdiction to substituted.
support the notion that an official elected for a d. A petition to deny due course or to cancel a
different term is fully absolved of any administrative certificate of candidacy must be filed within 25
liability arising from an offense done during a prior days from the time of filing of the COC, as
term. (Carpio-Morales v. Binay, G.R. No. 217126- provided under Section 78 of the OEC (Albania
27, Nov. 10, 2015.) v. COMELEC, G.R. No. 226792, 7 Jun. 7,
2017.)
The COMELEC may suspend the proclamation of e. A petition for disqualification of a nuisance
a candidate who gets the majority votes, if he has candidate should be filed within 5 days from
been disqualified before the election but the the last day for filing certificate of candidacy
decision has not yet become final. He will not be (Fermin v. COMELEC, G.R. No. 179695, Dec.
proclaimed except where the judgment of 18, 2008.)
disqualification is finally reversed.
Rules on Lone Candidate in a Special Election
Exception to non-proclamation of candidate 1) PROCLAMATION OF LONE CANDIDATE.
with 2nd highest number of votes: Upon the expiration of the deadline for the filing of
the certificates of candidacy in a special election
1. The one who obtained the highest number of
called to fill a vacancy in an elective position other
votes is disqualified; and
than for President and Vice President, when there
2. The electorate is fully aware in fact and in law
is only one (1) qualified candidate for such position,
of a candidate’s disqualification so as to bring
the lone candidate shall be proclaimed elected to
such awareness within the realm of notoriety
the position by proper proclaiming body of the
but would nonetheless cast their votes in favor
Commission on Elections without holding the
of the ineligible candidate (Grego v.
special election upon certification by the
COMELEC, G.R. No. 125955, June 19, 1997.)
Commission on Elections that he is the only
candidate for the office and is thereby deemed
Withdrawal of Candidates
elected. [Sec. 2, RA 8295]
Nothing in Section 73 of B.P. No. 881 mandates
that the affidavit of withdrawal must be filed with the 2) ASSUMPTION OF OFFICE. In the absence of
same office where the certificate of candidacy to be any lawful ground to deny due course or cancel the
withdrawn was filed. Thus, it can be filed directly certificate of candidacy in order to prevent such
with the main office of the COMELEC, the office of proclamation, as provided for under Sections 69
the regional election director concerned, the office and 78 of Batas Pambansa Bilang 881 also known
of the provincial election supervisor of the province as the Omnibus Election Code of the Philippines,
to which the municipality involved belongs, or the the candidate referred to in the preceding
office of the municipal election officer of the said paragraph shall assume office not earlier than the
municipality (Go v. COMELEC, G.R. No. 147741, scheduled election day. Certificates of candidacy
May 10, 2001). filed in violation hereof shall not be given due
course. For this purpose, the Commission shall
Distinction between Disqualification and decide petitions for disqualifications not later than
Cancellation of COC: election day; otherwise, such petitions shall be
a. A petition for cancellation of a certificate of deemed dismissed. [Sec. 3, RA 8295]
candidacy is not based on lack of qualification
but on false representation, which may relate 3) DISQUALIFICATIONS. In addition to the
Page 375 of 568
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disqualifications mentioned in Sections 12 and 68 and

of the Omnibus Election Code and Section 40 of (5) That right to vote or be elected or appointed to
Republic Act No. 7160, otherwise known as the any public office in the Philippines cannot be
Local Government Code, whenever the evidence exercised by, or extended to, those who:
of guilt is strong, the following persons are (a) are candidates for or are occupying any
disqualified to run in a special election called to fill public office in the country of which they are
the vacancy in an elective office, to wit: naturalized citizens; and/or
a) Any elective official who has resigned from his (b) are in active service as commissioned or
office by accepting an appointive office or for non-commissioned officers in the armed forces
whatever reason which he previously occupied but of the country which they are naturalized
has caused to become vacant due to his citizens. [Sec. 5, RA 9225]
resignation; and
b) Any person who, directly or indirectly, coerces, POLITICAL PARTIES
bribes, threatens, harasses, intimidates or actually
causes, inflicts or produces any violence, injury, Multi-Party System
punishment, torture, damage, loss or disadvantage A free and open party system shall be allowed to
to any person or persons aspiring to become a evolve according to the free choice of the people,
candidate or that of the immediate member of his subject to the provisions of this Article. [Sec. 6,
family, his honor or property that is meant to Art. IX-C, 1987 Constitution]
eliminate all other potential candidate. (NOTE: Per
Sec. 5, RA 8295, this also constitutes as an Political Parties, Organizations, or Coalitions
election offense that shall be prosecuted and 1) No votes cast in favor of a political party,
penalized under Sec. 264 of the OEC.) [Sec. 4, RA organization, or coalition shall be valid, except for
8295] those registered under the party-list system as
provided in this Constitution. [Sec. 7, Art. IX-C,
Rules on Retention and Reacquisition of 1987 Constitution]
Philippine Citizenship and Running for Public 2) Political parties, or organizations or coalitions
Elective Office (RA 9225) registered under the party-list system, shall not be
Those who retain or re-acquire Philippine represented in the voters’ registration boards,
citizenship under this Act shall enjoy full civil and boards of election inspectors, boards of
political rights and be subject to all attendant canvassers, or other similar bodies. However, they
liabilities and responsibilities under existing laws of shall be entitled to appoint poll watchers in
the Philippines and the following conditions: accordance with law. [Sec. 8, Art. IX-C, 1987
(1) Those intending to exercise their right of Constitution]
suffrage must meet the requirements under
Section 1, Article V of the Constitution, Republic Definitions
Act No. 9189, otherwise known as "The Overseas 1) Party. A party means either a political party or a
Absentee Voting Act of 2003" and other existing sectoral party or a coalition of parties. [Sec. 3(b),
laws; RA 7941]
(2) Those seeking elective public office in the
Philippines shall meet the qualification for holding 2) Political Party. A political party refers to an
such public office as required by the Constitution organized group of citizens advocating an ideology
and existing laws and, at the time of the filing of the or platform, principles and policies for the general
certificate of candidacy, make a personal and conduct of government and which, as the most
sworn renunciation of any and all foreign immediate means of securing their adoption,
citizenship before any public officer authorized to regularly nominates and supports certain of its
administer an oath; leaders and members as candidates for public
(3) Those appointed to any public office shall office. [Sec. 3(c), RA 7941]
subscribe and swear to an oath of allegiance to the
Republic of the Philippines and its duly constituted 3) National Party. It is a national party when its
authorities prior to their assumption of office: constituency is spread over the geographical
Provided, That they renounce their oath of territory of at least a majority of the regions. [Sec.
allegiance to the country where they took that oath; 3(d), RA 7941]
(4) Those intending to practice their profession in
the Philippines shall apply with the proper authority 4) Regional Party. It is a regional party when its
for a license or permit to engage in such practice; constituency is spread over the geographical
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territory of at least a majority of the cities and To acquire juridical personality, to qualify for
provinces comprising the region. [Sec. 3(d), RA accreditation, and to be entitled to the rights of
7941] political parties, a political party must be registered
with COMELEC. (Omnibus Election Code, § 20.)
5) Sectoral Party. A sectoral party refers to an
organized group of citizens belonging to any of the
Registration and Accreditation
sectors enumerated in Section 5 hereof whose
principal advocacy pertains to the special interests a. Registration is the act that bestows juridical
and concerns of their sector. [Sec. 3(e), RA 7941] personality for purposes of our election laws;
accreditation , on the other hand, relates to the
privileged participation that our election laws
Sectoral Party - An organized group of citizens
whose principal advocacy pertains to the special grant to qualified registered parties.
interests and concerns of the following sectors: b. Accreditation can only be granted to a
1. Labor registered political party, organization or
2. Fisher folk coalition; stated otherwise, a registration must
first take place before a request for
3. Peasant
4. Urban poor accreditation can be made. Once registration
5. Indigenous has been carried out, accreditation is the next
6. Cultural communities natural step to follow (Magdalo Para sa
7. Youth Pagbabago v. COMELEC, G.R. No. 190793,
8. Women Jun. 12, 2012).
9. Handicapped
10. Elderly
11. Overseas workers COMELEC has the power to:
12. Veterans • Register political parties, organizations, or
13. Professional workers coalitions, and the authority to cancel the same
(R.A. No. 7941) on legal grounds
• En Banc has the authority to direct a hearing
Take note that the list of marginalized sectors is be conducted on the petition for cancellation of
not exclusive. [Ang Bagong Bayani-OFW Labor registration of the party list. However, HRET
Party v. COMELEC, G.R. No. 147589, Jun. 26, has the jurisdiction for contest relating to the
qualifications of nominee or representative.
2001]
(Alliance for Barangay Concerns Party List v.
COMELEC, G.R. No. 193256, Mar. 22, 2011)
6) Sectoral Organization. A sectoral organization
refers to a group of citizens or a coalition of groups
Issue of validity or invalidity of the expulsion
of citizens who share similar physical attributes or
characteristics, employment, interest or concerns. The validity or invalidity of the expulsion of a
[Sec. 3(f), RA 7941] political party’s officers is purely a membership
issue that has to be settled within the party. It is an
7) Coalition. A coalition refers to an aggrupation of internal party matter over which COMELEC has no
duly registered national, regional, sectoral parties jurisdiction. It may intervene in disputes internal to
or organizations for political and/or election a party only when necessary to the discharge of its
purposes. [Sec. 3(g), RA 7941] constitutional functions, such as resolving an intra-
party leadership dispute as an incident of its power
Congress cannot provide for a two-party to register political parties. (Atienza v. COMELEC,
G.R. No. 188920, Feb. 16 2010; Alcantara v.
system because:
COMELEC, G.R. No. 203646, Apr. 16, 2013)
1. This violates the freedom of association as
provided in the Bill of Rights. The following political parties cannot be
2. The Constitution mandates that the Philippine
registered (UFC-R)
party system shall be multi-party, open and
free. Religious sects
Those which seek to achieve their goals through
COMELEC Jurisdiction Over Political Parties Unlawful means
Those which refuse to adhere to the Constitution
Necessity of Registration Those which are supported by any Foreign
government.. (PHIL CONST., art. IX-C, § 2(5).)
Page 377 of 568
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Effect when party fails to obtain at least 10% respective inhabitants, and on the basis of a
votes case in constituency uniform and progressive ratio, and those who, as
Registration will be forfeited when at least 10% of provided by law, shall be elected through a party-
the votes cast in the constituency in which it list system of registered national, regional, and
nominated candidates is not obtained. (Omnibus sectoral parties or organizations.
Election Code, § 60.) (2) The party-list representatives shall constitute
twenty per centum of the total number of
Criteria to Determine Type of Political Party
representatives including those under the party list.
(O2IRA):
For three consecutive terms after the ratification of
• Established Record of said parties showing
this Constitution, one-half of the seats allocated to
in past elections
party-list representatives shall be filled, as provided
• Number of Incumbent elective officials
by law, by selection or election from the labor,
• Identifiable political Organizations and
strengths peasant, urban poor, indigenous cultural
• Ability to fill and complete slate of candidates communities, women, youth, and such other
• Other analogous circumstances sectors as may be provided by law, except the
(R.A. No. 7166, § 26.) religious sector.
Types of Parties: Sections 7 and 8, Article IX-C

1. Non-Registered Parties Sec. 7. No votes cast in favor of a political party,
2. Registered Parties organization, or coalition shall be valid, except for
a. Dominant Majority — Entitled to a copy those registered under the party-list system as
of ER provided in this Constitution.
b. Dominant Minority — Entitled to a copy Sec. 8. Political parties, or organizations or
of ER
coalitions registered under the party-list system,
c. Top 3 — Entitled to appoint a principal
watcher and a copy of the COC shall not be represented in the voters' registration
d. Bottom 3 — Entitled to appoint a principal boards, boards of election inspectors, boards of
watcher canvassers, or other similar bodies. However, they
shall be entitled to appoint poll watchers in
COMELEC may not, through a resolution setting accordance with law.
the deadline for registration of political parties,
differentiate between political parties, on the one Declared State Policy
hand, and political organizations and coalitions, on In Republic Act No. 7941, otherwise known as the
the other. There is no substantial distinction among “Party-List System Act,” the declared state policy is
these entities germane to the act of registration that
that the State shall promote proportional
would justify creating distinctions among them in
terms of deadlines. A petition for registration as a representation in the election of representatives to
political coalition filed beyond that deadline is time- the House of Representatives through a party-list
barred, and the COMELEC resolution granting that system of registered national, regional and sectoral
petition constitutes grave abuse of discretion. parties or organizations or coalitions thereof, which
(Liberal Party v. COMELEC, G.R. No. 191771, May will enable Filipino citizens belonging to the
6, 2010) marginalized and underrepresented sectors,
organizations and parties, and who lack well-
PARTY-LIST SYSTEM defined political constituencies but who could
contribute to the formulation and enactment of
Constitutional Rules appropriate legislation that will benefit the nation as
Section 5, Article VI a whole, to become members of the House of
(1) The House of Representatives shall be Representatives. Towards this end, the State shall
composed of not more than two hundred and fifty develop and guarantee a full, free and open party
members, unless otherwise fixed by law, who shall system in order to attain the broadest possible
be elected from legislative districts apportioned representation of party, sectoral or group interests
among the provinces, cities, and the Metropolitan in the House of Representatives by enhancing their
Manila area in accordance with the number of their chances to compete for and win seats in the
Page 378 of 568
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legislature, and shall provide the simplest scheme Registration of a Party-List

possible. [Sec. 2, RA 7941] The COMELEC may motu proprio or upon verified
complaint of any interested party, remove or
A social justice tool designed not only to give more cancel, after due notice and hearing, the
in law to the great masses of our people who have registration of any national, regional or sectoral
less in life, but also to enable them to become party, organization or coalition on any of the
veritable lawmakers empowered to participate following grounds:
directly in the enactment of laws designed to 1) It is a religious sect or denomination,
benefit them. (R.A. No. 7941) organization or association organized for religious
purposes;
The Party-List System 2) It advocates violence or unlawful means to seek
The party-list system is a mechanism of its goal;
proportional representation in the election of 3) It is a foreign party or organization;
representatives to the House of Representatives 4) It is receiving support from any foreign
from national, regional and sectoral parties or government, foreign political party, foundation,
organizations or coalitions thereof registered with organization, whether directly or through any of its
the Commission on Elections (COMELEC). officers or members or indirectly through third
Component parties or organizations of a coalition parties for partisan election purposes;
may participate independently provided the 5) It violates or fails to comply with laws, rules or
coalition of which they form part does not regulations relating to elections;
participate in the party-list system. [Sec. 3(a), RA 6) It declares untruthful statements in its petition;
7941] 7) It has ceased to exist for at least one (1) year; or
8) It fails to participate in the last two (2) preceding
Aims and Purposes: elections or fails to obtain at least two percentum
1. Broaden the base of candidates (2%) of the votes cast under the party-list system
2. Encourage multi-party system in the two (2) preceding elections for the
3. Ensure party loyalty constituency in which it has registered. [Sec. 6, RA
4. Promote proportional representation 7941]
Registration as a Party-List Disqualification of Party-Lists: (F2V2R-COPS)

Any organized group of persons may register as a 1. Foreign party or organization
party, organization or coalition for purposes of the 2. Receives Foreign support
party-list system by filing with the COMELEC not 3. Advocates Violence
later than ninety (90) days before the election a 4. Violates election laws
petition verified by its president or secretary stating 5. Religious sect, denomination, organization
its desire to participate in the party-list system as a 6. Ceased to exist for at least 1 year
national, regional or sectoral party or organization 7. Failed to Obtain at least 2% of the votes cast
or a coalition of such parties or organizations, under the party-list system in the 2 preceding
attaching thereto its constitution, by-laws, platform elections
or program of government, list of officers, coalition 8. Failed to Participate in the last 2 preceding
agreement and other relevant information as the elections
COMELEC may require: provided, that the sectors 9. Untruthful Statements in its petition
shall include labor, peasant, fisherfolk, urban
poor, indigenous cultural communities, elderly, Cancellation of registration of a party list may be
handicapped, women, youth, veterans, done by the COMELEC motu proprio or upon
overseas workers, and professionals. The verified complaint of any interested party after due
COMELEC shall publish the petition in at least two notice and hearing.
(2) national newspapers of general circulation.
Moral disapproval is not a sufficient governmental
The COMELEC shall, after due notice and hearing, interest to justify exclusion of homosexuals from
resolve the petition within fifteen (15) days from the participation in the party-list system. (Ang Ladlad
date it was submitted for decision but in no case LGBT Party v. COMELEC, G.R. No. 190582, Apr.
not later than sixty (60) days before election. [Sec. 8, 2010.)
5, RA 7941]
For the COMELEC to validly exercise its statutory
Grounds for Removal or Cancellation of
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power to cancel the registration of a party-list regional sectoral parties." They did not, precisely
group, the law imposes only two (2) conditions: because it was never their intention to make
1. Due notice and hearing is afforded to the the party-list system exclusively sectoral.
party-list group concerned; and 2) What the framers intended, and what they
2. Any of the enumerated grounds for expressly wrote in Section 5(1), could not be any
disqualification in Section 6, R.A. No. 7941 clearer: the party-list system is composed of three
exists (Davao v. COMELEC, G.R. No. 193643, different groups, and the sectoral parties belong to
Jan 29, 2013). only one of the three groups. The text of Section
5(1) leaves no room for any doubt that national and
Each accreditation handed by the COMELEC to regional parties are separate from sectoral parties.
party-list organizations can be likened to the 3) Thus, the party-list system is composed of three
franchise granted by Congress, thru the SEC, to different groups: (1) national parties or
corporations or associations created under the organizations; (2) regional parties or
Corporation Code. A party-list organization, like a organizations; and (3) sectoral parties or
corporation, owes its legal existence to the organizations. National and regional parties or
concession of its franchise from the State, thru the organizations are different from sectoral
COMELEC. Being a mere concession, it may be parties or organizations. National and regional
revoked by the granting authority upon the parties or organizations need not be organized
existence of certain conditions. The fact that a along sectoral lines and need not represent
franchise/accreditation may be revoked means any particular sector.
that it can never be final and conclusive (Davao v. 4) Moreover, Section 5(2), Article VI of the 1987
COMELEC, G.R. No. 193643, Jan 29, 2013) Constitution mandates that, during the first three
consecutive terms of Congress after the ratification
The laws, rules and regulations violated to warrant of the 1987 Constitution, "one-half of the seats
cancellation under Section 6 must be one that is allocated to party-list representatives shall be
primarily imputable to the party itself and not one filled, as provided by law, by selection or election
from the labor, peasant, urban poor, indigenous
that is chiefly confined to an individual member or
cultural communities, women, youth, and such
its nominee. (COCOFED-Philippine Coconut other sectors as may be provided by law, except
Producers Federation, Inc. v. Commission on the religious sector."
Elections, G.R. No. 207026, Aug. 6, 2013). 5) This provision clearly shows again that the
party-list system is not exclusively for sectoral
The disqualification of some of the nominees shall parties for two obvious reasons. First, the other
not result in the disqualification of the party-list one-half of the seats allocated to party-list
group “provided that they have at least one representatives would naturally be open to
nominee who remains qualified.” (COCOFED- non-sectoral party-list representatives, clearly
negating the idea that the party-list system is
Philippine Coconut Producers Federation, Inc. v.
exclusively for sectoral parties representing
Commission on Elections, G.R. No. 207026, Aug. the "marginalized and underrepresented."
6, 2013). Second, the reservation of one-half of the
party-list seats to sectoral parties applies only
Party-List System Not Limited to Sectoral Parties. for the first "three consecutive terms after the
1) The indisputable intent of the framers of the ratification of this Constitution," clearly
1987 Constitution to include in the party-list system making the party-list system fully open after
both sectoral and non-sectoral parties is clearly the end of the first three congressional terms.
written in Section 5(1), Article VI of the This means that, after this period, there will be no
Constitution. Section 5(1), Article VI of the seats reserved for any class or type of party that
Constitution is crystal-clear that there shall be "a qualifies under the three groups constituting the
party-list system of registered national, party-list system.
regional, and sectoral parties or 6) Hence, the clear intent, express wording,
organizations." The commas after the words and party-list structure ordained in Section 5(1)
"national," and "regional," separate national and and (2), Article VI of the 1987 Constitution
regional parties from sectoral parties. Had the cannot be disputed: the party-list system is not
framers of the 1987 Constitution intended national for sectoral parties only, but also for non-
and regional parties to be at the same time sectoral parties. [Atong Paglaum v. COMELEC,
sectoral, they would have stated "national and G.R. No. 203766, Apr. 2, 2013]
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registration of parties or organizations after due

Party-List Act Does Not Require National and notice and hearing. None of the 8 grounds to
Regional Organizations to Represent the refuse or cancel registration refers to non-
“Marginalized and Underrepresented” Sectors. representation of the "marginalized and
1) To require all national and regional parties under underrepresented.”
the party-list system to represent the "marginalized 5) The phrase "marginalized and
and underrepresented" is to deprive and exclude, underrepresented" appears only once in R.A. No.
by judicial fiat, ideology-based and cause-oriented 7941, in Section 2 on Declaration of Policy. Section
parties from the party-list system. How will these 2 seeks "to promote proportional representation in
ideology-based and cause-oriented parties, who the election of representatives to the House of
cannot win in legislative district elections, Representatives through the party-list system,"
participate in the electoral process if they are which will enable Filipinos belonging to
excluded from the party-list system? To exclude the "marginalized and underrepresented
them from the party-list system is to prevent them sectors, organizations and parties, and who
from joining the parliamentary struggle, leaving as lack well-defined political constituencies," to
their only option the armed struggle. To exclude become members of the House of
them from the party-list system is, apart from being Representatives. While the policy declaration in
obviously senseless, patently contrary to the clear Section 2 of R.A. No. 7941 broadly refers to
intent and express wording of the 1987 Constitution "marginalized and underrepresented sectors,
and R.A. No. 7941. organizations and parties," the specific
2) Under the party-list system, an ideology- implementing provisions of R.A. No. 7941 do not
based or cause-oriented political party is define or require that the sectors, organizations or
clearly different from a sectoral party. A political parties must be "marginalized and
party need not be organized as a sectoral party and underrepresented." On the contrary, to even
need not represent any particular sector. There is interpret that all the sectors mentioned in Section 5
no requirement in R.A. No. 7941 that a national or are "marginalized and underrepresented" would
regional political party must represent a lead to absurdities. [Atong Paglaum v. COMELEC,
"marginalized and underrepresented" sector. It is GR No. 203766, 2 April 2013]
sufficient that the political party consists of citizens
who advocate the same ideology or platform, or the The Scope of the “Marginalized and
same governance principles and Underrepresented” Sectors
policies, regardless of their economic status as 1) The phrase “marginalized and
citizens. underrepresented" should refer only to the sectors
3) Section 5 of R.A. No. 7941 states that "the in Section 5 that are, by their nature, economically
sectors shall include labor, peasant, fisherfolk, "marginalized and underrepresented." These
urban poor, indigenous cultural sectors are: labor, peasant, fisherfolk, urban
communities, elderly, handicapped, women, poor, indigenous cultural communities,
youth, veterans, overseas workers, handicapped, veterans, overseas workers, and
and professionals." The sectors mentioned in other similar sectors. For these sectors, a
Section 5 are not all necessarily "marginalized and majority of the members of the sectoral party must
underrepresented." For sure, "professionals" are belong to the "marginalized and
not by definition "marginalized and underrepresented." The nominees of the sectoral
underrepresented," not even the elderly, women, party either must belong to the sector, or must
and the youth. However, professionals, the elderly, have a track record of advocacy for the sector
women, and the youth may "lack well-defined represented. Belonging to the "marginalized and
political constituencies," and can thus organize underrepresented" sector does not mean one must
themselves into sectoral parties in advocacy of the "wallow in poverty, destitution or infirmity." It is
special interests and concerns of their respective sufficient that one, or his or her sector, is below the
sectors. middle class. More specifically, the economically
4) Section 6 of R.A. No. 7941 provides another "marginalized and underrepresented" are those
compelling reason for holding that the law does not who fall in the low income group as classified by
require national or regional parties, as well as the National Statistical Coordination Board.
certain sectoral parties in Section 5 of R.A. No. 2) The recognition that national and regional
7941, to represent the "marginalized and parties, as well as sectoral parties of professionals,
underrepresented." Section 6 provides the grounds the elderly, women and the youth, need not be
for the COMELEC to refuse or cancel the "marginalized and underrepresented" will allow
Page 381 of 568
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small ideology-based and cause-oriented parties defined political constituencies" as members of the
who lack "well-defined political constituencies" a House of Representatives.
chance to win seats in the House of 3) The 1987 Constitution and R.A. No. 7941 allow
Representatives. On the other hand, limiting to the major political parties to participate in party-list
"marginalized and underrepresented" elections so as to encourage them to work
the sectoral parties for labor, peasant, fisherfolk, assiduously in extending their constituencies to the
urban poor, indigenous cultural communities, "marginalized and underrepresented" and to those
handicapped, veterans, overseas workers, and who "lack well-defined political constituencies."
other sectors that by their nature are economically The participation of major political parties in party-
at the margins of society, will give the "marginalized list elections must be geared towards the entry, as
and underrepresented" an opportunity to likewise members of the House of Representatives, of the
win seats in the House of Representatives. "marginalized and underrepresented" and those
3) This interpretation will harmonize the 1987 who "lack well-defined political constituencies,"
Constitution and R.A. No. 7941 and will give rise to giving them a voice in law-making. Thus, to
a multi-party system where those "marginalized participate in party-list elections, a major political
and underrepresented," both in economic and party that fields candidates in the legislative district
ideological status, will have the opportunity to elections must organize a sectoral wing, like a
send their own members to the House of labor, peasant, fisherfolk, urban poor, professional,
Representatives. This interpretation will also make women or youth wing, that can register under the
the party-list system honest and transparent, party-list system.
eliminating the need for relatively well-off party-list 4) Such sectoral wing of a major political party
representatives to masquerade as "wallowing in must have its own constitution, by-laws,
poverty, destitution and infirmity," even as they platform or program of government, officers
attend sessions in Congress riding in SUVs. [Atong and members, a majority of whom must belong
Paglaum v. COMELEC, GR No. 203766, 2 April to the sector represented. The sectoral wing is in
2013] itself an independent sectoral party, and is linked
to a major political party through a coalition. This
Political Parties Can Participate in the Party- linkage is allowed by Section 3 of R.A. No. 7941,
List System Subject to Conditions. which provides that "component parties or
1) Political parties can participate in party-list organizations of a coalition may participate
elections provided they register under the party-list independently (in party-list elections) provided the
system and do not field candidates in legislative coalition of which they form part does not
district elections. A political party, whether major or participate in the party-list system.” [Atong
not, that fields candidates in legislative district Paglaum v. COMELEC, GR No. 203766, 2 April
elections can participate in party-list elections only 2013]
through its sectoral wing that can separately
register under the party-list system. The sectoral Inviolable Parameters of the Party-List System
wing is by itself an independent sectoral party, and A Philippine-style party-list election has at least
is linked to a political party through a coalition. four inviolable parameters as clearly stated
2) Section 11 of R.A. No. 7941 expressly prohibited in Veterans. These are:
the "first five (5) major political parties on the
basis of party representation in the House of First, the twenty percent (20%) allocation - the
Representatives at the start of the Tenth Congress" combined number of all party-list congressmen
from participating in the May 1988 party-list shall not exceed twenty percent of the total
elections. Thus, major political parties can membership of the House of Representatives,
participate in subsequent party-list elections including those elected under the party list;
since the prohibition is expressly limited only
to the 1988 party-list elections. However, major Second, the two percent (2%) threshold - only
political parties should participate in party-list those parties garnering a minimum of two percent
elections only through their sectoral wings. The of the total valid votes cast for the party-list system
participation of major political parties through their are "qualified" to have a seat in the House of
sectoral wings, a majority of whose members are Representatives; NOTE: The 2% threshold is still
"marginalized and underrepresented" or lacking in valid, but unconstitutional insofar as the same
"well-defined political constituencies," will facilitate 2% is used in computing the additional seats.
the entry of the "marginalized and Thus: “In computing the allocation of additional
underrepresented" and those who "lack well- seats, the continued operation of the two percent
Page 382 of 568
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threshold for the distribution of the additional seats less than 1 year immediately preceding the
as found in the second clause of Section 11(b) of election day
R.A. No. 7941 is unconstitutional. This Court • Able to read and write
finds that the two percent threshold makes it • A Bona fide member of the party he seeks to
mathematically impossible to achieve the represent for at least 90 days preceding
maximum number of available party list seats when election day (need not be marginalized
the number of available party list seats exceeds 50. persons)
The continued operation of the two percent • At least 25 years of age on election day. (RA
threshold in the distribution of the additional seats 7166, § 9.)
frustrates the attainment of the permissive ceiling
that 20% of the members of the House of In case of the youth sector, he must be at least 25
Representatives shall consist of party-list but not more than 30 years of age on the day of
representatives.” [Banat v. COMELEC, GR No. the election.
179271, 2009]
Any youth sectoral representative who reaches the
Third, the three-seat (3-seat) limit - each qualified age of thirty 30 during his term shall be allowed to
party, regardless of the number of votes it actually continue in office until the expiration of his term.
obtained, is entitled to a maximum of three seats;
that is, one "qualifying" and two additional seats; A list with 5 names should be submitted to
COMELEC as to who will represent the party in the
Fourth, proportional representation - the additional Congress. Ranking in the list submitted determines
seats which a qualified party is entitled to shall be who shall represent party or organization.
computed "in proportion to their total number of
votes." [BANAT v. COMELEC, GR No. 179271, 21 Section 15 of RA 7941 provides that a nominee of
April 2009 citing Veterans Federation v. a sectoral party who changes his sectoral affiliation
COMELEC, GR No. 136781, 6 October 2000] within the same party is not eligible for nomination
under the new sectoral affiliation, unless such
Qualifications of Party-List Nominees change occurred at least six months before the
No person shall be nominated as party-list elections. Section 15 clearly covers changes in
representative unless he is a natural born citizen of both political party and sectoral affiliation within the
the Philippines, a registered voter, a resident of the same party. (Amores v. HRET, G.R. No. 189600,
Philippines for a period of not less than one (1) year Jun. 29, 2010).
immediately preceding the day of the election, able
to read and write, bona fide member of the party or Unique Characteristics of the Philippine Party-
organization which he seeks to represent for at List System:
least ninety (90) days preceding the day of the Only In-House
election, and is at least twenty-five (25) years of
• The proportional representation or party-list
age on the day of the election. In case of a nominee system is only available in the House of
of the youth sector, he must at least be twenty-five Representatives.
(25) but not more than thirty (30) years of age on
• Plurality formula is used for other elective
the day of the election. Any youth sectoral
officials.
representative who attains the age of thirty during
his term shall be allowed to continue until the
expiration of his term. [Sec. 9, RA 7941]
The 20% Allocation — The combined number of all
In the case of sectoral parties, to be a bona fide party-list representatives shall not exceed 20% of
party-list nominee one must either belong to the the total membership of the House of
sector represented, or have a track record of Representatives, including those elected under the
advocacy for such sector. [Atong Paglaum v. party list. However, this only prescribes a ceiling
COMELEC, GR No. 203766, 2 April 2013] and is not considered mandatory.
Qualifications of a Party-List Nominee (ABC-

No. of seats available to Party-List Reps. =
RV-25):
(No. of seats available to District Reps./0.80) x
• A natural-born Citizen of the Philippines A (0.20)
registered Voter
• A Resident of the Philippines for a period of not
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Two Votes guaranteed seats of the two-percenters. The

1. 1st vote — For the district representative whole integer of the product of the percentage and
2. 2nd vote — For the party-list representative of the remaining available seats corresponds to a
(but it is the name of the party that is indicated party’s share in the remaining available seats.
in the ballot)
3) Second, we assign one party-list seat to each of
The 2% Threshold and 3-Seat Limit
the parties next in rank until all available seats are
1. The parties shall be ranked from the highest
to lowest based on the number of votes they completely distributed. We distributed all of the
garnered. remaining 38 seats in the second round of seat
2. To be entitled to one qualifying seat, a party allocation.
must obtain 2% of the total ballots cast for
qualified party-list candidates. 4) Finally, we apply the three-seat cap to
3. Votes cast for a party which is not entitled to determine the number of seats each qualified
be voted for should not be counted. The party-list candidate is entitled. (BANAT v.
votes they obtained shall be deducted from COMELEC, G.R. No. 179271, Apr. 21, 2009.)
the canvass of the total votes for the party-
list. In ANGKLA v. COMELEC, the SC affirmed the
4. Rounding-off is not allowed. BANAT formula, to wit: As finally settled in the
5. Parties other than the 1st party (the party that landmark case of BANAT, Section 11 (b) of RA
obtained the highest number of votes based 7941 is to be applied, thus:
on plurality) may be entitled to additional
seats based on the following formula: Round 1:
a. The participating parties, organizations or
Each party is shall be entitled to not more than coalitions shall be ranked from highest to lowest
three sets. based on the number of votes they each
The two percent threshold in computing for the garnered in the party-list election.
additional seats is unconstitutional. The b. Each of those receiving at least two-percent
continued application of the two percent threshold (2%) of the total votes cast for the party-list
in the application of additional seats in proportion system shall be entitled to and guaranteed one
to their total number of votes until all the additional seat each.
seats will frustrate the attainment of the permissive Rationale: The statute references a two-percent
(2%) threshold. The one-seat guarantee based
ceiling that twenty percent of the members of the
on this arithmetical computation gives substance
house of representatives shall consist of party-list to this threshold.
representatives. (BANAT v. COMELEC, G.R. No.
179271, Apr. 21, 2009) Round 2, Part 1:
a. The percentage of votes garnered by each of
In declaring the two percent threshold the parties, organizations and coalitions is
unconstitutional, the SC did not limit the multiplied by the remaining available seats after
allocation of additional seats to the two- Round 1. All party-list participants shall
participate in this round regardless of the
percenters. Thus:
percentage of votes they garnered. 36 SDHTEC
b. The party-list participants shall be entitled to
1) The percentage of votes garnered by each
additional seats based on the product arrived at
party-list candidate is arrived at by dividing the in (a). The whole integer of the product
number of votes garnered by each party by corresponds to a party's share in the remaining
15,950,900, the total number of votes cast for available seats. Fractional seats shall not be
party-list candidates. There are two steps in the awarded.
second round of seat allocation. Rationale: This formula gives flesh to the
proportionality rule in relation to the total number
2) First, the percentage is multiplied by the of votes obtained by each of the participating
remaining available seats, 38, which is the party, organization, or coalition.
c. A Party-list shall be awarded no more than two
difference between the 55 maximum seats (2) additional seats.
reserved under the Party-List System and the 17
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Rationale: The three-seat cap in the statute is to constitutional framers and the legislature intended.
be observed. It is the 2-percenters who have an established right
to an advantage in the form of a guaranteed seat.
Round 2, Part 2:
[ANGKLA: Ang Partido ng mga Pilipinong Marino,
a. The party-list party, organization or coalition
next in rank shall be allocated one additional seat Inc. v. Commission on Elections, G.R. No. 246816,
each until all available seats are completely [September 15, 2020]
distributed.
Rationale: This algorithm endeavors to complete The Rule of Law Has Confirmed the Substantial
the 20% composition for party-list representation Distinction Between 2-Percenters and Non-2-
in the House of Representatives. Percenters. The distinction between two-
percenters and non-two-percenters has long been
During the deliberation, Senior Associate Justice settled in Veterans Federation Party v.
Estela M. Perlas-Bernabe keenly noted that COMELEC (Veterans) where the Court affirmed
the BANAT formula mirrors the textual progression the validity of the 2% voting
of Section 11 (b) of RA 7941, as worded, thus: threshold. Veterans effectively segregates and
Section 11. Number of Party-List Representatives. distinguishes between the two (2) classes, two-
— x x x xxx xxx xxx (b) The parties, percenters and non-two-percenters. It explains the
organizations, and coalitions receiving at least rationale behind the voting threshold and
two-percent (2%) of the total votes cast for the differential treatment, viz.: The two percent
party-list system shall be entitled to one seat threshold is consistent not only with the intent of the
each: Provided, That those garnering more than framers of the Constitution and the law, but with the
two-percent (2%) of the votes shall be entitled very essence of "representation." Under a
to additional seats in proportion to republican or representative state, all government
their total number of votes: Provided, finally, authority emanates from the people, but is
That each party, organization, or coalition shall be exercised by representatives chosen by them. But
entitled to not more than three (3) seats. to have meaningful representation, the elected
persons must have the mandate of a sufficient
The first round of seat allocation is based on number of people. Otherwise, in a legislature that
the first sentence of Section 11 (b) while the
features the party-list system, the result might be
second round is based on the first proviso. To
prescribe a method of seat allocation contrary to the proliferation of small groups which are
the unequivocal language of RA 7941 would be incapable of contributing significant legislation, and
nothing short of judicial legislation, if not usurpation which might even pose a threat to the stability of
of legislative powers, as it would allow us to Congress. Thus, even legislative districts are
substitute the wisdom of Congress with ours. apportioned according to "the number of their
[ANGKLA: Ang Partido ng mga Pilipinong Marino, respective inhabitants, and on the basis of a
Inc. v. Commission on Elections, G.R. No. uniform and progressive ratio" to ensure
246816, [September 15, 2020] meaningful local representation. [ANGKLA: Ang
Partido ng mga Pilipinong Marino, Inc. v.
Advantage Given to 2-Percenters Does Not
Commission on Elections, G.R. No. 246816,
Violate the Equal Protection Clause. All votes,
[September 15, 2020]
whether cast in favor of two-percenters and non-
two-percenters, are counted once. The perceived Justice Leonen has a keen analysis of the
"double-counting of votes" does not offend the adverse effect of imposing a two-percent (2%)
equal protection clause — it is an advantage given deduction on the two-percenters: “Ignoring votes in
to two-percenters based on substantial distinction the reckoning of proportions runs afoul of a party-
that the rule of law has long acknowledged and list election as a race contested by the entire roster
confirmed. It does not violate the “One Person, of candidates and won in consideration of all the
One Vote” principle. To not count the 2% vote in votes cast by the electorate. Reckoning on the
the second round would place the 2-percenters at basis of a "recomputed number of votes"
a glaring disadvantage, which is not what the
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artificially redraws the electoral terrain. It ranking in the second round. The continued
results in the distribution of remaining party- operation of the two-percent threshold was
list seats based on an altered field of deemed "an unwarranted obstacle to the full
implementation of Section 5(2), Article VI of the
contestants and diminished number of votes.
Constitution and prevents the attainment of the
This undoes the logical advantage earned by “broadest possible representation of party, sectoral
those that hurdled the two-percent-threshold or group interests in the House of
and enables the election of groups even if their Representatives,” and has been declared
performance was manifestly worst off than unconstitutional. The 20% share in representation
those who have hurdled the basic threshold. To may never be filled up if the 2% threshold is
concede petitioners' plea would be to negate the maintained. In the same vein, the maximum
representation will not be achieved if those party-
valid and sensible distinction between those that
list groups obtaining less than one percentage are
hurdled the threshold and those that did not. disqualified from even one additional seat in the
Ultimately, it violates the party-list system's second round. (Aksyon Magsasaka-Partido Tinig
fundamental objective of enabling "meaningful ng Masa (AKMA-PTM) vs. COMELEC, G.R. No.
representation [secured through] the mandate of a 207134, May 28, 2015.)
sufficient number of people." (citations
omitted) [ANGKLA: Ang Partido ng mga Pilipinong Delisting
Marino, Inc. v. Commission on Elections, G.R. No. The law provides for 2 separate reasons for the
delisting of any national, regional or sectoral party
246816, [September 15, 2020]
organization or coalition. Section 6(8) of the Party
- List System Act provides that the COMELEC may
Absolute Proportionality Not Prescribed.
motu proprio or upon verified complaint of any
Section 11, Article VI of the Constitution, however, interested party, remove or cancel, after due notice
does not prescribe absolute proportionality in and hearing, the registration of any national,
distributing seats to party-list parties, organizations regional or sectoral party organization or coalition.
or coalitions. Neither does it mandate the grant of
one seat each according to their rank. On the The grounds are:
contrary, Congress is given a wide latitude of (a) If it fails to participate in the last two (2)
preceding elections; or
discretion in setting the parameters for determining (b) Fails to obtain at least two per centum (2%) of
the actual volume and allocation of party-list the votes cast under the party list system in the
representation in the House of two (2) preceding elections for the constituency
Representatives. BANAT elucidates: x x x The in which it was registered (Philippine
allocation of seats under the party-list system is Guardians Brotherhood, Inc. (PGBI) v.
governed by the last phrase of Section 5(1), which COMELEC, G.R. No. 190529, Apr. 29, 2010)
states that the party-list representatives shall be
The law is clear – the COMELEC may motu proprio
"those who, as provided by law, shall be elected or upon verified complaint of any interested party,
through a party-list system," giving the Legislature remove or cancel, after due notice and hearing, the
wide discretion in formulating the allocation of registration of any national, regional or sectoral
party-list seats. Clearly, there is no constitutional party, organization or coalition if it: (a) fails to
requirement for absolute proportional participate in the last two (2) preceding
representation in the allocation of party-list seats in elections; or (b) fails to obtain at least two per
centum (2%) of the votes cast under the party-list
the House of Representatives. (Emphasis added)
system in the two (2) preceding elections for the
In the exercise of this prerogative, Congress constituency in which it has registered. The word
modified the weight of votes cast under the party- "or" is a disjunctive term signifying disassociation
list system with reason. ) [ANGKLA: Ang Partido and independence of one thing from the other
ng mga Pilipinong Marino, Inc. v. Commission on things enumerated; it should, as a rule, be
Elections, G.R. No. 246816, [September 15, 2020] construed in the sense in which it ordinarily
implies, as a disjunctive word. XXX Thus, the
Party-list groups garnering less than 2% of the plain, clear and unmistakable language of the law
party-list votes may qualify for a seat in the provides for two (2) separate reasons for delisting.
allocation of additional seats depending on their Section 6(8) of RA 7941 provides for two separate
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grounds for delisting; these grounds cannot be 7166, § 5.)

mixed or combined to support delisting; and the
disqualification for failure to garner 2% party-list As a general rule, the period of election starts at
votes in two preceding elections should now be ninety (90) days before and ends thirty (30) days
understood, in light of the Banat ruling, to mean after the election date pursuant to Section 9, Article
failure to qualify for a party-list seat in two IX-C of the Constitution and Section 3 of BP 881.
preceding elections for the constituency in which it This rule, however, is not without exception. Under
has registered. [Philippine Guardians v. these same provisions, the COMELEC is not
COMELEC, G.R. No.. 190529, Apr. 29, 2010] precluded from setting a period different from that
provided thereunder. (Aquino vs. COMELEC, G.R.
E. CAMPAIGN No. 211789-90, Mar. 17, 2015.)
1. ELECTION CAMPAIGN OR PARTISAN Not every act of beneficence from a candidate may
POLITICAL ACTIVITY be considered campaigning. The term
“campaigning” should not be made to apply to any
IN GENERAL: Election Campaign - The term and every act which may influence a person to vote
"election campaign" or "partisan political activity" for a candidate, for that would stretching too far the
refers to an act designed to promote the election or meaning of the term. Examining the definition and
defeat of a particular candidate or candidates to a enumeration of election campaign and partisan
public office, (Omnibus Election Code, § 79.) political activity found in COMELEC Resolution No.
3636, the COMELEC is convinced that only those
SPECIFICALLY: The term "election campaign" or acts which are primarily designed to solicit votes
"partisan political activity" shall include any of the will be covered by the definition and enumeration.
following: The distribution of sports items in line with the
(1) Forming organizations, associations, clubs, sports and education program of the province does
committees or other groups of persons for the not constitute election campaigning since what is
purpose of soliciting votes and/or undertaking prohibited is the release of public funds within the
any campaign for or against a candidate; 45-day period before election. (Pangkat Laguna v.
(2) Holding political caucuses, conferences, COMELEC, G.R. 148075, Feb. 4, 2002.)
meetings, rallies, parades or other similar
assemblies for the purpose of soliciting votes Valid Forms of Campaigning: (OHS-SPA)
and/or undertaking any campaign or 1. Forming organizations, associations, clubs,
propaganda for or against a candidate; committees, or other groups of persons for the
(3) Making speeches, announcements or purpose of soliciting votes and/ or undertaking
commentaries, or holding interviews for or any campaign for or against a candidate.
against the election of any candidate for public 2. Holding political caucuses, conferences,
office; meetings, rallies, parades or other similar
(4) Publishing or distributing campaign literature or assemblies for the purpose of soliciting votes
materials designed to support or oppose the and/ or undertaking any campaign or
election of any candidate; or propaganda for or against a candidate.
(5) Directly or indirectly soliciting votes, pledges or 3. Making speeches, announcements or
support for or against any candidate. commentaries or holding interviews for or
against the election of any candidate for public
The foregoing enumerated acts if performed for the office.
purpose of enhancing the chances of aspirants for 4. Publishing or distributing campaign literature or
nomination for candidacy to a public office by a materials designed to support/ oppose the
political party, aggroupment, or coalition of parties election of any candidate.
shall not be considered as election campaign or 5. Directly or indirectly soliciting votes, pledges,
partisan election activity. [Sec. 79(b), OEC; Sec. or support for or against a candidate.
1(1), COMELEC Resolution No. 9615 s. 2013] 6. Advertisements.
Campaign Period Premature Campaigning.

1. President, vice president and senators – 90 A candidate is liable for an election offense only for
days before election day acts done during the campaign period, not before.
2. Congressmen, provincial, city and municipal The law is clear as daylight — any election offense
officials – 45 days before election day (R.A. No. that may be committed by a candidate under any
Page 387 of 568
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election law cannot be committed before the start 5. All other forms of election propaganda not
of the campaign period. The act of engaging in an prohibited by this Code as the Commission
election campaign or partisan political activity to may authorize after due notice to all interested
“promote the election or defeat of a particular parties and hearing where all the interested
candidate or candidates”, before the start of the parties were given an equal opportunity to be
campaign period, is what was commonly known as heard: Provided, That the Commission's
“premature campaigning”. Because premature authorization shall be published in two
campaigning requires the existence of a newspapers of general circulation throughout
“candidate” and because there is no “candidate” to the nation for at least twice within one week
speak of until the start of the campaign period, after the authorization has been granted. [Sec.
there is no more premature campaigning. (Peñera 82(d), OEC]
vs. COMELEC, G.R. No. 181613, Nov. 25, 2009)
Summary Rules on Election Propaganda:
2. ELECTION CAMPAIGN ACTS • All registered parties and bona fide candidates
shall have the right to reply to charges
3. ELECTION PROPAGANDA published against them.
• No movie, cinematograph, documentary
Election propaganda whether on television, cable portraying the life or biography of a candidate
television, radio, newspapers or any other medium shall be publicly exhibited in a theatre, TV
is hereby allowed for all registered political parties, station, or any public forum during the
national, regional, sectoral parties or organizations campaign period.
participating under the party-list elections and for • No movie, cinematograph, documentary
all bona fide candidates seeking national and local portrayed by an actor or media personality who
is himself a candidate shall be publicly
elective positions subject to the limitation on
exhibited in a theatre, TV station or any public
authorized expenses of candidates and political form during the campaign period.
parties, observance of truth in advertising and to • All mass media entities shall furnish the
the supervision and regulation by the COMELEC. COMELEC with copies of all contracts for
advertising, promoting, or opposing any
Lawful election propaganda shall include: political party or the candidacy of any person
1. Pamphlets, leaflets, cards, decals, stickers or for public office within 5 days after its signing.
other written or printed materials the size of • Any media personality who is a candidate or is
which does not exceed 8.5 inches in width a campaign volunteer for or employed or
and14 inches in length (8.5 in. x 14 in.); retained in any capacity by any candidate or
political party shall be deemed resigned, if so
2. Handwritten or printed letters urging voters to
required by their employer, or shall take a LOA
vote for or against any particular political party from his work as such during the campaign
or candidate for public office; period.
3. Cloth, paper or cardboard posters whether
framed, or posted, with an area not exceeding Rules on Published or Printed and Broadcast
two (2) feet by three (3) feet, except that, at the Election Propaganda (Paid Advertisements)
site and on the occasion of a public meeting or 1. PRINT
rally, or in announcing the holding of said • ¼ page in broadsheet, 3x a week
meeting or rally, streamers not exceeding three • ½ page in tabloid, 3x a week
(3) feet by eight (8) feet in size, shall be 2. RADIO (per STATION)
allowed: Provided, That said streamers may be • 180 mins. for National candidates
displayed five (5) days before the date of the • 90 mins. for Local candidates
meeting or rally and shall be removed within 3. TV (per STATION)
twenty-four (24) hours after said meeting or • 120 mins. for National candidates
rally; • 60 mins. for Local candidates
4. Paid advertisements in print or broadcast
The Fair Election Act does not justify a conclusion
media: Provided, That the advertisements shall
that the maximum allowable airtime should be
follow the requirements set forth in Section 4 of based on the totality of possible broadcast in all
this Act (RA 9006); [Sec. 3, RA 9006] and
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television or 35 radio stations, and the COMELEC payment of just compensation from at least three
has no authority to provide for rules beyond what (3) national newspapers of general circulation
was contemplated by the law it is supposed to wherein candidates for national office can
implement. (GMA Network, Inc. v. COMELEC, announce their candidacies. Such space shall be
G.R. No. 205357, Sep. 2, 2014.) NOTE: As it allocated free of charge equally and impartially
stands now, the limits of 120 minutes for TV and
among all the candidates for national office on
180 minutes for radio is PER STATION – not
aggregate or not per network. Thus, there are three (3) different calendar days: the first day within
separate airtime limits for the regional tv and radio the first week of the campaign period; the second
stations of ABS-CBN and GMA Network. day within the fifth week of the campaign period;
and the third day within the tenth week of the
Any newspaper, newsletter, newsweekly, gazette campaign period.
or magazine advertising, posters, pamphlets,
comic books, circulars, handbills, bumper stickers, The COMELEC shall also procure free airtime from
streamers, sample list of candidates or any at least three (3) national television networks and
published or printed political matter and any three(3) national radio networks, which shall also
broadcast of election propaganda by television or be allocated free of charge equally and impartially
radio for or against a candidate or group of among all candidates for national office. Such free
candidates to any public office shall bear and be time shall be allocated on three (3) different
identified by the reasonably legible or audible calendar days; the first day within the first week of
words "political advertisement paid for," followed by the campaign period; the second day within the fifth
the true and correct name and address of the week of the campaign period; and the third day
candidate or party for whose benefit the election within the tenth weeks of the campaign period.
propaganda was printed or aired.
The COMELEC may require national television and
If the broadcast is given free of charge by the radio radio networks to sponsor at least three (3) national
or television station, it shall be identified by the debates among presidential candidates and at
words "airtime for this broadcast was provided free least one (1) national debate among vice
of charge by" followed by the true and correct name presidential candidates. The debates among
and address of the broadcast entity. presidential candidates shall be scheduled on
three (3) different calendar days; the first debate
Print, broadcast or outdoor advertisements shall be scheduled within the first and second week
donated to the candidate or political party shall not of the campaign period; the second debate within
be printed, published, broadcast, or exhibited the fifth and sixth week of the campaign period; and
without the written acceptance by the said the third debate shall be scheduled within the tenth
candidate or political party. Such written and eleventh week of the campaign period.
acceptance shall be attached to the advertising
contract and shall be submitted to the COMELEC The sponsoring television or radio network may sell
as provided in Subsection 6.3. hereof. [Sec. 4, RA air-time for commercials and advertisements to
9006] interested advertisers and sponsors. The
COMELEC shall promulgate rules and regulations
Public Rallies: for the holding of such debates. [Sec. 7, RA 9006]
1. The candidate or party must notify election
registrar that they intend to organize and hold The COMELEC shall procure shall in at least one
within the city/municipality (1) newspaper of general circulation and air time in
2. Submit to election registrar a statement of at least one (1) major broadcasting station or entity
expenses in connection therewith. (Omnibus in every province or city: Provided, however, That
Election Code, § 88.) in the absence of said newspaper, publication shall
be done in any other magazine or periodical in said
COMELEC Space and Airtime
province or city, which shall be known as
Pursuant to Sections 90 and 92 of the Omnibus
"COMELEC Space": Provided, further, That in the
Election Code (Batas Pambansa Bldg. 881), the
absence of said broadcasting station or entity,
COMELEC shall procure the print space upon
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broadcasting shall be done in any radio or achieve that object. The regulation must only be
television station in said province or city, which with respect to the time, place, and manner of the
shall be known as "COMELEC Time". Said time rendition of the message. In no situation may the
shall be allocated to the COMELEC free of charge, speech be prohibited or censored on the basis of
while said space shall be allocated to the its content. For this purpose, it will not matter
whether the speech is made with or on private
COMELEC upon payment of just compensation.
property. (Diocese of Bacolod v. COMELEC, G.R.
The COMELEC time and space shall be utilized No. 205728, Jan. 21, 2015 obiter dictum.)
exclusively by the COMELEC for public information
dissemination on election-related concerns. [Sec. Posting of Campaign Materials
8, RA 9006] The COMELEC may authorize political parties and
party-list groups to erect common poster areas for
Thus: their candidates in not more than ten (1) public
1. SPACE (PUBLISHED OR PRINTED) places such as plazas, markets, barangay centers
a. 3 National newspapers - National and the like, wherein candidates can post, display
candidates
or exhibit election propaganda: Provided, That the
b. 1 National newspaper - Local candidates
2. AIRTIME (BROADCAST) size of the poster areas shall not exceed twelve
a. 3 National TV and Radio Networks - (12) by sixteen (16) feet or its equivalent.
National candidates
b. 1 Major Broadcasting station - Local Independent candidates with no political parties
candidates may likewise be authorized to erect common poster
areas in not more than ten (10) public places, the
There shall be equal allocation for all candidates size of which shall not exceed four (4) by six (6)
for 3 calendar days. feet or its equivalent.
COMELEC does not have the authority to regulate
Candidates may post any lawful propaganda
the enjoyment of the preferred right to freedom of
expression exercised by a non-candidate. material in private places with the consent of the
Regulation of speech in the context of electoral owner thereof, and in public places or property
campaigns made by persons who are not which shall be allocated equitably and impartially
candidates or who do not speak as members of a among the candidates. [Sec. 9, RA 9006]
political party which are, taken as a whole,
principally advocacies of a social issue that the Right to Reply
public must consider during elections is All registered parties and bona fide candidates
unconstitutional. Such regulation is inconsistent shall be have the right to reply to charges published
with the guarantee of according the fullest possible against them. The reply shall be given publicity by
range of opinions coming from the electorate
the newspaper, television and/or radio station
including those that can catalyze candid,
uninhibited, and robust debate in the criteria for the which first printed or aired the charges with the
choice of a candidate. (Diocese of Bacolod v. same prominence or in the same page or section
COMELEC, G.R. No. 205728, Jan. 21, 2015.) or in the same time slot as the first statement. [Sec.
10, RA 9006]
However, regulation of election paraphernalia will
still be constitutionally valid if it reaches into speech Prescribed Rates for Political Propaganda
of persons who are not candidates or who do not During the election period, media outlets shall give
speak as members of a political party if they are not registered political parties and bona
candidates, only if what is regulated is declarative fide candidates a discount of fifty percent (50%) for
speech that, taken as a whole, has for its principal
television, forty percent (40%) for radio and ten
object the endorsement of a candidate only. The
regulation (a) should be provided by law, (b) percent (10%) for print, from the average of the
reasonable, (c) narrowly tailored to meet the published rates charged in the last three calendar
objective of enhancing the opportunity of all years prior to the election.
candidates to be heard and considering the
primacy of the guarantee of free expression, and Nothing in this provision prohibits a media outlet
(d) demonstrably the least restrictive means to from giving higher discounts: Provided, That the
Page 390 of 568
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discount it gives one candidate shall be the same respect, published election surveys partake of the
discount it gives to other candidates for the same nature of election propaganda. It is then declarative
position. speech in the context of an electoral campaign
properly subject to regulation. (Social Weather
In no case shall rates charged to registered political Stations, Inc. et al v. COMELEC, G.R. No. 208062,
Apr. 7, 2015.)
parties and bona fide candidates be higher than
rates charged to non-political advertisers. [Sec. 10, While Resolution No. 9674 does regulate
RA 9006 as amended by RA 11207] expression (i.e., petitioners’ publication of election
surveys), it does not go so far as to suppress
Election Surveys desired expression. There is neither prohibition nor
Election surveys refer to the measurement of censorship specifically aimed at election surveys.
opinions and perceptions of the voters as The freedom to publish election surveys remains.
regards a candidate's popularity, All Resolution No. 9674 does is articulate a
qualifications, platforms or a matter of public regulation as regards the manner of publication,
discussion in relation to the election, including that is, that the disclosure of those who
voters' preference for candidates or publicly commissioned and/or paid for, including those
discussed issues during the campaign period. subscribed to, published election surveys must be
[Sec. 5.1, RA 9006] made. (Social Weather Stations, Inc. et al v.
COMELEC, G.R. No. 208062, Apr. 7, 2015.)
The prohibition (on election surveys) may be for a
limited time, but the curtailment of the right of
expression is direct, absolute, and substantial. It Exit Polls
constitutes a total suppression of a category of Exit polls may only be taken subject to the following
speech and is not made less so because it is only requirements:
for a period of fifteen (15) days immediately before (a) Pollsters shall not conduct their surveys within
a national election and seven (7) days immediately
fifty (50) meters from the polling place, whether
before a local election. Sec. 5.4 (of RA 9006)
(which sought to prohibit publication of said survey is taken in a home, dwelling place and
election surveys 15 days before a national other places;
election and 7 days before a local election) is is (b) Pollsters shall wear distinctive clothing;
invalid because (1) it imposes a prior restraint (c) Pollsters shall inform the voters that they may
on the freedom of expression, (2) it is a direct refuse to answer; and
and total suppression of a category of (d) The result of the exit polls may be announced
expression even though such suppression is after the closing of the polls on election day, and
only for a limited period, and (3) the must clearly identify the total number of
governmental interest sought to be promoted respondents, and the places where they were
can be achieved by means other than
taken. Said announcement shall state that the
suppression of freedom of expression. [SWS v.
COMELEC, GR No. 147571, 5 May 2001] same is unofficial and does not represent a trend.
[Sec. 5.5, RA 9006]
The names of those who commission or pay for
election surveys, including subscribers of survey The holding of exit polls and the dissemination of
firms, must be disclosed pursuant to Section 5.2(a) their results through mass media constitute an
of the Fair Election Act. This requirement is a valid essential part of the freedoms of speech and of the
regulation in the exercise of police power and press. Hence, the COMELEC cannot ban them
effects the constitutional policy of “guaranteeing totally in the guise of promoting clean, honest,
equal access to opportunities for public service.”, orderly and credible elections. Quite the contrary,
and neither curtails petitioners’ free speech rights
exit polls — properly conducted and publicized —
nor violates the constitutional proscription against
the impairment of contracts. (Social Weather can be vital tools in eliminating the evils of election-
Stations, Inc. et al v. COMELEC, G.R. No. 208062, fixing and fraud. Narrowly tailored
Apr. 7, 2015.) countermeasures may be prescribed by the
Comelec so as to minimize or suppress the
When published, the tendency of election surveys to incidental problems in the conduct of exit polls,
shape voter preferences comes into play. In this without transgressing in any manner the
Page 391 of 568
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fundamental rights of our people. [ABS-CBN v. government-owned or controlled

COMELEC, GR No. 133486, 28 January 2000] corporations;
e. Natural and juridical persons who, within
one year prior to the date of the election,
4. CONTRIBUTIONS AND EXPENDITURES have been granted loans or other
accommodations in excess of P100,000 by
Electoral Contributions the government or any of its divisions,
The term "contribution" includes a gift, donation, subdivisions or instrumentalities including
subscription, loan, advance or deposit of money or government-owned or controlled
anything of value, or a contract, promise or corporations;
agreement to contribute, whether or not legally f. Educational institutions which have
enforceable, made for the purpose of influencing received grants of public funds amounting
the results of the elections but shall not include to no less than P100,000.00;
services rendered without compensation by g. Officials or employees in the Civil Service,
individuals volunteering a portion or all of their time or members of the Armed Forces of the
in behalf of a candidate or political party. It shall Philippines; and
also include the use of facilities voluntarily donated h. Foreigners and foreign corporations.
by other persons, the money value of which can be
assessed based on the rates prevailing in the area. It shall be unlawful for any person to solicit or
[Sec. 94(a), OEC] receive any contribution from any of the persons or
entities enumerated herein. [Sec. 95, OEC]
Prohibited Contributions (POV of DONOR)
No contribution for purposes of partisan political NOTE: Under the old Corporation Code, domestic
activity shall be made directly or indirectly by any and foreign corporations are prohibited from
of the following: making electoral contributions. Under the
a. Public or private financial institutions: Revised Corporation Code, only foreign
Provided, however, That nothing herein corporations are prohibited. Thus, domestic
shall prevent the making of any loan to a corporations can now make reasonable
candidate or political party by any such contributions. [Sec. 35 in relation to Sec. 95, RA
public or private financial institutions 11232]
legally in the business of lending money,
and that the loan is made in accordance Prohibited Contributions (Receipt and
with laws and regulations and in the Solicitation)
ordinary course of business; It shall be unlawful for any person, including a
b. Natural and juridical persons operating a political party or public or private entity to solicit or
public utility or in possession of or receive, directly or indirectly, any aid or contribution
exploiting any natural resources of the of whatever form or nature from any foreign
nation; national, government or entity for the purposes of
c. Natural and juridical persons who hold influencing the results of the election. [Sec. 96,
contracts or sub-contracts to supply the OEC]
government or any of its divisions,
subdivisions or instrumentalities, with Prohibited Ways of Raising Electoral Campaign
goods or services or to perform Funds.
construction or other works; It shall be unlawful for any person to hold dances,
d. Natural and juridical persons who have lotteries, cockfights, games, boxing bouts, bingo,
been granted franchises, incentives, beauty contests, entertainments, or
exemptions, allocations or similar cinematographic, theatrical or other performances
privileges or concessions by the for the purpose of raising funds for an election
government or any of its divisions, campaign or for the support of any candidate from
subdivisions or instrumentalities, including the commencement of the election period up to and
including election day; or for any person or
Page 392 of 568
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organization, whether civic or religious, directly or performances

indirectly, to solicit and/or accept from any 2. Cockfights
candidate for public office, or from his campaign 3. Lotteries
manager, agent or representative, or any person 4. Boxing bouts
acting in their behalf, any gift, food, transportation, 5. Bingo
6. Beauty contests
contribution or donation in cash or in kind from the
7. Entertainment and games
commencement of the election period up to and 8. Dances (Omnibus Election Code, § 97.)
including election day; Provided, That normal and
customary religious stipends, tithes, or collections General Rule: It shall be unlawful for any person
on Sundays and/or other designated collection or organization to solicit and/ or accept any gift,
days, are excluded from this prohibition. [Sec. 96, contribution, food, transportation or donation in
OEC] cash or in kind from the commencement of the
election period up to and including election day.
Electoral Contribution Not Subject to Gift Tax. Any
contribution in cash or in kind to any candidate or Exception: Normal and customary religious
stipends, tithes or collections.
political party or coalition of parties for campaign
purposes, duly reported to the Commission, shall
Prohibited Donations
not be subject to the payment of any gift tax. [Sec.
It is prohibited for any candidate, his spouse,
13, RA 7166] relative within second degree of consanguinity or
affinity, a representative to make any contribution
Unspent Contribution Subject to Income Tax. Any for any structure for public use or for use of any
unexpended balance from any contribution to religious or civic organization, except the normal
candidate or party shall be subject to income tax. religious dues and payments for scholarships
[COMELEC Resolution No. 9476 s.2012 citing BIR established and school contributions habitually
Revenue Regulation No. 7-2011] made before the campaign period. (Omnibus
Election Code, § 104.)
Summary of Prohibited Contributions: (UF2
PLAC2E) Electoral Expenditures
1. Public Utilities or those exploiting natural
resources of the nation Authorized Expenses
2. Public or private Financial institutions, except The agreement amount that a candidate or
loans to a candidate or political party registered political party may spend for election
3. Foreigners and foreign corporations campaign shall be as follows:
4. Grantees of franchises, incentives, (a) For candidates. - Ten pesos (P10.00) for
exemptions, allocations or similar Privileges or President and Vice-President; and for other
concessions by the government candidates Three Pesos (P3.00) for every voter
5. Persons who, within 1 year prior to the date of currently registered in the constituency where he
the election, have been granted Loans or other
filed his certificate of candidacy: Provided, That a
accommodations in excess of P100,000 by the
government candidate without any political party and without
6. Members of the Armed forces of the support from any political party may be allowed to
Philippines spend Five Pesos (P5.00) for every such voter; and
7. Officials or employees in the Civil service
8. Persons with Contracts to supply the NOTE: The law is clear — the candidate must both
government with goods or services or to be without a political party and without support from
perform construction or other works any political party for the P5.00 cap to apply. In the
9. Educational institutions which have received absence of one, the exception does not apply
grants of public funds not less than p100,000 by (hence, the P3.00 cap will apply). [Salvador v.
the government
COMELEC, GR No. 204357, 2014]
Prohibited Means of Raising Funds: (C2L-
B3ED)
1. Cinematographic, theatrical or other
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(b) For political parties. - Five pesos (P5.00) for campaign and for personal expenses incident
every voter currently registered in the constituency thereto;
or constituencies where it has official candidates. (b) For compensation of campaigners, clerks,
stenographers, messengers, and other
Any provision of law to the contrary notwithstanding persons actually employed in the campaign;
(c) For telegraph and telephone tolls, internet
any contribution in cash or in kind to any candidate
access, postages, freight and express delivery
or political party or coalition of parties for campaign charges;
purposes, duly reported to the Commission shall (d) For stationery, printing and distribution of
not be subject to the payment of any gift tax. [Sec. printed materials relative to the candidacy;
13, RA 7166 amending Secs. 100-101, OEC] (e) For employment of watchers at the polls;
(f) For rent, maintenance and furnishing of
3rd Party Donations Included in the Allowable campaign headquarters, office or place of
Expenditure Limit. meetings;
In tracing the legislative history of Sections 100, (g) For political meetings and rallies and the use of
101, and 103 of the OEC, it can be said, therefore, sound systems, lights and decorations during
said meetings and rallies;
that the intent of our lawmakers has been
(h) For newspaper, radio, television and other
consistent through the years: to regulate not just advertisements for purposes of promoting the
the election expenses of the candidate but also of candidacy, including website or internet ad
his or her contributor/supporter/donor as well as by placements, subject to existing rules and
including in the aggregate limit of the former’s regulations on the broadcast advertising.
election expenses those incurred by the latter. The (i) For employment of counsel;
phrase "those incurred or caused to be incurred by (j) For copying and classifying lists of voters,
the candidate” is sufficiently adequate to cover investigating and challenging the right to vote
those expenses which are contributed or donated of persons registered in the lists; and
in the candidate’s behalf. By virtue of the legal (k) For printing sample ballots in such color, size
and maximum number as may be authorized
requirement that a contribution or donation should
by the Commission.
bear the written conformity of the candidate, a
contributor/supporter/donor certainly qualifies as The expenditures for items (i – i.e. employment of
"any person authorized by such candidate or counsel), (j – i.e. copying and classifying lists of
treasurer." Ubi lex non distinguit, nec nos voters), and (k – i.e. printing sample ballots), shall
distinguere debemus. (Where the law does not not be taken into account in determining whether
distinguish, neither should We.) There should be the expenditure limit has been breached by the
no distinction in the application of a law where none candidate or party in the conduct of campaign
is indicated. [Ejercito v. COMELEC, GR No. activities. [OEC, Sec. 102]
212398, 25 November 2014]
Failure to comply with this Section constitutes an
election offense under Section 102 in relation to
Summary of Rules on Authorized Expenses Section 262 of the Omnibus Election Code. [Sec.
Multiplied by the total number of registered voters: 3, Rule 4, COMELEC Resolution No. 9476 s.2012
citing Sec. 102, OEC]
1. P10 - President and Vice President
2. P3 - Other candidates (with political party OR Summary of Rules on Lawful Expenditures
with political support) 2. Traveling expenses
3. P5 - Independent candidates (without political 3. Compensation of campaigners, clerks,
party AND without political support) stenographers, messengers and other persons
4. P5 - Political parties actually employed in the campaign
4. Telegraph and telephone tolls, postage, freight
Lawful Expenditures and express delivery charges
No candidate or treasurer of a party shall, directly 5. Stationary, printing and distribution of printed
or indirectly, make any expenditure except for the matters relative to candidacy
following purposes: 6. Employment of watchers at the polls
(a) For traveling expenses of the candidates and 7. Rent, maintenance and furnishing of campaign
campaign personnel in the course of the HQ, office, or place of meetings
Page 394 of 568
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8. Political meetings and rallies 108, OEC]

9. Advertisements
10. Employment of counsel Consequences for the Non-Filing of SOCE
11. Printing sample ballots No person elected to any public offices shall enter
12. Copying and classifying list of voters, upon the duties of his office until he has filed the
investigating and challenging the right to vote statement of contributions and expenditures herein
of persons registered in the lists required.
The same prohibition shall apply if the political

Note: The expenses for (9), (10), (11) are not party which nominated the winning candidate fails
charged against the allowable expenditure limits. to file the statement required herein within the
period prescribed by this Act.
The phrase “those incurred or caused to be
incurred by the candidate” is sufficiently adequate Except candidates for elective barangay office,
to cover those expenses which are contributed failure to file the statements or reports in
or donated in the candidate’s behalf. By virtue of connection with electoral contributions and
the legal requirement that a contribution or expenditures are required herein shall constitute
donation should bear the written conformity of the an administrative offense for which the offenders
candidate, a contributor/ supporter/ donor certainly shall be liable to pay an administrative fine ranging
qualifies as any person authorized by such from One thousand pesos (P1,000.00) to Thirty
candidate or treasurer. (Ejercito v. COMELEC, thousand pesos (P30,000.00), in the discretion of
G.R. No. 212398, Nov. 25, 2014) the Commission.
Reporting of Contributions and Expenditures The fine shall be paid within thirty (30) days from
Statement of Contributions and Expenditures receipt of notice of such failure; otherwise, it shall
(SOCE). Not later than thirty (30) days after the be enforceable by a writ of execution issued by the
day of election, every candidate shall file in Commission against the properties of the offender.
triplicate with the offices of the Commission where It shall be the duty of every city or municipal
he filed his certificate of candidacy except for election registrar to advise in writing, by personal
national positions which should be filed with the delivery or registered mail, within five (5) days from
Campaign Finance Unit, a full, true and itemized the date of election all candidates residing in his
statement of all contributions and expenditures in jurisdiction to comply with their obligation to file
connection with the elections. [Also Sec. 14, RA their statements of contributions and expenditures.
7166] Within the same period, the treasurer of [Also Sec. 1, Rule 8, COMELEC Resolution No.
every party that participated in the elections shall 9476 s.2012]
file with the Campaign Finance Unit of the
COMELEC the party's statement of election For the commission of a second or subsequent
contributions and expenditures. If the statement is offense under this section, the administrative fine
sent by mail, it shall be by registered mail, and the shall be from Two thousand pesos (P2,000.00) to
date on which it was registered with the post office Sixty thousand pesos (P60,000.00), in the
may be considered as the filing date thereof if discretion of the Commission. In addition, the
confirmed on the same date by telegram or offender shall be subject to perpetual
radiogram addressed to the office or official with disqualification to hold public office. [Sec. 14,
whom the statement should be filed, which RA 7166]
telegram or radiogram shall indicate the registry
receipt number of such registered mail. Moreover, that Congress has deemed fit to impose
the penalty of perpetual disqualification on
The Regional Election Director of the National candidates who repeatedly failed to file their
Capital Region, Provincial Election Supervisors SOCEs cannot be the subject of judicial inquiry.
and Election Officers concerned shall, not later Congress has the absolute discretion to penalize
than fifteen (15) days after the last day for the filing by law with perpetual disqualification from holding
of the Statements of Contributions and public office in addition to administrative fines the
Expenditures, send to the Campaign Finance Unit, seekers of public office who fail more than once to
Commission on Elections, Manila, duplicate copies file their SOCEs. Such penalty is intended to
of all statements filed with them. [Sec. 2, Rule 8, underscore the need to file the SOCE as another
COMELEC Resolution No. 9476 s.2012 citing Sec. means of ensuring the sanctity of the electoral
Page 395 of 568
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process. [Maturan v. COMELEC, GR No. 227155, basis of a verified petition by any interested party
2017] and after due notice and hearing, call for the
holding or continuation of the election not held,
F. ELECTION CONTROVERSIES AND suspended or which resulted in a failure to elect on
REMEDIES a date reasonably close to the date of the election
not held, suspended or which resulted in a failure
1. CONTROVERSIES AND REMEDIES to elect but not later than thirty days after the
BEFORE PROCLAMATION cessation of the cause of such postponement or
suspension of the election or failure to elect. [Sec.
a. Postponement of Election
6, OEC]
COMELEC Can Postpone an Election.
Thus: There is a failure to elect when nobody can
When for any serious cause such as violence,
terrorism, loss or destruction of election be declared as a winner because the will of the
paraphernalia or records, force majeure, and other majority has been defiled and cannot be
analogous causes of such a nature that the holding ascertained.
of a free, orderly and honest election should
When Failure of Elections May Be Declared:
become impossible in any political subdivision, the
(SNR)
Commission, motu proprio or upon a verified
1. Election was Suspended before the hour fixed
petition by any interested party, and after due
by law for the closing of the voting
notice and hearing, whereby all interested parties 2. Election in any polling place was Not held on
are afforded equal opportunity to be heard, shall the date fixed
postpone the election therein to a date which 3. Elections Results in a failure to elect (after the
should be reasonably close to the date of the voting and during the preparation and
election not held, suspended or which resulted in a transmission of the election returns or in the
failure to elect but not later than thirty days after the custody or canvass thereof). (Carlos v.
cessation of the cause for such postponement or Angeles, G.R. No. 142907, Nov. 29, 2000).)
suspension of the election or failure to elect. [Sec.
5, OEC] Grounds: (V-F2AT)
Force majeure Fraud
THUS: When for any serious cause such as Violence Terrorism
violence, loss of election paraphernalia, force Analogous circumstances
majeure, and other analogous causes elections (Carlos v. Angeles, G.R. No. 142907, Nov. 29,
cannot be held, COMELEC shall motu proprio or 2000).)
upon petition by any interested party postpone the
election not later than 30 days after the cessation
POSTPONEMENT FAILURE OF
of the cause of the postponement (Omnibus
OF ELECTIONS ELECTIONS
Election Code, § 5.)
Grounds Any SERIOUS Force majeure
b. Failure of Election cause of:
Violence
COMELEC Can Declare a Failure of Election. If, Force majeure
on account of force majeure, violence, terrorism, Fraud
fraud, or other analogous causes the election in Violence
Terrorism
any polling place has not been held on the date
Terrorism
fixed, or had been suspended before the hour fixed Analogous
by law for the closing of the voting, or after the Loss or
voting and during the preparation and the destruction of
transmission of the election returns or in the
custody or canvass thereof, such election results in election
a failure to elect, and in any of such cases the
failure or suspension of election would affect the paraphernalia
result of the election, the Commission shall, on the
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Analogous contribution prohibited under Sections 89, 95, 96,

97 and 104; or (e) violated any of Sections 80, 83,
Extent of Serious and Failure to elect and 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-
Cause impossibility to affects results of paragraph 6, shall be disqualified from continuing
have free and elections
as a candidate, or if he has been elected, from
orderly
holding the office. Any person who is a permanent
elections
resident of or an immigrant to a foreign country
Grounds must Grounds may shall not be qualified to run for any elective office
Conditions
exist before occur anytime under this Code, unless said person has waived his
voting status as permanent resident or immigrant of a
foreign country in accordance with the residence
Authority Majority vote of COMELEC en banc requirement provided for in the election laws. [Sec.
68, OEC]
Procedural Verified Verified petition by
Requirements petition by any any interested 2) For Being a Nuisance. The Commission may
interested person (may not motu proprio or upon a verified petition of an
person or motu be done motu interested party, refuse to give due course to or
propio by propio) cancel a certificate of candidacy if it is shown that
COMELEC en
said certificate has been filed to put the election
banc Due notice
process in mockery or disrepute or to cause
Due notice Hearing confusion among the voters by the similarity of the
names of the registered candidates or by other
Hearing circumstances or acts which clearly demonstrate
that the candidate has no bona fide intention to run
Effect if Election is Declaration of for the office for which the certificate of candidacy
Petition postponed failure of elections has been filed and thus prevent a faithful
Granted Conduct Holding or determination of the true will of the electorate. [Sec.
elections continuation of
69, OEC]
reasonably elections
close to reasonably close
THUS: COMELEC may motu proprio or upon
elections not to elections not
verified petition of any interested party refuse to
held, but not held, but not later
give due course or cancel a COC when:
later than 30 than 30 days from 1. The COC has been filed to put the election
days from cessation of cause process in mockery or disrepute
cessation of 2. Causes confusion among the voters by the
cause similarity of the names of the registered
candidates
3. Other circumstances which clearly
demonstrate that the candidate has no bona
c. Disqualification Petitions fide intention to run for the office.
1) For Commission of Election Offenses. Any 3) For False Material Representation. A verified
candidate who, in an action or protest in which he petition seeking to deny due course or to cancel a
is a party is declared by final decision of a certificate of candidacy may be filed by the person
competent court guilty of, or found by the exclusively on the ground that any material
Commission of having (a) given money or other representation contained therein as required under
material consideration to influence, induce or Section 74 hereof is false. The petition may be filed
corrupt the voters or public officials performing at any time not later than twenty-five days from the
electoral functions; (b) committed acts of terrorism time of the filing of the certificate of candidacy and
to enhance his candidacy; (c) spent in his election shall be decided, after due notice and hearing, not
campaign an amount in excess of that allowed by later than fifteen days before the election. [Sec. 78,
this Code; (d) solicited, received or made any OEC]
Page 397 of 568
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competent authority.
NOTE: 1) This is usually in the form of a “Petition 8. Sentenced by final judgment for subversion,
to deny or cancel COC because of an ineligibility insurrection, rebellion or an offense which he
like age or residency and the COMELEC has has been sentenced to a penalty of more than
consistently treated the same as a Petition for 18 months, or a crime involving moral
turpitude, unless given plenary pardon/
disqualification.
amnesty.
Denial or cancellation of Certificate of Candidacy The use of a foreign passport amounts to
proceedings involves the issue of whether there is repudiation or recantation of the oath of
a false representation of a material fact. The false renunciation. Matters dealing with qualifications for
representation must necessarily pertain not to a public elective office must be strictly complied with.
mere innocuous mistake but to a material fact or A candidate cannot simply be allowed to correct the
those that refers to a candidate’s qualification for deficiency in his qualification by submitting another
elective office. (Panlaqui v. COMELEC, G.R. No. oath of renunciation. (Arnado v. COMELEC, G.R.
188671, Feb. 24, 2010.) No. 210164, Aug. 18, 2015.)
Aspects of Disqualification Cases The petitioner's continued exercise of his rights as a
citizen of the USA through using his USA passport
Electoral Aspect after the renunciation of his USA citizenship
Whether or not the offender should be disqualified reverted him to his earlier status as a dual citizen.
from being a candidate or from holding office Such reversion disqualified him from being elected
Proceedings are summary in character and require to public office. (Agustin v. COMELEC, G.R. No.
only a clear preponderance of evidence 207105, Nov 10, 2015.)
An erring candidate may be disqualified even
without prior determination of probable cause in a Disqualifications under the LGC: (MAO-PDF)
preliminary investigation 1. Sentenced by final judgment for an offense
involving Moral turpitude or for an offense
Criminal Aspect punishable by 1 year or more of imprisonment
Whether or not there is probable cause to within 2 years after serving sentence.
charge a candidate for an election offense: 2. Removed from office as a result of an
The prosecutor is the COMELEC, through its Law Administrative case.
Department which determines whether or not 3. Convicted by final judgment for violating the
probable cause exists. Oath of allegiance to the Republic.
4. Fugitives from justice in criminal or non-
If there is probable cause: political cases here or abroad.
The COMELEC’s Law Department files the criminal 5. Dual allegiance.
information before the proper court 6. Permanent residents in a foreign country or
Proceedings before the proper court demand a full those who have acquired the right to reside
blown hearing and require proof beyond abroad and continue to avail of the same right.
reasonable doubt to convict.
A candidate is ineligible if he is disqualified to be
A criminal conviction shall result in the elected to office, and he is disqualified if he lacks
disqualification of the offender, which may even any of the qualifications for elective office. Even if
include disqualification from holding a future public the COMELEC made no finding that the petitioner
office. had deliberately attempted to mislead or to
misinform as to warrant the cancellation of his CoC,
Grounds for Disqualification: (LF2-SEND2) the COMELEC could still declare him disqualified
1. Lacking qualifications. for not meeting the requisite eligibility under the
2. Filing a CoC for more than 1 office Local Government Code. (Agustin v. COMELEC,
3. False and material representation in the CoC. G.R. No. 207105, Nov. 10, 2015.)
4. Disqualifications under the LGC.
5. Nuisance candidate. Petition for Disqualification (Sec. 68) v. Petition
6. Election offenses enumerated under Section to Deny Due Course/Cancel CoC (Sec. 78):
68 of the Omnibus Election Code There are two remedies available to prevent a
7. Declared insane or incompetent by candidate from running in an electoral race. One is
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through a petition for disqualification and the other Premised on Section Grounded on a
through a petition to deny due course to or cancel
12 or 68 of the statement of a
a certificate of candidacy. The Court differentiated
the two remedies in Fermin v. Commission on Omnibus Election material
Elections, thus wise: x x x A petition for Code, or Section 40 of representation in the
disqualification, on the one hand, can be premised the Local Government said certificate that is
on Section 12 or 68 of the OEC, or Section 40 of Code false.
the Local Government Code. On the other hand, a
petition to deny due course to or cancel a CoC can A person who is The person whose
only be grounded on a statement of a material
disqualified under certificate is cancelled
representation in the said certificate that is false.
The petitions also have different effects. While a Section 68 is merely or denied due course
person who is disqualified under Sec. 68 is merely prohibited to continue under Section 78 is
prohibited to continue as a candidate, the person as a candidate. not treated as a
whose certificate is cancelled or denied due course candidate at all, as if
under Sec. 78 is not treated as a candidate at all, he/she never filed a
as if he/she never filed a CoC.
CoC.
In the event that a candidate is disqualified to run
for a public office, or dies, or withdraws his CoC Thus, a candidate who A person whose CoC
before the elections, Section 77 of the Omnibus is disqualified under has been denied due
Election Code provides the option of substitution. Section 68 can validly course or cancelled
Nonetheless, whether the ground for substitution is be substituted under under Section 78
death, withdrawal or disqualification of a candidate, Section 77 of the OEC cannot be substituted
Section 77 of the Omnibus Election Code
because he/she because he/she is
unequivocally states that only an official candidate
of a registered or accredited party may be remains a candidate never considered a
substituted. until disqualified. candidate. (Tagolino
v. HRET, G.R. No.
It is underscored, however, that a Section 78 Note: However, if the 202202, Mar. 19,
petition should not be interchanged or confused candidate is 2013.)
with a Section 68 petition. The remedies under the disqualified after
two sections are different, for they are based on assumption of office, Note: If the CoC of the
different grounds, and can result in different he shall vacate the candidate was denied
eventualities. A person who is disqualified
under Section 68 is prohibited to continue as a position and or cancelled in due
candidate, but a person whose CoC is succession under course after he has
cancelled or denied due course under Section LGC shall apply as assumed office, he
78 is not considered as a candidate at all ruled. shall vacate the
because his status is that of a person who has position and the
not filed a CoC. Miranda v. Abaya has clarified second placer will be
that a candidate who is disqualified under
declared as winner.
Section 68 can be validly substituted pursuant
to Section 77 because he remains a candidate
until disqualified; but a person whose CoC has
The Declared Winner When Winning Candidate
been denied due course or cancelled under
Section 78 cannot be substituted because he is is Disqualified or Fails to Qualify
not considered a candidate. [Talaga v.
COMELEC, GR No. 196804, 9 Oct 2012] 1) The law expressly declares that a candidate
disqualified by final judgment before an election
Thus: cannot be voted for, and votes cast for him shall not
PETITION TO DENY be counted. This is a mandatory provision of law.
PETITION FOR
DUE COURSE/ Section 6 of Republic Act No. 6646, The Electoral
DISQUALIFICATION
CANCEL CoC (SEC. Reforms Law of 1987, states: Sec. 6. Effect of
(SEC. 68)
78) Disqualification Case.— “Any candidate who has
been declared by final judgment to be disqualified
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shall not be voted for, and the votes cast for him who turn out to be ineligible, their victory is voided
shall not be counted. If for any reason a candidate and the laurel is awarded to the next in rank who
is not declared by final judgment before an election does not possess any of the disqualifications nor
to be disqualified and he is voted for and receives lacks any of the qualifications set in the rules to be
the winning number of votes in such election, the eligible as candidates.
Court or Commission shall continue with the trial
and hearing of the action, inquiry, or protest and, 4) In Halili v. COMELEC (2019), the SC ruled that
upon motion of the complainant or any intervenor, in case of vacancies caused by those with void ab
may during the pendency thereof order the initio COCs, the person legally entitled to the
suspension of the proclamation of such candidate vacant position would be the candidate who
whenever the evidence of his guilt is strong.” garnered the next highest number of votes among
Section 6 of the Electoral Reforms Law of 1987 those eligible. Citing Jalosjos, Jr. v. Commission on
covers two situations. The first is when the Elections (2012), the SC explained: “Decisions of
disqualification becomes final before the elections, this Court holding that the second-placer cannot be
which is the situation covered in the first sentence proclaimed winner if the first-placer is disqualified
of Section 6. The second is when the or declared ineligible should be limited to situations
disqualification becomes final after the elections, where the certificate of candidacy of the first-placer
which is the situation covered in the second was valid at the time of filing but subsequently had
sentence of Section 6. [Talaga v. COMELEC, GR to be cancelled because of a violation of law that
No. 196804, 9 Oct 2012] took place, or a legal impediment that took effect,
after the filing of the certificate of candidacy. If the
NOTE: Thus, in Talaga v. COMELEC, IT certificate of candidacy is void ab initio, then legally
DEPENDS on when the disqualification became the person who filed such void certificate of
final: candidacy was never a candidate in the elections
at any time. All votes for such non-candidate are
2) If NOT FINAL BEFORE election = hence, still a stray votes and should not be counted. Thus, such
candidate = second-placer is not the winner non-candidate can never be a first-placer in the
(Doctrine of Rejection of Second-Placer); elections. If a certificate of candidacy void ab
succession rules will apply; 2) If FINAL BEFORE initio is cancelled on the day, or before the day,
election = hence, not a candidate = second-placer of the election, prevailing jurisprudence holds
wins because he/she gets next highest votes that all votes for that candidate are stray votes.
among the qualified candidates. If a certificate of candidacy void ab initio is
cancelled one day or more after the elections,
3) However, the SC in Maquiling v. COMELEC all votes for such candidate should also be
(2013) declared the second-placer as winner even stray votes because the certificate of
if the disqualified candidate continued to be a candidacy is void from the very beginning. This
candidate (no final disqualification) and was even is the more equitable and logical approach on the
proclaimed as the winner, to wit: the votes cast in effect of the cancellation of a certificate of
favor of the ineligible candidate are not considered candidacy that is void ab initio.”
at all in determining the winner of an election. Even
when the votes for the ineligible candidate are Petition to Deny Due Course/ Cancel CoC
disregarded, the will of the electorate is still (Before Elections) v. Quo Warranto (After
respected, and even more so. The votes cast in Election Results)
favor of an ineligible candidate do not constitute the PETITION TO
sole and total expression of the sovereign voice. DENY DUE
PETITION FOR QUO
The votes cast in favor of eligible and legitimate COURSE/
WARRANTO
candidates form part of that voice and must also be CANCEL CoC
(AFTER PROCLAMATION)
(BEFORE
respected. As in any contest, elections are
ELECTIONS)
governed by rules that determine the qualifications
and disqualifications of those who are allowed to 1. The qualifications 1. May be brought
participate as players. When there are participants for elective office on the basis of two
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are grounds to elevate it to this Court via a petition for certiorari

misrepresented in a. ineligibility or under Rule 65 of the Rules of Court. (Cagas v.
the certificate of b. disloyalty to COMELEC, G.R. No. 194139, Jan. 24, 2012.)
candidacy the Republic
of the Removal of Disqualification Plenary Pardon
2. The proceedings
Philippines The phrase in the presidential pardon which
must be initiated
2. must be initiated declares that the person "is hereby restored to his
before the
within ten days civil and political rights" substantially complies with
elections.
after the the requirement of express restoration of his right
proclamation of to hold public office, or the right of suffrage. Articles
the election 36 and 41 of the Revised Penal Code should be
results. construed in a way that will give full effect to the
3. A candidate is executive clemency granted by the President,
ineligible if he is instead of indulging in an overly strict interpretation
disqualified to be that may serve to impair or diminish the import of
elected to office, the pardon which emanated from the Office of the
and he is President and duly signed by the Chief Executive
disqualified if he himself/herself. The said codal provisions must be
lacks any of the construed to harmonize the power of Congress to
qualifications for define crimes and prescribe the penalties for such
elective office. crimes and the power of the President to grant
executive clemency. All that the said provisions
A COMELEC resolution declaring a candidate impart is that the pardon of the principal penalty
disqualified for the said position is not yet final if a does not carry with it the remission of the
motion for reconsideration has been timely filed. At accessory penalties unless the President expressly
that point, he still remains qualified and his includes said accessory penalties in the pardon. It
proclamation thereafter is valid. As a result, still recognizes the Presidential prerogative to grant
COMELEC's jurisdiction to contest his citizenship executive clemency and, specifically, to decide to
ends, and the HRET's own jurisdiction begins. pardon the principal penalty while excluding its
(Gonzales v. COMELEC, G.R. No. 192856, Mar. 8, accessory penalties or to pardon both. Thus,
2011.) Articles 36 and 41 only clarify the effect of the
pardon so decided upon by the President on the
A party aggrieved by an interlocutory order issued penalties imposed in accordance with law. (Risos-
by a Division of the COMELEC in an election Vidal v. COMELEC, G.R. No. 206666, Jan. 21,
protest may not directly assail the order in this 2015.)
Court through a special civil action for certiorari.
The remedy is to seek the review of the A whereas clause in a pardon which states that the
interlocutory order during the appeal of the decision person “publicly committed to no longer seek any
of the Division in due course. The court may have elective position or office” does not make the
the power to review any decision, order or ruling of pardon conditional. Whereas clauses do not form
the COMELEC, limits such power to a final decision part of a statute because, strictly speaking, they are
or resolution of the COMELEC en banc, and does not part of the operative language of the statute.
not extend to an interlocutory order issued by a The whereas clause is not an integral part of the
Division of the COMELEC. Otherwise stated, the decree of the pardon, and therefore, does not by
Court has no power to review on certiorari an itself alone operate to make the pardon conditional
interlocutory order or even a final resolution or to make its effectivity contingent upon the
issued by a Division of the COMELEC. Where fulfillment of the aforementioned commitment nor
the Commission in division committed grave abuse to limit the scope of the pardon. (Risos-Vidal v.
of discretion or acted without or in excess of COMELEC, G.R. No. 206666, Jan. 21, 2015.)
jurisdiction in issuing interlocutory orders relative to
an action pending before it and the controversy did Former President Estrada was granted an absolute
not fall under any of the instances mentioned in pardon that fully restored all his civil and political
Section 2, Rule 3 of the COMELEC Rules of rights, which naturally includes the right to seek
Procedure, the remedy of the aggrieved party is not public elective office. The wording of the pardon
to refer the controversy to the Commission en banc extended to him is complete, unambiguous, and
as this is not permissible under its present rules but unqualified. The fact that the pardon did not specify
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the specific rights restored does not mean that proclamation controversies refer to matters relating
GMA did not intend to restore his right to suffrage. to the preparation, transmission, receipt, custody
(Risos-Vidal v. COMELEC, G.R. No. 206666, Jan. and appearance of election returns and certificates
21, 2015.) of canvass.
3) Any question pertaining to or affecting the
The disqualification from running for public office
proceedings of the Board of Canvassers which may
due to libel shall be removed after service of the
five-year sentence, which is counted from the date be raised by any candidate or registered political
the fine is paid. (Ty-Delgado v. HRET, G.R. No. party, or coalition. (Macabago v. COMELEC, G.R.
219603, Jan. 26, 2016.) No. 152163, Nov. 18, 2002)
To resolve the tie, there shall be drawing of lots. Election Return

Whenever it shall appear from the canvass that two A document in electronic and printed form directly
or more candidates have received an equal and produced by the counting or voting machine,
highest number of votes, or in cases where two or showing the date of the election, the province,
more candidates are to be elected for the same municipality and the precinct in which it is held and
position and two or more candidates received the
the votes in figures for each candidate in a precinct
same number of votes for the last place in the
number to be elected, the board of canvassers, in areas where AES is utilized. [Sec. 2(4), RA 8436
after recording this fact in its minutes, shall by as amended by RA 9369] NOTE: This is the report
resolution, upon five days’ notice to all the tied on the votes PER PRECINCT that is transmitted to
candidates, hold a special public meeting at which the board of canvassers for tabulation.
the board of canvassers shall proceed to the
drawing of lots of the candidates who have tied and Certificate of Canvass
shall proclaim as elected the candidates who may A document in electronic and printed form
favored by luck, and the candidates so proclaimed containing the total votes in figures obtained by
shall have the right to assume office in the same each candidate in a city / municipality / district /
manner as if he had been elected by plurality of
province as the case may be. The electronic
votes. The board of canvassers shall forthwith
make a certificate stating the name of the certificates of canvass shall be the official canvass
candidate who had been favored by luck and his results in the aforementioned jurisdictions. [Sec.
proclamation on the basis thereof. Nothing in this 2(6), RA 8436 as amended by RA 9369] NOTE:
section shall be construed as depriving a candidate This is the report on the votes per city / municipality
of his right to contest the election. (Omnibus / district / province based on the Election Returns
Election Code, § 240.; Tugade v. COMELEC, G.R. that is canvassed or tabulated at the local and
No. 171063, Mar. 2, 2007.) national level.
d. Pre-Proclamation Controversies
Statement of Votes
Definition of a Pre-Proclamation Controversy A document containing the votes obtained by
1) A pre-proclamation controversy refers to any candidates in each precinct in a city/municipality.
question pertaining to or affecting the proceedings [Sec. 2(5), RA 8436 as amended by RA 9369]
of the board of canvassers which may be raised by NOTE: This is another report generated at the
any candidate or by any registered political party or canvassing stage containing the votes breakdown
coalition of political parties before the board or per precinct for national (e.g. party-list) and local
directly with the Commission, or any matter raised (e.g. mayor) races. It supports the Certificate of
under Sections 233 (Election Returns are delayed, Canvass that serves as the basis for proclamation.
lost, and destroyed), 234 (Material Defects in the
Election Returns), 235 (Election Returns appear to Although not specifically included in Sec. 243,
be falsified or tampered) and 236 (Discrepancies in OEC, the SC in Ramirez v. COMELEC, GR No.
Election Returns) in relation to the preparation, 122013, 26 March 1997 recognized that petition for
transmission, receipt, custody and appreciation of the correction of entries in a Statement of Votes is
the election returns. [Sec. 241, OEC] a pre-proclamation controversy and can be filed
2) Under Republic Act No. 7166, providing for directly with the COMELEC en banc, to wit: "By
synchronized national and local elections, pre- now it is settled that election cases which include
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pre-proclamation controversies must first be heard and these would affect results of the
and decided by a division of the Commission — election
and a petition for correction of manifest error in the i. Order opening of ballot boxes for
Statement of Votes, like SPC No. 95-198 is a pre- recount
proclamation controversy — in none of the cases 4. ERs prepared under duress, threats,
coercion, intimidation, obviously
cited to support this proposition was the issue the
manufactured
correction of a manifest error in the Statement of • “Obviously manufactured” -
Votes under 231 of the Omnibus Election Code According to the Court, when it
(B.P. Blg. 881) or §15 of R.A. No. 7166. On the follows the doctrine of statistical
other hand, Rule 27, §5 of the 1993 Rules of the improbabilities or “Statistically
COMELEC expressly provides that pre- improbable data”.
proclamation controversies involving, inter alia, 5. Substitute or fraudulent returns in
manifest errors in the tabulation or tallying of the controverted polling places are canvassed,
results may be filed directly with the COMELEC en and the results materially affect the standing
banc.” of candidates. (Omnibus Election Code, §
243.)
Grounds for Pre-Proclamation Controversies:
NOTE: Grounds for pre-proclamation
1. Illegal composition or proceedings of the
controversies are exclusive.
board of canvassers
a. Filed with the BOC or with COMELEC
b. Within 3 days from a ruling (if based on General Rule: COMELEC cannot go behind the
illegal proceedings), or as soon as the face of an election return. It is beyond the
Board begins to act. jurisdiction of COMELEC to go beyond the face of
2. Irregularities in relation to the preparation, the returns or investigate election irregularities.
transmission, receipt, custody, and
appreciation of election returns and Exception: When there is prima facie showing that
certificates of canvass: the ER is not genuine (e.g., as when several entries
a. ERs are delayed, lost or destroyed have been omitted). (Lee vs. COMELEC, G.R. No.
b. Material defects in the ERs 157004, Jul. 4, 2003.)
c. ERs appear to be tampered with or
falsified Grounds For Material Defects:
d. Discrepancies in the ERs 1. Omission of name of candidates
3. Canvassed returns are incomplete, contain 2. Omission of votes for candidates
material defects
a. ERs are delayed, lost, destroyed Material Defect v. Falsified/Tampered
i. In this case, the Board can use any
ERs HAVE BEEN
of the authentic copies MATERIAL DEFECT
ii. Or terminate canvass if the missing FALSIFIED/
IN THE ERs
returns will not affect the results TAMPERED
anyway BOC needs authority BOC needs no prior
b. Missing requisites from COMELEC to get permission from the
i. Board calls for members of the BEI copies of the other COMELEC to get
to complete or correct the return. DO
ERs copies of the other
NOT EXCLUDE, if correctable
c. ERs are tampered, falsified, altered after ERs
these left the hands of BEI, not authentic,
prepared under duress, force,
intimidation, etc. Jurisdiction:
i. Resort to other ERs Contested composition or proceedings of the board
ii. If all are tampered, can have ballot - May be initiated in the Board of canvassers or
boxes reopened and counted COMELEC Contested ERs - Should be brought in
d. Discrepancies in other authentic copies
the 1st instance before the board of canvassers
of the returns or discrepancies in the
votes of any candidate in words/figures – only.
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General Rule: When the Electoral Tribunal obtains party.

jurisdiction, it precludes the COMELEC from (Sarmiento v. COMELEC, G.R. No.
exercising powers over pre-proclamation 105628, Aug. 6, 1992.)
controversies.
Exceptions: Proceedings may continue if:
1. COMELEC determines that the petition is

Exceptions: (PAPI-Q) meritorious and issues an order for the
1. BOC was Improperly constituted proceedings to continue.
2. Proclamation was null and void 2. The SC issues an order for the proceedings
3. Quo warranto is not the proper remedy to continue in a petition for certiorari.
4. What was filed was a Petition to annul a (Sarmiento v. COMELEC, G.R. No.
proclamation, and not quo warranto or election 105628, Aug. 6, 1992.)
protest.
5. Election contest expressly made without Where a proclamation is null and void, the
prejudice to PPC or it was made Ad cautelam proclamation is no proclamation at all and the
(cautionary). proclaimed candidate’s assumption of office
cannot deprive the COMELEC of the power to
In exercising its powers and jurisdiction, as defined declare such nullity and annul the proclamation.
by its mandate to protect the integrity of elections, (Federico v. COMELEC, G.R. No. 199612, Jan. 22,
the COMELEC “must not be straight-jacketed by 2013).
procedural rules in resolving election disputes.”
(Violago v. COMELEC, G.R. No. 194143, Oct. 4, But the remedy of filing a pre-proclamation case is
2011.) still available after proclamation if the proclamation
should have been suspended because of
Two Objection Rule - Submit oral objection and contested election returns. (Jainal vs. COMELEC,
written objection simultaneously to BOC G.R. No. 174551, Mar. 7, 2007.)
chairperson before ERs have been canvassed.
There is substantial compliance even if the oral Grounds for Recount:
objection is filed first, then the written objection with 1. Material defects in the ERs
evidence is submitted within 24 hours. 2. ERs are tampered or falsified
3. Discrepancies in the ERs
However, in Marabur vs. COMELEC, the Court (Omnibus Election Code, § 236.)
held that there is substantial compliance if despite
the absence of a written objection, an offer of When Recount is Possible:
evidence is made within the 24-hour period. 1. COMELEC order BEI to conduct recount
(Marabur vs. COMELEC, G.R. No. 169513, Feb. 2. Integrity and identity of ballot box is not
26, 2007.) violated
3. BEI ascertains that integrity of ballots in box
Summary Nature: preserved
• Pre-proclamation controversies shall be heard 4. BEI recounts and complete/correct returns
summarily by the COMELEC.
• Its decision shall be executory after 5 days from In regular election contests, the general averment
receipt by the losing party of the decision, of fraud or irregularities in the counting of votes
unless restrained by the SC. (Omnibus justifies the examination of the ballots and
Election Code, § 246.) recounting of votes. This process of examination is
the revision of the ballots pursuant to Section 6,
General Rule: Pre-proclamation cases are Rule 20 of the 1993 COMELEC Rules of
deemed terminated: Procedure. The protests involved herein assailed
the authenticity of the election returns and the
1. At the beginning of the term of the office veracity of the counting of the ballots. In that
involved and the rulings of the BOC regard, the ballots themselves are the best
concerned deemed affirmed. evidence. The only means to overcome the
2. This is without prejudice to the filing of a presumption of legitimacy of the election returns is
regular election protest by the aggrieved to examine and determine first whether the ballot
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boxes have been substantially preserved in the there is no appeal, nor any plain, speedy, and
manner mandated by law. Hence, the necessity to adequate remedy in the ordinary course of law.
issue the order of revision. Note: The COMELEC (Bulilis v. Nuez, G.R. No. 195953, Aug. 9, 2011).
did not commit grave abuse of discretion when it
ordered the revision of 44 ballots with the Senate Pre-Proclamation Issues
Electoral Tribunal without first resolving whether 16
The following shall be proper issues that may be
of those 44 ballots should be included in the
revision. (Tolentino v. COMELEC, G.R. No. raised in a pre-proclamation controversy:
187958, Apr. 7, 2010) 1) Illegal composition or proceedings of the board
of canvassers;
Statistically Improbable Data
1. Uniformity of tally in favor of candidates Illegal Composition of the Board of Canvassers. —
belonging to 1 party. There is illegal composition of the BOC when,
2. Systematic blanking out of candidates among other similar circumstances, any of the
belonging to another party. members do not possess legal qualifications and
appointments. The information technology capable
General Rule: Pre-proclamation cases are NOT person required to assist the BOC by Republic Act
allowed in elections for the President, Vice No. 9369 shall be included as among those whose
President, Senator and members of the House of
lack of qualifications may be questioned. [Sec. 1,
Representatives.
COMELEC Resolution No. 8804, March 22, 2010]
Exceptions: Illegal Proceedings of the Board of Canvassers. —
1. Manifest Errors in the ERs or COCs may be There is illegal proceedings of the BOC when the
corrected motu proprio or upon written canvassing is a sham or mere ceremony, the
complaint of any interested person. results of which are pre-determined and
2. Questions affecting the composition or manipulated as when any of the following
proceedings of the board of canvassers may circumstances are present: a) precipitate
be initiated in the board or directly with the canvassing; b) terrorism; c) lack of sufficient notice
Commission in accordance with Section 19 to the members of the BOC's; d) Improper venue.
(R.A. No. 7166). [Sec. 2, COMELEC Resolution No. 8804, March
22, 2010]
Manifest Errors:
1. Mistake in adding 2) The canvassed election returns are incomplete,
2. Mistake in copying of figures from ER or
contain material defects, appear to be tampered
Statement of Votes
3. ERs from non-existent precinct canvassed with or falsified, or contain discrepancies in the
4. Copy of ER tabulated more than twice same returns or in other authentic copies thereof
5. 2 or more copies of ER and COC in 1 precinct as mentioned in Sections 233 (Election Returns
counted separately are delayed, lost, and destroyed), 234 (Material
Defects in the Election Returns), 235 (Election
The grounds for manifest errors are inclusive. The Returns appear to be falsified or
allowable margin of error is 60%. tampered) and 236 (Discrepancies in Election
It suspends the running of the period within which to Returns) of this Code;
file an election protest or quo warranto proceeding.
3) The election returns were prepared under
Notwithstanding the pendency of any pre-
proclamation controversy, the Commission may duress, threats, coercion, or intimidation, or they
summarily order the proclamation of other winning are obviously manufactured or not authentic; and
candidates whose election will not be affected by
the outcome of the controversy. 4) When substitute or fraudulent returns in
controverted polling places were canvassed, the
An aggrieved party may file a petition for certiorari results of which materially affected the standing of
with the COMELEC whenever a judge hearing an the aggrieved candidate or candidates. [Sec. 243,
election case has acted without or in excess of his OEC]
jurisdiction or with grave abuse of discretion and
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COMELEC Action relating to the preparation, transmission, receipt,

COMELEC may motu proprio or upon written custody and appreciation of election returns or
petition, and after due notice and hearing, order the certificates of canvass are still prohibited. As with
partial or total suspension of the proclamation of other general rules, there are recognized
any candidate-elect or annul partially or totally any exceptions to the prohibition, namely: (1) correction
proclamation, if one has been made. [Sec. 242, of manifest errors; (2) questions affecting the
OEC] composition or proceedings of the board of
canvassers; and (3) determination of the
All pre-proclamation controversies shall be heard authenticity and due execution of certificates of
summarily by the Commission after due notice and canvass as provided in Section 30 of Republic Act
hearing, and its decisions shall be executory after No. 7166, as amended by Republic Act No. 9369.”
the lapse of five days from receipt by the losing
party of the decision of the Commission, unless “Manifest Errors” — Matters regarding the
restrained by the Supreme Court. [Sec. 246, OEC] preparation, transmission, receipt, custody, and
appreciation election returns shall be brought, in
COMELEC Partial Proclamation the first instance, before the boards of canvassers,
Notwithstanding the pendency of any pre- not the COMELEC. [Fernandez vs. COMELEC,
proclamation controversy, the Commission may, G.R. No. 171821, Oct. 9, 2006]
motu proprio or upon the filing of a verified petition
and after due notice and hearing, order the e. Board of Election Inspectors and Board of
proclamation of other winning candidates whose Canvassers
election will not be affected by the outcome of the
controversy. [Sec. 247, OEC] COMPOSITION
Pre-Proclamation Controversies for Provincial

National Elective Offices
As a general rule, there are no pre-proclamation 1. Provincial election supervisor of lawyer in the
regional office of the COMELEC (Chairman);
issues for national elective offices, BUT there are
2. Provincial fiscal (vice)
now recognized exceptions under RA 9369 3. Provincial superintendent of schools
amending RA 7166 as applied and ruled by the (member)
Supreme Court in Pimentel III v. COMELEC, GR 4. Substitute members (in order):
No. 178413, 13 March 2008, to wit: a. Provincial auditor
b. Register of Deeds
“Indeed, this Court recognizes that by virtue of the c. Clerk of Court nominated by executive
amendments introduced by Republic Act No. 9369 judge
to Sections 15 and 30 of Republic Act No. 7166, d. Other available appointive provincial
pre-proclamation cases involving the authenticity officer (Omnibus Election Code, § 221.)
and due execution of certificates of canvass are
City
now allowed in elections for President, Vice-
1. City election supervisor or lawyer of
President, and Senators. The intention of COMELEC (chair)
Congress to treat a case falling under Section 30 2. City fiscal (vice)
of Republic Act No. 7166, as amended by Republic 3. City superintendent of schools (member)
Act No. 9369, as a pre-proclamation case is 4. Substitute members – same as provincial
apparent in the fourth paragraph of the said (Omnibus Election Code, § 221.)
provision which adopts and applies to such a case
the same procedure provided under Sections Municipal
17, 18, 19 and 20 of Republic Act No. 7166 on pre- 1. Election registrar or COMELEC
proclamation controversies. In sum, in elections for representative (chair)
President, Vice-President, Senators and Members 2. Municipal treasurer (vice)
of the House of Representatives, the general rule 3. Most senior district school supervisor
(member)
still is that pre-proclamation cases on matters
4. Or principal of the school, if absent
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5. Substitute members: in the minutes of the board.

a. Municipal administrator
b. Municipal assessor Grounds to Challenge Based on Illegal Acts:
c. Clerk of Court nominated by executive 1. Vote buying
judge 2. Vote selling
d. Other available appointive municipal 3. Vote betting
officers (Omnibus Election Code, § 221.)
Board of Canvassers for President and Vice- Note: The challenged person shall take a
President: prescribed oath before the BEI that he has not
Congress to determine the authenticity and due committed any of the acts alleged in the challenge,
execution of certificates of canvass. Must prove:
after which he will be allowed to vote.
1. Each certificate of canvass was executed,
signed, thumb-marked by the Chair and
Buildings Not Valid as a Polling Place:
transmitted to Congress;
2. Each certificate contains the names of all 1. Public or private building owned, leased or
candidates and votes in words and figures occupied by any candidate of any person
3. No discrepancy in authentic copies who is related to any candidate within the 4th
civil degree of consanguinity or affinity, or
Board of Canvassers for Senators: COMELEC en any officer of the government or leader of any
banc, and not the provincial board. political party
2. Building or surrounding premises under the
Disqualifications: actual control of a private entity
3. Those located within the perimeter of or
1. He/his spouse is related within the fourth
inside a military or police camp or reservation
(4th) civil degree of consanguinity or affinity,
or within a prison compound
to any member of the BEI or to any candidate
to be voted for or to the latter’s spouse, in the
NOTE: Where no suitable public building is
polling place. (COMELEC Resolution No.
9640, art. I, § 3.) available, private school buildings may be used as
2. Engaged in any partisan political activity. polling places. (Omnibus Election Code, § 155)
Requisites for valid transfer of venue of
POWERS counting: (BV-NW)
1) Imminent threat of Violence
Duty of Board of Canvassers: Purely ministerial; 2) To Nearest school [see comment]
to compile and add results as appearing in the 3) Unanimous vote of Board of Inspectors
4) Majority of Watchers
results transmitted to it.
If there is actual danger, no need for the unanimous
Grounds to Challenge an Illegal Voter:
vote of the BOI and assent of majority of poll
1. Not registered watchers
2. Using the name of another
3. Suffering from existing disqualification General Rule: Voting by proxy is not allowed.
General Rule: No voter shall be required to Exceptions:
present his voter’s affidavit on election day.
1. Illiterate
2. Handicapped
Exception: His identity is challenged.
General Rule: No ballots other than official ballots
shall be used or counted
Failure to produce voter’s affidavit shall not
preclude him from voting if:
1. His identity be shown from the photograph, Exceptions:
fingerprints or specimen signatures in his • Failure to receive the official ballots on time.
approved application in the book of voters. • There are no sufficient ballots for all registered
2. He is identified under oath by a member of the voters
BEI and such identification shall be reflected • The official ballots are destroyed at such time
Page 407 of 568
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as shall render it impossible to provide other inspectors should sign each ballot at the back.
official ballots (R.A. No. 7166, § 24.) The omission of such
signature does not affect the validity of the
NOTE: In the given abovementioned exceptions, ballot (Libanan v. House of Representatives
the remedy is to use emergency ballots to be Electoral Tribunal, G.R. No. 129783, Dec. 22,
provided by the city or municipal treasurer. 1997; Punzalan v. COMELEC, G.R. No.
126669, Apr. 27, 1998; Pacris v. Pagalilauan,
G.R. No. RTJ-98-1403, Aug. 14, 2000;
Malabaguio v. COMELEC, G.R. No. 142507, ;
Features of Canvassing: Dec. 1, 2000; De Guzman Jr. v. Sison, G.R.
1. The Board of Canvassers (BOC) is a collegial No. RTJ-01-1629, Mar. 26, 2001.)
body. • A voter who was challenged on the ground that
2. The BOC exercises ministerial duty. he has been paid for his vote or made a bet on
3. The BOC exercises quasi-judicial functions. the result of the election will be allowed to vote
4. Proceedings before BOC are summary in
if he takes an oath that he did not commit the
nature.
alleged in the challenge. (Omnibus Election
5. The BOC convenes at 6pm.
Code, § 200.)
6. Canvassing shall be in public.
7. Proceedings are continuous from day to day, • An illiterate or physically disabled voter may be
without interruption except to adjourn. assisted by a relative by affinity or
8. No police, army or security officer allowed consanguinity within the fourth degree or any
within 50 meters from canvassing room unless person of his confidence who belongs to the
called in writing by the BOC to stay outside the same household or any member of the board of
room. election inspectors ( Omnibus Election Code,
9. After proclamation, BOC becomes functus § 196., De Guzman Jr. v. Sison, G.R. No. RTJ-
officio. 01-1629, Mar. 26, 2001.)
• It is unlawful to use carbon paper, paraffin paper
The proviso designating Smartmatic as the joint or other means for making a copy of the
venture partner in charge of the technical aspect of contents of the ballot or to use any means to
the counting and canvassing wares does not identify the ballot (Omnibus Election Code, §
translate to ceding control of the electoral process 195.). A ballot prepared under such
to Smartmatic. (Roque v. COMELEC, G.R. No. circumstances should not be counted.
188456, Sep. 10, 2009). (Gutierrez v. Aquino, G.R. No. L-14252, Feb.
28, 1959 ) .
COMELEC is authorized by law to proclaim • Absentee Voting:
winning candidates if the remaining uncanvassed
• Members of the board of election inspectors
election returns will not affect the result of the
and their substitutes may vote in the precinct
elections. (Aksyon Magsasaka-Partido Tinig ng where they are assigned. (Omnibus Election
Masa (AKMA-PTM) v. COMELEC, G.R. No. Code, § 169.)
207134, Jun. 16, 2015.) • Absentee voting for President, Vice
President and Senators is allowed for
The manual CERTIFICATE OF CANVASS members of the Armed Forces of the
PROCLAMATIONP is the official COMELEC Philippines, Philippine National Police and
document in cases wherein the canvassing other government employees assigned in
threshold is lowered. In fact, clear from the connection with the performance of election
language of the Resolution is that the winners, in duties to places where they are not
such instances, are proclaimed “by manually registered. (R.A. No. 7166, § 12.)
preparing a Certificate of Canvass and
Proclamation of Winning Candidates,” the format 2. CONTROVERSIES AND REMEDIES
for which is appended to COMELEC Resolution AFTER PROCLAMATION (ELECTION
No. 9700. (Garcia v. COMELEC, G.R. No. 216691,
Jul. 21, 2015.)
CONTESTS)
Definition, Election Contests

Casting of Votes
Election Contests refer to Election Protests or
• The chairman of the board of election Petitions for Quo Warranto. [Sec. 3(c), AM. No. 07-
Page 408 of 568
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4-15-SC] second or third-highest number of votes or, in a

multi-slot position, was among the next four
Kinds Of Election Contests: candidates following the last-ranked winner duly
1. Election Protest proclaimed, as reflected in the official results of the
2. Quo Warranto
election contained in the Statement of Votes by
Withdrawal of nomination and substitution by Precinct. The party filing the protest shall be
another nominee is neither an election protest nor designated as the protestant; the adverse party
an action for quo warranto. Petitioner correctly shall be known as the protestee. [Sec. 4, Rule 1,
brought before the Supreme Court this special civil 2010 Rules of Procedure in Election Contests
action for certiorari under Section 7 of Article IX-A Before the Courts Involving Elective Municipal
of the 1987 Constitution, notwithstanding the Officials, A.M. No. 10-4-1-SC, April 27, 2010]
proclamation of, and assumption of office by, the
substitute nominee. (Lokin, Jr. v. COMELEC G.R. 3) For barangay elective officials. Election
No. 179431-32/180443, Jun. 22, 2010.) Protest refers to an election contest relating to the
election and returns of elective officials, grounded
a. Election Protests
on frauds or irregularities in the conduct of the
elections, the casting and counting of the ballots
Election Protests
and the preparation and canvassing of returns. The
1) For provincial, regional, and city elective
issue is who obtained the plurality of valid votes
officials. A petition contesting the elections or
cast. [Sec. 3(d), AM. No. 07-4-15-SC]
returns of an elective regional, provincial, or city
official shall be filed with the Commission by any
NOTE: The failure or omission of protestant to
candidate who was voted for in the same office and
raise the question of identical handwriting or of
who received the second of third highest number of
impugning the validity of the ballots on that ground,
votes or, in a multi-slot position, was among the
resulting in the invalidation of 466 ballots for
next four candidates following the last ranked
petitioner, does not preclude respondent
winner duly proclaimed, as reflected in the official
COMELEC from rejecting them on that ground.
results of the election contained in the Statement
Unlike an ordinary suit, an election protest is of
of Votes. The party filing the protest shall be
utmost public concern. The rights of the contending
designated as the protestant; the adverse party
parties in the position aspired for must yield to the
shall be known as the protestee. [Sec. 1, Rule 6,
far greater interest of the citizens in the sanctity of
COMELEC Resolution N0. 8804]
the electoral process. This being the case, the
choice of the people to represent them may not be
2) For municipal elective officials.
bargained away by the sheer negligence of a party,
Election protest refers to an election contest
nor defeated by technical rules of procedure. Thus,
involving the election and returns of municipal COMELEC cannot just close its eyes to the
elective officials, grounded on fraud or illegality of the ballots brought before it, where the
irregularities committed in the conduct of the ground for the invalidation was omitted by the
elections, i.e., in the casting and the counting protestant. [Arao v. COMELEC, GR No. 103877,
of the ballots, in the consolidation of votes and 23 June 1992]
in the canvassing of returns, not otherwise
Jurisdiction Over Election Contests
classified as a pre-proclamation controversy
1) For President, Vice President
cognizable by the COMELEC. The issue is who PRESIDENTIAL ELECTORAL TRIBUNAL. The
obtained the plurality of valid votes cast. [Sec. Supreme Court, sitting en banc, shall be the sole
3(u), Rule 1, 2010 Rules of Procedure in Election judge of all contests relating to the election, returns,
Contests Before the Courts Involving Elective and qualifications of the President or Vice-
Municipal Officials, A.M. No. 10-4-1-SC, April 27, President, and may promulgate its rules for the
2010] purpose. [Sec. 4, Art. VII, 1987 Constitution]
2) For Senators and Members of the HoR

A petition contesting the election or returns for an
SENATE ELECTORAL TRIBUNAL (SET) and
elective municipal office shall be filed with the HOUSE OF REPRESENTATIVES ELECTORAL
proper Regional Trial Court by an candidate who TRIBUNAL (HRET). The Senate and the House of
was voted for the same office and who received the Representatives shall each have an Electoral
Page 409 of 568
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Tribunal which shall be the sole judge of all trial courts of general jurisdiction
contests relating to the election, returns, and b. Elective Barangay officials decided by
qualifications of their respective Members. Each trial courts of limited jurisdiction
Electoral Tribunal shall be composed of nine c. COMELEC may issue extraordinary writs
Members, three of whom shall be Justices of the of certiorari, prohibition and mandamus
Supreme Court to be designated by the Chief
Justice, and the remaining six shall be Members of A petition for mandamus will lie against the
the Senate or the House of Representatives, as the Speaker of the House and the House Secretary
case may be, who shall be chosen on the basis of General for not performing their ministerial duties
proportional representation from the political to administer the oath of the second placer and
parties and the parties or organizations registered enter his name in the Roll of Members of the House
under the party-list system represented therein. of Representatives, when the winner’s COC had
The senior Justice in the Electoral Tribunal shall be been cancelled due to ineligibility. (Velasco v.
its Chairman. [Sec. 17, Art. VI, 1987 Constitution] Belmonte, G.R. 211140, 2016)
3) ORIGINAL EXCLUSIVE: For Provincial and Pre-proclamation Controversy v. Election

City Elective Officials; APPELLATE: For Contest
Municipal and Barangay Elective Officials
COMELEC shall exercise exclusive original PRE-
jurisdiction over all contests relating to the ELECTION
PROCLAMATION
elections, returns, and qualifications of all elective CONTEST
CONTROVERSY
regional, provincial, and city officials, and appellate Before proclamation After proclamation of
jurisdiction over all contests involving elective of candidate candidate
municipal officials decided by trial courts of general Jurisdiction of Jurisdiction of
jurisdiction, or involving elective barangay officials COMELEC is COMELEC is quasi-
decided by trial courts of limited jurisdiction. administrative or judicial
Decisions, final orders, or rulings of the quasi-judicial
Commission on election contests involving elective
municipal and barangay offices shall be final,
• Only real parties in interest can file and
executory, and not appealable. [Sec. 2(2), Art. IX-
pursue election protests (e.g. candidate of
C, 1987 Constitution; Sec. 249, OEC]
the same position).
• Even if it was the 2nd placer who filed the
4) For Municipal Elective Officials
election protest, the 3rd placer may still
REGIONAL TRIAL COURTS shall have exclusive
possibly win. Note: The case of presidential
original jurisdiction over all election contests
protest cases, only two persons, the 2nd and
involving elective municipal officials. [Sec. 1, Rule
3rd placers, may contest the election. (Poe
2, AM. No. 07-4-15-SC]
vs. Macapagal-Arroyo, PET Case No. 003,
Mar. 29, 2005)
5) For Barangay Elective Officials
(Including SK as held in Fernandez v. COMELEC,
Note: Special rule for PET: Only the 2nd or 3rd
GR No. 176296, 30 June 2008)
placer may file the protest
MUNICIPAL TRIAL COURTS shall have exclusive
original jurisdiction over all election contests
Requisites for an Election Protest
involving elective barangay officials. [Sec. 2, Rule
2, AM. No. 07-4-15-SC] 1. Filed by candidate who has filed a COC and
has been voted upon for the same office.
COMELEC Jurisdiction Over Election Contests: 2. Filed within 10 days from proclamation of
results
1. Original Jurisdiction over contests relating to
a. Period to file EP is suspended during
elections, returns, and qualifications of all
pendency of PPC
elective:
b. A counter-protest must also comply with
a. Regional
the reglementary period
b. Provincial
c. City officials
2. Appellate Jurisdiction over contests
3. On grounds of:
involving:
a. election fraud/terrorism, and
a. Elective Municipal officials decided by
Page 410 of 568
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b. irregularities or illegal acts before,

during, or after casting and counting of General Rule: The COMELEC cannot proclaim as
votes (Espaldon v. COMELEC, G.R. No. winner the candidate who obtains the 2nd highest
L-78987, Aug. 25, 1987.) number of votes in case the winning candidate is
ineligible or disqualified. When a winner is
Additional Requirements: declared ineligible, the candidate who finished 2nd
1. Payment of docket fee cannot assume the position. (Quizon v.
2. Certificate of Non-Forum Shopping COMELEC, G.R. No. 177927, Feb. 15, 2008.)
Note: Failure to pay is ground to dismiss the Exception:

case. (Banaga Jr. v. Commission on Elections, 1. The one who obtained the highest number of
G.R. No. 134696, Jul. 31, 2000) votes is disqualified, and
2. The electorate is fully aware in fact and in law
House of Representatives Electoral Tribunal of a candidate’s disqualification so as to
Jurisdiction Over Election Contests bring such awareness within the realm of
notoriety but would nonetheless cast their
The House of Representatives has the jurisdiction
votes in favor of the ineligible candidate.
to question the qualification of the nominees of
(Pundaodaya v. COMELEC, G.R. No.179313,
party-list organizations. Although party list
Sep. 17, 2009.)
organizations are voted for in the elections, still it
is not the organizations which sit and become
A candidate who was elected but was later
members of the House of Representatives but their disqualified for failing to meet the residency
nominees. Subsequently, Section 17, Article VI of requirement was never a valid candidate from the
the Constitution provides that the HRET shall be the very beginning, and was merely a de facto officer.
sole judge of all contests relating, among others, to The eligible candidate who garnered the highest
the qualifications of the members of the House.
number of votes must assume the office. The rule
Thus, since party list nominees are considered as
on succession in the Local Government Code
“elected members” of the House, the HRET has does not apply. (Jalosjos v. COMELEC, G.R. No.
jurisdiction to hear and pass upon their 193314, Jun. 25, 2013; Ty-Delgado v. HRET, G.R.
qualifications. (Abayon v. HRET, G.R. No. 189466, No. 219603, Jan. 26, 2016.)
Feb. 11, 2010.)
Abandonment — A protestant who runs for
General Rule: Ballots are the best and most another office is deemed to have abandoned his
conclusive evidence in an election contest where protest. This is especially true in a case where the
the correctness of the number of votes of each protestant pending the election protest, ran, won,
candidate is involved. (Delos Reyes v. COMELEC, assumed the post and discharged the duties as
G.R. No. 170070, Feb. 28, 2007.) such. (Idulza v. COMELEC, G.R. No. 160130, Apr.
14, 2004.)
Exception: Election returns are the best evidence
when the ballots are lost, destroyed, tampered or b. Quo Warranto
fake.
Quo Warranto under the Omnibus Election Code
Execution Pending Appeal: refers to an election contest relating to the
1. Public interest is involved or will of the qualifications of an elective official on the ground
electorate of ineligibility or disloyalty to the Republic of the
2. Length of time that the election contest has Philippines. The issue is whether respondent
been pending possesses all the qualifications and none of the
3. Shortness of the remaining portion of the term disqualifications prescribed by law. [Sec. 3(e), AM.
of the contested office. (Pecson v. COMELEC, No. 07-4-15-SC]
G.R. No. 182865, Dec. 24, 2008.)
Requisites of Quo Warranto (VID 10):
Note: A combination of 2 or more will suffice to
allow execution pending appeal, but shortness of 1. Filed by any registered Voter in the
the remaining period alone is not a ground for constituency; Grounds:
execution pending appeal. (Laubati v. Commission a. Ineligibility
on Elections, G.R. No. 128473, Aug. 26, 1997) b. Disloyalty to the Republic of the
Page 411 of 568
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Philippines (i.e. having a green card)

2. Within 10 days from proclamation of results
(Omnibus Election Code, § 253.) G. ELECTION OFFENSES
General Rule: When proclaimed officer was Election offenses are committed only as soon as
disqualified by quo warranto, 2nd placer cannot be campaign period starts. Any supposed premature
proclaimed winner. campaigning cannot be prosecuted before start of
campaign period.
Exception: When the one who got the highest
votes has been disqualified and the electorate is
Some Prohibited Acts:
fully aware of this fact – but they still voted for him.
Execution pending appeal is allowed but must be 1. Vote-buying or vote-selling

for urgent reasons. 2. Wagering upon result of the election
3. Threats, intimidation, terrorism, use of
Allowable Reasons for Execution Pending fraudulent devise, forms of coercion
4. Appointment of new employee
Appeal:
• Except: when there is urgent need;
1. Public interest involved Notice given to COMELEC within 3
2. Shortness of remaining term days from appointment, creation of
3. Length of time that the contest is pending new positions, promotion or granting
salary increase).
Quo Warranto v. Election Protest 5. Carrying deadly weapon within radius of 100
ELECTION meters from precinct
QUO WARRANTO 6. Transfer or detail of government official or
PROTEST
employee without COMELEC approval. Note:
Strictly speaking, it is It is a contest between Not penalized if done to promote efficiency in
not a contest. It is a the government service.
proceeding to unseat
an ineligible person winning candidate and Any personnel action, when caused or made
from office. the during the election period, can be used for
electioneering or to harass subordinates with
defeated candidate different political persuasions. This possibility – of
Any voter Only by a candidate being used for electioneering purposes or to
who has duly filed a harass subordinates – created by any movement
COC to the same of personnel during the election period is precisely
office and has been what the transfer ban seeks to prevent. (Aquino v.
voted for COMELEC, G.R. No. 211789-90, Mar. 17, 2015.)
GROUNDS: GROUNDS: The prohibition on transfer or detail covers any

movement of personnel from one station to
Disloyalty Election fraud another, whether or not in the same office or
agency when made or caused during the election
Ineligibility Irregularities in the period, and includes reassignment. (Aquino v.
COMELEC, G.R. No. 211789-90, Mar. 17, 2015.)
casting and counting
of votes or in the If the reassignment orders are issued prior to the
preparation of the ER start of the election period, they are automatically
rendered beyond the coverage of the prohibition
The respondent may The protestee may be and the issuing official cannot be held liable for
be unseated, but the unseated and the violation of Section 261(h) of BP 881. (Aquino v.
petitioner may or may protestant may be COMELEC, G.R. No. 211789-90, Mar. 17, 2015.)
not be installed into installed into the office
Retention of duties and temporary discharge of
the office vacated. vacated.
additional duties do not contemplate or involve any
Page 412 of 568
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movement of personnel, whether under any of the Sep. 18, 2012.)

various forms of personnel action enumerated
under the laws governing the civil service or Other Election Offenses Under R.A. No. 6646:
otherwise. Hence, they are not covered by the 1. Causing the printing of official ballots and
legal prohibition on transfers or detail. (Aquino v. election returns by printing establishments not
COMELEC, G.R. No. 211789-90, Mar. 17, 2015.) on contract with COMELEC and printing
establishments which undertakes
Elements of Violation of Sec 261(h) of the unauthorized printing
Omnibus Election Code (Transfer of Officers 2. Tampering, increasing or decreasing the votes
and Employees in the Civil Service): received by a candidate or refusing after
proper verification and hearing to credit the
1. Fact of transfer or detail within election period; correct votes or deduct the tampered votes
2. Transfer or detail made without prior approval (committed by a member of the board of
of COMELEC. election inspectors)
3. Refusing to issue the certificate of voters to the
Full List of Election Offenses Under Section 68 duly accredited watchers (committed by a
and 261 of the Omnibus Election Code (D2T4R- member of the BEI)
VS3- P4MC; same grounds for disqualification): 4. Violating provisions against prohibited forms of
election propaganda
1. Vote-buying
5. Failure to give notice of meetings to other
2. Acts of Terrorism
members of the board, candidate or political
3. Spending in excess of allowable limit
party (committed by the Chairman of the board
4. Soliciting, receiving, or making prohibited
of canvassers)
contributions
6. A person who has been declared a nuisance
5. Campaigning outside Period
candidate or is otherwise disqualified who
6. Tamper with election propaganda
continues to misrepresent himself as a
7. Prohibited election propaganda
candidate and any public officer or private
8. Coercing Subordinates to aid, campaign, or
individual who knowingly induces or abets
vote for a candidate
such misrepresentation by commission or
9. Using Threat, intimidation, terrorism,
omission.
fraudulent, devises
7. If the chairman of the BEI fails to affix his
10. Soliciting votes or electioneering during
signature at the back of the official ballot, in the
registration day and election day within Polling
presence of the voter, before delivering the
place or within 30m radius
ballot to the voter.
11. Public official or employee who releases,
disburses, or expends Public funds 45 days
Prescription of Election Offenses:
before election or 30 days before special
election 1. Election offenses prescribe after 5 years from
12. Political party holds political Conventions or the date of their commission.
meetings to nominate official candidates 2. If the discovery of the offense is made in an
earlier than allowed period election contest proceeding, the period of
13. Destroying or cancelling a COC which has not prescription shall commence on the date which
been cancelled the judgment in such proceedings becomes
14. Misleading BEI by submitting false or spurious final and executory.
COC to the detriment of a candidate
15. Receiving COC out of allowed Time and ————- end of topic ————-
making it appear it was filed on time; or
coercing the officer to perform this act
16. Interfering with Radio or TV broadcast of lawful
political program
17. Soliciting votes on election Day
Under the present law, the COMELEC and other

prosecuting arms of the government, such as the
DOJ, now exercise concurrent jurisdiction in the
investigation and prosecution of election offenses.
(Arroyo v. Department of Justice G.R. No. 199082,
Page 413 of 568
LOCAL
GOVERNMENTS
Political Law
ATENEO CENTRAL
A. GENERAL PRINCIPLES
XIII. PUBLIC CORPORATIONS AND
LOCAL GOVERNMENT 1. CORPORATION AND CLASSES OF
CORPORATION
Definition
XI. PUBLIC CORPORATIONS AND LOCAL A corporation is an artificial being created by
GOVERNMENT operation of law, having the right of succession and
A. GENERAL PRINCIPLES the powers, attributes, and properties expressly
1. Corporation and Classes of Corporations authorized by law or incidental to its existence.
2. Government Owned or Controlled [Section 2, Republic Act No. 11232, Revised
Corporations Corporation Code of the Philippines]
3. Municipal Corporations
Corporations created by special laws or charters
B. PRINCIPLES OF LOCAL AUTONOMY shall be governed primarily by the provisions of the
special law or charter creating them or applicable
C. TERRITORIAL AND POLITICAL
to them, supplemented by the provisions of this
SUBDIVISION
Code, insofar as they are applicable. [Section 4,
1. Province, City, Municipality, Barangay
2. Special Metropolitan Political Subdivision Republic Act No. 11232, Revised Corporation
3. Autonomous Regions Code of the Philippines]
4. Settlement of Boundary Disputes
NOTE: A corporation organized under RA 11232 is
D. POWERS OF LOCAL GOVERNMENT UNITS deemed to be a private corporation unless it’s a
1. Police Power GOCC, i.e. majority of the outstanding capital stock
a. Legislative Power is owned by the government directly or through its
i. Requisites for Valid Ordinance instrumentalities, as defined under RA 10149
ii. Local Initiative and Referendum [GOCC Governance Act].
2. Power of Eminent Domain (Expropriation)
3. Power of Taxation Classes of Corporations
4. Corporate and Other Powers
a. Municipal Liability 1) Private Corporations - It is one that is
b. Reclassification of Lands incorporated under a general law (i.e. under the
c. Closure and Opening of Roads
Corporation Code for old corporations or under the
Revised Corporation Code for new corporations)
E. LOCAL ELECTIVE OFFICIALS and which is established for private interest or
1. Qualifications purpose. [Article 44(3), Civil Code]
2. Disqualifications
3. Discipline NOTE: The 1987 Constitution prohibits the
4. Recall
creation of a private corporation by a special
5. Vacancies and Succession
6. Term Limits charter or law. Congress shall not, except by
general law, provide for the formation,
organization, or regulation of private corporations.
[Section 16, Article XII, 1987 Constitution]
2) Public Corporations - They are corporations,

institutions and entities for public interest or
purpose created by law; their personality begins
as soon as they have been constituted according
to law. [Article 44(2), Civil Code] These [public]
corporations are treated by law as agencies or
instrumentalities of the government which are not
subject to the tests of ownership or control and
Page 415 of 568
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economic viability but to different criteria relating to

their public purposes/interests or constitutional 4) Municipal Corporations - It is a government
policies and objectives and their administrative entity recognized, supported and utilized by the
National Government as a part of its government
relationship to the government or any of its
machinery and functions; a municipal government
Departments or Offices. [Boy Scouts of the actually functions as an extension of the national
Philippines v. Commission on Audit, GR No. government and, therefore, it is an instrumentality
177131, 2011] of the latter. [Surigao Electric Co. v. Municipality of
Surigao, GR No. L-22766, 30 August 1968]
The test of economic viability clearly does not apply
to public corporations dealing with governmental 2. GOVERNMENT OWNED OR
functions (such as the Boy Scout of the CONTROLLED CORPORATIONS (GOCC)
Philippines). The discussion (i.e. Record of the
CONSTITUTIONAL RULE: Government-owned or
1986 Constitutional Convention) conveys the
controlled corporations may be created or
constitutional intent not to apply this constitutional
established by special charters in the interest of the
ban on the creation of public corporations where
common good and subject to the test of economic
the economic viability test would be irrelevant. The
viability. [Section 16, Article XII, 1987 Constitution]
said test would only apply if the corporation is
engaged in some economic activity or business The said constitutional provision should not be
function for the government. [Boy Scouts of the construed so as to prohibit the creation of public
Philippines v. Commission on Audit, GR No. corporations or a corporate agency or
177131, 2011] instrumentality of the government intended to
serve a public interest or purpose, which should not
3) Quasi-Public Corporations - They are private
be measured on the basis of economic viability, but
corporations that render public service, supply
according to the public interest or purpose it serves
public wants, or pursue other eleemosynary
as envisioned by paragraph (2), of Article 44 of
objectives. It must be stressed that a quasi-public
the Civil Code and the pertinent provisions of
corporation is a species of private corporations, but
the Administrative Code of 1987. [Boy Scouts of
the qualifying factor is the type of service the former
the Philippines v. Commission on Audit, GR No.
renders to the public: if it performs a public service,
177131, 2011]
then it becomes a quasi-public corporation.
[Philippine Society for the Prevention of Cruelty to DEFINITIONS
Animals v. Commission on Audit, GR No. 169752,
25 September 2007 citing Ruperto G. Martin, Government-Owned or -Controlled Corporation
Public Corporations 1-3 (1983)] (GOCC) refers to any agency organized as a stock
or nonstock corporation, vested with functions
Public v. Private v. Quasi-Public relating to public needs whether governmental or
proprietary in nature, and owned by the
PUBLIC PRIVATE QUASI-PUBLIC
Government of the Republic of the Philippines
Corporations, Incorporated Private directly or through its instrumentalities either wholly
institutions under a corporations that or, where applicable as in the case of stock
and entities general law render public corporations, to the extent of at least a majority of
for public and which is service, supply its outstanding capital stock: Provided, however,
interest or established public wants, or That for purposes of this Act, the term "GOCC"
purpose for private pursue other shall include GICP/GCE and GFI as defined herein.
created by interest or eleemosynary [Section 3(o), Republic Act No. 10149, GOCC
law (or by purpose. objectives (ex. Governance Act of 2011]
authority of Meralco, PLDT)
Government Instrumentalities with Corporate
law).
Powers (GICP)/Government Corporate Entities
(GCE) refer to instrumentalities or agencies of the
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government, which are neither corporations nor Government Financial Institutions (GFIs) refer
agencies integrated within the departmental to financial institutions or corporations in which the
framework, but vested by law with special functions government directly or indirectly owns majority of
or jurisdiction, endowed with some if not all
the capital stock and which are either: (1)
corporate powers, administering special funds, and
enjoying operational autonomy usually through a registered with or directly supervised by the
charter including, but not limited to, the following: Bangko Sentral ng Pilipinas; or (2) collecting or
the Manila International Airport Authority (MIAA), transacting funds or contributions from the public
the Philippine Ports Authority (PPA), the Philippine and places them in financial instruments or assets
Deposit Insurance Corporation (PDIC), the such as deposits, loans, bonds and equity
Metropolitan Waterworks and Sewerage System including, but not limited to, the Government
(MWSS), the Laguna Lake Development Authority
Service Insurance System and the Social Security
(LLDA), the Philippine Fisheries Development
Authority (PFDA), the Bases Conversion and System. [Section 3(m), Republic Act No. 10149,
Development Authority (BCDA), the Cebu Port GOCC Governance Act of 2011]
Authority (CPA), the Cagayan de Oro Port
Authority, the San Fernando Port Authority, the Chartered GOCC refers to a GOCC, including
Local Water Utilities Administration (LWUA) and Government Financial Institutions, created and
the Asian Productivity Organization (APO). vested with functions by a special law. [Section 3(f),
[Section 3(n), Republic Act No. 10149, GOCC Republic Act No. 10149, GOCC Governance Act of
Governance Act of 2011] 2011]
See Also: Instrumentality refers to any agency of
Non-chartered GOCC refers to a GOCC
the National Government, not integrated within the
department framework vested within special organized and operating under Batas Pambansa
functions or jurisdiction by law, endowed with some Bilang 68, or "The Corporation Code of the
if not all corporate powers, administering special Philippines." [Section 3(p), Republic Act No.
funds, and enjoying operational autonomy, usually 10149, GOCC Governance Act of 2011]
through a charter. This term includes regulatory
agencies, chartered institutions and government- Related Corporation refers to a subsidiary or
owned or controlled corporations. [Section 2(10), affiliate of a GOCC. [Section 3(w), Republic Act No.
Introductory Provisions, Administrative Code of 10149, GOCC Governance Act of 2011]
1987]
Subsidiary refers to a corporation where at least a
NOTE: By being GICP/GCE/instrumentalities, they
majority of the outstanding capital stock is owned
are exempt from the real property tax imposed by
LGUs, such as, but not limited to, the following: or controlled, directly or indirectly, through one or
more intermediaries, by the GOCC. [Section 3(z),
1) Manila International Airport Authority [MIAA v. Republic Act No. 10149, GOCC Governance Act of
Court of Appeals, GR No. 155650, 20 July 2006; 2011] NOTE: Hence, a GOCC as defined under RA
MIAA v. City of Pasay, GR No. 163072, 2 April 10149.
2009] and Macta-Cebu International Airport
Authority [MCIAA v. City of Lapu-Lapu, GR No. Affiliate refers to a corporation fifty percent (50%)
181756, 2015] NOTE: SC used definition of
or less of the outstanding capital stock of which is
Instrumentality under the Administrative Code
of 1987. owned or controlled, directly or indirectly, by the
GOCC. [Section 3(a), Republic Act No. 10149,
2) Light Rail Transit Authority [LRTA v. Quezon GOCC Governance Act of 2011] NOTE: Hence,
City, GR No. 221626, 2019] NOTE: SC used the not a GOCC as defined under RA 10149.
GICP definition under RA 10149.
Government Agency refers to any of the various
3) Philippine Heart Center [Phil. Heart Center v. units of the Government of the Republic of the
QC, GR No. 225409, 2020] NOTE: SC used the Philippines, including a department, bureau, office,
GICP definition under RA 10149. instrumentality or GOCC, or a local government or
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a distinct unit therein. [Section 3(k), Republic Act the government will necessarily fund its primary
No. 10149, GOCC Governance Act of 2011] functions. Thus, a GOCC that is sued in relation to
its governmental functions may be, under
A GOCC created through a special charter must appropriate circumstances, exempted from the
meet two conditions namely: (Twin-Test) payment of appeal fees. In this case, BBC is a
1. it must be created or established by special GOCC performing not a governmental function but
charters in the interest of the common good; a proprietary function which is to engage in
[Section 16, Article XII, 1987 Constitution] commercial television broadcasting. As such, it is
and not exempted from appeal bonds [Banahaw
2. it must be subject to the test of economic Broadcasting Corporation v. Pacana, G.R. 171673,
viability. [Section 16, Article XII, 1987 2011].
Constitution].
3) Radio Philippines Network, Inc. (RPN) is not
Administrative Relationship of a GOCC a GOCC. Under the Administrative Code of 1987,
Government-owned or controlled corporations a GOCC is that which refers to any agency
organized as a stock or non- stock corporation
shall be attached to the appropriate department
vested with functions relating to public needs
with which they have allied functions, as hereinafter whether governmental or proprietary in nature, and
provided, or as may be provided by executive owned by the government directly or indirectly
order, for policy and program coordination and for through its instrumentalities either wholly, or where
general supervision provided in pertinent applicable as in the case of stock corporations, to
provisions of this Code. the extent of at least 51% of its capital stock.
Although there is a controversy as to the amount of
In order to fully protect the interests of the shares transferred to the government,
administrative agencies, such as the PCGG and
government in government-owned or controlled
Office of the President agree, that RPN is not a
corporations, at least one-third (1/3) of the GOCC. Considering that the construction of a
members of the Boards of such corporations statute given by administrative agencies deserves
should either be a Secretary, or Undersecretary, or respect, the uniform administrative constructions of
Assistant Secretary. [Section 42, Book IV, Chapter the relevant aforementioned laws defining what are
IX, Administrative Code of 1987] GOCCs as applied to RPN is highly persuasive.
[Carandang v. Desierto, G.R. 148076, 2011].
Doctrines: NOTE: This definition of a GOCC was still under
the Administrative Code of 1987 and not under
1) Local Water Districts. A local water district is a RA 10149.
government-owned and controlled corporation with
special charter since it is created pursuant to a 4) Veterans Federation of the Philippines (VFP)
special law. PD 198 constitutes the special charter is a public corporation given its sovereign
by virtue of which local water districts exist. Unlike functions. As such, it can be placed under the
private corporations that derive their legal control and supervision of the Secretary of National
existence and power from the Corporation Code, Defense, who consequently has the power to
water districts derive their legal existence and
conduct an extensive management audit of
power from PD 198. [Feliciano v. Gison, G.R.
165641, 2010]. petitioner corporation. The functions of VFP
enshrined in Section 4 of Rep. Act No. 2640 should
2) GOCC performing proprietary functions not most certainly fall within the category of sovereign
exempt from appeal bond. As a rule, the functions. The protection of the interests of war
government and its attached agencies are veterans is not only meant to promote social
exempted from appeal bonds because it is
justice, but is also intended to reward patriotism. All
presumed that the State is always solvent. This
exemption however does not apply to GOCCs. of the functions in Section 4 concern the well-being
Thus, while a GOCC’s majority stockholder, the of war veterans, our countrymen who risked their
State, will always be presumed solvent, the lives and lost their limbs in fighting for and
presumption does not necessarily extend to the defending our nation. [Veterans Federation of the
GOCC itself. However, when a GOCC performs a Philippines v. Reyes, GR No. 155027, 2006]
governmental function there is the assurance that
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5) The BSP (Boy Scout of the Philippines) is a country. Their chief purpose has been to regulate
public corporation or a government agency or and administer the local and internal affairs of the
instrumentality with juridical personality, which cities, municipalities or districts. They are legal
does not fall within the constitutional institutions formed by charters from the sovereign
prohibition in Article XII, Section 16, power, whereby the populations within
notwithstanding the amendments to its charter. communities living within prescribed areas have
Not all corporations, which are not government formed themselves into bodies politic and
owned or controlled, are ipso facto to be corporate, and assumed their corporate names
considered private corporations as there exists with the right of continuous succession and for the
another distinct class of corporations or chartered purposes and with the authority of subordinate self-
institutions which are otherwise known as "public government and improvement and the local
corporations." [Boy Scouts of the Philippines v. administration of the affairs of the
Commission on Audit, GR No. 177131, 2011] State. [Mandanas v. Ochoa, Jr., G.R. Nos. 199802
& 208488, [July 3, 2018] citing Black's Law
6) Philippine National Red Cross (PNRC) is Sui Dictionary, 6th ed., Nolan, J., & Nolan-Haley, J.,
Generis. The SC ruled that the PNRC is a private West Group, St. Paul, Minnesota, 1990, p. 1017]
corporation even if incorporated under a special
law (RA 95). In 2009, the SC initially declared Elements (LITC):
PNRC’s charter as unconstitutional, but in 2011, 1. A Legal creation or incorporation;
the SC modified its ruling and declared PNRC’s 2. A Corporate name by which the artificial
charter as being constitutional. The structure of personality or legal entity is known in which
all corporate acts are done
the PNRC is sui generis, being neither strictly
3. Inhabitants constituting the population
private nor public in nature. R.A. No. 95 remains 4. Territory
valid and constitutional in its entirety. [Liban, et al. [Public Corporations, Ruperto G. Martin, 1985].
v. Gordon, G.R. 175352, 2011]
Modified Dillon’s Rule
7) MECO is not a GOCC or government Municipal corporations, being the mere creatures
instrumentality. It is a sui generis private entity of the State, are subject to the will of Congress,
especially entrusted by the government with the their creator. Their continued existence and the
facilitation of unofficial relations with the people in grant of their powers are dependent on the
Taiwan without jeopardizing the country's faithful discretion of Congress. On this matter, Judge John
commitment to the One China policy of the PROC. F. Dillon of the State of Iowa in the United States of
However, despite its non-governmental character, America enunciated in Merriam v. Moody's
the MECO handles government funds in the form Executors, 25 Iowa 163 (1868), the rule of statutory
of the "verification fees" it collects on behalf of the construction that came to be oft-mentioned as
DOLE and the "consular fees" it collects under Dillon's Rule.
Section 2 (6) of EO No. 15, s. 2001 from the
exercise of its delegated consular functions. The formulation of Dillon's Rule has since
Hence, under existing laws, the accounts of the undergone slight modifications. Judge Dillon
MECO pertaining to its collection of such himself introduced some of the modifications
"verification fees" and "consular fees" should be through his post-Merriam writings with the
audited by the COA. [Funa v. Manila Economic and objective of alleviating the original formulation's
Cultural Office, GR No. 193462, 2014] harshness. The word fairly was added to the
second proviso; the word absolutely was deleted
3. MUNICIPAL CORPORATIONS from the third proviso; and the
words reasonable and substantial were added to
Municipal corporations are now commonly the fourth proviso, thusly: x x x second, those
known as local governments. They are the bodies necessarily or fairly implied in or incident to the
politic established by law partly as agencies of the powers expressly granted; third, those essential to
State to assist in the civil governance of the x x x. Any fair, reasonable, doubt.
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The modified Dillon's Rule has been followed in this 2) De Facto – one so defectively created as not to
jurisdiction, and has remained despite both the be a de jure corporation, but nevertheless the
1973 Constitution and the 1987 Constitution result of a bona fide attempt to incorporate under
mandating autonomy for local governments. The existing statutory authority, coupled with the
LGC has tempered the application of Dillon's Rule exercise of corporate powers, and recognized by
in the Philippines by providing a norm of the courts as such on the ground of public policy in
interpretation in favor of the LGUs in its Section 5 all proceedings except a direct attack by the state
(a). [Mandanas v. Ochoa, Jr., G.R. Nos. 199802 & questioning its corporate existence. [Daryl Bretch
208488, 2018] M. Largo, The Essentials of Local Government
Law in the Philippines 78, 2020 citing Eugene
Thus, the Modified Dillon’s Rule is now stated as McQuillin, The Law of Municipal Corporations, Vol.
follows: [A] municipal corporation possesses and 1 (2nd Ed.)]
can exercise the following powers and no others:
First, those granted in express words; second, Requisites of a de facto municipal corporation
those necessarily OR FAIRLY implied or incident (GLAC)
to the powers expressly granted; third, those 1. Valid Law authorizing incorporation
essential to the declared objects and purposes of 2. Attempt in Good faith to organize under it
the corporation-not simply convenient but 3. Colorable compliance with law
4. Assumption of corporate powers
indispensable; fourth, any fair, REASONABLE,
[Municipality of Malabang v. Benito, G.R. No. L-
SUBSTANTIAL doubt as to the existence of a
28113, 1969]
power shall be interpreted in favor of the local
government unit concerned. Generally, an inquiry into the legal existence of a
municipality is reserved to the State in a
Nature and Functions (SID)
proceeding for quo warranto or other direct
1. Subordinate branch of the government of the
proceeding, and that only in a few exceptions may
state.
2. Instrumentality of the state administration. a private person exercise this function of
3. Exercises Delegated powers of government government. But the rule disallowing collateral
attacks applies only where the municipal
Dual Nature/Character of Municipal corporation is at least a de facto corporation. For
Corporations where it is neither a corporation de jure nor de
Public/Governmental: it acts as an agent of the facto, but a nullity, the rule is that its existence may
State for the government of the territory and the be questioned collaterally or directly in any action
inhabitants within the municipal limits. It exercises
or proceeding by any one whose rights or interests
by delegation a part of the sovereignty of the State.
It includes the use of legislative, executive and are affected thereby, including the citizens of the
judicial powers. territory incorporated unless they are estopped by
Private/Proprietary: it acts in a similar category as their conduct from doing so. [Municipality of
a business corporation performing functions not Malabang v. Benito, G.R. No. L-28113, 1969]
strictly governmental or political, those exercised
for the special benefit and advantage of the 3) By Prescription – one where it is shown that the
community, it is in this character that they are community has claimed and exercised corporate
acting as a separate entity for their own purposes functions, with the knowledge and acquiescence of
and not as a subdivision of the State the legislature, and without interruption or objection
for period long enough to afford title by
Types of Municipal Corporations prescription. These municipal corporations have
exercised their powers for a long period without
1) De Jure - one created by law (Congress) or by objection on the part of the government that
authority of law (local legislative council). [The although no charter is in existence, it is presumed
Local Government Code of 1991 Annotated, R.B. that they were duly incorporated in the first place
and that their charters had been lost. when no
Rodriguez, 2008.]
charter or act of incorporation of a town can be
found, it may be shown to have claimed and
Page 420 of 568
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exercised the powers of a town with the knowledge accountable local government structure instituted
and assent of the legislature, and without objection through a system of decentralization. [Section 3,
or interruption for so long a period as to furnish Article X, 1987 Constitution]
evidence of a prescriptive right. What is clearly
essential is a factual demonstration of the 4) The President of the Philippines shall exercise
continuous exercise by the municipal general supervision over local governments.
corporation of its corporate powers, as well as [Section 4, Article X, 1987 Constitution]
the acquiescence thereto by the other
instrumentalities of the state. [Sultan Osop B. 5) Each local government unit shall have the power
Camid v. Office of the President , G.R. No. 161414, to create its own sources of revenues and to levy
2005] taxes, fees, and charges subject to such guidelines
and limitations as the Congress may provide,
Requisites of a municipal corporation by consistent with the basic policy of local autonomy.
prescription (CLAW) [Section 5, Article X, 1987 Constitution]
1. Community claimed and exercised corporate 6) Local government units shall have a just share,
functions as determined by law, in the national taxes which
2. With knowledge and Acquiescence of the shall be automatically released to them. [Section 6,
Legislature Article X, 1987 Constitution]
3. Without interruption or objection
4. For a period Long enough to afford it title by 7) Local governments shall be entitled to an
prescription equitable share in the proceeds of the utilization
[Sultan Osop B. Camid v. Office of the President , and development of the national wealth within their
G.R. No. 161414, 2005] respective areas, in the manner provided by law,
including sharing the same with the inhabitants by
How validity attacked way of direct benefits. [Section 7, Article X, 1987
The validity of the incorporation and corporate Constitution]
existence of a municipal corporation may not be
attacked collaterally. It may only be challenged by Declaration of Policies
the State in direct proceedings such as quo
The territorial and political subdivisions of the State
warranto, which has a prescriptive period of 5 years shall enjoy genuine and meaningful local autonomy
from the time the act complained of was committed. to enable them to attain their fullest development
[Municipality of San Narciso, Quezon v. Hon. as self-reliant communities and make them more
Antonio v. Mendez, G.R. No. 103702, 1994] effective partners in the attainment of national
goals.
B. PRINCIPLES OF LOCAL AUTONOMY
The State shall provide for a more responsive and
Constitutional Rules and Principles: accountable local government structure instituted
1) The State shall ensure the autonomy of local through a system of decentralization whereby local
governments. [Section 25, Article II, 1987 government units shall be given more powers,
Constitution] authority, responsibilities, and resources.
2) The territorial and political subdivisions shall The State shall ensure the accountability of local
enjoy local autonomy. [Section 2, Article X, 1987 government units through the institution of effective
Constitution] mechanisms of recall, initiative and referendum.
All national agencies are required to conduct
Section 2, Art. X of the Constitution provides that periodic consultations with the appropriate LGUs,
LGUS “shall enjoy local autonomy.” This is NGOs, people’s organizations and other
decentralization of administration and not concerned sectors before any project or program is
decentralization of power. (Limbona v. Conte implemented in their respective jurisdictions.
Mangelin, G.R. 80391, 1989) [Sec.2,LGC]
Unitary Form of Government

3) The Congress shall enact a local government
code which shall provide for a more responsive and Ours is still a unitary form of government, not a
Page 421 of 568
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federal state. Being so, any form of autonomy officials have been placed by the Constitution in the
granted to local governments will necessarily be hands of Congress under Section 3, Article X of the
limited and confined within the extent allowed by Constitution. [League of Provinces of the
the central authority. Besides, the principle of local Philippines vs. DENR, G.R. No. 175368, April 11,
autonomy under the 1987 Constitution simply 2013]
means "decentralization." [Lina, Jr. v. Paño, G.R.
No. 129093, August 30, 2001, 416 PHIL 438-451 3) POLITICAL AUTONOMY. In Cordillera Broad
citing Basco v. PAGCOR, GR No 91649, 1991] Coalition v. Commission on Audit, the Court, with
the same composition, ruled without any dissent
Thus, the principle of local autonomy under the that the creation of autonomous regions
Constitution simply means ‘decentralization’. It contemplates the grant of political autonomy — an
does not make the local government sovereign autonomy which is greater than the administrative
within a State or an imperium in imperio. [Basco v. autonomy granted to local government units. It held
PAGCOR, GR No 91649, May 14, 1991] that "the constitutional guarantee of local autonomy
in the Constitution (Art. X, Sec. 2) refers to
3 Facets of Local Autonomy administrative autonomy of local government units
or, cast in more technical language, the
Local autonomy means a more responsive and decentralization of government authority. . . . On
accountable local government structure instituted the other hand, the creation of autonomous regions
through a system of decentralization. in Muslim Mindanao and the Cordilleras, which is
[Villafuerte, Jr. v. Robredo, G.R. No. 195390, peculiar to the 1987 Constitution, contemplates the
[December 10, 2014], 749 PHIL 841-870 citing grant of political autonomy and not just
Ganzon v. Court of Appeals, G.R. No. 93252, administrative autonomy to these
August 5, 1991] Thus: regions." [Disomangcop v. Datumanong, G.R. No.
149848, [November 25, 2004], 486 PHIL 398-451
1) FISCAL AUTONOMY. Fiscal autonomy means citing Cordillera Broad Coalition v. COA, GR No.
that local governments have the power to create 79956, January 29, 1990]
their own sources of revenue in addition to their
equitable share in the national taxes released by Doctrines:
the National Government, as well as the power to 1) Self-Reliant Communities. The commitment of
allocate their resources in accordance with their the Constitution to the policy
own priorities. Such autonomy is as indispensable of local autonomy which is intended to provide the
to the viability of the policy of decentralization as needed impetus and encouragement to the
the other. [Mandanas v. Ochoa, Jr., G.R. Nos. development of our local political subdivisions as
199802 & 208488, July 3, 2018 citing Pimentel v. "self-reliant communities." In the words of
Aguirre, G.R. No. 132988, 19 July 2000] It extends Jefferson, "Municipal corporations are the small
to the preparation of their budgets, and local republics from which the great one derives its
officials in turn have to work within the constraints strength." [Philippine Gamefowl Commission v.
thereof. [Villafuerte, Jr. v. Robredo, G.R. No. Intermediate Appellate Court, G.R. Nos. 72969-70,
195390, December 10, 2014 citing Pimentel v. December 17, 1986]
Aguirre, G.R. No. 132988, 19 July 2000]
2) Interdependence with the National
2) ADMINISTRATIVE AUTONOMY. The Government. Autonomy is not meant to end the
constitutional guarantee of local autonomy in the relation of partnership and interdependence
Constitution Art. X, Sec. 2 refers to the between the central administration and LGUs, or
administrative autonomy of local government units otherwise, to usher in a regime of federalism.
or, cast in more technical language, the [Ganzon vs. Court of Appeals, G.R. No. 93252,
decentralization of government authority. It does August 5, 1991]
not make local governments sovereign within the
State. Administrative autonomy may involve 3) National Government intervention consistent
devolution of powers, but subject to limitations like with national goals. Local autonomy does not
following national policies or standards, and those rule out any manner of national government
provided by the Local Government Code, as the intervention by way of supervision, in order to
structuring of local governments and the allocation ensure that local programs, fiscal and otherwise,
of powers, responsibilities, and resources among are consistent with national goals. [Villafuerte, Jr.
the different local government units and local v. Robredo, G.R. No. 195390, December 10, 2014
Page 422 of 568
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citing Pimentel v. Aguirre, G.R. No. 132988, 19 July absolute. The national government still has the say
2000] when it comes to national priority programs which
the local government is called upon to implement.
4) No undue interference by the National [Imbong v. Ochoa, G.R. No. 204819, 2014] NOTE:
Government. The objective of "self-reliant Applies also to the BARMM.
communities” through local autonomy could be
blunted by undue interference by the national 8) Favoring Local Autonomy. Where a law is
government in purely local affairs which are best capable of two interpretations, one in favor of
resolved by the officials and inhabitants of such centralized power and the other beneficial to local
political units. [Belgica v. Ochoa, G.R. No. 208566, autonomy, the scales must be weighed in favor of
19 November 2013 citing Philippine Gamefowl autonomy. [San Juan vs. Civil Service
Commission v. IAC, G.R. No. 72969-70, December Commission, G.R. No. 92299, 1991]
17, 1986]
9) Liberal Construction. Consistent with the
NOTE: Thus, the 2013 PDAF Article as well as all declared policy to provide local government units
other similar forms of Congressional Pork Barrel is genuine and meaningful local autonomy, contiguity
deemed unconstitutional insofar as individual and minimum land area requirements for
legislators (as national officials) are authorized to prospective local government units should be
intervene (by overriding or duplicating local liberally construed in order to achieve the desired
programs, policies, and resolutions) in results (Navarro vs. Ermita, G.R. No. 180050,
purely local matters and thereby subvert 2011).
genuine local autonomy. [Belgica, et..al., v. Ochoa,
et. al., G.R. 208566, November 19, 2013] 10) Residual Power. A local government unit may
exercise its residual power to tax when there is
5) Power to Streamline and Organize. Local neither a grant nor a prohibition by statute. [Alta
autonomy also grants local governments the power Vista Golf and Country Club vs. City of Cebu, G.R.
to streamline and reorganize. This power is inferred No. 180235, 2016]
from Section 76 of the Local Government Code on
organizational structure and staffing pattern, and Decentralization
Section 16 otherwise known as the general welfare
clause. [City of General Santos vs. COA, G.R. No. Power vs. Administration
199439, April 22, 2014] The constitutional mandate to ensure local
autonomy refers to decentralization. In its broad or
NOTE: There shall be a continuing mechanism to general sense, decentralization has two forms in
enhance local autonomy not only by legislative the Philippine setting, namely: the decentralization
enabling acts but also by administrative and of power and the decentralization of administration.
organizational reforms [Section 3[h], 1991 LGC]
1) Decentralization of Power. The
6) Statutory Right of LGUs. Executive agencies decentralization of power involves the abdication of
like the DBM cannot disregard statutory right of political power in favor of the autonomous LGUs as
LGUs to nominate local officials for appointment. to grant them the freedom to chart their own
[San Juan vs. Civil Service Commission, G.R. No. destinies and to shape their futures with minimum
92299, 1991] intervention from the central government. This
amounts to self-immolation because the
7) National Priority Programs. Under Sec. 17 of autonomous LGUs thereby become accountable
the LGC is that, unless an LGU is particularly not to the central authorities but to their
designated as the implementing agency, it has no constituencies.
power over a program for which funding has been
provided by the national government under the 2) Decentralization of Administration. On the
annual general appropriations act, even if the other hand, the decentralization of administration
program involves the delivery of basic services occurs when the central government delegates
within the jurisdiction of the LGU. A complete administrative powers to the LGUs as the means of
relinquishment of central government powers on broadening the base of governmental powers and
the matter of providing basic facilities and services of making the LGUs more responsive and
cannot be implied as the Local Government Code accountable in the process, and thereby ensure
itself weighs against it. xxx Local autonomy is not their fullest development as self-reliant
Page 423 of 568
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communities and more effective partners in the (9) Such other matters as may be authorized by law
pursuit of the goals of national development and for the promotion of the general welfare of the
social progress. This form of decentralization people of the region.
further relieves the central government of the
burden of managing local affairs so that it can Illustrative of the limitation is what transpired
concentrate on national concerns. [Mandanas v. in Sema v. Commission on Elections, where the
Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3, Court struck down Section 19, Article VI of
2018] Republic Act No. 9054 (An Act to Strengthen and
Expand the Organic Act for the Autonomous
Decentralization through 2 LGU Groups: Region in Muslim Mindanao, Amending for the
Purpose Republic Act No. 6734, entitled "An Act
1) The decentralization of power has been given to Providing for the Autonomous Region in Muslim
the regional units (namely, the Autonomous Mindanao," as Amended) insofar as the provision
Region for Muslim Mindanao [ARMM] and the granted to the ARMM the power to create
constitutionally-mandated Cordillera Autonomous provinces and cities, and consequently declared as
Region [CAR]). void Muslim Mindanao Autonomy Act No. 201
creating the Province of Shariff Kabunsuan for
The regional autonomy of the ARMM and the CAR being contrary to Section 5, Article VI and Section
aims to permit determinate groups with common 20, Article X of the 1987 Constitution, as well as
traditions and shared social-cultural characteristics Section 3 of the Ordinance appended to the 1987
to freely develop their ways of life and heritage, to Constitution. The Court clarified therein that only
exercise their rights, and to be in charge of their Congress could create provinces and cities. This
own affairs through the establishment of a special was because the creation of provinces and cities
governance regime for certain member necessarily entailed the creation of legislative
communities who choose their own authorities districts, a power that only Congress could exercise
from within themselves, and exercise the pursuant to Section 5, Article VI of the 1987
jurisdictional authority legally accorded to them to Constitution and Section 3 of the Ordinance
decide their internal community affairs. appended to the Constitution; as such, the ARMM
would be thereby usurping the power of Congress
It is to be underscored, however, that the to create legislative districts and national
decentralization of power in favor of the regional offices. [Mandanas v. Ochoa, Jr., G.R. Nos.
units is not unlimited but involves only the powers 199802 & 208488, July 3, 2018]
enumerated by Section 20, Article X of the 1987
Constitution and by the acts of Congress. For, with 2) The other group of LGUs (i.e., provinces, cities,
various powers being devolved to the regional municipalities and barangays) enjoy the
units, the grant and exercise of such powers should decentralization of administration.
always be consistent with and limited by the 1987
Constitution and the national laws. In other words, The provinces, cities, municipalities and barangays
the powers are guardedly, not absolutely, are given decentralized administration to make
abdicated by the National Government. governance at the local levels more directly
responsive and effective. In turn, the economic,
NOTE: Sec. 20, Art. X of the 1987 Constitution political and social developments of the smaller
provides: Within its territorial jurisdiction and political units are expected to propel social and
subject to the provisions of this Constitution and economic growth and development. [Mandanas v.
national laws, the organic act of autonomous Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3,
regions shall provide for legislative powers over: 2018]
(1) Administrative organization;
(2) Creation of sources of revenues; 4 Categories of Decentralization
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations; As a system of transferring authority and power
(5) Regional urban and rural planning from the National Government to the LGUs,
development; decentralization in the Philippines may be
(6) Economic, social, and tourism development; categorized into four, namely:
(7) Educational policies;
(8) Preservation and development of the cultural 1) Political Decentralization or Devolution.
heritage; and Political decentralization or devolution occurs when
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there is a transfer of powers, responsibilities, and or deconcentration involves the transfer of

resources from the central government to the LGUs functions or the delegation of authority and
for the performance of certain functions. It is a more responsibility from the national office to the regional
liberal form of decentralization because there is an and local offices. Consistent with this concept, the
actual transfer of powers and responsibilities. It LGC has created the Local School Boards, the
aims to grant greater autonomy to the LGUs in Local Health Boards and the Local Development
cognizance of their right to self-government, to Councils, and has transferred some of the authority
make them self-reliant, and to improve their from the agencies of the National Government, like
administrative and technical capabilities. NOTE: the Department of Education and the Department
Do not confuse with Decentralization of Power. of Health, to such bodies to better cope up with the
needs of particular localities.
As used in the Local Government Code, the term
"devolution" refers to the act by which the national 3) Fiscal Decentralization. Fiscal decentralization
government confers power and authority upon the means that the LGUs have the power to create
various local government units to perform specific their own sources of revenue in addition to their just
functions and responsibilities. [Sec. 17(e), LGC] share in the national taxes released by the National
Government. It includes the power to allocate their
The devolution contemplated in the Local resources in accordance with their own priorities. It
Government Code shall include the transfer to local thus extends to the preparation of their budgets, so
government units of the records, equipment, and that the local officials have to work within the
other assets and personnel of national agencies constraints of their budgets.
and offices corresponding to the devolved powers,
functions, and responsibilities. [Sec. 17(i), LGC] 4) Policy or Decision-making Decentralization.
Lastly, policy or decision-making decentralization
DEVOLUTION exists if at least one sub-national tier of government
DECENTRALIZATION
(POLITICAL has exclusive authority to make decisions on at
OF POWER
DECENTRALIZATION) least one policy issue (ex. Regional Development
The decentralization of When there is a Councils). [Mandanas v. Ochoa, Jr., G.R. Nos.
power involves the transfer of powers, 199802 & 208488, July 3, 2018]
abdication of political responsibilities, and
power in favor of the resources from the President’s Power of General Supervision
autonomous LGUs as central government to
to grant them the the LGUs for the To safeguard the state policy on local autonomy,
freedom to chart their performance of certain the Constitution confines the power of the
own destinies and to functions. THUS: President over LGUs to mere supervision. "The
shape their futures with President exercises 'general supervision' over
minimum intervention 1) Transfer is them, but only to 'ensure that local affairs are
from the central SPECIFIC to certain administered according to law.' He has no control
government. NOTE: functions, powers, over their acts in the sense that he can substitute
Not absolute; subject responsibilities, and their judgments with his own." Thus, Section 4,
to Constitution. THUS: resources. (e.g. a Article X of the Constitution, states: “Section 4. The
public hospital President of the Philippines shall exercise general
1) Abdication of devolved from NG to supervision over local governments. Provinces
political power. LGU); with respect to component cities and
municipalities, and cities and municipalities with
2) Limited to 2) Applied to all LGUs respect to component barangays, shall ensure that
autonomous regions except regional the acts of their component units are within the
(i.e. BARMM); autonomies (since they scope of their prescribed powers and functions.”
have political power [Villafuerte, Jr. v. Robredo, G.R. No. 195390, 2014]
already through citing Limbona v. Mangelin, G.R. No. 80391, 1989]
Decentralization of
Power that includes Power of General Supervision vs. Power of
devolution). Control
2) Administrative Decentralization or 1) GENERAL SUPERVISION. The President's

Deconcentration. Administrative decentralization power of general supervision means the power of
Page 425 of 568
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a superior officer to see to it that subordinates but not in the form of administrative supervision or
perform their functions according to law. control. Congress retains “control” of the LGUs
although in a significantly reduced degree now than
Doctrines: under previous Constitutions. The power to create
a) Power to Investigate and Discipline. LGUs are still includes the power to destroy. The power to
still under the supervision of the President and grant still includes the power to withhold or recall.
maybe held accountable for malfeasance or The National Legislature is still the principal of the
violations of existing laws. "Supervision is not LGs, which cannot defy its will, or modify or violate
incompatible with discipline. And the power to its laws. [Magtajas vs. Pryce Properties and
discipline and ensure that the laws be faithfully Philippine Amusements and Gaming Corporation,
executed must be construed to authorize the G.R. No. 111097, 1994]
President to order an investigation of the act or
conduct of local officials when in his opinion the Thus, under the 1987 Constitution, Congress has
good of the public service so requires." Clearly the power of the following LGU matters and affairs:
then, the President's power of supervision is not
antithetical to investigation and imposition of 1) Allocate among the different local
sanctions. [Villafuerte, Jr. v. Robredo, G.R. No. government units their powers,
195390, 2014 citing Hon. Joson v. Exec. Sec. responsibilities, and resources, and provide for
Torres, G.R. No. 131255, 1998] the qualifications, election, appointment and
removal, term, salaries, powers and functions
b) Power to Review. Supervision involves the and duties of local officials, and all other
power to review of executive orders and matters relating to the organization and
ordinances, i.e., declare them ultra vires or illegal. operation of the local units [Section 3, Article X,
[Sections 30, 56 and 57, 1991 Local Government 1987 Constitution].
Code].
2) Prescribe guidelines and limitations on
c) Non-interference. The President has only the sources of local government revenues and
power of supervision over LGUs. He cannot local power to levy taxes, fees, and charges
interfere with the local governments as long as they provided these are consistent with the basic policy
act within the scope of their authority. [Pimentel v. of local autonomy [Section 5, Article X, 1987
Aguirre, G.R. No.132988, 2000] Constitution]. Each local government unit shall
have the power to create its own sources of
d) Bangsamoro Government. The President shall revenues and to levy taxes, fees, and charges
exercise general supervision over the Bangsamoro subject to such guidelines and limitations as the
Government to ensure that laws are faithfully Congress may provide, consistent with the basic
policy of local autonomy. Such taxes, fees, and
executed. [Sec. 1, Art. VI, RA 11054] charges shall accrue exclusively to the local
governments.
2) CONTROL. This is distinguished from the
President's power of control which is the power to 3) Determine the just share in the national taxes
alter or modify or set aside what a subordinate of local governments [Section 6, Article X, 1987
officer had done in the performance of his duties Constitution]. Local government units shall have a
and to substitute the judgment of the President just share, as determined by law, in the national
over that of the subordinate officer. The power of taxes which shall be automatically released to
control gives the President the power to revise or them.
reverse the acts or decisions of a subordinate
officer involving the exercise of 4) Provide the manner by which local
discretion. [Villafuerte, Jr. v. Robredo, G.R. No. governments receive their equitable share in
195390, 2014 citing Province of Negros Occidental the proceeds of the utilization and development
v. Commissioners, Commission on Audit, G.R. No. of the national wealth within their respective
182574, 2010] areas [Section 7, Article X, 1987 Constitution].
Local governments shall be entitled to an equitable
Power of Congress over LGUs share in the proceeds of the utilization and
development of the national wealth within their
Congress exercises power over local government respective areas, in the manner provided by law,
units through its constitutional power of legislation, including sharing the same with the inhabitants by
Page 426 of 568
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way of direct benefits. continental shelf for purposes of determining the

equitable share. [Republic v. Palawan, GR No.
5) Set the term limits of barangay officials 170867, 4 December 2018]
[Section 8, Article X, 1987 Constitution]. Under
R.A. No. 9164, the current term of office of elective 2) The Court reaffirmed the established general
barangay officials is three years. The term of office rule that "regardless of the source or classification
of elective local officials, except barangay officials, of land in the possession of a
which shall be determined by law, shall be three municipality, excepting those acquired with its own
years and no such official shall serve for more than funds in its private or corporate capacity, such
three consecutive terms. Voluntary renunciation of property is held in trust for the State for the benefit
the office for any length of time shall not be of its inhabitants, whether it be for governmental or
considered as an interruption in the continuity of his proprietary purposes. It holds such lands subject to
service for the full term for which he was elected. the paramount power of the legislature to dispose
of the same, for after all it owes its creation to it as
6) Prescribe the manner by which sectoral an agent for the performance of a part of its public
representatives shall be installed in local work, the municipality being but a subdivision or
legislative bodies [Section 9, Article X, 1987 instrumentality thereof for purposes of local
Constitution]. Legislative bodies of local administration. [Sangguniang Panlalawigan of
governments shall have sectoral representation as Bataan v. Garcia, Jr., G.R. No. 174964, October 5,
may be prescribed by law. 2016]
7) Define the criteria for the creation, division, 3) Article 424 of the Civil Code lays down the basic
merger, abolition and substantial alteration of principles that properties of the public dominion
boundaries of local governments [Section 10, devoted to public use and made available to the
Article X, 1987 Constitution]. public in general are outside the commerce of
men (persons) and cannot be disposed of or leased
8) Establish special metropolitan political by the LGU to private persons [Macasiano vs.
subdivisions [Section 11, Article X, 1987 Diokno, G.R. no. 97764, August 10, 1992].
Constitution]. The Congress may, by law, create
special metropolitan political subdivisions, subject 4) Pursuant to the Regalian doctrine, any land that
to a plebiscite as set forth in Section 10 hereof. The has never been acquired through purchase,
component cities and municipalities shall retain grant or any other mode of acquisition remains
their basic autonomy and shall be entitled to their part of the public domain and is owned by the
own local executives and legislative assemblies. State. LGs cannot appropriate to themselves
The jurisdiction of the metropolitan authority that public lands without prior grant from the
will hereby be created shall be limited to basic government [Rural Bank of Anda vs. Roman
services requiring coordination. Catholic Archbishop of Lingayen-Dagupan, G.R.
No. 155051, May 21, 2007].
9) Pass the organic act of the autonomous
regions [Section 18, Article X, 1987 Constitution]. 5) A lot comprising the public plaza is property
of public dominion; hence, not susceptible to
10) Provide for exemption to devolution such as private ownership by the church or by the
nationally-funded projects, facilities, programs and municipality [Roman Catholic Bishop of Kalibo,
services since the power of Congress to legislate Aklan vs. Municipality of Buruanga, Aklan, G.R. No.
on all matters of common interest is plenary. 149145, March 31, 2006].
[Imbong v. Ochoa, G.R. No. 204819, April 8, 2014].
6) A city can validly reconvey a portion of its
Congress Control over LGU Properties street that has been closed or withdrawn from
LGUs are still very much subject to the laws passed public use where Congress has specifically
by Congress, including the public properties within delegated to such political subdivision,
their territorial jurisdiction save for those which through its charter, the authority to regulate its
were acquired in their private or corporate capacity. streets. Such property withdrawn from public
Thus: servitude to be used or conveyed for any purpose
1) The territorial jurisdiction of LGUs are limited to for which other property belonging to the city may
the land area and physical metes and bounds as be lawfully used or conveyed. [Figuracion vs. Libi,
defined in their charters and does not extend to the G.R. No. 155688 November 28, 2007]
Page 427 of 568
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7) The conversion of the public plaza into a

commercial center is beyond the municipality’s C. TERRITORIAL AND POLITICAL
jurisdiction considering the property’s nature as SUBDIVISIONS
one for public use and thereby, forming part of the
public dominion. Accordingly, it cannot be the 1. PROVINCE, CITY, MUNICIPALITY,
object of appropriation either by the State or by BARANGAY, SPECIAL METROPOLITAN
private persons. Nor can it be the subject of lease
or any other contractual undertaking [Land Bank of POLITICAL SUBDIVISION
the Philippines v. Cacayuran, G.R. No. 191667,
April 17, 2013; In an Amended Decision dated April Province it is a cluster of municipalities
22, 2015, the Second Division set aside the or municipalities and
decision and remanded the case.] component cities, and as a
political and corporate unit of
government, serves as
dynamic mechanism for
development processes and
effective governance of
LGU’s within its territorial
jurisdiction
City it is composed of more
urbanized and developed
barangays, serves as a
general purpose government
for coordination, and delivery
of basic, regular and direct
services and effective
governance of inhabitants
within its territorial
jurisdiction
Municipality consists of a group of
barangays and serves
primarily as a general
purpose government for
coordination and delivery of
basic, regular and direct
services and effective
governance of inhabitants
within its territorial
jurisdiction
Barangay the basic political unit which
serves as primary planning
and implementing unit of
government policies, plans,
programs, projects and
activities in a community.
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Autono plebiscite. [Torralba v. Sibagat, G.R. No. L-59180

it consists of provinces,
mous (1987)]
cities, municipalities and
Region geographical areas sharing Requisites for creation, conversion,
common and distinctive division, merger or dissolution of LGUs
historical and cultural
heritage, economic and Plebiscite Requirement
social structures, and other In accordance with criteria set by the LGC, no
relevant characteristics province, city, municipality or barangay may be
within the framework of the created, divided, merged, abolished or its
Constitution and the national boundary substantially altered, except in
sovereignty as well as the accordance with the criteria established in the LGC
territorial integrity of the and subject to approval by a majority of the votes
cast in a plebiscite in the political units affected.
Philippines.
[CONST. ART.X, Sec.10]
Special Congress may, by law,
Metropolitan create special metropolitan The plebiscite must be conducted by COMELEC
Political within 120 days from the date of effectivity of the
political subdivisions subject
Subdivision law or ordinance effecting such action, unless said
to a plebiscite. The law or ordinance fixes another date. [LGC, Sec.10]
component cities and
municipalities shall retain Plebiscite must be “in the political units directly
their basic autonomy and affected”
shall be entitled to their own When the law states that the plebiscite shall be
local executives and conducted “in the political units directly affected,” it
legislative assemblies. The means that the residents of the political entity who
jurisdiction of the would be economically dislocated by the
metropolitan authority will separation of a portion thereof have the right to
vote in said plebiscite. [Padilla v. COMELEC, G.R.
hereby be created shall be
No. 103328 (1992)]
limited to basic services
requiring coordination. Who participates in the plebiscite?
A plebiscite for creating a new province should
Authority to create LGUs (Sec. 7, LGC) include the participation of the residents of the
1. By law enacted by Congress mother province in order to conform to the
a. Province constitutional requirement. (Tan v. COMELEC, GR
b. City
No. 73155, July 11, 1986)
c. Municipality
d. Any other political subdivision
The Three-Factor Test
e. A barangay may also be created by law
(Local Government Code, sec. 386) The Court has considered three key factors in
2. By an ordinance passed by the Sangguniang determining whether an LGU is a "political unit
Panlalawigan or Panlungsod - Applicable for directly affected" by an LGU change or
barangay located within its territorial conversion (for purposes of determining
jurisdiction participation in the plebiscite requirement):
Power of creation is legislative in nature 1) Territorial Alteration. Not affected if the metes
The authority to create municipal corporations is and bounds are not changed by law. Redrawing of
essentially legislative in nature. [Pelaez v. Auditor legislative district boundaries does not amount to
General, G.R. No. L-23825 (1965)]
territorial alteration.
The enactment of an LGC is not a sine qua non for
the creation of a municipality, and before the 2) Political Effects. Not affected if LGU does not
enactment of such, the power remains plenary participate or vote for the local elective officials of,
except that creation should be approved in a or if not subject to the administrative supervision
and oversight by, the LGU subject of a plebiscite
Page 429 of 568
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(ex. HUCs and ICCs do not vote for the provincial the government are carried out. [Bagabuyo v.
elective officials and are not subject to the COMELEC, G.R. No. 176970 (2008)]
provincial oversight.)
2) Administrative Regions: Administrative
3) Economic Effects. Not affected if LGU’s IRA regions are not territorial and political subdivisions.
share remains intact or if LGU’s taxing power is not The power to create and merge administrative
diminished. Economic factor pertains strictly to regions is traditionally vested in the President.
fiscal or budgetary relations among the political Hence, the merger of provinces that did not vote for
units concerned, specifically, the sharing of internal inclusion in the ARMM into existing administrative
revenue allotments, budgetary allocations, and regions does not require a plebiscite. [See Abbas
taxing powers, all of which are governed by the v. COMELEC, G.R. No. 89651 (1989)]
pertinent provisions of the LGC and other laws
(thus, other external factors like consumer “Material change” as standard
spending, tourist arrivals, and prices of basic If the creation, division, merger, abolition or
substantial alteration of boundaries of an LGU will
commodities will require presentation and cause a material change in the political and
evaluation of evidence). [Del Rosario v. economic rights of a political unit, the residents of
Commission on Elections, G.R. No. 247610, 2020] such political unit should have the right to
participate in the required plebiscite. [Miranda v.
NOTE: The Three-Factor Test (territorial, political, Aguirre (1999)]
and economic) is different from the “verifiable
indicators of viability and projected capacity to Hence, in the conversion of a component city to a
provide services” of income, land, and population. highly urbanized city, the residents of the province
must participate. The conversion of the city will,
The “Three-Factor Test” is for purposes of
among others, result in reduction in taxing
determining the political units directly affected jurisdiction and reduced economic viability of the
relative to the plebiscite requirement, while the province. [Umali v. COMELEC, G.R. No. 203974
“verifiable indicators of viability” is for purposes of (2014)]
creation or conversion or division for certification by
DOF, Land Management Bureau, and NSO. But the inhabitants of a neighboring city (e.g. San
Juan) are properly excluded from a plebiscite
When Plebiscite Required concerning the conversion of a city (e.g.
When an LGU is created, divided, merged, Mandaluyong) to a highly urbanized city. [See
Tobias v. Abalos (1994)]
abolished, or its boundaries substantially altered
[LGC, sec. 10]. This includes: Indicators for the creation or conversion of
LGU (LIP)
1) Conversion (e.g. from a city to a highly 1. Land Area
urbanized city) [Sec. 453, LGC; see also Tobias v. 2. Income
Abalos, G.R. No. 114783 (1994)] 3. Population
[Sections 461, 450, 442, 386, LGC]
2) Downgrading (e.g. from an independent
component city to a component city) [Miranda v. Considerations in the creation of LGUs
Aguirre, G.R. No. 133064 (1999), on the The central policy considerations in the creation of
downgrading of Santiago, Isabela] local government units are economic viability,
efficient administration and capability to deliver
When Plebiscite not Required basic services to constituents. The criteria
There is no need for any plebiscite in the creation, prescribed by the LGC (income, population, and
dissolution or any other similar action on the land area) are all designed to accomplish these
following: results. The primordial consideration in the
creation of local government units, particularly a
1) Legislative Districts: Legislative districts are province is economic viability. [Navarro v. Ermita,
not political subdivisions through which functions of G.R. 180050, 2011].
Page 430 of 568

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The creation, division, merger, abolition, or Average Total Generall

substantial alteration of boundaries of LGU should annual number y, must
be approved by a majority of the votes cast in a income for of be
plebiscite called for the purpose in the political unit the last 2 inhabita contiguo
or units directly affected. consecutiv nts us
e years within EXCEP
LGU’s T if
‘Boundaries’
NOTE: territory compo
“Boundaries” in Sec 10, Art X is NOT limited to the IRA sed of 1
physical metes and bounds of the LGU, but also to included or more
its political boundaries. In one case, a city was per islands.
converted into an HUC which resulted in material Alvarez v.
changes in the economic and political rights of the Guingona.
people and LGUs, thus, the plebiscite requirement DOF NSO Land
under Sec 10, Art X should apply. The entire Managem
province stands to be directly affected by the ent
conversion hence should be included in the Bureau
P20 250,000 2,000
plebiscite. [Naval v. COMELEC, 2014]
M sq.km
(199 EXCEPT if
Division and Merger of LGUs 1 composed
Division shall not reduce the income, population, Prices) of 1 or
land area of the LGU to less than the minimum Province
more
requirement prescribed. Income classification islands per
should not fall below the current income Navarro v.
classification prior to division [Sec 8, LGC] Ermita
(2011)
Abolition of LGU P100 150,000 100 sq.km.
When income, population, or land areas are M EXCEPT if
Comp
irreversibly reduced to less than the minimum (2000 composed
onent
standards prescribed for creation as certified by the prices) per of 1 or more
City
national agencies concerned. The law or ordinance RA 9009 islands Sec.
abolishing LGU shall specify the province, city, 450, LGC.
municipality or barangay with which the LGU sought P50 200,000 By requiring
to be abolished will be incorporated or merged. M 200K
[Sec. 9, LGC] (199 inhabitants,
1 the law has
Corporate existence of a municipal corporation Prices) effectively
Commences upon the election and qualification of chosen
its chief executive and a majority of members of the NOTE: RA people over
Sanggunian, unless some other time is fixed by the 9009 the land
law or ordinance creating it. [Sec. 14, LGC] Highly raised area
Urbani income requirement;
Dissolution of Municipal Corporations zed requireme thus,
Dissolved by a repeal of the charter as a result of: City nt for compliant
(AMCD) conversio even if land
1. Annexation, n of area is less
2. Merger, municipalit than 100 sq.
3. Consolidation, y to m.
4. Division. componen
t city from
Specific Requirements 50M to
Populati 100M.
Income Land Area
on
Page 431 of 568

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P100 150,000 100 1. Presidential Declaration

Highly
Indepen M sq.km. 2. Income; and
Urbanized
dent (2000 3. Population
City
Compon prices) 4. Plebiscite
ent City following 1. Law
Independent
RA 9009 2. Income; and
Component
P2.5 25,000 50 sq.km. 3. Either population or land area
City
M 4. Plebiscite
Municipal
(199 1. Law
ity
1 2. Income
prices) Municipality 3. Population and
No 2,000 or No 4. Land area
requireme 5,000 if requirem 4. Plebiscite
nt Metro ent 1. Law or ordinance
Barangay Manil except 2. Population and
a or for Barangay 3. Territorial Contiguity (no land
HUCS contiguity area requirement)
s 4. Plebiscite
NOTE: IRA included in the income computation as
per Alvarez v. Guingona, GR No. 118303, 1996. 1987 Constitution:
(Section 15) The autonomous regions provided by
In League of Cities of the Philippines v. COMELEC, the Constitution are:
GR No. 176951, 15 February 2011, the SC final a. Autonomous regions in Muslim Mindanao
b. Autonomous regions in the Cordilleras
declared as constitutional 16 cityhood laws (i.e.
conversion from municipalities to cities) despite not Autonomous regions consist of provinces,
being compliant with the amended income cities, municipalities, and geographical areas
requirement under RA 9009 since they were sharing:
pending bills already in Congress prior to the a. common and distinctive historical and
passage of RA 9009 and the exemption clause are cultural heritage,
found in each of the cityhood laws. By allowing b. economic and social structures, and
c. other relevant characteristics.
respondent municipalities to convert into
component cities, Congress desired only to uphold (Section 16) The President shall exercise general
the very purpose of the LGC, i.e., to make the local supervision over autonomous regions to ensure
government units "enjoy genuine and meaningful that laws are faithfully executed.
local autonomy to enable them to attain their fullest
development as self-reliant communities and make (Section 18) An organic act shall be enacted for
them more effective partners in the attainment of each autonomous region with the assistance and
participation of the regional consultative
national goals," which is the very mandate of
commission composed of representatives
the Constitution. [League of Cities of the Phils. v. appointed by the President from a list of nominees
Commission on Elections, G.R. Nos. 176951, from multi-sectoral bodies.
177499 & 178056 (Resolution), February 15, 2011]
This would define the basic structure of
government for the region, and special courts with
Which requirements must be satisfied?
To create an autonomous region, a majority
1. Law
of the votes cast by the constituent units in a
2. Income and
Province plebiscite called for the purpose is required.
3. Either population or land area
Only those provinces, cities, and geographic
4. Plebiscite
areas voting favorably in such plebiscite shall
1. Law
be included in the autonomous region.
Component 2. Income; and
personal, family, and property law jurisdiction
City 3. Either population or land area
4. Plebiscite
consistent with the provisions of this Constitution
Page 432 of 568
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and national laws. enhance economic prosperity and social justice,

promote full employment among its residents,
(Section 20) The organic act of autonomous maintain peace and order, and preserve the
regions shall provide for legislative powers over: comfort and convenience of its inhabitants.
(1) Administrative organization;
(2) Creation of sources of revenues; President’s Power to Suspend
(3) Ancestral domain and natural The President may suspend the Chief Minister for
resources; a period not exceeding six (6) months for willful
(4) Personal, family, and property relations; violation of the Constitution, national laws, or this
(5) Regional urban and rural planning Organic Law.
development;
(6) Economic, social, and tourism Intergovernmental Relations Body
development; This created the National Government-
(7) Educational policies; Bangsamoro Government Intergovernmental
(8) Preservation and development of the Relations Body, hereinafter referred to as
cultural heritage; and “Intergovernmental Relations Body,” to coordinate
(9) Such other matters as may be and resolve issues on intergovernmental relations
authorized by law for the promotion of through regular consultation and continuing
the general welfare of the people of the negotiation in a non-adversarial manner.
region. Unresolved issues shall be elevated to the
President, through the Chief Minister.
Section 21. The preservation of peace and order
within the regions shall be the responsibility of the Representatives to the IRB
local police agencies which shall be organized, The National Government and the Bangsamoro
maintained, supervised, and utilized in accordance Government shall each appoint representatives to
with applicable laws. the Intergovernmental Relations Body. The
Intergovernmental Relations Body shall be
RA 11054: Organic Law for the Bangsamoro supported by a joint secretariat.
Autonomous Region in Muslim Mindanao
Bangsamoro Participation in National
Definition Government
Those who, at the advent of the Spanish As far as practicable, the Bangsamoro
colonization, were considered natives or original Government shall be represented in the
inhabitants of Mindanao and the Sulu archipelago departments, offices, commissions, agencies and
and its adjacent islands, whether of mixed or of full bureaus of the National Government that
blood, shall have the right to identify themselves, implement and enforce policies, programs, and
their spouses and descendants, as Bangsamoro. projects of the National Government in the
Bangsamoro Autonomous Region.
The present geographical area known as the
Autonomous Region in Muslim Mindanao. The defense and security of the Bangsamoro
Autonomous Region shall be the responsibility of
General Welfare Clause the National Government.
Section 3. The Bangsamoro Government shall
exercise the powers expressly granted, those Annual Block Grant
necessarily implied therefrom, as well as powers The National Government shall provide an annual
necessary, appropriate, or incidental for its efficient block grant which shall be the share of the
and effective governance and those which are Bangsamoro Government in the national internal
essential to the promotion of general welfare. revenue tax collections of the Bureau of Internal
Within its territorial jurisdiction, the Bangsamoro Revenue and collections of the Bureau of Customs.
Government shall ensure and support, among The amount shall be sufficient for the exercise of
other things, the preservation and enrichment of the powers and functions of the Bangsamoro
culture, promote health and safety, enhance the Government under this Organic Law and in no case
right of the people to a balanced ecology, shall be less than the last budget received by the
encourage and support the development of Autonomous Region in Muslim Mindanao
appropriate and self-reliant scientific and immediately before the establishment of the
technological capabilities, improve public morals, Bangsamoro Autonomous Region.
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2. SETTLEMENT OF BOUNDARY DISPUTES

2) However, there is no law providing for the
Situation v. Where to Settle jurisdiction of any court or quasi-judicial body over
SITUATION WHERE TO SETTLE the settlement of a boundary dispute between a
municipality and an independent component city,
Boundary disputes The sangguniang thus, the Regional Trial Court has jurisdiction to
involving 2 or more panlungsod or adjudicate it. Under Section 19 (6) of the Judiciary
barangays in the same Sangguniang bayan Reorganization Act, the RTC has exclusive
city or municipality. concerned. original jurisdiction in all cases not within the
exclusive jurisdiction of any court or quasi-judicial
Boundary disputes The Sangguniang agency. [Municipality of Kananga v. Madrona, G.R.
involving 2 or more panlalawigan No. 141375, 2003]
municipalities within concerned
the same province 3) The technical description, containing the metes
and bounds of the municipality’s territory as stated
Boundary disputes Jointly referred for in an executive order creating the said municipality,
involving settlement to the is binding. [Municipality of Jimenez v. Baz, Jr., G.R.
municipalities or Sanggunians of the No. 105746, December 2, 1996]
component cities of province concerned
different provinces D. POWERS OF LOCAL GOVERNMENT
Boundary disputes Jointly referred for UNITS
involving a component settlement to the
city or municipality on respective In General
the one hand and a Sanggunians of the
highly urbanized city on parties Sources of the powers of LGUs:
the other, or two (2) or 1. Constitution
more highly urbanized 2. Statute
cities. 3. Those applicable to all municipal
corporations or to the class to which it
Procedure After Failure of Amicable Settlement belongs
1) In the event the Sanggunian fails to effect an 4. Special acts of the legislature
amicable settlement within 60 days from the date 5. Charter
the dispute was referred thereto, it shall issue a
certification to that effect. [Sec. 118, LGC] Four Categories of Powers Exercised by LGUs:
2) Thereafter, the dispute shall be formally tried by 1. Powers expressly granted
the Sanggunian concerned which shall decide the 2. Powers necessarily implied therefrom
issue within 60 days from the date of the 3. Powers necessary, appropriate, or
certification. [Sec. 118, LGC] incidental for efficient and effective
3) Within the time and manner prescribed by the governance
Rules of Court, any party may elevate the decision 4. Powers essential to the promotion of the
of the sanggunian concerned to the proper general welfare [Sec. 16, LGC]
Regional Trial Court having jurisdiction over the
area in dispute. The Regional Trial Court shall REMEMBER: Any provision on a power of a local
decide the appeal within one (1) year from the filing government unit shall be liberally interpreted in its
thereof. Pending final resolution of the disputed favor, and in case of doubt, any question thereon
area prior to the dispute shall be maintained and
shall be resolved in favor of devolution of powers
continued for all legal purposes. [Sec. 119, LGC]
and of the lower local government unit. Any fair and
Doctrines: reasonable doubt as to the existence of the power
1) According to Section 118 of the Local shall be interpreted in favor of the local government
Government Code, boundary disputes between unit concerned. [Sec. 5(a), LGC]
and among municipalities should be referred for
settlement to the sangguniang panlalawigan and Within their respective territorial jurisdictions,
not with the Regional Trial Court. [Municipality of LGUs shall ensure and support:
Sta. Fe v. Municpality of Artao, G.R. No. 140474, (a) Preservation and enrichment of culture
2007] (b) Promotion of health and safety
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(c) Enhancement of the right of the people to corporation may exercise such power, there must
a balanced ecology be a valid delegation of such power by the
(d) Development of self-reliant scientific and legislature which is the repository of the inherent
technological capabilities powers of the State. A valid delegation
(e) Improvement of public morals of police power may arise from express delegation,
(f) Enhancement of economic prosperity and or be inferred from the mere fact of the creation of
social justice the municipal corporation; and as a general rule,
(g) Promotion of full employment among municipal corporations may exercise police powers
residents within the fair intent and purpose of their creation
(h) Maintenance of peace and order which are reasonably proper to give effect to the
(i) Preservation of the comfort and powers expressly granted, and statutes conferring
convenience of its inhabitants [Sec. 16, LGC] powers on public corporations have been
construed as empowering them to do the things
1. POLICE POWER (GENERAL WELFARE essential to the enjoyment of life and desirable for
CLAUSE) the safety of the people. [Binay v. Domingo, G.R.
No. 92389, 1991]
Definition
The police power is a governmental function, an Thus, that valid statutory delegation of police power
inherent attribute of sovereignty, which was born is now the General Welfare Clause in Sec. 16 of
with civilized government. It is founded largely on the Local Government Code: “Every local
the maxims, "Sic utere tuo et alienum non laedas" government unit shall exercise the powers
and "Salus populi est suprema lex." Its expressly granted, those necessarily implied
fundamental purpose is securing the general therefrom, as well as powers necessary,
welfare, comfort and convenience of the appropriate, or incidental for its efficient and
people. Police power is the power to prescribe effective governance, and those which are
regulations to promote the health, morals, peace, essential to the promotion of the general welfare.
education, good order or safety and general Within their respective territorial jurisdictions, local
welfare of the people. It is the most essential, government units shall ensure and support, among
insistent, and illimitable of powers. In a sense it is other things, the preservation and enrichment of
the greatest and most powerful attribute of the culture, promote health and safety, enhance the
government. It is elastic and must be responsive to right of the people to a balanced ecology,
various social conditions. (Sangalang, et al. vs. encourage and support the development of
IAC, 176 SCRA 719). On it depends the security of appropriate and self-reliant scientific and
social order, the life and health of the citizen, the technological capabilities, improve public morals,
comfort of an existence in a thickly populated enhance economic prosperity and social justice,
community, the enjoyment of private and social life, promote full employment among their residents,
and the beneficial use of property, and it has been maintain peace and order, and preserve the
said to be the very foundation on which our social comfort and convenience of their inhabitants.”
system rests. (16 C.J.S., p. 896) However, it is not
confined within narrow circumstances of Two Branches of the General Welfare Clause
precedents resting on past conditions; it must 1) General legislative power – Authorizes
follow the legal progress of a democratic way of life. municipal councils to enact ordinances and make
(Sangalang, et al. vs. LAC, supra). [Binay v. regulations not repugnant to law and may be
Domingo, G.R. No. 92389, 1991] necessary to carry into effect and discharge the
powers and duties conferred upon the municipal
Negatively put, police power is "that inherent and council by law. [Fernando v. St. Scholastica’s
plenary power in the State which enables it to College, G.R. No. 161107, 2013 citing Rural Bank
prohibit all that is hurtful to the comfort, safety, and of Makati v. Muncipality of Makati, GR No. 150763,
2004]
welfare of society." [Ermita-Malate Hotel and Motel
Operators Association, Inc. v. City Mayor of Manila, Examples of General Legislative Power:
G.R. No. L-24693, 1967] a) The ordinances imposing licenses and requiring
permits for any business establishment, for
Police power is inherent in the state but not in purposes of regulation enacted by the municipal
municipal corporations (Balacuit v. CFI of Agusan council, fall within the purview of the first branch of
del Norte, 163 SCRA 182). Before a municipal the general welfare clause. Moreover, the
Page 435 of 568
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ordinance of the municipality imposing the annual commercial that consequently prohibited the
business tax is part of the power of taxation vested operation of an oil depot to safeguard the rights to
upon local governments. Hence, the closure of a life, security, and safety of the inhabitants of
business establishment for non-payment of local Manila. [SJS v. Atienza, GR No. 156052, 2008;
business taxes is a valid exercise of police power. SJS v. Lim, GR No. 187836, 2014]
[Rural Bank of Makati v. Muncipality of Makati, GR
No. 150763, 2004] d) An ordinance extending burial assistance of
P500 to a bereaved family whose gross income
b) LGU may properly order the removal and closure does not exceed P2,000 a month, has been upheld
(including demolition) of illegally constructed by the as a valid exercise of police power. [Binay v.
establishments for failure to secure the necessary Domingo, G.R. 92389, 1991]
permits. This is because, in the exercise of police e) Ordinances regulating waste removal carry a
power and the general welfare clause, property strong presumption of validity. Necessarily, LGUs
rights of individuals may be subjected to restraints are statutorily sanctioned to impose and collect
and burdens in order to fulfil the objectives of the such reasonable fees and charges for services
government. [Aquino v. Municipality of Malay, GR rendered. [Ferrer v. Bautista, G.R. 210551, 2015]
No. 211356, 2014]
A person is the real party-in-interest to assail the
c) In ordering the closure of bingo operations, LGU constitutionality and legality of the ordinances
was exercising their duty to implement laws and because he is a registered co-owner of a
ordinances which include the local government's residential property in the city and that he paid
authority to issue licenses and permits for business property tax which already included the SHT and
operations in the city. This authority is granted to the garbage fee. He has substantial right to seek a
them as a delegated exercise of the police power refund of the payments he made and to stop future
of the State. [City of Bacolod v. Phuture Visions, imposition. While he is a lone petitioner, his cause
GR No. 190289, 2018] of action to declare the validity of the subject
ordinances is substantial and of paramount interest
2) Police power proper – Authorizes the to similarly situated property owners in the city.
municipality to enact ordinances as may be proper [Ferrer v. Bautista, G.R. 210551, 2015]
and necessary for the health and safety, prosperity,
morals, peace, good order, comfort and f) LGUs can also substantiate its defense of the
convenience of the municipality and its inhabitant, power to regulate businesses within its territorial
and for the protection of their property [Fernando v. jurisdiction. [City of Iloilo v. Judge Honrado, G.R.
St. Scholastica’s College, G.R. No. 161107, 2013 160399, 2015]
citing Rural Bank of Makati v. Muncipality of Makati,
GR No. 150763, 2004] Requisites for Valid Exercise of Police Power
As with the State, the local government may be
Examples of Police Power: considered as having properly exercised its police
a) Ordinance regulating operation of massage power only if the following requisites are met:
clinics, but not to regulate the practice of massage,
to prevent the commission of immorality and (1) The interests of the public generally, as
the practice of prostitution. [Physical Therapy v.
distinguished from those of a particular class,
Municipal Board of the City of Manila, GR No. L-
10448, 1957] require the interference of the State (LAWFUL
SUBJECT); and
b) Ordinance requiring registration before entry to
motels to safeguard public morals. [Ermita-Malate (2) The means employed are reasonably
Hotel v. City Mayor of Manila, GR No. L-24693, necessary for the attainment of the object sought
1976] NOTE: Ordinance also prohibited renting to be accomplished and not unduly oppressive
rooms more than twice every 24 hours, which was upon individuals (LAWFUL METHOD).
previously held to be valid in Ermita-Malate Hotel,
BUT which has been rendered unconstitutional in Otherwise stated, there must be a concurrence of
White Light Corporation v. City of Manila, GR No. a lawful subject and lawful method. [Lucena Grand
122846, 2009.
Central Terminal Inc. v. JAC Liner Inc., G.R. No.
c) Ordinance reclassifying land from industrial to 148339, 2005; also SJS v. Lim, GR No. 187836,
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2014 and Fernando v. St. Scholastica’s College, restrictive measures is considered.

GR 161107, 2013]
Under the rational relationship test, an ordinance
Two-Pronged Test to Consider an Ordinance as must pass the following requisites as discussed
a Valid Police Power Measure in Social Justice Society (SJS) v. Atienza, Jr.: As
with the State, local governments may be
To be considered as a valid police power measure, considered as having properly exercised their
an ordinance must pass a two-pronged test: police power only if the following requisites are met:
(1) the interests of the public generally, as
(1) FORMAL (ie whether the ordinance is enacted
distinguished from those of a particular class,
within the corporate powers of the LGU, and
require its exercise and (2) the means employed
whether it is passed in accordance with the
are reasonably necessary for the accomplishment
procedure prescribed by law); and
of the purpose and not unduly oppressive upon
(2) SUBSTANTIVE (i.e., involving inherent merit, individuals. In short, there must be a concurrence
like the conformity of the ordinance with the of a lawful subject and lawful method. [Fernando v.
limitations under the Constitution and the statutes, St. Scholastica's College, G.R. No. 161107, 2013]
as well as with the requirements of fairness and (2) Strict Scrutiny Test
reason, and its consistency with public policy). Applying strict scrutiny, the focus is on the
[Mosqueda v. Pilipino Growers, GR No. 189185, presence of compelling, rather than substantial,
2016] governmental interest and on the absence of less
restrictive means for achieving that interest.
For an ordinance to be valid, it must not only be [Fernando v. St. Scholastica's College, G.R. No.
within the corporate powers of the LGU to enact 161107, 2013]
and be passed according to the procedure
The strict scrutiny test applies when a classification
prescribed by law, it must also conform to the
either (i) interferes with the exercise of
following substantive requirements: (1) must not
fundamental rights, including the basic liberties
contravene the Constitution or any statute; (2) must
guaranteed under the Constitution,or (ii) burdens
not be unfair or oppressive; (3) must not be partial
suspect classes. XXX Thus, the government has
or discriminatory; (4) must not prohibit but may
the burden of proving that the classification is:
regulate trade; (5) must be general and consistent
(i) Necessary to achieve a compelling State
with public policy and (6) must not be
interest, and (ii) The least restrictive means to
unreasonable. [SJS v. Atienza, GR No. 156052,
protect such interest or the means chosen is
2008]
narrowly tailored (or narrowly drawn) to accomplish
Tests to Determine Constitutionality of an the interest. [SPARK v. Quezon City, G.R. No.
Ordinance 225442, 2017 citing Disini v. Secretary of Justice,
To successfully invoke the exercise of police power GR No. 203335, 2014]
as the rationale for the enactment of an ordinance
and to free it from the imputation of constitutional Thus, in the curfew ordinances imposed by the City
infirmity, two tests have been used by the Court — of Manila, Navotas City, and Quezon City on
the rational relationship test and the strict scrutiny minors, there is compelling state interest in
test (and also the intermediate scrutiny test): attempting to substantiate legitimate concerns on
public welfare, especially with respect to minors.
(1) Rational Basis or Relationship Test As compared to the Manila and Navotas
Often applied mainly in analysis of equal protection ordinances, the list of exceptions under the Quezon
challenges. Using the rational basis examination, City Ordinance is more narrowly drawn to
laws or ordinances are upheld if they rationally sufficiently protect the minors' rights of association,
further a legitimate governmental interest. Under free exercise of religion, travel, to peaceably
intermediate review, governmental interest is assemble, and of free expression. [SPARK v.
extensively examined and the availability of less
Quezon City, G.R. No. 225442, 2017]
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(3) Intermediate Scrutiny Test 2. Must not be Unfair or oppressive

There is also the intermediate scrutiny test when a 3. Must not be Partial or discriminatory
classification does not involve suspect classes or 4. Must not Prohibit, but may regulate trade
fundamental rights, but requires heightened 5. Must not be Unreasonable
6. Must be General and consistent with public
scrutiny, such as in classifications based on gender
policy
and legitimacy. [SPARK v. Quezon City, GR No. NOTE: To measure if an ordinance is valid, see
225442, 2017] and remember the previous discussions on the
Two-Pronged Test (Mosqueda v. Pilipino
This test has also been applied to regulations or Growers) and the Substantive Requirements
restrictions affecting the freedom of speech and [SJS v. Atienza].
expression in relation to determining if it is a
content-neutral regulation. Being a content-neutral Local Legislative Body
1) Exercised by the Sanggunian (Panlalawigan,
regulation, the same is measured against the
Panglungson, Bayan, Barangay) [Secs. 476, 458,
intermediate test, viz.: (1) the regulation is within 414, 391, LGC]
the constitutional power of the government; (2) it
furthers an important or substantial governmental 2) Presiding Officer:
interest; (3) such governmental interest is
LEGISLATIVE PRESIDING
unrelated to the suppression of the free expression; BODY OFFICER
and (4) the incidental restriction on the alleged
Sanggun ang
freedom of expression is no greater than what is Panlalawigan Vice-Governor
essential to the furtherance of the governmental
interest. [Nicolas-Lewis v. Commission on Sangguniang
Elections, G.R. No. 223705, [2019] Panglungsod Vice-Mayor
Barangay Police Power Sangguniang Bayan Vice-Mayor

1) The punong barangay, as the chief executive of
the barangay government, shall exercise such Sangguniang Barangay Punong Barangay
powers and perform such duties and functions for
efficient, effective and economical governance, the The presiding officer shall vote only to break a
purpose of which is the general welfare of the tie.
barangay and its inhabitants pursuant to Section 16
of the LGC. [Sec. 389, LGC] In the event of the inability of the regular presiding
2) The Barangay Assembly cannot exercise any officer to preside at a sanggunian session, the
police power. Under Section 398 of the LGC, it can members present and constituting a quorum shall
only recommend to the Sangguniang Barangay the elect from among themselves a temporary
adoption of measures for the welfare of the presiding officer. [Sec. 49, LGC]
barangay and decide on the adoption of an 3) Rules of Procedure: Sangguanian concerned
initiative. [Sec. 398, LGC] shall adopt its own rules of procedure. [Sec. 50,
3) Also, the Liga ng mga Barangay cannot exercise LGC]
legislative powers. It is not a local government unit 4) Mandatory Disclosures: Sanggunian members
and its primary purpose is to determine are required to do mandatory disclosures that may
representation of the liga in the sanggunians, to result in any conflict of interest (financial, business,
ventilate, articulate and crystallize issues affecting professional). [Sec. 51, LGC]
barangay government administration, and to 5) Regular session: Fixed on the first day of
secure solutions for them through proper and legal session, 1x a week. [Sec. 52(a), LGC]
means. [Onon v. Fernandez, G.R. No. 139813, 6) Special Session: When public interest so
2001] demands, special sessions may be called by the
local chief executive or by a majority of the
a. Local Legislative Power members of the sanggunian. [Sec. 52(b), LGC]
7) Quorum: A majority of all the members of the
Requisites of a valid ordinance (CUP PUG) sanggunian who have been elected and qualified
1. Must not Contravene the Constitution or any shall constitute a quorum to transact official
statute business. [Sec. 53(a), LGC] If there is no quorum,
Page 438 of 568
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presiding officer may declare a recess until quorum writing.

is constituted or majority of members present may 2) The local chief executive, except the punong
adjourn from day to day and may compel barangay, shall have the power to veto any
immediate attendance. [Sec. 53(b), LGC] If If there particular item or items of an appropriations
is still no quorum despite the enforcement of the ordinance, an ordinance or resolution adopting a
immediately preceding subsection, no business local development plan and public investment
shall be transacted. [Sec. 53(c), LGC] If program, or an ordinance directing the payment of
money or creating liability. In such a case, the veto
Approval/Disapproval of Ordinances shall not affect the item or items which are not
1) Every ordinance enacted by the sangguniang objected to.
panlalawigan, sangguniang panlungsod, or 3) The vetoed item or items shall not take effect
sangguniang bayan shall be presented to the unless the sanggunian overrides the veto in the
provincial governor or city or municipal mayor, as manner herein provided; otherwise, the item or
the case may be. items in the appropriations ordinance of the
2) If the local chief executive concerned previous year corresponding to those vetoed, if
APPROVES the same, he shall affix his signature any, shall be deemed reenacted.
on each and every page thereof; 4) The local chief executive may veto an ordinance
3) If the local chief executive concerned or resolution only once. The sanggunian may
DISAPPROVES the same, he shall VETO it and override the veto of the local chief executive
return the same with his objections to the concerned by two-thirds (2/3) vote of all its
sanggunian, which may proceed to reconsider the members, thereby making the ordinance effective
same. even without the approval of the local chief
4) The veto shall be communicated by the local executive concerned. [Sec. 55, LGC]
chief executive concerned to the sanggunian within
fifteen (15) days in the case of a province, and ten Ordinance v. Resolution
(10) days in the case of a city or a municipality;
ORDINANCE RESOLUTION
otherwise (i.e. if the veto is not communicated to
the sanggunian concerned within the prescribed Has the force and
period), the ordinance shall be deemed approved Mere opinion
effect of
as if he had signed it. law
5) The sanggunian concerned may override the
veto of the local chief executive by two-thirds (2/3) Has general
application; more or Temporary in nature
vote of all its members, thereby making the
ordinance or resolution effective for all legal intents less permanent in
and purposes. character.
6) Ordinances enacted by the sangguniang Third reading is Third reading not required
barangay shall, upon approval by the majority of all required
its members, be signed by the punong barangay.
Usually used in the Usually used in the LGU’s
[Sec. 54, LGC] NOTE: No such veto for the Punong
exercise of the LGU’s exercise of proprietary
Barangay since already a member of the
governmental functions
Sangguniang Barangay.
functions
Any attempt to enforce any ordinance or any Only some may be subject
Subject to veto
resolution approving the local development plan to veto and review
and public investment program, after the
disapproval thereof, shall be sufficient ground for Presumptions regarding local legislation (CRV)
the suspension or dismissal of the official or 1. Constitutionality
employee concerned. [Sec. 58, LGC] 2. Regularity
3. Validity
Grounds and Limitation on the Veto Power of
the Local Chief Executive Requirement After Approval of the Ordinance
1) The local chief executive may veto any 1) For Component City and Municipality
ordinance of the sanggunian panlalawigan, Ordinances
sangguniang panlungsod, or sanggunian bayan on
the ground that it is ultra vires or prejudicial to the PROCESS:
public welfare, stating his reasons therefor in (a) Within three (3) days after approval, the
Page 439 of 568
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secretary to the sanggunian panlungsod or ACTION:

sangguniang bayan shall forward to the (c) If the sangguniang panlungsod or sangguniang
sangguniang panlalawigan for review, copies of bayan, as the case may be, finds the barangay
approved ordinances and the resolutions ordinances inconsistent with law or city or
approving the local development plans and public municipal ordinances, the sanggunian concerned
investment programs formulated by the local shall, within thirty (30) days from receipt thereof,
development councils. [Sec. 56(a, LGC] return the same with its comments and
(b) Within thirty (30) days after the receipt of copies recommendations to the sangguniang barangay
of such ordinances and resolutions, the concerned for adjustment, amendment, or
sangguniang panlalawigan shall examine the modification; in which case, the effectivity of the
documents or transmit them to the provincial barangay ordinance is suspended until such time
attorney, or if there be none, to the provincial as the revision called for is effected. [Sec. 57(c),
prosecutor for prompt examination. The provincial LGC]
attorney or provincial prosecutor shall, within a
period of ten (10) days from receipt of the Effectivity of Ordinances
documents, inform the sangguniang panlalawigan
in writing of his comments or recommendations, For Provinces, Component Cities, and
which may be considered by the sangguniang Municipalities
panlalawigan in making its decision. [Sec. 56(b), 1) Without Penal Sanctions
LGC] (a) Unless otherwise stated in the ordinance or the
resolution approving the local development plan
ACTION: and public investment program, the same shall
(c) If the sangguniang panlalawigan finds that such take effect after ten (10) days from the date a copy
an ordinance or resolution is beyond the power thereof is posted in a bulletin board at the entrance
conferred upon the sangguniang panlungsod or of the provincial capitol or city, municipal, or
sangguniang bayan concerned, it shall declare barangay hall, as the case may be, and in at least
such ordinance or resolution invalid in whole or in two (2) other conspicuous places in the local
part. The sangguniang panlalawigan shall enter its government unit concerned. [Sec. 59(a), LGC]
action in the minutes and shall advise the (b) The secretary to the sanggunian concerned
corresponding city or municipal authorities of the shall cause the posting of an ordinance or
action it has taken. [Sec. 56(c), LGC] resolution in the bulletin board at the entrance of
(d) If no action has been taken by the sangguniang the provincial capitol and the city, municipal, or
panlalawigan within thirty (30) days after barangay hall in at least two (2) conspicuous
submission of such an ordinance or resolution, the places in the local government unit concerned not
same shall be presumed consistent with law and later than five (5) days after approval thereof. The
therefore valid. [Sec. 56 (d), LGC] text of the ordinance or resolution shall be
disseminated and posted in Filipino or English and
2) For Barangay Ordinanc–s - Approved in the language understood by the majority of the
ordinances shall be forwarded to the sangguniang people in the local government unit concerned, and
concerned for review if consistent with law or city the secretary to the sanggunian shall record such
or municipal ordinances. fact in a book kept for the purpose, stating the
dates of approval and posting. [Sec. 59(b), LGC]
PROCESS:
(a) Within ten (10) days after its enactment, the 2) With Penal Sanctions
sangguniang barangay shall furnish copies of all (a) The gist of all ordinances with penal sanctions
barangay ordinances to the sangguniang shall be published in a newspaper of general
panlungsod or sangguniang bayan concerned for circulation within the province where the local
review as to whether the ordinance is consistent legislative body concerned belongs. In the absence
with law and city or municipal ordinances. [Sec. of any newspaper of general circulation within the
57(a), LGC] province, posting of such ordinances shall be made
(b) If the sangguniang panlungsod or sangguniang in all municipalities and cities of the province where
bayan, as the case may be, fails to take action on the sanggunian of origin is situated. [Sec. 59(c),
barangay ordinances within thirty (30) days from LGC]
receipt thereof, the same shall be deemed
approved. [Sec. 57(b), LGC] (b) Ordinances with penal sanctions shall be
posted at prominent places in the provincial capitol,
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city, municipal or Barangay hall, as the case may Sangguniang Panlalawigan can declare the
be, for a minimum period of three (3) consecutive ordinance invalid only if it is beyond the power of
weeks. Such ordinances shall also be published in the Sangguniang Bayan. [Moday v. CA, GR No.
a newspaper of general circulation, where 107916, 1997]
available, within the territorial jurisdiction of the
local government unit concerned, except in the 4) Unreasonable ordinance is invalid. An
case of Barangay ordinances. Unless otherwise ordinance penalizing any person or entity engaged
provided therein, said ordinances shall take effect in the business of selling tickets to movies or other
on the day following its publication, or at the end of public exhibitions, games or performances which
the period of posting, whichever occurs later. [Sec. would charge children between 7 and 12 years of
511(a), LGC] NOTE: This should also apply to the full price of tickets instead of only one-half the
HUCs and ICCs. amount is void because it is unreasonable. It
deprives sellers of the tickets of their property
For Highly Urbanized Cities and Independent without due process. A ticket is a property right and
Component Cities may be sold for such price as the owner of it can
In the case of highly urbanized and independent obtain. There is nothing malicious in charging
component cities, the main features of the children the same price as adults. [Balacuit v. CFI
ordinance or resolution duly enacted or adopted of Agusan del Norte, G.R. No. L-38429, 1988]
shall, in addition to being posted, be published
once in a local newspaper of general circulation 5) Liga ng Mga Barangay has no legislative
within the city: Provided, That in the absence powers. The Liga ng mga Barangay cannot
thereof the ordinance or resolution shall be exercise legislative powers because it is not a local
published in any newspaper of general circulation. government unit and its primary purpose is to
[Sec. 59(d), LGC] NOTE: This should apply to all determine representation of the liga in the
ordinances, with or without penal sanctions. sanggunians to ventilate, articulate and crystallize
issues affecting barangay government
Doctrines: administration, and to secure solutions for them
1) Notice and hearing not required for through proper and legal means. (Onon v.
typographical error. A municipal resolution Fernandez, G.R. No. 139813, 2001).
correcting an alleged typographical error in a
zoning ordinance does not have to comply with the Local Initiative and Referendum
requirements of notice and hearing, which are
required for the validity and effectiveness of zoning Local Initiative - The legal process whereby the
ordinances. [The Learning Child, Inc. v. Ayala registered voters of a LGU may directly propose,
Alabang Village Association, G.R. enact, or amend any ordinance. It may be
134269/134440/144518, 2010] exercised by all registered voters of the provinces,
cities, municipalities, and barangays. [Secs. 120
2) An act which is outside of the municipality’s and 121, LGC]
jurisdiction is considered as a void ultra vires act,
while an act attended only by an irregularity but Initiative on local legislation which refers to a
remains within the municipality’s power is petition proposing to enact a regional, provincial,
considered as an ultra vires act subject to city, municipal, or barangay law, resolution or
ratification and/or validation. Case law states that
ordinance. [Sec. 3(a1), RA 6735]
public officials can be held personally accountable
for acts claimed to have been performed in
Thus, a resolution can also be the proper subject
connection with official duties where they have
of a local initiative. [SBMA v. COMELEC, G.R.
acted ultra vires. [Land Bank of the Philippines v.
25416, 1996]
Cacayuran, G.R. 17165, 2013]
Local Referendum - The legal process whereby
3) Power of Sangguniang Panlalawigan to
the registered voters of the local government units
declare an ordinance invalid. An ordinance
may approve, amend or reject any ordinance
authorizing the expropriation of parcels of land for
enacted by the sanggunian.
the creation of a freedom park cannot be struck
down for the reason that the municipality has an
The local referendum shall be held under the
existing freedom park still suitable for the purpose
control and direction of the COMELEC within sixty
because under Section 56 (c) of the LGC, the
(60) days in case of provinces and cities, forty-five
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(45) days in case of municipalities and thirty (30) 2. The Sanggunian can amend, modify or repeal
days in case of barangays. the proposition/ordinance within 3 years
thereafter by a vote of ¾ of all its members.
The COMELEC shall certify and proclaim the 3. For barangays, the applicable period is 18
results of the said referendum. [Sec. 126, LGC] months. [Sec. 125, LGC]
Procedure for Local Initiative Grounds for Null and Void Proposition
1. Number of voters who should file petition with The proper courts can still declare void any
Sanggunian concerned: proposition adopted pursuant to an initiative or
a. Provinces and cities - at least 1000 referendum on the following grounds:
registered voters 1. Violation of the Constitution
b. Municipality - at least 100 registered voters 2. Want of capacity of the Sanggunian concerned
c. Barangay - at least 50 registered voters to enact the measure [Sec. 127, LGC]
2. Sanggunian concerned has 30 days to act on
the petition. If the Sanggunian does not take 2. POWER OF EMINENT DOMAIN
any favorable action, the proponents may (EXPROPRIATION)
invoke the power of initiative, giving notice to
Sanggunian. Definition
3. Proponents will have the following number of The power of eminent domain has been defined as
days to collect required number of signatures the right of a government to take and appropriate
a. Provinces and cities - 90 days private property to public use, whenever the public
b. Municipalities - 60 days exigency requires it, which can be done only on
c. Barangays -30 days condition of providing a reasonable compensation
4. Signing of petition therefor. It has also been described as the power
5. Date for initiative set by COMELEC if required of the State or its instrumentalities to take private
number of signatures has been obtained. [Sec. property for public use and is inseparable from
122, LGC] sovereignty and inherent in government. [Masikip
v. City of Pasig, GR No. 136349, 23 January 2006]
Limitations on Local Initiative
(a) The power of local initiative shall not be REMEMBER: Private property shall not be taken
exercised more than once a year. for public use without just compensation. [Sec. 9,
(b) Initiative shall extend only to subjects or matters Art. III, 1987 Constitution] Otherwise stated, private
which are within the legal powers of the property can be taken provided: 1) For public use;
sanggunian to enact. 2) With just compensation.
(c) If at any time before the initiative is held, the
sanggunian concerned adopts in toto the Nature of the Power of LGU Eminent Domain
proposition presented and the local chief executive The power of eminent domain is lodged in the
approves the same, the initiative shall be legislative branch of the government. It delegates
cancelled. However, those against such action the exercise thereof to local government units,
may, if they so desire, apply for initiative in the other public entities and public utility corporations,
manner herein provided. [Sec. 124, LGC] subject only to Constitutional limitations. As such,
local governments have no inherent power of
Effectivity of Proposition eminent domain and may exercise it only when
1. If proposition is approved by a majority of the expressly authorized by statute. Section 19 of the
votes cast, it will take effect 15 days after Local Government Code of 1991 (Republic Act No.
certification by the COMELEC as if the 7160) prescribes the delegation by Congress of the
Sanggunian and the local chief executive had power of eminent domain to local government units
taken affirmative action. and lays down the parameters for its exercise.
2. If it fails to obtain required number of votes, it [Masikip v. City of Pasig, GR No. 136349, 23
is considered defeated. [Sec. 123, LGC] January 2006]
Limitations on the Sanggunian Thus, strictly speaking, the power of eminent

1. The Sanggunian CANNOT repeal, modify or domain delegated to an LGU is in reality not
amend any proposition or ordinance approved eminent but "inferior" since it must conform to the
through system of initiative/referendum within limits imposed by the delegation and thus partakes
6 months from the date of approval thereof. only of a share in eminent domain. The national
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legislature is still the principal of the LGUs and the adequacy of the compensation, (b) the necessity of
latter cannot go against the principal's will or modify the taking, and (c) the public use character of the
the same. [Beluso v. Municipality of Panay, GR No. purpose of the taking. [Masikip v. City of Pasig, GR
153974, 7 August 2006] No. 136349, 2006]
Requisites of Eminent Domain: (POJOC) Just Compensation

1. Expropriation should be for a Public use or 1)The determination of “just compensation” in
purpose or for the welfare of the poor or eminent domain cases is a judicial function. Hence,
landless. a statutory provision on a fixed formula in the
2. Ordinance authorizing the local chief executive computation of just compensation in cases of
to subject a certain property to expropriation acquisition of easements of right of way is not
3. Payment of Just compensation binding upon the Court. [National Power Corp. v.
4. Valid and definite Offer previously made to Ileto, G.R. No. 169957, 2012]
owner which was not accepted.
5. Exercised by the LGU through its Chief 2) The determination of just compensation is a
executive. [Sec. 19, LGC] judicial function and any valuation for just
compensation laid down in the statutes may serve
Jurisdiction only as a guiding principle. It may not substitute the
An expropriation suit falls under the jurisdiction of court’s own judgment as to what amount should be
the RTCs. The subject of an expropriation suit is awarded and how to arrive at such amount.
the government’s exercise of eminent domain, a [Vergara v. Grecia, G.R. 185638, 2016]
matter that is incapable of pecuniary estimation.
[Barangay San Roque v. Heirs of Pastor, G.R. No. 3) The amount to be paid for the expropriated
138896, 2000] property (i.e. just compensation) shall be
determined by the proper court, based on the fair
Due Process Requirements market value at the time of the taking of the
The property owner must be afforded a reasonable property.[Sec. 19, LGC]
opportunity to be heard on the issues of public use
and just compensation and to present objections to 4) Under the Rules of Court, however, the court
and claims on them. may issue an order of expropriation declaring that
the plaintiff has a lawful right to take the property
It is settled that taking of property for a private use sought to be expropriated, for the public use or
or without just compensation is a deprivation of purpose described in the complaint, upon the
property without due process of law. Moreover, it payment of just compensation to be determined as
has to be emphasized that taking of private of the date of the taking of the property or the filing
property without filing any complaint before a court of the complaint, whichever came first. [Sec. 4,
of law under Rule 67 of the Rules of Court or Rule 67, ROC]
existing laws is patently felonious, confiscatory,
and unconstitutional. NOTE: Which should prevail? 1) Sec. 19, LGC is
substantive law; 2) Sec. 4, Rule 67, ROC is
Judicial notice can be taken of some instances procedural law. Given that the determination of just
wherein some government agencies or compensation is a judicial function, it is submitted
corporations peremptorily took possession of that the ROC should prevail in view of the rule-
private properties and usurped the owner's real making authority of the Supreme Court under the
rights for their immediate use without first instituting Constitution on all matters relating to pleadings,
the required court action. Running roughshod over practice, and procedure.
the property rights of individuals is a clear and
gross breach of the constitutional guarantee of due
process, which should not be countenanced in a Requisites for the Immediate Possession by
society where the rule of law holds sway. LGU
[Barangay Sindalan v. CA, GR No. 150640, 22 The LGU may immediately take possession of the
March 2007] property:
1) Upon the filing of the expropriation proceedings;
Judicial Review and 2) Upon making a deposit with the proper court
Judicial review of the exercise of eminent domain of at least fifteen percent (15%) of the fair market
is limited to the following areas of concern: (a) the value of the property based on the current tax
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declaration of the property to be expropriated. [Sec.

19, LGC] Public Use/Public Purpose/Public Character
1) Use by the Public or Public Employment.
Upon compliance with these requirements, the There is no precise meaning of "public use" and the
issuance by the RTC of a writ of possession term is susceptible of myriad meanings depending
becomes ministerial. [Iloilo City v. Legaspi, G.R. on diverse situations. The limited meaning
154614, 2004] attached to "public use" is "use by the public" or
"public employment," that "a duty must devolve on
Genuine Necessity of the Taking the person or corporation holding property
The right to take private property for public appropriated by right of eminent domain to furnish
purposes necessarily originates from the public with the use intended, and that there
"the necessity" and the taking must be limited to must be a right on the part of the public, or some
portion of it, or some public or quasi-public agency
such necessity. In City of Manila v. Chinese
on behalf of the public, to use the property after it
Community of Manila, we held that the very is condemned." The more generally accepted view
foundation of the right to sees "public use" as "public advantage,
exercise eminent domain is a convenience, or benefit, and that anything which
genuine necessity and that necessity must be of a tends to enlarge the resources, increase the
public character. Moreover, the ascertainment of industrial energies, and promote the productive
the necessity must precede or accompany and not power of any considerable number of the
inhabitants of a section of the state, or which leads
follow, the taking of the land. In City of Manila v.
to the growth of towns and the creation of new
Arellano Law College, the SC ruled that resources for the employment of capital and labor,
"necessity within the rule that the particular [which] contributes to the general welfare and the
property to be expropriated must be necessary, prosperity of the whole community." In this
does not mean an absolute but only a reasonable jurisdiction, "public use" is defined as "whatever is
or practical necessity, such as would combine the beneficially employed for the community."
greatest benefit to the public with the least [Barangay Sindalan v. Court of Appeals, GR No.
150640, 2007]
inconvenience and expense to the condemning
party and the property owner consistent with such 2) Cannot Depend on Numerical Count. It is
benefit." [Masikip v. City of Pasig, G.R. No. 136349, settled that the public nature of the prospective
2006] exercise of expropriation cannot depend on the
"numerical count of those to be served or the
Examples of No Genuine Necessity; Hence, smallness or largeness of the community to be
Constitutes as Unlawful Taking: benefited." The number of people is not
1) Taking of portions of a Chinese cemetery for a determinative of whether or not it constitutes public
public improvement since its already for public use use, provided the use is exercisable in common
and there are adjoining and adjacent lands offered and is not limited to particular individuals. Thus,
free of charge. [City of Manila v. Chinese the first essential requirement for a valid exercise
Community, GR No. L-14355, 1919] of eminent domain is for the expropriator to prove
that the expropriation is for a public use. [Barangay
2) Taking of a land currently used by Arellano Law Sindalan v. Court of Appeals, GR No. 150640,
College as a homesite since only few families will 2007]
benefit, which is insignificant compared to
preparing young men and women for useful 3) Contributes to the General Welfare. Modernly,
citizenship and service to the government and there has been a shift from the literal to a broader
community. [City of Manila v. Arellano Law interpretation of "public purpose" or "public use" for
Colleges, GR No. L-2929, 1950] which the power of eminent domain may be
exercised. The old concept was that the
3) Taking of a private property for sports condemned property must actually be used by the
development and recreational activities of a general public (e.g. roads, bridges, public plazas,
neighborhood association since it’s not etc.) before the taking thereof could satisfy the
categorically for public purpose and there is an constitutional requirement of "public use." Under
alternative facility in the area. [Masikip v. City of the new concept, "public use" means public
Pasig, G.R. No. 136349, 2006] advantage, convenience or benefit, which tends to
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contribute to the general welfare and the prosperity 2) Prioritize Other Modes of Acquisition. The
of the whole community, like a resort complex for modes of acquiring lands for purposes of this Act
tourists or housing project. [Camarines Sur v. CA, shall include, among others, community mortgage,
GR No. 103125, 17 May 1993 citing Heirs of land swapping, land assembly or consolidation,
Juancho Ardano v. Reyes, 125 SCRA 220 (1983); land banking, donation to the Government, joint
Sumulong v. Guerrero, 154 SCRA 461 (1987)] venture agreement, negotiated purchase, and
expropriation: Provided, however, That
Example: Establishment of a pilot development expropriation shall be resorted to only when other
center that would inure to the direct benefit and modes of acquisition have been exhausted. [Sec.
advantage of the people of the Province of 10, RA 7279]
Camarines Sur. Once operational, the center
would make available to the community invaluable Section 10 of R.A. 7279 also prefers the acquisition
information and technology on agriculture, fishery of private property by "negotiated sale" over the
and the cottage industry. Ultimately, the livelihood filing of an expropriation suit. It provides that such
of the farmers, fishermen and craftsmen would be suit may be resorted to only when the other modes
enhanced. [Camarines Sur v. CA, GR No. 103125, of acquisitions have been exhausted. Indeed, the
1993] Court has held that when the property owner
rejects the offer but hints for a better price, the
Rules on Urban Land Reform and Socialized government should renegotiate by calling the
Housing property owner to a conference. The government
If the expropriation is pursuant to an urban land must exhaust all reasonable efforts to obtain by
reform and housing program, LGUs are also agreement the land it desires. Its failure to comply
mandated to follow the conditions and standards will warrant the dismissal of the complaint. [City of
prescribed by RA 7279 (Urban Development and Manila v. Alegar, GR No. 187604, 2012]
Housing Act of 1992), the law governing the
expropriation of property for urban land reform and Failure to prove strict compliance with the
housing, as follows: requirements of Sections 9 and 10 of RA 7279 is a
fatal infirmity in the LGU’s exercise of the power of
1) Prioritize Other Lands. Lands for socialized eminent domain. Hence, its complaint for
housing shall be acquired in the following order: expropriation must necessarily fail. [Estate of JBL
Reyes v. City of Manila, GR No. 132431, 2004]
1. Those owned by the Government or any of
its subdivisions, instrumentalities, or 3) Small Property Owners are Exempted. Where
agencies, including government-owned or expropriation is resorted to, parcels of land owned
- controlled corporations and their by small property owners shall be exempted for
subsidiaries; purposes of this Act. [Sec. 10, RA 7279] “Small-
2. Alienable lands of the public domain; property owners” are defined by two elements: (a)
3. Unregistered or abandoned and idle lands; They are owners of real property which consists of
4. Those within the declared Areas of Priority residential lands with an area of not more than 300
Development, Zonal Improvement sites, sq. meters in highly urbanized cities, and 800 sq.
and Slum Improvement and Resettlement meters in other urban cities; and (b) They do not
Program sites which have not yet been own real property other than the same. [Sec. 3(q),
acquired; RA 7279]
5. Bagong Lipunan Improvement sites and
Services or BLISS sites which have not yet Returning the Property
been acquired; and When private land is expropriated for a particular
6. Privately-owned lands. public use and that purpose is abandoned, there is
no “implied contract” that the properties will be
Where on-site development is found more used only for the public purpose for which they
practicable and advantageous to the beneficiaries, were acquired. Property is to be returned only
the priorities mentioned in this section shall not when it is expropriated with the condition that when
apply (thus, privately-owned lands may be said purpose is ended or abandoned, the former
acquired first). The local government units shall owner reacquires the property so expropriated, and
give budgetary priority to on-site development of not when the expropriation decree gives to the
government lands. [Sec. 9, RA 7279] entity a fee simple which makes the land the
expropriator the absolute owner of the property.
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[Air Transportation Office v. Gopuco, G.R. No. 2) Local government units shall have a just share,
158563, 2005] as determined by law, in the national taxes which
shall be automatically released to them. [Section 6,
Role of supervising LGU - The only ground upon Article X, 1987 Constitution]
which a provincial board may declare any
municipal resolution, ordinance, or order invalid is 3) Local governments shall be entitled to an
when such resolution, ordinance, or order is equitable share
beyond the powers of the LGU. Absolutely no in the proceeds of the utilization and development
other ground is recognized by the law. Hence, it of the national wealth within their respective areas,
cannot declare the ordinance invalid on the ground in the manner provided by law, including sharing
that the expropriation is unnecessary. [Moday v. the same with the inhabitants by way of direct
CA, GR No. 107916, 1997] benefits. [Section 7, Article X, 1987 Constitution]
Role of national government - The approval of Power of Taxation is Not Inherent in LGUs
the national government is not required of local The power to tax "is an attribute of sovereignty,"
governments to exercise the power of eminent and as such, inheres in the State. Such, however,
domain. is not true for provinces, cities, municipalities and
barangays as they are not the sovereign; rather,
Procedure for expropriation they are mere "territorial and political subdivisions
of the Republic of the Philippines."
NATIONAL
LGUs
GOVERNMENT
The rule governing the taxing power of provinces,
1. The filing of a 1. The filing of a cities, municipalities and barangays is summarized
complaint for complaint for in Icard v. City Council of Baguio: It is settled that a
expropriation expropriation sufficient in municipal corporation unlike a sovereign state is
sufficient in form and form and substance; and clothed with no inherent power of taxation. The
substance; and charter or statute must plainly show an intent to
confer that power or the municipality, cannot
2. The deposit of the 2. The making of a deposit assume it. And the power when granted is to be
amount equivalent to equivalent to the construed in strictissimi juris. Any doubt or
15% of the fair market assessed value of the ambiguity arising out of the term used in granting
value of the property property subject to that power must be resolved against the
to be expropriated expropriation. municipality.
based on its current
tax declaration (Iloilo See: Rules of Court, Rule Inferences, implications, deductions — all these —
v. Legaspi, G.R. 67 and Robern have no place in the interpretation of the taxing
154614, 2004). Development Corporation power of a municipal corporation.
v. Quitain, G.R. 135042,
See: Local 1999 Therefore, the power of a province to tax is limited
Government to the extent that such power is delegated to it
Code, Sec. 19 either by the Constitution or by statute.
Per Section 5, Article X of the 1987 Constitution,

3. POWER OF TAXATION (POWER TO "the power to tax is no longer vested exclusively on
GENERATE AND APPLY RESOURCES) Congress; local legislative bodies are now given
direct authority to levy taxes, fees and other
CONSTITUTIONAL RULES charges." Nevertheless, such authority is "subject
to such guidelines and limitations as the Congress
1) Each local government unit shall have the power may provide.” [Pelizloy Realty v. Benguet, GR No.
to create its own sources of revenues and to levy 183137, 2013]
taxes, fees, and charges subject to such guidelines
and limitations as the Congress may provide, Nature of LGUs power to tax
consistent with the basic policy of local autonomy. LGUs have no inherent power to tax except to the
Such taxes, fees, and charges shall accrue extent that such power might be delegated to them
exclusively to the local governments. [Section 5, either by the basic law or by the statute. Under the
1987 Constitution, where there is neither a grant
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nor a prohibition by statute, the tax power must be the provision is merely an advisory to prevail upon
deemed to exist although Congress may provide local executives to recognize the need for fiscal
statutory limitations and guidelines. The basic restraint in a period of economic difficulty. Indeed,
rationale for the current rule is to safeguard the all concerned would do well to heed the President's
viability and self-sufficiency of local government call to unity, solidarity and teamwork to help
units by directly granting them general and broad alleviate the crisis. It is understood, however, that
tax powers. Nevertheless, the fundamental law did no legal sanction may be imposed upon LGUs and
not intend the delegation to be absolute and their officials who do not follow such advice.
unconditional; the constitutional objective [Pimentel v. Aguirre, GR No. 132988, 2015]
obviously is to ensure that, while the local
government units are being strengthened and Tax Ordinance Strictly Construed Against LGU
made more autonomous, the legislature must still In case of doubt, any tax ordinance or revenue
see to it that (a) the taxpayer will not be over- measure shall be construed strictly against the
burdened or saddled with multiple and local government unit enacting it, and liberally in
unreasonable impositions; (b) each local
favor of the taxpayer. Any tax exemption, incentive
government unit will have its fair share of available
resources; (c) the resources of the national or relief granted by any local government unit
government will not be unduly disturbed; and (d) pursuant to the provisions of this Code shall be
local taxation will be fair, uniform, and just. [Ferrer construed strictly against the person claiming
v. Bautista, G.R. 210551, 2015] it. [Sec. 5(b), LGC]
Fiscal Autonomy Scope of Power to Generate and Apply

Fiscal autonomy means that local governments Resources
have the power to create their own sources of Local government units shall have the power and
revenue in addition to their equitable share in the authority to:
national taxes released by the national
government, as well as the power to allocate their 1) Establish an organization that shall be
resources in accordance with their own priorities. responsible for the efficient and effective
implementation of their development plans,
Local fiscal autonomy does not, however, rule out program objectives and priorities;
any manner of national government intervention by
way of supervision, in order to ensure that local 2) Create their own sources of revenues and to levy
programs, fiscal and otherwise, are consistent with taxes, fees, and charges which shall accrue
national goals. Significantly, the President, by exclusively for their use and disposition and which
constitutional fiat, is the head of the economic and shall be retained by them;
planning agency of the government, primarily
responsible for formulating and implementing 3) Have a just share in national taxes which shall
continuing, coordinated and integrated social and be automatically and directly released to them
economic policies, plans and programs for the without need of any further action;
entire country. However, under the Constitution,
the formulation and the implementation of such 4) Have an equitable share in the proceeds from
policies and programs are subject to "consultations the utilization and development of the national
with the appropriate public agencies, various wealth and resources within their respective
private sectors, and local government units." The territorial jurisdictions including sharing the same
President cannot do so unilaterally. [Pimentel v. with the inhabitants by way of direct benefits;
Aguirre, GR No. 132988, 2015]
5) Acquire, develop, lease, encumber, alienate, or
Thus, the directive to "identify and implement otherwise dispose of real or personal property held
measures…that will reduce total expenditures…by by them in their proprietary capacity and to apply
at least 25% of authorized regular appropriation" their resources and assets for productive,
does not violate local or fiscal autonomy as it is developmental, or welfare purposes, in the
merely advisory in character, and does not exercise or furtherance of their governmental or
constitute a mandatory or binding order that proprietary powers and functions and thereby
interferes with local autonomy. The language used, ensure their development into self-reliant
while authoritative, does not amount to a command communities and active participants in the
that emanates from a boss to a subaltern. Rather, attainment of national goals. [Sec. 18, LGC]
Page 447 of 568
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other kinds of customs fees, charges and dues

Fundamental Principles of Local Taxation except wharfage on wharves constructed and
maintained by the local government unit
The following fundamental principles shall govern concerned;
the exercise of the taxing and other revenue-raising e) Taxes, fees, and charges and other
powers of local government units: impositions upon goods carried into or out of,
or passing through, the territorial jurisdictions
1) Taxation shall be uniform in each local of local government units in the guise of
government unit; charges for wharfage, tolls for bridges or
otherwise, or other taxes, fees, or charges in
2) Taxes, fees, charges and other impositions any form whatsoever upon such goods or
shall: merchandise;
(a) be equitable and based as far as f) Taxes, fees or charges on agricultural and
practicable on the taxpayer's ability to pay; aquatic products when sold by marginal
(b) be levied and collected only for public farmers or fishermen;
purposes; g) Taxes on business enterprises certified to by
(c) not be unjust, excessive, oppressive, or the Board of Investments as pioneer or non-
confiscatory; pioneer for a period of six (6) and four (4)
(d) (d) not be contrary to law, public policy, years, respectively from the date of
national economic policy, or in the registration;
restraint of trade; h) Excise taxes on articles enumerated under the
national Internal Revenue Code, as amended,
3) The collection of local taxes, fees, charges and and taxes, fees or charges on petroleum
other impositions shall in no case be let to any products;
private person; i) Percentage or value-added tax (VAT) on sales,
4) The revenue collected pursuant to the barters or exchanges or similar transactions on
provisions of this Code shall inure solely to the goods or services except as otherwise
benefit of, and be subject to the disposition by, provided herein;
the local government unit levying the tax, fee, j) Taxes on the gross receipts of transportation
charge or other imposition unless otherwise contractors and persons engaged in the
specifically provided herein; and transportation of passengers or freight by hire
5) Each local government unit shall, as far as and common carriers by air, land or water,
practicable, evolve a progressive system except as provided in this Code;
of taxation. [Sec. 130, LGC] k) Taxes on premiums paid by way or
reinsurance or retrocession;
Sources of LGU Funds l) Taxes, fees or charges for the registration of
1) Taxes, fees, and charges which accrue motor vehicles and for the issuance of all kinds
exclusively for their use and disposition of licenses or permits for the driving thereof,
2) Just share in national taxes which shall be except tricycles;
automatically and directly released to them m) Taxes, fees, or other charges on Philippine
3) Equitable share in the proceeds from utilization products actually exported, except as
and development of national wealth and resources otherwise provided herein;
within their territorial jurisdiction [Sec. 18, LGC] n) Taxes, fees, or charges, on Countryside and
Common Limitations to Taxing Power of LGUs Barangay Business Enterprises and
Unless otherwise provided herein, the exercise of cooperatives duly registered under R.A. No.
the taxing powers of provinces, cities, 6810 and R.A. No. 6938 (Cooperative Code,
municipalities, and barangays shall NOT extend to now RA 9520) respectively; and
the levy of the following: o) Taxes, fees or charges of any kind on the
a) Income tax, except when levied on banks and National Government, its agencies and
other financial institutions; instrumentalities, and local government units.
b) Documentary stamp tax; [Sec. 133, LGC]
c) Taxes on estates, inheritance, gifts, legacies
and other acquisitions mortis causa, except as Requisites of a Tax Ordinance
otherwise provided herein; 1. Notice
d) Customs duties, registration fees of vessel and 2. Actual conduct of public hearing
wharfage on wharves, tonnage dues, and all
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Constitutionality or Legality of Tax Ordinances (a) Sixty percent (60%) to the city or
Any question on the constitutionality or legality of municipality where the factory is located; and
tax ordinances or revenue measures may be raised (b) Forty percent (40%) to the city or
on appeal within thirty (30) days from the effectivity municipality where the plantation is located.
thereof to the Secretary of Justice who shall render [Sec. 150(c), LGC]
a decision within sixty (60) days from the date of
receipt of the appeal: Provided, however, That 5) In cases where a manufacturer, assembler,
such appeal shall not have the effect of suspending producer, exporter or contractor has two (2) or
the effectivity of the ordinance and the accrual and more factories, project offices, plants, or
payment of the tax, fee, or charge levied therein: plantations located in different localities, the
Provided, finally, That within thirty (30) days after seventy percent (70%) sales allocation mentioned
receipt of the decision or the lapse of the sixty-day above shall be prorated among the localities where
period without the Secretary of Justice acting upon the factories, project offices, plants, and
the appeal, the aggrieved party may file plantations are located in proportion to their
appropriate proceedings with a court of competent respective volumes of production during the period
jurisdiction. [Sec. 189, LGC] for which the tax is due. [Sec. 150(d), LGC]
Rules on LGU Business Taxes Withdrawal of Local Tax Exemption Privileges

1) Manufacturers, assemblers, repackers, brewers, Unless otherwise provided in the LGC, tax
distillers, rectifiers and compounders of liquor, exemptions or incentives granted to, or enjoyed by
distilled spirits and wines, millers, producers, all persons, whether natural or juridical, including
exporters, wholesalers, distributors, dealers, government-owned or - controlled corporations
contractors, banks and other financial institutions, were withdrawn upon the effectivity of the LGC.
and other businesses, maintaining or operating [Sec. 193, LGC]
branch or sales outlet elsewhere shall record the
sale in the branch or sales outlet making the sale Privileges Retained: Tax exemption privileges of
or transaction, and the tax thereon shall accrue and the following were not withdrawn by the LGC from
shall be paid to the municipality where such branch the following:
or sales outlet is located. [Sec. 150(a), LGC] 1. Local water districts;
2. Cooperatives duly registered under R.A. No.
2) In cases where there is no such branch or sales 6938; and
outlet in the city or municipality where the sale or 3. Non-stock and non-profit hospitals and
transaction is made, the sale shall be duly recorded educational institutions [Sec. 193,
in the principal office and the taxes due shall LGC; Sec. 234, LGC]
accrue and shall be paid to such city or
municipality. [Sec. 150(a), LGC] Real Property Taxation
Annual ad valorem tax on real property may be
3) The following sales allocation shall apply to levied by:
manufacturers, assemblers, contractors, (1) Province; or
producers, and exporters with factories, project (2) City; or
offices, plants, and plantations in the pursuit of their (3) Municipality within Metropolitan Manila Area
business: (i.e. Pateros is the only one) [Sec. 232, LGC]
(a) Thirty percent (30%) of all sales recorded in
the principal office shall be taxable by the city Exemptions from Real Property Tax
or municipality where the principal office is The following are exempted from payment of the
located; and real property tax:
(b) Seventy percent (70%) of all sales recorded
in the principal office shall be taxable by the city (a) Real property owned by the Republic of the
or municipality where the factory, project office, Philippines or any of its political subdivisions
plant, or plantation is located. [Sec. 150(b), except when the beneficial use thereof has been
LGC] granted, for consideration or otherwise, to a taxable
person;
4) In case of a plantation located at a place other
than the place where the factory is located, said (b) Charitable institutions, churches, parsonages or
seventy percent (70%) mentioned above shall be convents appurtenant thereto, mosques, non-profit
divided as follows: or religious cemeteries and all lands, buildings, and
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improvements actually, directly, and exclusively International Airport Authority [MCIAA v. City of
used for religious, charitable or educational Lapu-Lapu, GR No. 181756, 2015] NOTE: SC
purposes; used definition of Instrumentality under the
Administrative Code of 1987.
(c) All machineries and equipment that are actually,
directly and exclusively used by local water districts 3) Light Rail Transit Authority [LRTA v. Quezon
and government owned or controlled corporations City, GR No. 221626, 2019]
engaged in the supply and distribution of water
and/or generation and transmission of electric 4) Philippine Heart Center [Phil. Heart Center v.
power; QC, GR No. 225409, 2020]
(d) All real property owned by duly registered NOTE: In the LRTA and Philippine Heart Center
cooperatives as provided for under R.A. No. 6938; Cases, the SC used the GICP/GCE definition
and under RA 10149.
(e) Machinery and equipment used for pollution REMEMBER: Government Instrumentalities with
control and environmental protection. [Sec. 234, Corporate Powers (GICP)/Government Corporate
LGC] Entities (GCE) - refer to instrumentalities or
agencies of the government, which are neither
EXCEPTION TO THE EXEMPTION: Except as corporations nor agencies integrated within the
provided herein, any exemption from payment of departmental framework, but vested by law with
real property tax previously granted to, or presently special functions or jurisdiction, endowed with
enjoyed by, all persons, whether natural or juridical, some if not all corporate powers, administering
including all government-owned or controlled special funds, and enjoying operational autonomy
corporations are hereby withdrawn upon the usually through a charter including, but not limited
effectivity of this Code. [Sec. 234, LGC] NOTE: to, the following: the Manila International Airport
Withdrawal of exemption from RPT does not apply Authority (MIAA), the Philippine Ports Authority
to GICPs/GCEs/Instrumentalities of the National (PPA), the Philippine Deposit Insurance
Government; hence, they are not subject to real Corporation (PDIC), the Metropolitan Waterworks
property tax as instrumentalities of the National and Sewerage System (MWSS), the Laguna Lake
Government or State are exempt from local Development Authority (LLDA), the Philippine
taxation under Sec. 133(o) of the LGC. Fisheries Development Authority (PFDA), the
Bases Conversion and Development Authority
Being instrumentalities of the government, (BCDA), the Cebu Port Authority (CPA), the
GICPs/GCEs are not subject to real property tax Cagayan de Oro Port Authority, the San Fernando
imposed by the LGUs except when beneficial use Port Authority, the Local Water Utilities
of the real property is granted to a taxable entity, Administration (LWUA) and the Asian Productivity
which shall be liable for the same. Thus, the Organization (APO). [Section 3(n), GOCC
following have been held by the SC as being Governance Act of 2011, Republic Act No. 10149]
exempt from real property tax/local taxation:
Other limitations on taxing powers of LGUs
1) Philippine Amusement and Gaming Corporation Taxes already imposed by National
[Basco v. PAGCOR, GR No. 91649, 1991] Government: Generally, LGUs cannot impose
taxes that are already imposed by the National
2) Manila International Airport Authority and Government (e.g. income tax, documentary
Mactan Cebu International Airport Authority are stamps, estate taxes, customs duties, excise taxes
instrumentalities of the government, not a GOCC; under the NIRC, VAT) [See generally, Sec. 133,
thus, its properties actually, solely and exclusively LGC]
used for public purposes, consisting of the airport
terminal building, airfield, runway, taxiway and the Persons exempted: LGUs cannot impose taxes,
lots on which they are situated, are not subject to fees, and charges on (a) countryside and barangay
real property tax and the city is not justified in business enterprises; (b) cooperatives duly
collecting taxes from petitioner over said registered under the Cooperative Code; and
properties. [MIAA v. Court of Appeals, GR No. National Government, its agencies and
155650, 20 July 2006; MIAA v. City of Pasay, GR instrumentalities, and local government units. [Sec.
No. 163072, 2 April 2009] and Macta-Cebu 133(n)-(o), LGC]
Page 450 of 568
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• Hence, the MIAA, MCIAA, LRTA, PAGCOR, with exclusive original jurisdiction to entertain a
and Philippine Heart Center, and other petition for certiorari under Rule 65 questioning the
GICPs/GCEs being such an instrumentalities acts of quasi-judicial agencies. [De Lima v. City of
of the National Government, are exempt from Manila, GR No. 22286, 2018]
local taxation.
• However, all other GOCCs (which are neither 3) Mayor Cannot Grant Local Tax Exemption. A
GICPs nor GCEs) are not exempt from local municipal mayor who is an executive officer may
taxation. [MIAA v. CA (2006)] not unilaterally withdraw such an expression of a
policy thru the enactment of a tax." The waiver
Doctrines:
1) Local Taxpayer’s Remedy. The law requires partakes of the nature of an exemption. It is an
that a dissatisfied taxpayer who questions the ancient rule that exemptions from taxation are
validity or legality of a tax ordinance must file its construed in strictissimi juris against the taxpayer
appeal to the Secretary of Justice within 30 days and liberally in favor of the taxing authority (Esso
from effectivity thereof. In case the Secretary Standard Eastern, Inc. v. Acting Commissioner of
decides the appeal, a period of 30 days is allowed Customs, 18 SCRA 488 [1966]). Tax exemptions
for an aggrieved party to go to Court. But if the
are looked upon with disfavor (Western Minolco
Secretary does not act after the lapse of 30 days,
a party could already proceed to seek relief in Corp. v. Commissioner of Internal Revenue, 124
Court. [Reyes et al v. CA, G.R. 118233, 1999; Sec. SCRA 121 [1983]). Thus, in the absence of a clear
187, 1991 LGC] and express exemption from the payment of said
fees, the waiver cannot be recognized. As already
2) Power of Secretary of Justice to Review Tax stated, it is the law-making body, and not an
Ordinance. Section 187 authorizes the Secretary executive like the mayor, who can make an
of Justice to review only the constitutionality or
exemption. [Philippine Petroleum Corp. v.
legality of the tax ordinance and, if warranted, to
revoke it on either or both of these grounds. When Municipality of Pililla G.R. No. 90776, 1991]
he alters or modifies or sets aside a tax ordinance,
he is not also permitted to substitute his own Local government units may, through ordinances
judgment for the judgment of the local government duly approved, grant tax exemptions, incentives or
that enacted the measure. Secretary Drilon did set reliefs under such terms and conditions as they
aside the Manila Revenue Code, but he did not may deem necessary. [Sec. 192, LGC]
replace it with his own version of what the Code
should be. He did not pronounce the ordinance
4) Administrative Regulations or Executive
unwise or unreasonable as a basis for its
annulment. He did not say that in his judgment it Issuances Cannot Limit LGU’s Power of
was a bad law. What he found only was that it was Taxation. The exercise by local governments of
illegal. All he did in reviewing the said measure was the power to tax is ordained by the present
determine if the petitioners were performing their Constitution. To allow the continuous effectivity of
functions is accordance with law, that is, with the the prohibition set administrative regulation (by the
prescribed procedure for the enactment of tax DOF) would be tantamount to restricting the LGU’s
ordinances and the grant of powers to the city
power to tax by mere administrative issuances.
government under the Local Government Code. As
we see it, that was an act not of control but of mere Under Section 5, Article X of the 1987 Constitution,
supervision. [Drilon v. Lim, GR No. 112497, 1994] only guidelines and limitations that may be
established by Congress can define and limit such
The evaluation involves an exercise of quasi- power of local governments. [Philippine Petroleum
judicial power by the Secretary of Justice. In Corp. v. Municipality of Pililla G.R. No. 90776,
deciding the same, the Secretary of Justice must 1991]
ascertain the existence of factual circumstances
specifically, whether the tax ordinance was passed
5) The BIR has no authority to determine the
in accordance with the procedure and the
applicability of local ordinances. Besides, even
limitations set forth by the LGC. And from there
the Bureau itself states that the exemption shall not
make a conclusion as to the validity and
apply if the sand and gravel were to be disposed of
applicability of the same to the taxable persons.
commercially. An exemption from the requirements
Thus, the Court of Appeals is the court vested
of the provincial government should have a clear
Page 451 of 568
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basis, whether in law, ordinance, or even from the

contract itself. (Lepanto Consolidated Mining 9) Regulatory Fee vs. Cost of Regulation. To
Company v. Ambanloc, G.R. 180639, 2010). pass judicial scrutiny, a regulatory fee must not
produce revenue in excess of the cost of the
6) COA Jurisdiction Despite Local Fiscal regulation because such fee will be construed as
Autonomy. The COA is endowed with enough an illegal tax when the revenue generated by the
latitude to determine, prevent, and disallow regulation exceeds the cost of the regulation.
irregular, unnecessary, excessive, extravagant, or [Ferrer v. Bautista, G.R. 210551, 2015]
unconscionable expenditures of government
funds. The Court had therefore previously upheld 10) No Levy of Local Taxes on Petroleum
the authority of COA to disapprove payments which Products. While local government units are
it finds excessive and disadvantageous to the authorized to burden all such other class of goods
government; to determine the meaning of “public with “taxes, fees and charges,” excepting excise
bidding;” and when there is failure in the bidding, to taxes, a specific prohibition is imposed barring the
disallow expenditures which it finds unnecessary levying of any other type of taxes with respect to
according to its rules even if disallowance will mean petroleum products. [Petron Corporation v.
discontinuance of foreign aid; to disallow a contract Tiangco, G.R. 158881, 2008; Batangas City v.
even after it has been executed and goods have Pilipinas Shell Petroleum Corp., G.R. 187631,
been delivered. Thus, LGUs, though granted local 2015]
fiscal autonomy, are still within the audit jurisdiction
of the COA. It is only when the COA has acted 11) Fiscal Flexibility of LGU in Fixing Additional
without or in excess of jurisdiction, or with grave Levy. Setting the rate of the additional levy for the
abuse of discretion amounting to lack or excess of special education fund at less than 1% is within the
jurisdiction, that this Court entertains a petition taxing power of local government units. It is
questioning its rulings [Veloso v. COA, G.R. consistent with the guiding constitutional principle
193677, 2011] of local autonomy. The option given to a local
government unit extends not only to the matter of
7) One Year Redemption Period Counted From whether to collect but also to the rate at which
Date of Sale. Forfeiture of tax delinquent collection is to be made. The limits on the level of
properties transpires no later than the purchase additional levy for the special education fund under
Section 235 of the Local Government Code should
made by the city due to lack of a bidder from the
be read as granting fiscal flexibility to local
public. This happens on the date of the sale government units. [Demaala v. COA, G.R. 199752,
(auction happened earlier in time), and not upon 2015]
the issuance of the declaration of forfeiture
(annotation on the titles happened later in time). 12) Amusement Taxes. By operation of Sec. 151
[City of Davao v. Intestate Estate of Amado S. of the LGC extending to cities the authority of
Dalisay, G.R. 207791, 2015] provinces and municipalities to levy certain taxes,
fees, and charges, cities may therefore validly levy
8) Ministerial Duty of the Mayor. The mayor has amusement taxes on cinemas subject to the
the ministerial duty to ensure that all taxes and parameters set forth under the law. [Film
other revenues of the city are collected, and that Development Council of the Philippines v. City of
city funds are applied to the payment of expenses Cebu et al, G.R. 204418, 2015]
and settlement of obligations of the city, in
accordance with law or ordinance. On the other However, resorts, swimming pools, bath houses,
hand, under the LGC, all local taxes, fees, and hot springs and tourist spots are not proper
charges shall be collected by the provincial, city, subjects of amusement taxes as they do not belong
municipal, or barangay treasurer, or their duly- to the same category or class as theaters, cinemas,
authorized deputies, while the assessor shall take concert halls, circuses, and boxing stadia.
charge, among others, of ensuring that all laws and Amusement Places include theaters, cinemas,
policies governing the appraisal and assessment of concert halls, circuses and other places of
real properties for taxation purposes are properly amusement where one seeks admission to
executed. Thus, a writ of prohibition may be issued entertain oneself by seeing or viewing the show or
against them to desist from further proceeding in performances. Accordingly, 'other places of
the action or matter specified in the petition. [Ferrer amusement' must be interpreted in light of the
v. Bautista, G.R. 210551, 2015] typifying characteristic of being venues "where one
Page 452 of 568
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seeks admission to entertain oneself by seeing or That in the event that the national government
viewing the show or performances" or being incurs an unmanageable public sector deficit, the
venues primarily used to stage spectacles or hold President of the Philippines is hereby authorized,
public shows, exhibitions, performances, and other upon the recommendation of Secretary of Finance,
events meant to be viewed by an audience. Secretary of Interior and Local Government and
[Pelizloy Realty v. Benguet, GR No. 183137, 2013] Secretary of Budget and Management, and subject
to consultation with the presiding officers of both
13) Taxes levied by LGUs shall accrue exclusively Houses of Congress and the presidents of the
to the LGU and to earmark, if not altogether "liga," to make the necessary adjustments in the
confiscate, the income to be received by the LGU allotment of local government units but in no case
from the taxpayers in favor of and for transmittal to shall the allotment be less than thirty percent (30%)
the Film Development Council of the Philippines, is of the collection of national taxes of the third fiscal
repugnant to the power of LGUs to apportion their year preceding the current fiscal year. [Sec. 284,
resources in line with their priorities. [Film par. 2, LGC].
Development Council of the Philippines v. City of
Cebu et al, G.R. 204418, 2015). Requisites for Exception:
1. Unmanageable public sector deficit;
14) A certiorari petition questioning an interlocutory 2. Recommendation of the Secretaries of (a)
order issued in a local tax case falls under the Finance, (b) Internal and Local Gov’t, and (c)
jurisdiction of the CTA. [CE Casecnan Water and Budget and Management; and
Energy Company, Inc. v. The Province of Nueva 3. Consultation with (a) heads of both houses of
Ecija, G.R. 196278, 2015] Congress, and (b) presidents of the liga.
4. Allotment shall not be lower than 30% of the
15) The socialized housing tax charged by the city national taxes collection. [Sec. 284, par. 2,
is a tax which is within its power to impose. Aside LGC]
from the specific authority vested by Section 43 of
the UDHA, cities are allowed to exercise such other NOTES:
powers and discharge such other functions and
responsibilities as are necessary, appropriate, or 1) The SC in Mandanas v. Ochoa deleted all the
incidental to efficient and effective provision of the phrase “internal revenue” in the LGC for being
basic services and facilities which include, among unconstitutional when referring to the just share of
others, programs and projects for low-cost housing LGUs, particularly in Secs. 284, 285, 287, and 290.
and other mass dwellings. The collections made Thus, any mention of "Internal Revenue Allotment"
accrue to its socialized housing programs and
or "IRA" in Republic Act No. 7160 (Local
projects. The tax is not a pure exercise of taxing
power or merely to raise revenue; it is levied with a Government Code) and its Implementing Rules
regulatory purpose. The levy is primarily in the and Regulations shall be understood as pertaining
exercise of the police power for the general welfare to the allotment of the Local Government Units
of the entire city. It is greatly imbued with public derived from the national taxes. [Mandanas v.
interest. [Ferrer v. Bautista, G.R. N210551, 2015] Ochoa, Jr., G.R. Nos. 199802 & 208488, July 3,
2018]
16) Regulation of Activity and Tax. The garbage
fee is a charge fixed for the regulation of an activity. 2) The Mandanas ruling will only apply starting
It is not a tax and cannot violate the rule on double with the 2022 budget cycle since the 03 July
taxation. [Ferrer v. Bautista, G.R. 210551, 2015]
2018 decision became final and executory on
Just Share in the National Taxes (formerly 10 June 2019. Inevitably, the 2019 Budget can no
Internal Revenue Allotment (IRA) share of longer include the changes brought about by Our
LGUs) July 3, 2018 decision. The SC said: “While the
General Rule: The current sharing is 40% local, amounts and the national taxes during the third
60% national. LGUs shall have a 40% share in the fiscal year preceding or in 2016 can already be
national taxes based on the collection of the third determined as of this time, it would be too late to
fiscal year preceding the current fiscal year. [Sec. include the same in the 2019 budget since
284(c), LGC] Congress had already approved the 2019 General
Appropriations Act (GAA), and we are already in
Exception:
the last quarter of the year. Neither can the same
Page 453 of 568
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amounts be considered in drawing up the 2020 and Withholding 10 percent of the LGUs' IRA "pending
2021 budget because their budget cycles have the assessment and evaluation by the
already commenced. Notable that for the 2020 Development Budget Coordinating Committee of
budget, Congress is already in the process of the emerging fiscal situation" in the country is
conducting budget hearings to finalize the GAA. invalid. Such withholding clearly contravenes
the Constitution and the law. Although temporary,
Adding the amounts based on our ruling in the
it is equivalent to a holdbacks which means
2020 budget would only disrupt the proceedings "something held back or withheld, often
and impede the passing of the GAA. It would also temporarily." Hence, the "temporary" nature of the
be imprudent for the Court to compel the Executive retention by the national government does not
to start from scratch and jettison all existing plans matter. Any retention is prohibited. [Pimentel v.
and allotments to the detriment of the 2020 and Aguirre, GR No. 132988, 2015]
2021 GAA.” [Mandanas v. Ochoa, G.R. Nos.
199802 & 208488 (Notice), October 8, 2019] The National Taxes Included in Mandanas v.
Ochoa
Automatic Release of Just Share The national taxes to be included in the base for
1) Section 6, Article X the 1987 Constitution computing the just share the LGUs shall henceforth
textually commands the automatic release of the be, but shall not be limited to, the following:
just share in the national taxes, viz.: Section 1) The NIRTs enumerated in Section 21 of the
6. Local government units shall have a just share, NIRC, as amended, to be inclusive of the
as determined by law, in the national taxes which VATs, excise taxes, and DSTs collected by the
shall be automatically released to them. BIR and the BOC, and their deputized agents;
2) The LGC implements this by providing that the 2) Tariff and customs duties collected by the
share of each LGU shall be released, without need BOC;
of any further action, directly to the respective 3) 50% of the VATs collected in the ARMM, and
treasurer on a quarterly basis within five (5) days 30% of all other national taxes collected in the
after the end of each quarter, and which shall not ARMM; the remaining 50% of the VATs and
be subject to any lien or holdback that may be 70% of the collections of the other national
imposed by the national government for whatever taxes in the ARMM shall be the exclusive share
purpose. [Sec. 286(a), LGC] of the ARMM pursuant to Sections 9 and 15 of
R.A. No. 9054;
Section 6 does not mention of appropriation as a 4) 60% of the national taxes collected from the
exploitation and development of the national
condition for the automatic release of the just share
wealth; the remaining 40% will exclusively
to the LGUs. This is because Congress not only accrue to the host LGUs pursuant to Section
already determined the just share through the 290 of the LGC;
LGC's fixing the percentage of the collections of the 5) 85% of the excise taxes collected from locally
NIRTs to constitute such fair share subject to the manufactured Virginia and other tobacco
power of the President to adjust the same in order products; the remaining 15% shall accrue to
to manage public sector deficits subject to the special purpose funds pursuant created in
R.A. No. 7171 and R.A. No. 7227;
limitations on the adjustments, but also explicitly
6) The entire 50% of the national taxes collected
authorized such just share to be "automatically under Section 106 (VAT on goods/properties),
released" to the LGUs in the proportions and Section 108 (VAT on services/lease) and
regularity set under Section 285 79 of the LGC Section 116 (Tax on VAT exempt persons) of
without need of annual appropriation. To the NIRC in excess of the increase in
operationalize the automatic release without need collections for the immediately preceding year;
of appropriation, Section 286 of the LGC clearly and
7) 5% of the franchise taxes in favor of the
provides that the automatic release of the just
national government paid by franchise holders
share directly to the provincial, city, municipal or in accordance with Section 6 of R.A. No. 6631
barangay treasurer, as the case may be, shall and Section 8 of R.A. No. 6632. [Mandanas v.
be "without need of any further action." [Mandanas Ochoa, Jr., G.R. Nos. 199802 & 208488, July
v. Ochoa, Jr., G.R. Nos. 199802 & 208488, [July 3, 3, 2018]
2018]
IRA/National Taxes Allotment
Page 454 of 568
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The share of local government units in the venture or production sharing agreement in the
allotment shall be collected in the following utilization and development of the national wealth
manner: within their territorial jurisdiction. [Sec. 290, LGC]
(a) Provinces - Twenty-three percent (23%);
(b) Cities - Twenty-three percent (23%); 3) Local government units shall have a share
(c) Municipalities - Thirty-four percent (34%); and based on the preceding fiscal year from the
(d) Barangays - Twenty percent (20%) [Sec. 285, proceeds derived by any government agency or
LGC] government-owned or controlled corporation
engaged in the utilization and development of the
IRA/National Taxes Sharing Formula national wealth based on the following formula
1) The share of each province, city, and whichever will produce a higher share for the local
municipality shall be determined on the basis of the government unit:
following formula: (a) One percent (1%) of the gross sales or receipts
(a) Population - Fifty percent (50%); of the preceding calendar year; or
(b) Land Area - Twenty-five percent (25%); and (b) Forty percent (40%) of the mining taxes,
(c) Equal sharing - Twenty-five percent (25%) [Sec. royalties, forestry and fishery charges and such
285, LGC] other taxes, fees or charges, including related
surcharges, interests, or fines the government
2) The share of each barangay with a population of agency or government owned or controlled
not less than one hundred (100) inhabitants shall corporation would have paid if it were not otherwise
not be less than Eighty thousand (P80,000.00) per exempt. [Sec. 291, LGC]
annum chargeable against the twenty percent
(20%) share of the barangay from the allotment, 4) The share in the preceding Section (i.e. Sec.
and the balance to be allocated on the basis of the 291) shall be distributed in the following manner:
following formula: (a) Where the natural resources are located in the
(1) Population - Sixty percent (60%); and province:
(2) Equal sharing - Forty percent (40%) [Sec. 285, (1) Province - Twenty percent (20%);
LGC] (2) Component City/Municipality - Forty-
five percent (45%); and
20% of National Allotment for Development (3) Barangay - Thirty-five percent (35%)
Projects Provided, however, That where the natural
Each local government unit shall appropriate in its resources are located in two (2) or more provinces,
annual budget no less than twenty percent (20%) or in two (2) or more component cities or
of its annual (internal revenue/national taxes) municipalities or in two (2) or more barangays, their
allotment for development projects. Copies of the respective shares shall be computed on the basis
development plans of local government units shall of:
be furnished the Department of Interior and Local (1) Population - Seventy percent (70%);
Government. [Sec. 287, LGC] and
(2) Land area - Thirty percent (30%)
Equitable Share of LGUs in the Utilization and (b) Where the natural resources are located in a
Development of National Wealth highly urbanized or independent component city:
1) Local government units shall have an equitable (1) City - Sixty-five percent (65%); and
share in the proceeds derived from the utilization (2) Barangay - Thirty-five percent (35%)
and development of the national wealth within their Provided, however, That where the natural
respective areas, including sharing the same with resources are located in such two (2) or more
the inhabitants by way of direct benefits. [Sec. 289, cities, the allocation of shares shall be based on the
LGC] formula on population and land area as specified in
paragraph (a) of this Section (i.e. Sec. 292). [Sec.
2) Local government units shall, in addition to the 292, LGC]
allotment, have a share of forty percent (40%) of
the gross collection derived by the national 5) The share of local government units from the
government from the preceding fiscal year from utilization and development of national wealth shall
mining taxes, royalties, forestry and fishery be remitted in accordance with Section 286 of this
charges, and such other taxes, fees, or charges, Code (i.e. automatic release similar to national
including related surcharges, interests, or fines, taxes allotment): Provided, however, That in the
and from its share in any co-production, joint case of any government agency or government-
Page 455 of 568
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owned or controlled corporation engaged in the 1. there are compelling and substantial
utilization and development of the national wealth, constitutional violations;
such share shall be directly remitted to the 2. there clearly exists a right in esse;
provincial, city, municipal or barangay treasurer 3. there is a need to prevent grave and
concerned within five (5) days after the end of each irreparable injuries;
quarter. [Sec. 293, LGC] 4. there is a demonstrable urgency to the
issuance of the injunctive relief; and
6) The proceeds from the share of local 5. when there are public interest at stake in
government units pursuant to this chapter shall be restraining or enjoining the project while the
appropriated by their respective sanggunian to action is pending that far outweighs
finance local government and livelihood projects: a. the inconvenience or costs to the party to
Provided, however, That at least eighty percent whom the project is awarded and
(80%) of the proceeds derived from the b. the public benefits that will result from the
development and utilization of hydrothermal, completion of the project. The time periods
geothermal, and other sources of energy shall be for the validity of temporary restraining
applied solely to lower the cost of electricity in the orders issued by trial courts should be
local government unit where such a source of strictly followed. No preliminary injunction
energy is located. [Sec. 294, LGC] should issue unless the evidence to
support the injunctive relief is clear and
4. CORPORATE POWERS AND OTHER convincing. [Dynamic Builders and
POWERS Construction Co., Inc. v. Presbitero, G.R.
174201, 2015]
Corporate Powers: (PSC3)
1. Have Continuous succession in its corporate A municipality is a real party-in-interest and an
name indispensable party that stands to be directly
2. Sue and be sued affected by any judicial resolution on the case
3. Have and use a Corporate seal assailing the validity of the loan, considering that:
4. Acquire and convey real or personal Property (a) the contracting parties to the loans are the bank
5. Enter into Contracts and the municipality; and (b) the municipality owns
the public plaza as well as the improvements
Requisites of valid municipal contracts: (FOLS- constructed thereon, and must therefore be
ID “false ID”) impleaded in the case. [Land Bank v. Cacayuran,
1. It must comply with Formal requirements G.R. 191667, 2015].
2. LGU can exercise such Other powers granted
to corporations, subject to limitations in the Liabilities arising from construction contracts of
LGC and other laws LGUs do not partake of loans or forbearance of
3. In case entered into by Local chief executive money but are in the nature of contracts of service.
on behalf of LGU, prior authorization by Hence, the rate of legal interest imposable on the
Sanggunian concerned is needed. liability to pay for the service is 6% per annum. [WT
4. It must comply with Substantive requirements. Construction, Inc. v. The Province of Cebu, G.R.
5. LGU has express, implied, or Inherent power 208984, 2015]
to enter into a particular contract.
6. It must be entered into by the proper To Sue and Be Sued
Department, board, committee, or agent. LGUs have the power to sue and be sued. (Local
Government Code, sec. 22(a)(2)). Because of the
The doctrine of separate personality of a statutory waiver, LGUs are not immune from suit.
corporation finds no application in the Cooperative
Development Authority which was created by virtue The OSG may not be compelled to represent local
of RA 6939, since it is not a private entity but a government units. The LGC vests exclusive
government agency. [Verzosa v. Carague, G.R. authority upon the LGU’s legal officers to be
157838, 2011]. counsels of local government units. Even the
employment of a special legal officer is expressly
For local government infrastructure projects, allowed by the law only upon a strict condition that
Regional Trial Courts may issue provisional the action or proceeding which involves the
injunctive reliefs against government infrastructure component city or municipality is adverse to the
projects only when: provincial government or to another component
Page 456 of 568
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city or municipalit. [OSG v. CA and Municipal the local legislative for being ultra vires.
Government of Suguiran, G.R. 199027, 2014].
Ultra Vires Acts/Contracts
A municipality can be sued for damages arising Generally, an ultra vires act is one committed
from injuries sustained by a pedestrian who was hit outside the object for which a corporation is created
by a glass pane that fell from a dilapidated window as defined by the law of its organization and
frame of the municipal hall. Under Section 24 of the therefore beyond the powers conferred upon it by
LGC and Article 2189 of the Civil Code, the law. There are two (2) types of ultra vires acts.
municipality is liable for damages arising from
injuries to persons by reason of negligence of local VOID IRREGULAR
government units on the defective condition of the ULTRA VIRES ULTRA VIRES
municipal hall, which is under their control and Those which (a) are Those which (a) are
supervision. entered into beyond entered into by the
the express, implied improper department,
To Acquire and Sell Property or inherent powers of board, officer of agent;
Properties of the public dominion devoted to public the local government and (b) do not comply
use and made available to the public in general are unit, e.g. converting a with the formal
outside the commerce of persons and cannot be public plaza into a requirements of a
disposed of or leased by the LGU to private commercial center; written contract e.g.,
persons. [Macasiano v. Diokno, G.R. 97764, 1992] and (b) do not comply the Statute of Frauds.
with the substantive
Pursuant to the regalian doctrine, any land that has requirements of law,
never been acquired through purchase, grant or e.g., when
any other mode of acquisition remains part of the expenditure of public
public domain and is owned by the State. LGUs funds is to be made,
cannot appropriate to themselves public lands there must be an
without prior grant from the government. [Rural actual appropriation
Bank of Anda v. Roman Catholic Archbishop of and certificate of
Lingayen-Dagupan, G.R. 155051, 2007] availability of funds.
[LBP v. Cacayuran, GR No. 191667, 2013]
To Enter Into Contracts
Unless otherwise provided in the LGC, no contract a. Municipal Liability
may be entered into by the local chief executive in
behalf of the LGU without prior authorization by the Suability of LGUs
Sanggunian concerned. A legible copy of such The general rule spelled out in Section 3, Article
contract shall be posted at a conspicuous place in XVI of the Constitution is that the state and its
the provincial capitol or the city, municipal or political subdivisions may not be sued without their
barangay hall (Local Government Code, sec.
22(c)). Without the council authorization/ consent. Otherwise put, they are open to suit but
ratification, the contract is unenforceable. only when they consent to it. Consent is implied
when the government enters into a business
While the authorization of local chief executive contract, as it then descends to the level of the
need not be in the form of an ordinance, the other contracting party; or it may be embodied in a
obligation (i.e. incurring a loan) which the said local general or special law such as that found in Book I,
executive is authorized to enter into must be made
Title I, Chapter 2, Section 22 of the Local
pursuant to a law or ordinance. [LBP v. Cacayuran,
GR No. 191667, 2013] Government Code of 1991, which vests local
government units with certain corporate powers —
The prior authorization may be in the form of an one of them is the power to sue and be sued.
appropriation ordinance passed for the year which [Municipality of Hagonoy v. Dumdum, GR No.
specifically covers the project, cost or contract to 168289, 2010]
be entered into by the LGU. [Quisumbing v. Garcia,
G.R. 175527, 2008] Suability vs. Liability
A distinction should first be made between suability
Those beyond the powers of the LGU may be
and liability. Suability depends on the consent of
subject to veto of the local executive or review of
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the state to be sued, liability on the applicable law NOTES:

and the established facts. The circumstance that a
state is suable does not necessarily mean that it is 1) It is not yet well-settled if Sec. 24 of the LGC
liable; on the other hand, it can never be held liable extends to both governmental duties and
if it does not first consent to be sued. Liability is not proprietary functions.
conceded by the mere fact that the state has
2) 2 schools of thought: a) Sec. 24 of the LGC
allowed itself to be sued. When the state does
applies to both governmental and proprietary
waive its sovereign immunity, it is only giving the
functions; b) Sec. 24 of the LGC applies to
plaintiff the chance to prove, if it can, that the
proprietary functions only and not to governmental
defendant is liable. [Municipality of San Fernando
or sovereign functions or duties.
v. Firme, GR No. 52179, 8 April 1991 citing United
States of America v. Guinto, supra, p. 659-660] 3) It is submitted that Sec. 24 of the LGC applies
only to proprietary functions and will make the LGU
Additionally, as held in City of Caloocan v. Allarde,
and its officials liable for governmental functions if
where the suability of the state is conceded and by
the acts are not in good faith, dishonest, malicious,
which liability is ascertained judicially, the state is
whimsical, capricious, or arbitrary, which must be
at liberty to determine for itself whether to satisfy
proven in court.
the judgment or not. Execution may not issue upon
such judgment, because statutes waiving non- Governmental Functions vs. Proprietary
suability do not authorize the seizure of property to Functions
satisfy judgments recovered from the action. These
statutes only convey an implication that the Governmental Functions
legislature will recognize such judgment as final a) If the injury is caused in the course of the
and make provisions for its full satisfaction. Thus, performance of a governmental function or duty no
where consent to be sued is given by general or recovery, as a rule, can be had from the
special law, the implication thereof is limited only to municipality unless there is an existing statute on
the resultant verdict on the action before execution the matter.
of the judgment. [Municipality of Hagonoy v.
b) No recovery can be had also from municipal
Dumdum, GR No. 168289, 22 March 2010 citing
officials so long as they performed their duties
City of Caloocan v. Allarde, 457 Phil. 543, 553
honestly and in good faith or that they did not act
(2003)]
wantonly and maliciously. [Torio v. Fontanilla, G.R.
Death or Injury to Persons or Damage to No. L-29993, L-30183, 1978]
Property
Thus, the municipality cannot be held liable for the
Local government units and their officials are not
torts committed by its regular employee, who was
exempt from liability for death or injury to persons
then engaged in the discharge of governmental
or damage to property. [Sec. 24, LGC]
functions. Hence, the death of the passenger —
tragic and deplorable though it may be imposed on
the municipality no duty to pay monetary
compensation. [Municipality of San Fernando v.
Firme, GR No. 52179, 1991 citing Palafox v. Ilocos
Norte, GR No. L-10659, 1958]
Proprietary Functions
a) With respect to proprietary functions, the settled
rule is that a municipal corporation can be held
liable to third persons ex contractu or ex delicto.
[Torio v. Fontanilla, G.R. No. L-29993, L-30183,
1978]
Page 458 of 568
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The celebration of a town fiesta by a municipality is

not a governmental function. The legal 2) Doctrine of Estoppel Not Applicable to Void
consequence is that the municipality stands on the Contracts. The doctrine of estoppel cannot be
applied as against a municipal corporation to
same footing as an ordinary private corporation
validate a contract which it has no power to make,
with the municipal council acting as its board of or which it is authorized to make only under
directors. It is an elementary principle that a prescribed conditions, within prescribed limitations,
corporation has a personality separate and distinct or in a prescribed mode or manner, although the
from its officers, directors, or persons composing it corporation has accepted the benefits thereof and
and the latter are not as a rule co-responsible in an the other party has fully performed his part of the
action for damages for tort or negligence (culpa agreement, or has expanded large sums in
preparation for performance. A reason frequently
acquiliana) committed by the corporation's
assigned for this rule is that to apply the doctrine of
employees or agents unless there is a showing of estoppel against a municipality in such case would
bad faith or gross or wanton negligence on their be to enable it to do indirectly what it cannot do
(i.e. the councilors who authorized the town fiesta) directly. Also, where a contract is violative of public
part. [Torio v. Fontanilla, G.R. No. L-29993, L- policy, the municipality executing it cannot be
30183, 1978] estopped to assert the invalidity on this ground; nor
can it be estopped to assert the invalidity of a
Leasing of a municipal ferry to the highest bidder contract which has ceded away, controlled, or
for a specified period of time is not a governmental embarrassed its legislative or government powers.
Thus, the municipality is not estopped from
but corporate function. Such a lease, when validly revoking a contract that was extended without the
entered into, constitutes a contract with the lessee requirement of public bidding and hence, void for
which the municipality is bound to respect. Thus, being contrary to law and public policy. [San Diego
municipal council liable for damages for revocation v. Municipality of Naujan, G.R. L-9920, 1960]
of the fishing without a valid reason. [Mendoza v.
De Leon, GR No. 9596, 1916] 3) Government Justified to Decline Payment for
a Supply Contract in Violation of Laws. of The
Civil liability of public officials for public acts government is justified to decline payment of the
General Rule: A public officer is not liable for purchase price of illegally cut lumber delivered by
damages which a person may suffer arising from a contractor who won a public bidding for the
the just performance of his official duties and within construction of the Navotas Bridge. All contracts,
the scope of his assigned tasks. including government contracts, are subject to the
Exception: When the governmental acts are done police power of the State. Being an inherent
in bad faith, being outside the scope of authority, attribute of sovereignty, such power is deemed
such public officer is liable for damages in his/her incorporated into the laws of the land, which are
personal capacity. [Vinzons-Chatto v. Fortune part of all contracts, thereby qualifying the
Tobacco Corporation, G.R. 141309, 2007] obligations arising therefrom. Thus, it is an implied
condition in the subject contract for the
Liability on Contracts procurement of materials needed in the repair and
construction of the Navotas Bridge that petitioner
1) Doctrine of Implied Municipal Liability. A as private contractor would comply with pertinent
municipality may become obligated upon an forestry laws and regulations on the cutting and
implied contract to pay the reasonable value of the gathering of the lumber she undertook to supply the
benefits accepted or appropriated by it as to which provincial government. [Guadines v.
it has the general power to contract. The doctrine Sandiganbayan, G.R. 164891, 2011]
applies to all cases where money or other property
of a party is received under such circumstances 4) Performance of an Unenforceable Contract.
that the general law, independent of an express Since there exists an indication by way of allegation
contract, implies an obligation to do justice with that there has been performance of the obligation
respect to the same. Thus, the LGU was made to on the part of respondent, the case is excluded
pay fees of private lawyer, who was allowed to from the coverage of the rule on dismissals based
continue as counsel that led him to believe that his on unenforceability under the statute of frauds, and
services were still necessary. [Province of Cebu v. either party may then enforce its claims against the
IAC, GR No. 72841, 1987] other. Thus, the SC reversed the dismissal of a
Page 459 of 568
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claim against an LGU for the purchase of motor factor, it being sufficient that a province, city or
vehicles notwithstanding that it’s not in writing municipality has control or supervision thereof.
given that there has been delivery performance [City of Manila v. Teotico, GR No. L-23052, 1968;
already to the LGU. [Municipality of Hagonoy v. Municipality of San Juan v. CA, G.R. No. 121920,
Dumdum, GR No. 168289, 2010] 2005; Guilatco vs. Dagupan, GR No. 61516, 1989]
Liability for Torts 3) Art. 34 of the Civil Code. When a member of a

1) Art. 2180 in relation to Art. 2176 of the Civil city or municipal police force refuses or fails to
Code. render aid or protection to any person in case of
a) Art. 2176. Whoever by act or omission causes danger to life or property, such peace officer shall
damage to another, there being fault or negligence, be primarily liable for damages, and the city or
is obliged to pay for the damage done. Such fault municipality shall be subsidiarily responsible
or negligence, if there is no pre-existing contractual therefor. The civil action herein recognized shall be
relation between the parties, is called a quasi-delict independent of any criminal proceedings, and a
and is governed by the provisions of this Chapter. preponderance of evidence shall suffice to support
such action.
b) Art. 2180. xxx (Par. 6) The State is responsible
in like manner when it acts through a special agent 4) Art. 2208 of the Civil Code. In the absence of
(i.e. for official governmental acts); but not when stipulation, attorney's fees and expenses of
the damage has been caused by the official to litigation, other than judicial costs, cannot be
whom the task done properly pertains, in which recovered, except:
case what is provided in Article 2176 shall be XXX (2) When the defendant's act or omission has
applicable (i.e. when attended by fault or gross compelled the plaintiff to litigate with third persons
negligence). or to incur expenses to protect his interest; XXX
(5) Where the defendant acted in gross and evident
Thus, LGU could not be liable for the acts of an bad faith in refusing to satisfy the plaintiff's plainly
ambulance driver under Art. 2180 for not being a valid, just and demandable claim.
special agent contemplated by law. And a special
agent, in the sense in which these words are Thus, a mayor was held personally liable for
employed, is one who receives a definite and fixed damages and attorney’s fees for vetoing without
order or commission, foreign to the exercise of the reason the sanggunian resolution appropriating the
duties of his office if he is a special offfcial) so that unpaid salaries of a vice mayor, who was forced to
in representation of the state and being bound to litigate in order to claim his lawful salary which was
act as an agent thereof he executed the trust unduly denied him for 3 years and that the mayor
confided to him. this concept does not apply to any acted in gross and evident bad faith in refusing to
executive agent who is an employee of the active satisfy the plainly valid, just and demandable claim.
administration and who in his own responsibility [Pilar v. Sangguniang Bayan of Dasol, GR No.
performs the functions which are inherent in and 63216, 1984]
naturally pertain to his office and which are
regulated by law and the regulations." [Merritt v. However, a mayor cannot be held personally liable
Government of the Philippine Islands, GR No. if his actions were done pursuant to an ordinance
11154, 1916 citing the Supreme Court of Spain, which, at the time of the collection, was yet to be
May 18, 1904; 98 Jur. Civ., 389, 390] invalidated. [Demaala v. COA, G.R. 199752, 2015]
2) Art. 2189 of the Civil Code. Provinces, cities and When a writ was directed at the mayor not in his
municipalities shall be liable for damages for the personal capacity, but in his capacity as municipal
death of, or injuries suffered by, any person by mayor, it is not irregular whether it was served upon
reason of the defective condition of roads, streets, him during his earlier term or in his subsequent
bridges, public buildings, and other public works one. [Vargas v. Cajucom, G.R. 171095, 2015]
under their control or supervision.
Rules on Enforcing Money Claims vs. LGU
Thus, an LGU is liable for injuries suffered because GENERAL RULE: Government properties are not
of defective roads and manholes. For liability to subject to levy and execution to satisfy a money
arise under Article 2189 of the Civil Code, judgment. However, the SC laid down the following
ownership of the roads, streets, bridges, public
rules and guidelines:
buildings and other public works is not a controlling
Page 460 of 568
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1) It is settled jurisprudence that upon or used for a public purpose but for quasi-private
determination of State liability, the prosecution, purposes, it is the general rule that such property
enforcement or satisfaction thereof must still be may be seized and sold under execution against
pursued in accordance with the rules and the corporation.
procedures laid down in PD 1445 otherwise known c) Property held for public purposes is not subject
as the Government Auditing Code of the to execution merely because it is temporarily used
Philippines (Department of Agriculture v. NLRC, for private purposes. If the public use is wholly
227 CRA 693, 701-02 [1993] citing Republic v. abandoned, such property becomes subject to
Villasor, 54 SCRA 84 [1973]). execution. [Star Special Watchman & Detective
Agency, Inc. v. Puerto Princesa City, G.R. No.
2) All money claims against the Government must 181792, 2014 citing SC Administrative Circular
first be filed with the Commission on Audit which No. 10-00 dated 25 October 2000]
must act upon it within sixty days. Rejection of the
claim will authorize the claimant to elevate the Summary Rules on Liability for Damages
matter to the Supreme Court on certiorari and, in
effect, sue the State thereby [PD 1445 Sec. 49- 1) If in the exercise of governmental functions, with
or without negligence - NOT LIABLE
50].
2) If in the exercise of corporate or proprietary
functions:
3) However, notwithstanding the rule that a) If with authority and within scope of authority, or
government properties are not subject to levy and without bad faith, or without negligence – NOT
execution unless otherwise provided for by LIABLE
statute (Republic v. Palacio, 23 SCRA 899 [1968]; b) If no authority or beyond authority, with bad faith,
Commissioner of Public Highways v. San Diego, or with gross negligence, with malice – LIABLE
supra) or municipal ordinance (Municipality of b. Reclassification of Lands
Makati v. Court of Appeals, 190 SCRA 206 [1990]),
the Court has, in various instances, distinguished A city or municipality may, through an ordinance
between government funds and properties for passed by the sanggunian, after conducting public
public use and those not held for public use. hearings for the purpose, authorize the
reclassification of agricultural lands and provide for
4) Thus, in Viuda de Tan Toco v. Municipal Council the manner of their utilization or disposition in the
of Iloilo (49 Phil. 52 [1926]), the Court ruled following:
that "[w]here property of a municipal or other
(1) When the land ceases to be economically
public corporation is sought to be subjected to feasible & sound for agricultural purposes as
execution to satisfy judgments recovered against determined by the Dept. of Agriculture; or
such corporation, the question as to whether such
property is leviable or not is to be determined by (2) Where the land shall have substantially greater
the usage and purposes for which it is held." economic value for residential, commercial, or
industrial purposes, as determined by the
sanggunian concerned.
5) The following can be culled from Viuda de Tan
Toco v. Municipal Council of Iloilo: Provided, That such reclassification shall be limited
a) Properties held for public uses — and generally to the following percentage of the total agricultural
everything held for governmental purposes — are land area at the time of the passage of the
not subject to levy and sale under execution ordinance:
against such corporation. The same rule applies to (1) For highly urbanized and independent
component cities - fifteen percent (15%);
funds in the hands of a public officer and taxes due
(2) For component cities and 1st to the 3rd class
to a municipal corporation. municipalities - ten percent (10%); and
b) Where a municipal corporation owns in its (3) For 4th to 6th class municipalities - five percent
proprietary capacity, as distinguished from its (5%).
public or governmental capacity, property not used
HOWEVER: The President may, when public
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interest so requires and upon recommendation of within its jurisdiction. [Sec. 21(a), LGC]
the National Economic and Development Authority,
authorize a city or municipality to reclassify lands in 2) In addition, any city, municipality, or barangay
excess of the limits set. [Sec. 20(b), LGC] may, by a duly enacted ordinance, temporarily
close and regulate the use of any local street, road,
Approval by national agency thoroughfare, or any other public place where
Where approval by a national agency is required shopping malls, Sunday, flea or night markets, or
for reclassification, such approval shall not be shopping areas may be established and where
unreasonably withheld. Failure to act on a proper goods, merchandise, foodstuffs, commodities, or
and complete application for reclassification within articles of commerce may be sold and dispensed
3 months from receipt shall be deemed an approval to the general public. [Sec. 21(d), LGC]
thereof. [Sec. 20(d), LGC]
Requirements and Conditions for Permanent
NOTES: 1) Those already awarded to Agrarian Closure
Reform Beneficiaries (ARBs) are not affected by 1) Ordinance Approved by 2/3 of Sanggunian
reclassification; 2) After 5 years from award, ARBs Members. Such ordinance must be approved by at
may apply for conversion that it’s no longer least two-thirds (2/3) of all the members of the
economically feasible and sound for agriculture, sanggunian. [Sec. 21(a), LGC]
BUT failure to convert from conversion approval
shall automatically be covered by CARP [Sec. 26, 2) Adequate Substitute. When necessary, an
RA 6657 as amended by Sec. 22, RA 9700] adequate substitute for the public facility that is
subject to closure is provided. [Sec. 21(a), LGC]
OP Memorandum Circular No. 54 (08 June 1993)
Sec. 2 prescribes guidelines governing Sec. 20 of 3) Provisions for the Maintenance of Public
the LGC, to wit: Safety. No such way or place or any part thereof
1) Prior to the enactment of an ordinance shall be permanently closed without making
reclassifying agricultural lands, the sanggunian provisions for the maintenance of public safety
concerned must first secure the following therein. [Sec. 21(b), LGC]
certificates from the concerned national
government agencies (NGAs): 4) For Other Lawful Use or Conveyance. A
property thus permanently withdrawn from public
(a) A certification from DA indicating: (i) the total use may be used or conveyed for any purpose for
area of existing agricultural lands in the LGU which other real property belonging to the local
concerned; (ii) such lands are not classified as non- government unit concerned may be lawfully used
negotiable for conversion or reclassification under or conveyed: Provided, however, That no freedom
AO 20 (1992); (iii) that the land ceases to be park shall be closed permanently without provision
economically feasible and sound for agricultural for its transfer or relocation to a new site. [Sec.
purposes. 21(b), LGC]
Requirements and Conditions for Temporary
(b) A certification from DAR indicating that such Closure
lands are not distributed or not covered by a notice 1) Any national or local road, alley, park, or square
of coverage or not voluntarily offered for coverage may be temporarily closed during an actual
under CARP. emergency, or fiesta celebrations, public rallies,
agricultural or industrial fairs, or an undertaking of
NOTES: 1) Pursuant to MC 54 s.1993, both DA public works and highways, telecommunications,
and DAR clearances are required for and waterworks projects. [Sec. 21(c), LGC]
reclassification or conversion of agricultural lands;
2) However, DAR clearance is not required for LGU 2) The duration of which shall be specified by the
expropriation as held in Camarines Sur v. CA. local chief executive concerned in a written order.
[Sec. 21(c), LGC]
c. Closure and Opening of Roads
3) That no national or local road, alley, park, or
Power to Open or Close Roads square shall be temporarily closed for athletic,
1) A local government unit may, pursuant to an cultural, or civic activities not officially sponsored,
ordinance, permanently or temporarily close or recognized, or approved by the local government
open any local road, alley, park, or square falling unit concerned. [Sec. 21(c), LGC] Thus, temporary
Page 462 of 568
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closure for athletic, cultural, or civic activities must passing the disputed barangay resolution, the
be officially sponsored, recognized, or approved by implementation of which is sought to be restrained
the LGU concerned. by homeowner’s association, had for its purpose
not the opening of a private road but may be
NOTE: Temporary closure must be pursuant to an considered merely as a directive or reminder to the
ordinance as per Sec. 21(a) of the LGC. Appellant to cause the opening of a public road
which should rightfully be open for use to the
Permanent Closure v. Temporary Closure general public. [New Sun Valley v. Sangguniang
PERMANENT TEMPORARY Barangay, G.R. 156686, 2011]
CLOSURE CLOSURE
E. LOCAL ELECTIVE OFFICIALS
1. Ordinance must be 1. Should be a National
approved by at or local road, alley, 1. QUALIFICATIONS
least two-thirds park, or square
(2/3) of all the 2. Temporarily Qualifications: (FR-LAV)
members of the closure during an
1. Filipino citizen
Sanggunian actual emergency, or
2. Registered Voter in the:
2. When necessary, fiesta celebrations,
a. barangay, municipality, city or province
an adequate public rallies,
where he intends to be elected
substitute for the agricultural or
b. district where he intends to be elected in
public facility that industrial fairs, or an
case of a member of the Sangguniang
is subject to undertaking of public
Panlalawigan, Sangguniang Panlungsod
closure is works and highways,
or Sangguniang bayan
provided. telecommunications,
3. Resident therein for at least 1 year
3. Provisions for the and
immediately preceding the day of the
maintenance of waterworks projects.
election
public safety shall 3. The duration of which
4. Able to read and write Filipino or any other
be made. shall be specified by
local Language or dialect
the local chief
5. Age requirement [Sec. 39, LGC]
executive concerned
in a written order.
Age Requirement
POSITION AGE REQUIREMENT
If the road, alley, park or square is: Candidates for the
position of governor, vice- At least 23 years old
National Local governor, or member of on election day
Temporary closure 1. Temporary the sangguniang
only. 2. Permanent closure panlalawigan, or mayor,
vice-mayor or member of
the sangguniang
The passage of an ordinance by an LGU to effect panlungsod of highly
the opening of a local road can have no urbanized cities
applicability if the subdivision road lots sought to be
opened to decongest traffic in the area have Candidates for the
At least 21 years
already been donated to, and the titles thereto position of mayor or vice-
old on election day
already issued in the name of the City Government. mayor of independent
Having been already donated or turned over to the component cities,
City Government, the road lots in question have component cities, or
since then taken the nature of public roads which municipalities
are withdrawn from the commerce of man and Candidates for the
hence, placed beyond the private rights or claims At least 18 years
position of member of the
of the homeowner’s association. Accordingly, old on election day
sangguniang panlungsod
homeowner’s association was not in the lawful (not an HUC) or
exercise of its predicated rights when it built sangguniang bayan,
obstructing structures closing the road lots in punong barangay, or
question to vehicular traffic for the use of the member of the
general public. Consequently, barangay’s act of
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sangguniang barangay material consideration to influence, induce or

corrupt the voters or public officials performing
Candidates for the
At least eighteen electoral functions; (b) committed acts of terrorism
sangguniang kabataan.
(18) years of age to enhance his candidacy; (c) spent in his election
but not more than campaign an amount in excess of that allowed by
twenty-four (24) this Code; (d) solicited, received or made any
years of age on contribution prohibited under Sections 89, 95, 96,
election day. (RA 97 and 104; or (e) violated any of Sections 80, 83,
10742) 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-
paragraph 6, shall be disqualified from continuing
2. DISQUALIFICATIONS as a candidate, or if he has been elected, from
holding the office. Any person who is a permanent
Disqualifications (SCRIP- DF) resident of or an immigrant to a foreign country
1. Those Sentenced by final judgment for an shall not be qualified to run for any elective office
offense involving moral turpitude, or for an under this Code, unless said person has waived his
offense punishable by 1 year or more of status as permanent resident or immigrant of a
imprisonment within 2 years after serving foreign country in accordance with the residence
sentence. requirement provided for in the election laws. [Sec.
2. Those Removed from office as a result of an 68, BP 881]
administrative case.
3. Those Convicted by final judgment for violating 3) Nuisance Candidate. The Commission may
the oath of allegiance to the Republic. motu proprio or upon a verified petition of an
4. Those with Dual citizenship. interested party, refuse to give due course to or
5. Fugitives from justice in criminal or non- cancel a certificate of candidacy if it is shown that
political cases here or abroad. said certificate has been filed to put the election
6. Permanent residents in a foreign country or process in mockery or disrepute or to cause
those who have acquired the right to reside confusion among the voters by the similarity of the
abroad and continue to avail of the same right names of the registered candidates or by other
after the effectivity of this code. circumstances or acts which clearly demonstrate
7. The Insane or feeble minded. [Sec. 39, LGC] that the candidate has no bona fide intention to run
for the office for which the certificate of candidacy
Disqualifications under the Omnibus Election has been filed and thus prevent a faithful
Code: determination of the true will of the electorate. [Sec.
1) Any person who has been declared by 69, BP 881]
competent authority insane or incompetent, or
has been sentenced by final judgment for 4) A verified petition seeking to deny due course or
subversion, insurrection, rebellion or for any to cancel a certificate of candidacy may be filed by
offense for which he has been sentenced to a the person exclusively on the ground that any
penalty of more than eighteen months or for a material representation contained therein as
crime involving moral turpitude, shall be required under Section 74 hereof is false. The
disqualified to be a candidate and to hold any petition may be filed at any time not later than
office, unless he has been given plenary pardon or twenty-five days from the time of the filing of the
granted amnesty. certificate of candidacy and shall be decided, after
due notice and hearing, not later than fifteen days
This (sic) disqualifications to be a candidate herein before the election. [Sec. 78, BP 881]
provided shall be deemed removed upon the
declaration by competent authority that said 3. DISCIPLINE
insanity or incompetence had been removed or
after the expiration of a period of five years from his Elective officials
service of sentence, unless within the same period Grounds (MA3C D2O):
he again becomes disqualified. [Sec. 12, BP 881] 1. Commission of any offense involving Moral
turpitude or an offense punishable by at
2) Any candidate who, in an action or protest in least prison mayor
which he is a party is declared by final decision 2. Application or acquisition of foreign
of a competent court guilty of, or found by the citizenship or residence or the status of an
Commission of having (a) given money or other immigrant of another country
Page 464 of 568
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3. Abuse of authority barangay ordinances and authority to discipline

4. Unauthorized Absence for 15 consecutive barangay officials. (Bien v. Bo, G.R. 179333, 2010)
working days, except in the case of
members of the Sanggunian
Panlalawigan, Sangguniang Panlungsod,
Sangguniang Bayan, Sangguniang Jurisdiction
Barangay.
5. Culpable Violation of the Constitution ELECTIVE APPOINTED
6. Disloyalty to the Republic of the Philippines Who may President — The local chief
7. Dishonesty, oppression, misconduct in preventively Elective official of executive to any
office, gross negligence, dereliction of duty suspend a province, highly subordinate
8. Other grounds as may be provided by the urbanized or official or
Code or other laws. [Sec. 66(c), LGC] Independent employee under
component city. his authority
Where Filed: A verified complaint against any pending
erring local elective official shall be prepared as Governor— investigation.
follows: Elective official of
(a) A complaint against any elective official of a a component city
province, a highly urbanized city, an independent or municipality.
component city or component city shall be filed
before the Office of the President; Mayor — Elective
(b) A complaint against any elective official of a official of a
municipality shall be filed before the sangguniang barangay.
panlalawigan whose decision may be appealed to
the Office of the President; and Duration of Any single A period not
(c) A complaint against any elective barangay preventive preventive exceeding 60
official shall be filed before the sangguniang suspension suspension shall days.
panlungsod or sangguniang bayan concerned not extend beyond
whose decision shall be final and executory. [Sec. 60 days; if
61, LGC] multiple, cannot be
suspended for
Appeals: Decisions in administrative cases may, more than 90 days
within thirty (30) days from receipt thereof, be within a single
appealed to the following: year for the same
(a) The sangguniang panlalawigan, in the case of ground or grounds
decisions of the sangguniang panlungsod of existing.
component cities and the sangguniang bayan; and
(b) The Office of the President, in the case of
decisions of the sangguniang panlalawigan and the
sangguniang panlungsod of highly urbanized cities
When to Any of the grounds Charges for
and independent component cities.
preventively provided under RA preventive
suspend 7160, after the suspension must
Decisions of the Office of the President shall be
issues are joined, involve
final and executory. [Sec. 67, LGC]
when the evidence dishonesty,
of guilt is strong oppression or
If the incident complained of occurred in another
and there is great grave
barangay over which a barangay official has no
probability that the misconduct or
authority and jurisdiction, the Supreme Court ruled
continuance in neglect in the
that he is liable for abuse of authority on the basis
office could performance of
that he participated in the unlawful act as a higher
influence the duty, or if there is
authority that gave a semblance of legality over that
witnesses or pose reason to believe
act and influenced the actions of his co-
a threat to the that the
defendants. Here, petitioner was president of the
safety and integrity respondent is
organization of barangay officials in his
of the records and guilty of the
municipality and sat as ex-officio member of the
other evidence. charges which
Sangguniang Bayan, which has power to review
Page 465 of 568
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would warrant of removal from4. Fine – in an

his removal from office shall be a amount not
service. bar to the exceeding 6
candidacy from months salary
any elective office.
5. Reprimand
Appeals Decisions may, If the penalty
(disciplinary within 30 days imposed is
cases) from receipt be suspension
appealable to: without pay for
not more than 30
Sangguniang days, his
Panlalawigan – decision shall be
decisions of final; if the
component cities’ penalty imposed
S.Panglunsod and is heavier, the
the S.Bayan decision shall be
Governing Governed by RA Administrative appealable to the
law 7160. Discipline OP—decisions of Civil Service
Governed by the the Sangguniang Commission
Civil Service Panlalawigan and which shall
Law. decide the
Where to file A verified The local chief appeal within 30
(disciplinary complaint to: executive. days from receipt
cases) President—for thereof.
provincial, highly Sangguniang
urbanized city, Panglungsod of
independent Highly urbanized
component city cities and
elective official. independent
component cities.
Decisions of OP
Sangguniang are final and
Panlalawigan - executor.
elective municipal
officials.
Preventive Suspension
Disciplinary Penalty of Except as Preventive Suspension – merely a protective or
jurisdiction suspension – shall otherwise preliminary measure; not a penalty and not
(disciplinary not exceed his provided by law, considered part of the actual penalty if found guilty.
cases) unexpired term, or the local chief
a period of 6 executive may Purpose: to prevent the accused from using his
months for every impose the position and powers/prerogatives to influence
administrative penalty of: potential witnesses or tamper with records that may
offense. Nor shall be vital in the prosecution of the case against him.
said penalty be1.
a Removal from
bar to the service Who May Impose Preventive Suspension:
candidacy of the Preventive suspension may be imposed:
respondent as 2. Demotion in rank (1) By the President, if the respondent is an elective
long as he is official of a province, a highly urbanized or an
qualified. 3. Suspension – for independent component city;
Removal - can only not more than 1 (2) By the governor, if the respondent is an elective
be done by a court year without pay official of a component city or municipality; or
of law; the penalty
Page 466 of 568
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(3) By the mayor, if the respondent is an elective Upon expiration of the preventive suspension, the
official of the barangay. [Sec. 63(a), LGC] suspended elective official shall be deemed
reinstated in office without prejudice to the
Applies when: continuation of the proceedings against him, which
· After the issues are joined. shall be terminated within one hundred twenty
· When the evidence of guilt is strong. (120) days from the time he was formally notified of
· There is great probability that the the case against him. However, if the delay in the
continuance in office could influence the proceedings of the case is due to his fault, neglect,
witnesses or pose a threat to the safety and or request, other than the appeal duly filed, the
integrity of the records and other evidence. duration of such delay shall not be counted in
· computing the time of termination of the case. [Sec.
63(c), LGC]
IMPOSED RESPONDENT LOCAL
The respondent official preventively suspended
BY OFFICIAL
from office shall receive no salary or compensation
Elective official of a province, during such suspension; but upon subsequent
President highly urbanized or exoneration and reinstatement, he shall be paid full
independent component city salary or compensation including such
emoluments accruing during such suspension.
Elective official of a component [Sec. 64, LGC]
Governor
city or municipality
Suspension as an Administrative Penalty
Mayor Elective official of a barangay The penalty of suspension shall not exceed the
unexpired term of the respondent or a period of six
When May Preventive Suspension Be Imposed: (6) months for every administrative offense, nor
Preventive suspension may be imposed at any shall said penalty be a bar to the candidacy of the
time after the issues are joined, when the evidence respondent so suspended as long as he meets the
of guilt is strong, and given the gravity of the qualifications required for the office. [Sec. 66(b),
offense, there is great probability that the LGC]
continuance in office of the respondent could • Preventive suspension is not a penalty. Not
influence the witnesses or pose a threat to the being a penalty, the period within which one is
safety and integrity of the records and other under preventive suspension is not considered
evidence: Provided, That, any single preventive part of the actual penalty of suspension.
suspension of local elective officials shall not [Quimbo v. Gervacio, G.R. 155620, 2005]
extend beyond sixty (60) days: Provided, further,
That in the event that several administrative cases Removal
are filed against an elective official, he cannot be An elective local official may be removed by order
preventively suspended for more than ninety (90) of the proper court. [Sec. 60, LGC] NOTE: Upon
days within a single year on the same ground or the grounds enumerated under Sec. 60 of the LGC.
grounds existing and known at the time of the first
suspension. [Sec. 63(b), LGC] Local elective officials cannot be removed by local
legislative bodies or the Office of the President.
Any abuse of the exercise of the power of
preventive suspension shall be penalized as abuse It is beyond cavil, therefore, that the power to
of authority. [Sec. 63(d), LGC] remove erring elective local officials from service is
lodged, exclusively with the courts. Hence, Article
Duration: 124 (b), Rule XIX of the IRR of the LGC, insofar as
• SINGLE preventive suspension should not it vests power on the "disciplining authority" to
exceed 60 DAYS.
remove from office erring elective local officials, is
• If SEVERAL administrative cases are filed
against an elective official, he cannot be void for being repugnant to the last paragraph of
preventively suspended for more than 90 Section 60 of the Local Government Code of 1991.
DAYS within a single year on the same The law on suspension or removal of elective
ground/s existing and known at the time of the public officials must be strictly construed and
first suspension. applied, and the authority in whom such power of
suspension or removal is vested must exercise it
After the Period of Preventive Suspension:
Page 467 of 568
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with utmost good faith, for what is involved is not and independent component cities.
just an ordinary public official but one chosen by
the people through the exercise of their Decisions of the Office of the President shall be
final and executory. [Sec. 67, LGC]
constitutional right of suffrage. Their will must not
be put to naught by the caprice or partisanship of Thus:
the disciplining authority. Where the disciplining
authority is given only the power to suspend and RENDERED BY APPEAL TO
not the power to remove, it should not be permitted Sangguniang
to manipulate the law by usurping the power to Sangguniang
Panglungsod of
Panlalawigan
remove. [Pablico v. Villapando, G.R. No. 147870, component cities and
[July 31, 2002] Sangguniang Bayan
Sangguniang
BUT NOTE: Ombudsman may impose penalty of Panlalawigan and Office of the
dismissal even to local elective officials for Sangguniang President
administrative charges under EO 292 Panglungsod of highly
(Administrative Code of 1987 in relation to CSC urbanized cities/
rules), such as for GRAVE MISCONDUCT or independent
component cities
DISHONESTY, or such other executive orders,
laws, or rules under which the respondent may be Final and
Office of the President
executory
charged. The penalty of dismissal from the service
shall carry with it that of cancellation of eligibility,
forfeiture of retirement benefits, and the perpetual The phrase “decision is final and executory” means
disqualification for re-employment in the that the Sanggunian decision is immediately
executory, but still may still be appealed to the
government service, unless otherwise provided in
Office of the President or the Sangguniang
the decision. [Sec. 10, Rule III, Administrative Panlalawigan as the case may be. [Don v. Lacsa,
Order No. 07 as amended by Administrative Order G.R. 170810, 2007]
No. 17-03 dated 15 September 2003, Rules of
Procedure of the Office of the Ombudsman] Period
30 days from receipt of decision.
The penalty of removal from office as a result of an Effect

administrative investigation shall be considered a An appeal shall not prevent a decision from
bar to the candidacy of the respondent for any becoming final or executory. The respondent shall
elective position. [Sec. 66(c), LGC] be considered as having been placed under
preventive suspension during the pendency of an
If appointive official, Office of the President may appeal in the event he wins such appeal. In the
remove him or her from the his or her position. event the appeal results in an exoneration, he shall
(Pablico v. Villapando, G.R. 147870, 2002). be paid his salary and such other emoluments
during the pendency of the appeal. [Sec. 68, LGC]
Administrative Appeal
Condonation Doctrine (or Aguinaldo Doctrine)
Decisions in administrative cases may, within thirty The condonation doctrine is the doctrine that
(30) days from receipt thereof, be appealed to the provides that a reelected official should no longer
following: be made accountable for an administrative offense
committed during his previous term. NOTE:
(a) The sangguniang panlalawigan, in the case of Doctrine does not apply to criminal offenses or
decisions of the sangguniang panlungsod of liabilities.
component cities and the sangguniang bayan; and
However, in Carpio-Morales v. CA, the Court
(b) The Office of the President, in the case of abandoned the "condonation doctrine," explaining
decisions of the sangguniang panlalawigan and the that "election is not a mode of condoning an
sangguniang panlungsod of highly urbanized cities administrative offense, and there is simply no
Page 468 of 568

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constitutional or statutory basis in our jurisdiction to absence of constitutional restraint, the power is
support the notion that an official elected for a implied in all governmental operations. Such power
different term is fully absolved of any administrative has been held to be indispensable for the proper
liability arising from an offense done during a prior administration of public affairs. Not undeservedly,
term." [Carpio-Morales v. CA, G.R. No. 217126-27, it is frequently described as a fundamental right of
2015] the people in a representative democracy. [Garcia
v. COMELEC, GR No. 111511, 5 October 1993]
The abandonment should be prospectively applied.
[Dimapilis v. Commission on Elections, G.R. No. Who May Exercise: The power of recall for loss of
227158, 2017] confidence shall be exercised by the registered
voters of a local government unit to which the local
The ruling promulgated in Morales v. Court of elective official subject to such recall belongs. [Sec.
Appeals on the abandonment of the doctrine of 69, LGC]
condonation had, indeed, become final only on
How Recall is Initiated: The Recall of any elective
April 12, 2016; hence, the abandonment should
provincial, city, municipal or barangay official shall
be reckoned from April 12, 2016. [Crebello v. be commenced by a petition of a registered voter
Sandiganbayan, GR No. 232325, 2019] in the local government unit concerned and
supported by the registered voters in the local
The Condonation Doctrine, however, does not government unit concerned during the election in
apply or extend to appointive officials. which the local official sought to be recalled was
[Salumbides v. Ombudsman, GR No. 180917, elected subject to the following percentage
requirements:
2010]
(1) At least twenty-five percent (25%) in the case of
local government units with a voting population of
On Local Appointive Officials not more than twenty thousand (20,000);
The prohibition on midnight appointments only (2) At least twenty percent (20%) in the case of
applies to presidential appointments. It does not local government units with a voting population of
apply to appointments made by local chief at least twenty thousand (20,000) but not more
executives. Nevertheless, the Civil Service than seventy-five thousand (75,000): Provided,
Commission has the power to promulgate rules That in no case shall the required petitioners be
and regulations to professionalize the civil service. less than five thousand (5,000);
It may issue rules and regulations prohibiting local (3) At least fifteen percent (15%) in the case of local
chief executives from making appointments during government units with a voting population of at
the last days of their tenure. Appointments of local least seventy-five thousand (75,000) but not more
chief executives must conform to these civil service than three hundred thousand (300,000): Provided,
rules and in order to be valid. [Provincial however, That in no case shall the required number
Government of Aurora v. Marco, G.R. 202331, of petitioners be less than fifteen thousand
2015] (15,000);
(4) At least ten percent (10%) in the case of local
That the Province suddenly had no funds to pay for government units with a voting population of over
an appointee’s salaries despite its earlier three hundred thousand (300,000): Provided,
certification that funds were available under its however, That in no case shall the required
2004 Annual Budget does not affect his petitioners be less than forty-five thousand
appointment, if a Certification that funds were (45,000). [Sec. 70(a), LGC as amended by RA
available was issued at the time of the 9244] NOTE: Under RA 9244, there is no more
appointment. The appointment remains effective, Recall via the Preparatory Recall Assembly.
and the local government unit remains liable for the
salaries of the appointee. [Provincial Government Recall Process/Procedure: The process of recall
of Aurora v. Marco, G.R. 202331, 2015] shall be effected in accordance with the following
procedure:
4. RECALL
(1) WRITTEN PETITION. A written petition for
Recall is a mode of removal of a public officer by
recall duly signed by the representatives of the
the people before the end of his term of office. The
petitioners before the election registrar or his
people's prerogative to remove a public officer is an
representative, shall be filed with the Comelec
incident of their sovereign power and in the
Page 469 of 568
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through its office in the local government unit representative shall announce the acceptance of
concerned. candidates to the position and thereafter prepare
the list of candidates which shall include the name
(2) CONTENTS OF THE PETITION. The petition of the official sought to be recalled.” [Sec. 70(b),
to recall shall contain the following: LGC as amended by RA 9244]
(a) The names and addresses of the petitioners
written in legible form and their signatures; The authentication of signatures in a recall petition
(b) The barangay, city or municipality, local is done during the determination of the names,
legislative district and the province to which the signatures and thumbmarks of petitioners, not
petitioners belong; during the determination of the sufficiency of the
(c) The name of the official sought to be recalled; form and substance of the petition. [Sy-Alvarado v.
and Comelec, G.R. 216457, 2015]
(d) A brief narration of the reasons and
justifications therefor. Conduct of Recall Election:
1) Upon the filing of a valid petition for recall with
(3) COMELEC CERTIFICATION. The Comelec the appropriate local office of the Comelec, the
shall, within fifteen (15) days from the filing of the Comelec or its duly authorized representative shall
petition, certify to the sufficiency of the required set the date of the election or recall, which shall not
number of signatures. Failure to obtain the required be later than thirty (30) days upon the completion
number of signatures automatically nullifies the of the procedure outlined in the preceding article,
petition; in the case of the barangay, city or municipal
officials, and forty-five (45) days in the case of
(4) NOTICE AND PUBLICATION. If the petition is provincial officials.
found to be sufficient in form, the Comelec or its 2) The officials sought to be recalled shall
duly authorized representative shall, within three automatically be considered as duly registered
(3) days from the issuance of the certification, candidate or candidates to the pertinent positions
provide the official sought to be recalled a copy of and, like other candidates, shall be entitled to be
the petition, cause its publication in a national voted upon. [Sec. 71, LGC as amended by RA
newspaper of general circulation and a newspaper 9244]
of general circulation in the locality, once a week 3) The elective local official sought to be recalled
for three (3) consecutive weeks at the expense of shall not be allowed to resign while the recall
the petitioners and at the same time post copies process is in progress. [Sec. 73, LGC]
thereof in public and conspicuous places for a
period of not less than ten (10) days nor more than Effectivity of Recall
twenty (20) days, for the purpose of allowing 1) The recall of an elective local official shall be
interested parties to examine and verify the validity effective only upon the election and proclamation
of the petition and the authenticity of the signatures of a successor in the person of the candidate
contained therein. receiving the highest number of votes cast during
the election on recall.
(5) VERIFICATION AND AUTHENTICATION. The 2) Should the official sought to be recalled receive
Comelec or its duly authorized representatives the highest number of votes, confidence in him is
shall, upon issuance of certification, proceed thereby affirmed, and he shall continue in office.
independently with the verification and [Sec. 72, LGC]
authentication of the signatures of the petitioners
and registered voters contained therein. Limitations on Recall
Representatives of the petitioners and the official 1) Any elective local official may be the subject of
sought to be recalled shall be duly notified and shall a recall election only once during his term of office
have the right to participate therein as mere for loss of confidence.
observers. The filing of any challenge or protest 2) No recall shall take place within one (1) year
shall be allowed within the period provided in the from the date of the official's assumption to office
immediately preceding paragraph and shall be or one (1) year immediately preceding a regular
ruled upon with finality within fifteen (15) days from local election. [Sec. 74, LGC]
the date of filing of such protest or challenge;
Funding. All expenses incident to recall elections
(6) CANDIDATES. Upon the lapse of the aforesaid shall be borne by the COMELEC. For this purpose,
period, the Comelec or its duly authorized there shall be included in the annual General
Page 470 of 568
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Appropriations Act a contingency fund at the 44(b), LGC]

disposal of the COMELEC for the conduct of recall
elections. [Sec. 75, LGC] NOTE: Hence, In Case of Tie Between Highest Ranking
COMELEC cannot suspend recall because of Sanggunian: A tie between or among the highest
supposed lack of funding. [Goh v. Bayron, GR No. ranking sanggunian members shall be resolved by
212584, 2014] the drawing of lots. [Sec. 44(c), LGC]
5. VACANCIES AND SUCCESSION How Long Successors Will Serve: The

successors as defined herein shall serve only the
When Permanent Vacancy Occurs/Arises: A unexpired terms of their predecessors. [Sec. 44(d),
permanent vacancy arises when an elective local LGC]
official fills a higher vacant office, refuses to
assume office, fails to qualify, dies, is removed Determining Sanggunian Ranking: Ranking in
from office, voluntarily resigns, or is otherwise the sanggunian shall be determined on the basis of
permanently incapacitated to discharge the the proportion of votes obtained by each winning
functions of his office. [Sec. 44, LGC] candidate to the total number of registered voters
in each district in the immediately preceding local
Grounds for Permanent Vacancy: (F2VR2-DP) election. [Sec. 44, LGC]
1. Elective local official Fills a higher vacant office
2. Refuses to assume office Permanent Vacancies in the Sanggunian
3. Fails to qualify (a) Permanent vacancies in the sanggunian where
4. Dies automatic succession [provided in Sec. 44] do not
5. Removed from office apply shall be filled by appointment in the following
6. Voluntarily resigns manner:
7. Permanently incapacitated to discharge the
functions of his office (1) The President, through the Executive
Secretary, in the case of the sangguniang
Filling of Vacancy: panlalawigan and the sangguniang panlungsod
• Automatic succession of highly urbanized cities and independent
• Appointment component cities;
(2) The governor, in the case of the
Permanent Vacancies in the offices of the sangguniang panlungsod of component cities
GOVERNOR, VICE GOVERNOR, MAYOR, VICE and the sangguniang bayan;
MAYOR (3) The city or municipal mayor, in the case of
1) If a permanent vacancy occurs in the office of sangguniang barangay, upon recommendation
the governor or mayor, the vice-governor or vice- of the sangguniang barangay concerned.
mayor concerned shall become the governor or
mayor. (b) Except for the sangguniang barangay, only the
2) If a permanent vacancy occurs in the offices of nominee of the political party under which the
the governor, vice-governor, mayor, or vice-mayor, sanggunian member concerned had been elected
the highest ranking sanggunian member or, in case and whose elevation to the position next higher in
of his permanent inability, the second highest rank created the last vacancy in the sanggunian
ranking sanggunian member, shall become the shall be appointed in the manner hereinabove
governor, vice-governor, mayor or vice-mayor, as provided. The appointee shall come from the same
the case may be. political party as that of the sanggunian member
3) Subsequent vacancies in the said office shall be who caused the vacancy and shall serve the
filled automatically by the other sanggunian unexpired term of the vacant office. In the
members according to their ranking as defined appointment herein mentioned, a nomination and a
herein. [Sec. 44(a), LGC] certificate of membership of the appointee from the
highest official of the political party concerned are
Permanent Vacancy in the Punong Barangay: If conditions sine qua non, and any appointment
a permanent vacancy occurs in the office of the without such nomination and certification shall be
punong barangay, the highest ranking sanggunian null and void ab initio and shall be a ground for
barangay member or, in case of his permanent administrative action against the official
inability, the second highest ranking sanggunian responsible therefore.
member, shall become the punong barangay. [Sec.
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General Rule: The successor (by appointment)

should come from the same political party as the Said temporary incapacity shall terminate upon
Sanggunian member whose position has become submission to the appropriate sanggunian of a
vacant. written declaration by the local chief executive
concerned that he has reported back to office. In
Exception: In case of vacancy in the Sangguniang cases where the temporary incapacity is due to
barangay. legal causes, the local chief executive concerned
shall also submit necessary documents showing
(c) In case or permanent vacancy is caused by a that said legal causes no longer exist. [Sec.
sanggunian member who does not belong to any 46(a)(b), LGC]
political party, the local chief executive shall, upon
recommendation of the sanggunian concerned, Non-exclusive grounds for temporary vacancy
appoint a qualified person to fill the vacancy. 1. Leave of absence
2. Travel abroad
(d) In case of vacancy in the representation of the 3. Suspension from office
youth and the barangay in the sanggunian, said
vacancy shall be filled automatically by the official General Rule: If the position of governor, mayor,
next in rank of the organization concerned. [Sec. or punong barangay becomes temporarily vacant,
45, LGC] the vice- governor, vice-mayor or highest-ranking
Sanggunian member will automatically exercise
the powers and perform the duties and functions of
VACANCY SUCCESSOR
the local chief executive concerned.
Governor, Mayor Vice-Governor, Vice- Exception: He cannot exercise the power to
Mayor appoint, suspend or dismiss employees.
Exception to the Exception: If the period of
Governor, Vice- Highest ranking temporary incapacity exceeds 30 working days.
governor, Mayor or Sanggunian [Sec. 46, LGC]
Vice-mayor member
Highest ranking Termination of Temporary Incapacity
Sanggunian member 1. Upon submission to the appropriate
Second highest Sanggunian of a written declaration by the
(who was supposed to ranking
fill the vacant position local chief that he has reported back to office.
Sanggunian 2. If the temporary incapacity was due to legal
of governor, etc.) member reason, the local chief executive should also
Highest ranking submit necessary documents showing that the
Sangguniang legal causes no longer exist. [Sec. 46, LGC]
In the office of
the Punong Barangay member
OR the 2nd Appointment of Officer-in-Charge
Barangay
highest ranking 1) When the incumbent local chief executive is
Sanggunian traveling within the country but outside his territorial
member jurisdiction for a period not exceeding three (3)
consecutive days, he may designate in writing the
Temporary Incapacity officer-in-charge of the said office. Such
When the governor, city or municipal mayor, or authorization shall specify the powers and
punong barangay is temporarily incapacitated to functions that the local official concerned shall
perform his duties for physical or legal reasons exercise in the absence of the local chief executive
such as, but not limited to, leave of absence, travel except the power to appoint, suspend, or dismiss
abroad, and suspension from office, the vice- employees. [Sec. 46(c), LGC]
governor, city or municipal vice-mayor, or the 2) Except as provided above, the local chief
highest ranking sangguniang barangay member executive shall in no case authorize any local
shall automatically exercise the powers and official to assume the powers, duties, and functions
perform the duties and functions of the local chief of the office, other than the vice-governor, the city
executive concerned, except the power to appoint, or municipal vice-mayor, or the highest ranking
suspend, or dismiss employees which can only be sangguniang barangay member, as the case may
exercised if the period of temporary incapacity be. [Sec. 46(e), LGC]
exceeds thirty (30) working days.
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THUS: 1) For Absence not exceeding 3 days – Sangguniang Kabataan shall be filled in
local chief executive can name ANY official; 2) For accordance with the immediately preceding
Absence exceeding 3 days - the local chief provision.
executive is limited to designating the vice-
governor, the city or municipal vice-mayor, or the (d) In case of suspension of the Sangguniang
highest ranking sangguniang barangay member, Kabataan chairperson, the successor, as
as the case may be. determined in subsection (a) of this section, shall
assume the position during the period of such
In the event, however, that the local chief executive suspension. [Sec. 19, RA 10742]
concerned fails or refuses to issue such
authorization, the vice-governor, the city or NOTE: Republic Act No. 10742, otherwise known
municipal vice-mayor, or the highest ranking as the “Sanggunian Kabataan Reform Act of 2015,”
sangguniang barangay member, as the case may has repealed and/or modified accordingly Sections
be, shall have the right to assume the powers, 329, 423-439 of the RA 7160, LGC.
duties, and functions of the said office on the fourth
(4th) day of absence of the said local chief 6. TERM LIMITS
executive, subject to the limitations provided in
subsection (c) hereof. [Sec. 46(d), LGC] CONSTITUTIONAL RULE: The term of office of
elective local officials, except barangay officials,
Permanent Vacancies in the Sangguniang which shall be determined by law, shall be three
Kabataan years and no such official shall serve for more than
(a) In case a Sangguniang Kabataan chairperson
three consecutive terms. Voluntary renunciation of
refuses to assume office, fails to qualify, voluntarily
resigns, dies, is permanently incapacitated, is the office for any length of time shall not be
removed from office, the Sangguniang Kabataan considered as an interruption in the continuity of his
member who obtained the highest number of votes service for the full term for which he was elected.
in the election immediately preceding shall assume [Sec. 8, Art. X, 1987 Constitution; also Sec. 43(b),
the office of the chairperson for the unexpired RA 7160]
portion of his or her term. In case said member
refuses to assume the position or fails to qualify, Term of office: 3 years.
the Sangguniang Kabataan member obtaining the
next highest number of votes shall assume the General Rule: No local elective official shall serve
position of the chairperson for the unexpired for more than 3 consecutive terms in the same
portion of the term. position.
(b) After the vacancy shall have been filled, the Exception: The term of barangay officials and
Sangguniang Kabataan chairperson shall, within members of the Sanggunian kabataan shall be for
thirty (30) days, call for a special Katipunan ng 3 years. (R.A. No. 9146)
Kabataan assembly to elect a Sangguniang
Kabataan member to complete the membership of For the 3-term rule to apply, the local official
said sanggunian: Provided, That, such special must have:
assembly is coordinated with the Office of the Local 1. fully served the term
Government Operations Officer and the 2. been elected through a regular election
COMELEC of the municipality or city where the
concerned barangay belongs Such Sangguniang Not an Interruption to the Full Term (3-Term
Kabataan member shall hold office for the Limit Applies – Hence, Barred):
unexpired portion of the term of the vacant seat.
For this purpose, any citizen of the Philippines 1) RUNNING, WINNING, AND SERVING A
residing in the said barangay for at least six (6) DIFFERENT ELECTIVE POSITION IS
months who attains the age of fifteen (15) years old
VOLUNTARY RENUNCIATION. Punong
at the time of the special election and who registers
as member of the Katipunan ng Kabataan before barangay, while serving 3rd term, ran and won as
the Sangguniang Kabataan secretary shall be municipal councilor and served the full term.
entitled to vote in the said special election. Considered as voluntary renunciation. [Bolos v.
COMELEC, GR No. 184082, 2009]
(c) All other vacancies in the office of the
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2) CIRCUMVENTION. After serving 3 terms as then served 2 more terms as mayor; not barred to
Punong Barangay, got elected as barangay run for another term as mayor. [Borja v.
kagawad with sister elected as Punong Barangay, COMELEC, GR No. 133495, 1998]
who resigned the following day after oath of office
to allow succession. Considered as a conspiracy b) Councilor served 3 consecutive terms, but
and hence, a circumvention of the 3-term limit. during 2nd term succeeded as Vice Mayor; not
[Aguilar v. Benlot, GR No. 232806, 2019] barred to run again as councilor. [Montebon v.
COMELEC, GR No. 180444, 2008]
3) CONVERSION. Conversion of a municipality to
a city with no break in the service as a local chief 2) RECALL ELECTION. Previously served for 3
executive. [Latasa v. COMELEC, GR No. 154829, full terms as mayor, then participated in a recall
2003; Halili v. COMELEC, GR No. 231643, 2019] election; not barred. The prohibited election refers
to the next regular election for the same office
4) REAPPORTIONMENT OF DISTRICT. Served following the end of the third consecutive term.
for 2 terms (2004, 2007) as Provincial Board Any subsequent election, like a recall election, is
Member (BM) in the Cam. Sur 2nd dist. Cam. Sur no longer covered by the prohibition for two
was reapportioned by RA9716. In 2010 and 2013 reasons. First, a subsequent election like a recall
he ran and won as BM in the 3rd dist (which is election is no longer an immediate reelection after
essentially the same as the old 2nd dist). [Naval v. three consecutive terms. Second, the intervening
COMELEC, GR No. 207851, 2014] period constitutes an involuntary interruption in the
continuity of service. [Socrates v. COMELEC, GR
5) MERGER. Municipalities were merged and No. 154512, 2002] Previously served for 2 full
converted into a city, but the Punong Barangay terms as mayor (1992-1998), ran for a 3rd term
from the former municipality is the same as that in (1998-2001) but lost, then subsequently
the city as the new political unit with the same participated in a recall election (2000), which he
territory and inhabitants (hence, same group of won served the unexpired term; not barred to run
voters). [Laceda v. Limena, GR No. 182867, 2008] again for another term – not elected for 3
consecutive terms, continuity as mayor was
6) PREVENTIVE SUSPENSION. Preventive
disrupted with the defeat, and was a private citizen
suspension is not an interruption. Just a temporary
for 2 years prior to the recall election. [Adormeo v.
inability; not unseated and continued to hold office;
COMELEC, 147927, 2002]
just temporarily barred to exercise functions.
[Aldovino v. COMELEC, GR No. 184836, 2009] 3) DISMISSAL AS PENALTY. Dismissals [as
penalties] were involuntary interruptions; not
7) ELECTION PROTEST. Election protest, but
considered to have fully served a 3rd successive
able to serve 3 full terms, including the 2nd term
term of office. [Tallado v. COMELEC, GR No.
(fully served) where the proclamation was voided.
246679, 2019]
[Ong v. COMELEC, GR N0. 163295, 2006; Rivera
v. COMELEC, GR No. 167591, 2007] 4) ELECTION PROTEST.
An Interruption to the Full Term (3-Term Limit a) Unseated during 3rd term as mayor because of
does not Apply – Hence, Not Barred) an election protest; not barred as not deemed to
have been elected for that term – merely assumed
1) SUCCESSION. Assumption by succession is by
office as a presumptive winner. [Lonzanida v.
operation of law. To count as a term, one must
COMELEC, GR No. 135150, 1999]
have been elected and fully served. Law allows the
severance to effectuate succession. [Borja v. b) Served as mayor in 2001, 2004, and 2007, but
COMELEC, GR No. 133495, 1998; Montebon v. the 2004 (2nd term) was by virtue of an election
COMELEC, GR No. 180444, 2008]] protest and served only the remainder of the 2nd
term; not barred to run in 2010. [Abundo v.
a) Vice Mayor to Mayor on 3rd term as Vice Mayor
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COMELEC, GR No. 201716, 2013]
c) Unseated for running and winning a 4th term

(NOTE: 4th term was invalidated by the SC in
Rivera v. COMELEC), then relinquished office; not
barred to run in the subsequent election. [Dizon v.
COMELEC, GR No. 182088, 2009]
------- end of topic -------
Page 475 of 568

NATIONAL
ECONOMY AND
PATRIMONY
Political Law
ATENEO CENTRAL
XIV. NATIONAL ECONOMY AND Three-Fold Goal of the National Economy

PATRIMONY 1. More equitable distribution of
opportunities, income and wealth;
TOPIC OUTLINE UNDER THE SYLLABUS: 2. Increase of wealth for the benefit of the
people, and
XIV. NATIONAL ECONOMY AND PATRIMONY 3. Increased productivity (Phil. CONST,
Art.XII, § 1)
A. EXPLORATION, DEVELOPMENT, AND
UTILIZATION OF NATURAL RESOURCES Regalian Doctrine
IMPERIUM DOMINIUM
B. FRANCHISES, AUTHORITIES, AND Government authority The capacity of the
CERTIFICATES FOR PUBLIC UTILITY possessed by the State to own and
State which is acquire property.
C. ACQUISITION, OWNERSHIP, AND appropriately It refers to lands held
TRANSFER OF PUBLIC AND PRIVATE embraced in by the government in a
LANDS sovereignty. proprietary character.
D. PRACTICE OF PROFESSIONS
What is the Regalian doctrine? (Jura Regalia)
E. ORGANIZATIONS AND REGULATION OF Universal feudal theory that all lands were held
PRIVATE AND PUBLIC CORPORATIONS from the Crown. All lands not otherwise clearly
appearing to be privately owned are presumed to
F. MONOPOLIES, RETRAINT OF TRADE, belong to the State. (Cariño v. Insular Government,
AND UNFAIR COMPETITION 212 U.S. 449, Feb. 23, 1909)
State Owned: (PWEFFOM)

1. Lands of the Public domain
2. Waters
3. Minerals, coals, petroleum, and other
mineral oils
4. All sources of potential Energy
5. Fisheries
6. Forests or timber
7. Wildlife
8. Flora and fauna
9. Other natural resources
(PHIL. CONST. art. XII, § 2)
General Rule: All natural resources cannot be

alienated.
Exception: Agricultural lands
Native Title
Refers to pre-conquest rights to lands and domains
which, as far back as memory reaches, have been
held under a claim of private ownership by
indigenous cultural communities and indigenous
people, have never been public lands and are thus
indisputably presumed to have been held that way
since before the Spanish conquest. (IPRA, § 3(l)).
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ATENEO CENTRAL
P.P. 310, distributing 670 hectares of CMU’s Exception with respect to rule on EDU
property, to the indigenous peoples is For large-scale EDU of minerals, petroleum and
unconstitutional. The lands by their character have other mineral oils, the President may enter into
become inalienable from the moment President agreements with foreign-owned corporations
Garcia dedicated them for CMU’s use in scientific involving technical or financial assistance.
and technological research in the field of
agriculture. They have ceased to be alienable 25-year Limitation
public lands. Besides, when Congress enacted the All agreements with the qualified private sector (i.e
IPRA or RA 8371 in 1997, it provided in Section 56 Filipino citizens or corporations or associations at
that "property rights within the ancestral domains least 60% whose capital is owned by Filipino
already existing and/or vested" upon its effectivity citizens) may be for only a period not exceeding 25
"shall be recognized and respected." In this case, years, renewable for another 25.
ownership over the subject lands had been vested
in CMU as early as 1958. Consequently, Note that the 25-year limit is not applicable to water
transferring the lands in 2003 to the indigenous rights for irrigation, water supply, fisheries, or
peoples around the area is not in accord with the industrial uses other than the development of
IPRA. (CMU v. Executive Secretary, G.R. 184869, power.
Sept. 21, 2010).
Rule on Private Lands
Limitations on the disposition of the State of General Rule: Private lands CAN only be
alienable lands of the public domain conveyed to:
1. Only agricultural lands of the public domain 1. Filipino citizens
may be alienated; 2. Corporations or associations incorporated
2. Only Filipino citizens may acquire lands in the Philippines, at least 60% of whose
not more than 12 hectares by purchase, capital is owned by Filipino citizens (PHIL.
homestead or grant or lease no more than CONST. art.XII, § 7)
500 hectares. Private corporations may
lease not more than 1,000 hectares for 25 Exceptions:
years renewable for another 25 years. • In intestate succession, where an alien heir
(PHIL. CONST. art. XII, § 3) of a Filipino is the transferee of private
3. The exploration, development and land. (PHIL. CONST. art.XII, § 7).
utilization (EDU) of all natural resources • A natural-born citizen of the Philippines
shall be under the full control and who has lost his Philippine citizenship may
supervision of the State either by directly be a transferee of private land, subject to
undertaking such EDU or through co- limitation provided by law. Hence, land can
production, joint venture, or production be used only for residential purposes. In
sharing agreements with qualified this case, he only acquires derivative title
persons. (PHIL. CONST. art.XII, § 7). However, a
4. The use and enjoyment of the marine former natural born Filipino citizen who
wealth of the archipelagic waters, territorial became a citizen of other countries may
sea, and the EEZ shall be reserved for acquire land for business and other
Filipino citizens purposes. (R.A. No. 8179, § 5).
5. Utilization of natural resources in rivers, • Foreign states may acquire land but only
lakes, bays and lagoons may be allowed for embassy and staff residence purposes.
only on a ‘small scale’ to Filipino citizens or
cooperatives— with priority for
subsistence fishermen and fish workers.
(PHIL. CONST. art.XII, § 2)
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When Filipino citizenship Required has been achieved. (Republic v. Register of Deeds,
Filipino citizenship is only required at the time the G.R. 158230, July. 16, 2008).
land is acquired. Thus, loss of citizenship after
acquiring the land does not deprive ownership. Considering that the rights and liabilities of the
parties under the Contract to Sell is covered by the
Scope of Restriction Condominium Act wherein petitioner as unit owner
Restriction against aliens only applies to was simply a member of the Condominium
acquisition of ownership. Therefore: Corporation and the land remained owned by
1. Aliens may be lessees or usufructuaries of respondent, then the constitutional proscription
private lands against aliens owning real property does not apply
2. Aliens may be mortgagees of land, as long to the present case. There being no circumvention
as they do not obtain possession thereof of the constitutional prohibition, the Court's
and do not bid in the foreclosure sale. pronouncements on the invalidity of the Contract of
3. Land tenure is not indispensable to the free Sale should be set aside (Hulst v. PR Builders,
exercise of religious profession and G.R. 156364, Sept. 25, 2008).
worship. A religious corporation controlled
by non-Filipinos cannot acquire and own National Economy and Patrimony Investments
land, even for religious purposes. Powers of Congress:
1. Reserve to Filipino citizens or to
Instance when couple Alien-Filipino buys land corporations or associations at least 60%
When a couple buys land, where one is an alien of whose capital is owned by such citizens,
and one is Filipino, the property does not become or such higher percentage as Congress
part of the conjugal property. It will only be owned may prescribe, certain areas of
by the Filipino spouse (Cheeseman v. IAC, G.R. investment. This may be done when the
No. 74833, Jan. 21, 1991). national interest dictates.
2. Enact measures to encourage the
An alien cannot challenge any act of formation and operation of enterprises
administration, enjoyment, or alienation of his/her whose capital is wholly owned by Filipinos
Filipino spouse over a piece of land his/her spouse (PHIL. CONST., art. XII, § 10).
acquired. (Matthews v. Taylor Spouses, G.R. No.
164584, June 22, 2009). In the grant of rights, privileges and concessions
covering the national economy and patrimony, the
Remedies to Recover Private Lands from State shall give preference to qualified Filipinos.
Disqualified Aliens: ERR This provision is self-executory. The Supreme
1. Escheat proceedings Court banked on this to uphold the decision of
2. Action for Reversion under the Public GSIS to grant the Manila Hotel project to a Filipino
Land Act corporation, even though a Malaysian firm turned
3. An action by the former Filipino owner to out to be the highest bidder. (Manila Prince Hotel
Recover the land v. GSIS, G.R. 122156, Feb. 3, 1997).
Although the sale of a lot to an alien violated the However, the GATT Treaty (which placed aliens on
constitutional prohibition on aliens acquiring land, the same footing as Filipinos) was upheld by the
the acquisition by succession by Filipino citizens Supreme Court. It reasoned that the provision
qualified to acquire lands, can no longer be which mandates preference to Filipinos is only
impugned on the basis of the invalidity of the initial enforceable with respect to “grant of rights,
transfer. The flaw in the original transaction is privileges and concessions covering national
considered cured and the title of the transferee is economy and patrimony,” and not all aspects of
deemed valid considering that the objective of the trade and commerce. (Tanada v. Angara, G.R.
constitutional proscription against alien ownership 118295, May 2, 1997).
of lands, that is to keep our lands in Filipino hands,
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The Retail Trade Liberalization Act of 2000 (RA Educational 1. Filipino citizens
8762) is constitutional. It allowed foreign nationals Institution 2. Domestic Corporations (60%
to engage in retail trade business in the Philippines. Filipino owned)
It also allowed natural-born Filipino citizens, who
had lost their citizenship and now reside in the Exception: Schools established
Philippines, to engage in the retail trade business by religious groups and mission
with the same rights as Filipino citizens. The boards.
mandate for the State to develop a “self-reliant and
independent national economy effectively Congress may, by law, increase
controlled by Filipinos” is not self-executory. The Filipino requirements for ALL
control and regulation of trade in the interest of the educational institutions.
public welfare is of course an exercise of the police Other Congress may, by law, reserve to
power of the State. A person’s right to property, economic Filipino citizens or to Domestic
whether he is a Filipino citizen or foreign national, activities Corporations (60% Filipino
cannot be taken from him without due process of owned or higher) certain
law. The Court is not convinced that the investment areas.
implementation of RA 8762 would eventually lead
to alien control of the retail trade business. Tests used to determine Nationality of a
Petitioners have not mustered any concrete and corporation:
strong argument to support its thesis. The law itself 1. Voting Control Test – the ownership
has provided strict safeguards on foreign threshold must be complied by the voting
participation in that business. (Espina v. Zamora, shares.
G.R. 143855, Sept. 21, 2010). 2. Beneficial Ownership Test – the
ownership threshold must also apply to the
ACTIVITY CITIZENSHIP AND/OR EQUITY outstanding capital. And “capital” should
REQUIREMENTS be interpreted to include only voting
Exploration 1. Filipino citizens shares. Hence, in the computation for
of natural 2. Domestic Corporations (60% “capital,” only common stock will be
resources Filipino owned) considered and not preferred shares.
Operation 1. Filipino citizens (Gamboa, et.al. v. Finance Secretary, G.R.
of Public 2. Domestic Corporations (60% 176579, June 28, 2011).
Utilities Filipino owned)
Acquisition 1. Filipino citizens ‘Capital’
of alienable 2. Domestic Corporations (60% The term “capital” in Section II, Article XII of the
lands of the Filipino owned) 1987 Constitution refers only to shares of stock
public 3. Former natural-born citizens of entitled to vote in the election of directors, and thus
domain RP (as transferees with certain in the present case only to common shares, and
legal restrictions) not to the total outstanding capital stock (common
4. Alien heirs (as transferees in and non-voting shares).
case of intestate succession)
Practice of 1. Filipino citizens only (natural Pursuant to the Gamboa directive, Section 2 of
ALL persons) SEC-MC No. 8 provides:
professions 2. Congress may, by law, “Section 2. All categories shall, at all times, observe
otherwise the constitutional or statutory ownership
prescribe requirement. For purposes of determining
Mass Media 1. Filipino citizens compliance therewith, the required percentage of
2. Domestic Corporations (100% Filipino ownership shall be applied to BOTH (a) the
Filipino owned) total number of outstanding shares of stock entitled
Advertising 1. Filipino citizens to vote in the election of directors; and, (b)
2. Domestic Corporations (70%
Filipino owned)
Page 480 of 568
ATENEO CENTRAL
the total number of outstanding shares of stock, Large-scale exploration, development, and
whether or not entitled to vote.” (Roy III v. Herbosa, utilization of minerals, petroleum, and other
G.R. No. 207246, Nov. 22, 2016) mineral oils
1. The President may enter into agreements
with foreign owned corporations involving
technical or financial assistance for large-
A. EXPLORATION, DEVELOPMENT, AND scale exploration, etc. of minerals,
UTILIZATION OF NATURAL RESOURCES petroleum, and other mineral oils. These
agreements should be in accordance with
1. Shall be under the full control and the general terms and conditions provided
supervision of the State by law.
MEANS: 2. They should be based on the real
The state may directly undertake such contributions to economic growth and
activities. The state may enter into co- general welfare of the country.
production, joint venture or production- 3. In the agreements, the State should
sharing arrangements with Filipino promote the development and use of local
citizens or corporations or associations at scientific and technical resources.
least 60% of whose capital is owned by 4. The President should notify Congress of
such citizens. every contract under this provision within
LIMITATIONS: 30 days from its execution.
Period: It should not exceed 25 years, 5. Management and service contracts are not
renewable for not more than 25 years. allowed under this rule.
Under terms and conditions as may be
provided by law. Under the 1987 Constitution, the Philippine
2. In case of water rights, water supply, Government may still enter into service contracts,
fisheries, industrial uses other than the but only for financial and technical agreements with
development of water power. respect to large scale development of minerals,
3. The beneficial use may be the measure petroleum, and other mineral resources.
and limit of the grant.
Management powers may be given to a completely
Under the 1987 Constitution, the state must always foreign corporation with whom the State enters a
be involved in the control and supervision of the service contract. But, such power will only be to the
exploration, development and utilization of extent necessary to carry out the technical and
inalienable natural resources, even if the person financial agreement.
engaged is Filipino.
A foreign corporation may enter into financial and
EO 211 of President Aquino authorized the technical assistance agreement with the
Secretary of Natural Resources to authorize such government involving the management and
EDU agreements entered into under the 1987 operation of a mining enterprise. Section 2, Article
Constitution. XII of the Constitution allows other forms of
assistance or activities having to do with technical
Small-scale utilization of natural resources or financial assistance and it will not prohibit the
1. Congress may, by law, authorize small- involvement of foreign corporations in the
scale utilization of natural resources by management of mining ventures. The policy
Filipino citizens. recognizes that foreign corporations who will invest
2. Congress may also authorize cooperative in mining will require that they be given a say in the
fish farming with priority given to management to ensure its success. The
subsistence fishermen and fish workers in Constitutional Commission understood technical or
the rivers, lakes, bays and lagoons. financial agreements as interchangeable with
service contracts. (La Bugal-B’laan Tribal
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ATENEO CENTRAL
Association, Inc. v. Ramos, G.R. 127882, Jan. 27, 1. The State shall protect its marine wealth in
2004, affirmed in 2005). its archipelagic waters, territorial sea and
EEZ.
Also, the grant of such service contracts must be 2. The State shall reserve its use and
subject enjoyment exclusively to Filipino citizens.
to the following safeguards: 3. License Agreement — "a privilege granted
1. it must be in accordance with a general law by the State to a person to utilize forest
2. the President must be the signatory for the resources within any forest land with the
government right of possession and occupation thereof
3. the President must report the executed to the exclusion of others, except the
agreement to Congress within 30 days. (La government, but with the corresponding
Bugal-B’laan Tribal Association, Inc. v. obligation to develop, protect and
Ramos, G.R. 127882, Jan. 27, 2004, rehabilitate the same in accordance with
affirmed in a MR in 2005). the terms and conditions set forth in said
agreement" (PD 705, § 3).
There is no vested right to mining rights, save for 4. Private rights must yield when they come
patented mining claims that were granted under the in conflict with this public policy and
Philippine Bill of 1902. However, when the 1935 common interest. They must give way to
Constitution was passed, it prohibited the the police or regulatory power of the State,
alienation of mineral lands and allowed only lease in this case through the DENR, to ensure
rights to mining claimants. This was also that the terms and conditions of existing
maintained by 1943 and 1973 Constitution. On the laws, rules and regulations, and the IFMA
other hand, the authority of the State to administer itself are strictly and faithfully complied
inalienable natural resources through “license, with. (Republic v. Pagadian City Timber,
concession or lease” was notably absent under the G.R. 159308, Sept. 16, 2008).
1987 Constitution. Under the present Constitution,
the state is expected to take a more hands-on B. FRANCHISES, AUTHORITIES, AND
approach and it exercises control and supervision CERTIFICATES FOR PUBLIC UTILITY
through the following modes: (1) The State may
directly undertake such activities. (2) co- Power to Grant:
production/joint venture/production sharing 1. Congress may directly grant a legislative
agreements with Filipino citizens or qualified franchise.
corporations, (3) Congress may allow small-scale 2. The power to grant franchises may be
utilization of natural resources by Filipino citizens delegated to appropriate regulatory
and lastly (4) For large-scale exploration, agencies and/ or LGUs.
development and utilization of minerals, petroleum
and other mineral oils, the President may enter into Public Utility - The undertaking must involve
agreements with foreign-owned corporations dealing directly with the public.
involving technical/financial assistance. Instead of
a first-in-time, first-in right approach toward Primary Franchise v. Secondary Franchise
applicants for mining claims and mining rights, the PRIMARY SECONDARY
State decides what the most beneficial method is FRANCHISE FRANCHISE
when it comes to exploring, developing, and Invests a body of men The privilege to
utilizing minerals. It may choose to either directly with corporate operate as
undertake mining activities by itself or enter into co- existence a public utility after the
production, joint venture, or production sharing corporation has
agreements with qualified applicants. (Naredico v. already
Krominco, G.R. 196892, Dec. 5, 2018). come into being
Protection of Marine Wealth The Constitution does not prohibit the mere
formation of a public utility corporation without the
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required formation of Filipino capital. What it does

prohibit is the granting of a franchise or other form Franchise, certificate or any other form of
of authorization for the operation of a public utility authorization for the operation of a public utility may
to a corporation already in existence but without the be issued or granted only to Filipino citizens or
requisite proportion of Filipino capital (People v. entities with 60% capital owned by such citizens.
Quasha, G.R. L-6055, June 12, 1953). Thus, foreign corporations and foreigners MAY
own the facilities. (Tatad v. Garcia, GR No 114222,
Apr. 6, 1995)
Operation and Ownership of Public Utility
OPERATION OF A OWNERSHIP OF Terms and Conditions:
PUBLIC UTILITY PUBLIC UTILITY 1. Duration: not more than 50 years.
May exist Relation in law by 2. Franchise is NOT exclusive in character.
independently and virtue of which a thing 3. Franchise is granted under the condition
separately from the pertaining to one that it is subject to amendment, alteration,
ownership of the person is completely or repeal by Congress when the common
facilities. subjected to his will in good so requires.
everything not
One can own said prohibited by law or Participation of Foreign Investors:
facilities without the concurrence with 1. Shall be limited to their proportionate share
operating them as a the rights of another. in its capital.
public utility, or 2. Foreigners cannot be appointed as the
conversely, one may The exercise of the executive and managing officers because
operate a public utility rights encompassed in these positions are reserved for Filipino
without owning the ownership is limited by citizens (PHIL. CONST. art. XII, § 11).
facilities used to serve law so that a property
the public. cannot be operated Administrative agencies may be empowered by the
and used to serve the Legislature by means of a law to grant franchises
public as a public utility or similar authorizations. In this case, the Court
unless the operator ruled that the Toll Regulatory Board (TRB) is
has a franchise. empowered to grant a franchise for toll road
projects. PD 1112 provided further that the TRB
A Build-Operate-Transfer grantee is NOT a public has the power to amend or modify a Toll Operation
utility. The grantee merely constructs the utility, and Certificate that it issued when public interest so
it leases the same to the government. It is the requires. Accordingly, there is nothing infirm, much
government which operates the public utility less questionable, about the provision in the MNTC
(operation separate from ownership). (Manila North Tollways Corp.) Supplemental Toll
Operation Agreement allowing the substitution of
To Whom Granted: MNTC in case it defaults in its loans. While the TRB
• Filipino citizens or is vested by law with the power to extend the
• Corporations or associations incorporated administrative franchise or authority that it granted,
in the Philippines and at least 60% of the it cannot do so for an accumulated period
capital is owned by Filipino citizens exceeding 50 years. Otherwise, it would violate the
proscription under Article XII, Section 11 of the
A foreigner or foreign company may own assets of 1987 Constitution, which provides that no public
a public utility corporation. What is not allowed is utility franchise shall be for a longer period than 50
the grant of the franchise to non-citizens of the years. (Francisco v. Toll Regulatory Board, G.R.
Philippines. 166910, Oct. 19, 2010).
Rule on Public Utilities While the Republic of the Philippines appointed

Refers to a utility corporation which renders service petitioner as the exclusive party to conduct
to the general public for compensation petroleum operations in the Camago-Malampaya
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area under the State’s full control and supervision, operation of any privately owned public
it does not follow that petitioner has become the utility or those with public interest (PHIL.
State’s “agent” within the meaning of the law. An CONST., art. XII, § 17).
agent’s ultimate undertaking is to execute juridical a. The nature and extent of the
acts that would create, modify or extinguish emergency is the measure of the
relations between his principal and third persons. It duration and the terms of the
is this power to affect the principal’s contractual takeover.
relations with third persons that differentiates the b. Just compensation is not required.
agent from a service contractor. (Shell v. Efren c. This power is activated only when
Jalos, et al., G.R. 179918, Sept. 8, 2010). Congress declares a state of
national emergency.
PAGCOR is no longer exempt from corporate d. 'Businesses affected with public
income tax. Under Section 11, Article XII of the interest' includes businesses
Constitution, PAGCOR's franchise is subject to which are quite similar public
amendment, alteration or repeal by Congress. A utilities, such as those having
franchise partakes the nature of a grant, which is mass-based consumers.
beyond the purview of the non-impairment clause 2. Expropriation - The State may, upon
of the Constitution. Also, Article XII, Section 11, of payment of just compensation, transfer to
the 1987 Constitution, is explicit that no franchise public ownership utilities and private
for the operation of a public utility shall be granted enterprises to be operated by the
except under the condition that such privilege shall government, in the interest of national
be subject to amendment, alteration or repeal by welfare or defense. (PHIL. CONST., art. XII,
Congress as and when the common good so § 18).
requires (PAGCOR v. BIR, G.R. No. 172087,
March 15, 2011). C. ACQUISITION, OWNERSHIP, AND
TRANSFER OF PUBLIC AND PRIVATE
Franchises can be granted to companies whose LANDS
capital is at least 60% Filipino-owned. However,
“capital” here should be interpreted to include only Lands of the public domain are classified into:
voting shares. Hence, in the computation for (MAN-F)
“capital,” only common stock will be considered 1. Mineral lands
and not preferred shares. (Gamboa, et.al. v. 2. Agricultural
Finance Secretary, G.R. 176579, Jun. 28, 2011). 3. National Parks
4. Forest or timber
SEC Memorandum Circular No. 8, s. 2013, was (PHIL. CONST., art. XII, § 3).
issued and provides that: all covered corporations
shall, at all times, observe the constitutional or Rule on Reclassification or Conversion of
statutory ownership requirement in that “the Lands
required percentage of Filipino ownership shall be Reclassification or conversion of lands require the
applied to BOTH (a) the total number of positive act of government, mere issuance of title
outstanding shares of stock entitled to vote in the is not enough. An affirmative act from the executive
election of directors; AND (b) the total number of or legislative is necessary to reclassify property of
outstanding shares of stock, whether or not entitled public dominion. (Laurel v. Garcia, GR No. 92013,
to vote in the election of directors.” (Roy III v. Jul. 25, 1990)
Herbosa, G.R. No. 207246, Nov. 22, 2016)
Reclassification:
Police Power and Expropriation over Public 1. Public (mineral and agricultural) lands –
Utilities exclusive prerogative of the executive
1. Police Power - When public interest department. But this is only a delegated
requires, under reasonable terms, the power.
State may temporarily take over the
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2. Forest and national parks - Congress has completion of the period. By virtue of this doctrine,
the sole power to reclassify. corporations may now acquire lands of the public
domain for as long as the lands were already
Classification is descriptive of the legal nature of converted to private ownership, by operation of
the land and NOT what it looks like. Thus, the fact law, as a result of satisfying the requisite period of
that forest land is denuded does not mean it is no possession prescribed by the Public Land Act.
longer forest land (Secretary of DENR v. Yap, G.R. (Republic vs Sogod Development Corp, G.R. No.
167707, Oct. 8, 2008). 175760, Feb. 17, 2016)
Only the President, upon recommendation of the Limitations Regarding Alienable Lands of
DENR secretary, may now classify lands of public Public Dominion
domain. This prerogative has been delegated to it Means by which Land of Public Dominion
by Congress under CA 141. (Director of lands v. Becomes Private Land:
Court of Appeals, G.R. 58867, Jun. 22, 1984). 1. Acquired from the Government by
purchase or grant.
Classification should be categorical; a land cannot 2. Uninterrupted possession by the occupant
have a mixed classification. For example: an owner and his predecessors-in-interest since
of an agricultural land in which minerals are time immemorial.
discovered has no right to utilize such minerals. 3. Open, exclusive, and undisputed
The State may discontinue his/her ownership after possession of ALIENABLE (agricultural)
just compensation in order to extract such public land for a period of 30 years.
minerals. (Republic v. Court of Appeals, G.R. L- a. Upon completion of the requisite
43938, Apr. 15, 1988). period, the land becomes private
property ipso jure without need of any
Reclassification from forest reserves into non- judicial or other sanction.
forest reserves – now exclusively a DENR b. Possession since time immemorial
prerogative. There is no need to wait for leads to the presumption that the land
Congressional concurrence. (Apex Mining v. was never part of public domain.
Southeast Mindanao Gold, G.R. 152613/152628, c. In computing 30 years, start from when
Nov. 20, 2009). the land was converted to alienable
land, not when it was still forest land
Can the occupation of forest lands prior to its d. Presumption is always that land
classification as alienable and disposable land
belongs to the State.
be considered for purposes of complying with
the requirements for judicial confirmation of
title? (LEONEN) NHA is an “end-user agency” authorized by law to
Yes. Congress prescribed no requirement that the administer and dispose of reclaimed lands. The
land subject of the registration should have been moment titles over reclaimed lands based on the
classified as agricultural since June 12, 1945, or special patents are transferred to the NHA by the
earlier. As such, A’s imperfect or incomplete title is Register of Deeds, they are automatically
derived only from possession and occupation since converted to patrimonial properties of the State
which can be sold to Filipino citizens and private
June 12, 1945, or earlier. (Public Land Act, § 48(b))
corporations, 60% of which are owned by Filipinos.
This means that the character of the property
(Chavez v. NHA, G.R. 164527, Aug. 15, 2007).
subject of the application as alienable and
disposable agricultural land of the public domain
Reclaimed foreshore and submerged lands are
determines its eligibility for land registration, not the
lands of public domain, and can only be alienated
ownership or title over it. Alienable public land held as private property if it is classified by competent
by a possessor, either personally or through his authority as alienable. (Republic v. Enciso, G.R.
predecessors-in-interest, openly, continuously and 160145, Nov. 11, 2005).
exclusively during the prescribed statutory period is
converted to private property by the mere lapse or
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Perfected mining claims under the Old Mining Law corporations through a GENERAL
do not entitle claimant to private ownership corporation law.
(Director of Lands v. Kalahi Investments Inc., G.R. 2. GOCCs - May be created through SPECIAL
48066, Jan. 31, 1989). CHARTERS or a GENERAL corporation law.
(PHIL. CONST., art. XII, § 16).
Protection of Indigenous Cultural
Communities: F. MONOPOLIES, RETRAINT OF TRADE,
1. The State protects the rights of indigenous AND UNFAIR COMPETITION
cultural communities to their ancestral land
1. The Constitution does NOT prohibit the
subject to:
existence of monopolies.
a. Constitutional provisions
2. The State may either regulate or prohibit
b. Subject to national development
monopolies, when public interest so
policies and programs
requires.
2. In determining ownership and extent of
3. What are prohibited are combinations in
ancestral domain, Congress may use
restraint of trade and unfair competition.
customary laws on property rights and
(PHIL. CONST., art. XII, § 10).
relations.
a. Restrictions upon trade may be upheld
when not contrary to public welfare and
Ancestral Domain - It refers to lands which are
not greater than is necessary to afford a
considered as pertaining to a cultural region. This
fair and reasonable protection to the
includes lands not yet occupied, such as deep
party in whose favor it is imposed
forests.
b. Even contracts which prohibit an
employee from engaging in business in
Private corporations
competition with the employer are not
1. They can only hold alienable lands of the
necessarily void for being in restraint of
public domain BY LEASE.
trade. In sum, contracts requiring
2. Period: Cannot exceed 25 years,
exclusivity are not per se void. Each
renewable for not more than 25 years
contract must be viewed vis-à-vis all the
3. Area: Lease cannot exceed 1,000
circumstances surrounding such
hectares.
agreement in deciding whether a
Note: A corporation sole is treated like
restrictive practice should be prohibited
other private corporations for the purpose
as imposing an unreasonable restraint
of acquiring public lands.
on competition (Avon v. Luna, G.R. No.
153674, Dec. 20, 2006).
Filipino citizens
1. Can lease up to 500 hectares
2. Can ACQUIRE not more than 12 hectares
by purchase, homestead or grant
D. PRACTICE OF PROFESSIONS
The practice of all profession in the Philippines

shall be limited to Filipino citizens save in cases
prescribed by law (PHIL. CONST., art. XII, § 14).
E. ORGANIZATIONS AND REGULATION

OF PRIVATE AND PUBLIC
CORPORATIONS
1. Private Corporations - Congress can only

provide for the formation of private
Page 486 of 568

SOCIAL JUSTICE
AND HUMAN
RIGHTS
Political Law
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XV. SOCIAL JUSTICE AND HUMAN A. CONCEPT OF SOCIAL JUSTICE

RIGHTS
Social Justice
It is the embodiment of the principle that those who
have less in life should have more in law.
XV. SOCIAL JUSTICE AND HUMAN RIGHTS
The import of social justice is that when the law can
A. CONCEPT OF SOCIAL JUSTICE be interpreted in more ways than one, an
interpretation that favors the underprivileged must
B. ECONOMIC, SOCIAL, AND CULTURAL be favored. It should be noted, however, that for all
RIGHTS its liberality to the underprivileged, it does not
tolerate behavior contrary to law.
C. COMMISSION ON HUMAN RIGHTS
1. Powers Section 1 translates the principle of more in law for
2. Composition and qualification of those who have less in life into a duty of the state
members to attend to “the enactment of measures that
protect and enhance the right of all the people to
human dignity, reduce social, economic, and
political inequalities, and remove cultural inequities
by equitable diffusing wealth and political power for
the common good.” (PHIL CONST., art. XIII, §1[1])
To achieve social justice, the Constitution provides

two principal tracks: first, there must be
regulation of the acquisition, ownership, use,
and disposition of property and its increment
(Phil Const., art. XIII, §1[2]), and second,
Congress should create economic
opportunities based on freedom of initiative
and self-reliance (PHIL CONST., art. XIII, §2).
These provisions have to be implemented by

Congress.
Nature of Policy
The policy of social justice is not intended to
countenance wrongdoing simply because it is
committed by the underprivileged. It may mitigate
the penalty but it certainly will not condone the
offense. Compassion for the poor is an imperative
of every humane society but only when the
recipient is not a rascal claiming an undeserved
privilege. Social justice cannot be permitted to be
refuge of scoundrels any more than can equity be
an impediment to the punishment of the guilty.
Those who invoke social justice may do so only if
their hands are clean and their motives blameless
and not simply because they happen to be poor.
(International School Manila v. International School
Alliance of Educators, G.R. No. 167286, Feb. 5,
2014)
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public interest involved here refers to the State's

Humanization of Laws and Equalization of goal of establishing, developing, promoting, and
Social and Economic Forces perfecting a sound and viable tax-exempt social
The promotion of social justice, however, is to be security system. To achieve this, the Social
achieved not through a mistaken sympathy Security System and the Social Security
towards any given group. Social justice is "neither Commission are empowered to adjust from time to
communism, nor despotism, nor atomism, nor time the contribution rate and the monthly salary
anarchy," but the humanization of laws and the credits. Given the past increases since the
equalization of social and economic forces by the inception of the law, the contribution rate increase
State so that justice in its rational and objectively of 0.6% applied to the corresponding monthly
secular conception may at least be approximated. salary credit does not scream of unreasonableness
Social justice means the promotion of the welfare or injustice. (Kilusang Mayo Uno v. Aquino III, G.R.
of all the people, the adoption by the Government No. 210500, April 2, 2019)
of measures calculated to insure economic stability
of all the competent elements of society, through Civil and Political Rights v. Social Rights
the maintenance of a proper economic and social The guarantees of the civil and political rights found
equilibrium in the interrelations of the members of principally in the Bill of Rights are self-executory
the community, constitutionally, through the and ready for use. One can assert those rights in a
adoption of measures legally justifiable, or extra- court of justice.
constitutionally, through the exercise of powers
underlying the existence of all governments on the Social rights, on the other hand, are not rights in
time-honored principle of salus populi est suprema the strict sense that the rights in the Bill of Rights
lex. are except to the extent that they prohibit
government from embarking in activity contrary to
Social justice, therefore, must be founded on the the ideals of social justice. These are primarily in
recognition of the necessity of interdependence the nature of claims or demands which people
among divers and diverse units of a society and of expect government to satisfy, or they are ideals
the protection that should be equally and evenly which government is expected to respect. Thus, in
extended to all groups as a combined force in our the nature of things, the satisfaction of these
social and economic life, consistent with the demands must for the most part, depend on
fundamental and paramount objective of the state legislation. (Gios-Samar, Inc. v. DOTC, G.R. No.
of promoting the health, comfort, and quiet of all 217158, March 12, 2019)
persons, and of bringing about "the greatest good
to the greatest number.” (Calalang v. Williams, B. ECONOMIC, SOCIAL, AND CULTURAL
G.R. No. 47800, Dec. 2, 1940) RIGHTS
Principal Activities Economic, social, and cultural rights include the

1. Creation of more economic opportunities and rights to adequate food, adequate housing, to
more wealth education, to health, to social security, to take part
2. Closer regulation of the acquisition, ownership, in cultural life, to water and sanitation, and to work.
use, and disposition of property in order to (United Nations Human Rights, Office of the High
achieve a more equitable distribution of wealth Commissioner)
and political power
1. LABOR
3. Creation of economic opportunities based on
freedom of initiative and self-reliance Article XIII, Section 3 elaborates on the provision
in Article II by specifying who are protected by the
The increases in SSS contributions reflected in the Constitution, what rights are guaranteed, and
assailed issuances are a valid exercise of police what positive measures the state should take in
power as they are reasonably necessary to order to enhance the welfare of labor.
observe the constitutional mandate of promoting
social justice under the Social Security Act. The
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The State, as provided for in the first paragraph, farm workers who are landless to own the land
shall “afford full protection to labor, local and they till;
overseas, organized and unorganized, and 3. A just share of other or seasonal farm workers
promote full employment and equality of in the fruits of the land
employment opportunities for all”. (PHIL CONST.,
art. XIII, §3) Holders of the right to own land:
1) Farmers: those who have a tenancy
Notes: relationship with the landowners, which
• The right to organize is given to all kinds of relationship may be present or historical.
workers both in the private and public sectors. 2) Farm workers
• The workers have a right to hold peaceful a) Regular: has the right to claim the lands
concerted activities, except the right to strike, they till
which is subject to limitation by law. e.g., b) Other: has the right to a just share in the
policemen, firemen, and public school teachers fruits of production
are prohibited from striking.
• The workers have the right to participate on The scope of the right of ownership of an agrarian
matters affecting their rights and benefits, as reform beneficiary can be made subject to
may be provided by law. limitations. Congress has the right to limit the
• Participation may be through: beneficiary’s right to sell, dispose, or even
o Collective bargaining agreements mortgage the property. It may also take measures
o Grievance machineries to prevent fragmentation resulting in uneconomical
o Voluntary modes of settling disputes or unproductive sizes.
o Conciliation proceedings mediated by the
Government Scope of Agrarian Reform
Extends not only to private agricultural lands, but
NAMA-MCCH-NFL had not registered as a labor
also to “other natural resources”, even including the
organization. Not being a legitimate labor
use and enjoyment of “communal marine and
organization, NAMA-MCCH-NFL is not entitled to
fishing resources” and “offshore fishing grounds.”
those rights granted to a legitimate labor
organization under the Labor Code, specifically: 1)
Agricultural land held by the church in trust may be
To act as the representative of its members for the
subject to land reform. The land reform law does
purpose of collective bargaining; 2) To be certified
not make a distinction between the various forms
as the exclusive representative of all the
of ownership, whether in trust or absolute title.
employees in an appropriate collective bargaining
unit for purposes of collective bargaining. (Visayas
Community Medical Center v. Erma Yballe, et al., Urban or rural poor dwellers cannot be evicted,
G.R. 196156, Jan. 5, 2014) except according to law.
2. AGRARIAN AND NATURAL RESOURCES Who Can Be Evicted: [DIC]

REFORM 1. Persons occupying Dangerous areas
2. When government Infrastructure projects with
The mandate for agrarian reform, as stated in the allocated funding are going to be implemented
first sentence of Section 4, is based on “the right of 3. When there is Court order for eviction and
farmers and regular farm workers, who are demolition
landless, to own directly or collectively the lands
Lands acquired by the NHA for resettlement
they till or, in the case of other farm workers, to
purposes or housing development are exempt from
receive a just share of the fruits thereof.”
the coverage of agrarian reform laws. Such
acquisition converts the land by operation of law
Agrarian reform must aim at:
from agricultural to residential. The NHA is not
1. Efficient production;
bound to pay disturbance compensation to any
2. A more equitable distribution of land which
tenant in possession of the purchased land
recognizes the right of farmers and regular
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(National Housing Authority v. Department of Reyes, G.R. Nos. 152797, 189315 & 200684, Sept.
Agrarian Reform Adjudication Board, et al., G.R. 18, 2019)
175200, May 4, 2010)
The findings of administrative agencies, such as
While the Constitution subjects “all agricultural the Department of Agrarian Reform, are deemed
lands” to the envisioned agrarian reform program, binding and conclusive upon the appellate courts.
it also prescribes that the implementation of the Administrative agencies possess special
program should be “subject to such priorities and knowledge and expertise on matters falling under
retention limits as Congress may prescribe, taking their specialized jurisdiction. Thus, their findings,
into account ecological, developmental or equity when supported by substantial evidence, are
considerations.” Absent priorities and retention accorded great respect and even finality, especially
limits set by the Congress, but provided that money when affirmed by the Court of Appeals. (Fil-Estate
has been appropriated for a program, the executive Properties, Inc. v. Reyes, G.R. Nos. 152797,
department can proceed with implementation 189315 & 200684, Sept. 18, 2019)
either in cooperation with landowners voluntarily
participating in the program or through judicial a. Comprehensive Agrarian Reform Law
expropriation.
The Comprehensive Agrarian Reform Law
• Priorities: refer to various factors which can (Republic Act 6657) implements the agrarian
affect the pace and scope of implementation reform provisions of the Constitution.
and which can make implementation more
manageable. Police Power and Eminent Domain
• Retention limits: pertain to the size of land an This law is an exercise of both police power and
individual owner will be allowed to keep, eminent domain. The extent that it sets retention
whether he is a cultivator or not. The general limits, it is an exercise of police power. But the
guideline is that it should be reasonable. taking of private lands for redistribution is an
exercise of the power of eminent domain
Just Compensation revolutionary in character in that it “affects all
To the extent that agrarian reform will mean private agricultural lands wherever found and of
government acquisition of land, whether voluntary whatever kind as long as they are in excess of the
or forced, for distribution to agrarian reform maximum retention limits allowed their owners”.
beneficiaries, there is need to compensate (Association of Small Landowners v Secretary of
landowners justly. The agrarian reform mandated Agrarian Reform, G.R. No. 78742, 79310, 79744,
by the Constitution is not a land confiscation 79777, July 14, 1989).
program.
Definition of Agrarian Reform
Primary Jurisdiction of the DAR RA 6657 defines "agrarian reform" as the
The Comprehensive Agrarian Reform Program redistribution of lands to farmers and regular
vests Department of Agrarian Reform with primary farmworkers who are landless to lift the economic
jurisdiction over agrarian reform matters and over status of the beneficiaries and all other
all matters involving the implementation of agrarian arrangements alternative to the physical
reform. Thus, in carrying out its mandate of redistribution of lands, such as production or profit
resolving disputes and controversies in the most sharing, labor administration and the distribution of
expeditious manner, the DAR is not constrained by shares of stock which will allow beneficiaries to
the technical rules of procedure and evidence. The receive a just share of the fruits of the lands they
Secretary has primary jurisdiction over all matters work.
involving the implementation of agrarian reform,
including the investigation of acts that he or she Does Not Include Livestock and Poultry
believes are directed toward the circumvention of The transcripts of the deliberations of the
the objectives of the Comprehensive Agrarian Constitutional Commission of 1986 on the meaning
Reform Program. (Fil-Estate Properties, Inc. v. of the word "agricultural," clearly show that it was
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never the intention of the framers of the As a general rule, agricultural lands that were
Constitution to include livestock and poultry reclassified as commercial, residential, or industrial
industry in the coverage of the constitutionally- by the local government, as approved by the
mandated agrarian reform program of the HLURB, before June 15, 1988 are excluded from
Government. (Luz Farms v. Secretary of the the CARP. A farm lot is not included in any of these
Department of Agrarian Reform, G.R. No. 86889, categories. The reclassification of Salas'
December 4, 1990) landholding into a farm lot subdivision, although
effected before Republic Act No. 6657, has not
Definition of Agricultural Land changed the nature of these agricultural lands, the
Section 4 of R.A. 6657 provides that the CARL legal relationships existing over such lands, or the
shall "cover, regardless of tenurial arrangement agricultural usability of the lands. Thus, these lots
and commodity produced, all public and private were properly subjected to compulsory coverage
agricultural lands." As to what constitutes under the CARL. (Heirs of Augusto Salas Kr. v
"agricultural land," it is referred to as "land devoted Cabungcal, G.R. No. 191545, March 29, 2017)
to agricultural activity as defined in this Act and not
classified as mineral, forest, residential, b. Other Provisions
commercial or industrial land." The deliberations of
the Constitutional Commission confirm this Section 5 recognizes the right of farmers and
limitation. "Agricultural lands" are only those lands regular farm workers to participate in the program
which are "arable and suitable agricultural lands" itself. The right of non-regular farm workers is that
and "do not include commercial, industrial and of laborers as provided for in Section 3. The State
residential lands." (Natalia Realty, Inc. v. shall also “provide support to agriculture through
Department of Agrarian Reform, G.R. No. 103302, appropriate technology and research, and
Aug. 12, 1993) adequate financial, production, marketing, and
other support services”. (PHIL CONST., art. XIII, §5)
Lands Covered
Republic Act No. 6657 or the Comprehensive Section 6 extends the principles of agrarian reform
Agrarian Reform Law generally covers all public to the disposition of other natural resources. At the
and private agricultural lands. It covers all public heart of agrarian reform is the principle “land to the
and private agricultural lands, as provided in tiller”. It is this which must be applied, mutatis
Proclamation No. 131 and Executive Order No. mutandis, to the utilization of natural resources.
229, including other lands of the public domain Thus, one may speak of “natural resources reform.”
suitable for agriculture, regardless of tenurial
arrangement and commodity produced. However, Stewardship, as mentioned in this provision,
a maximum of five (5) hectares of the landowner's means that the individual would have free use or
compact or contiguous landholdings may not be occupancy, but he would not be given a legal title
distributed to qualified beneficiaries, as it is within to the land. This is what is referred to in law as
the landowner's rights to retain this area. usufructuary.
The CARP covers the following lands: The provision further provides that the State may
1. All alienable and disposable lands of the public “resettle landless farmers and farm workers in its
domain devoted to or suitable for agriculture; own agricultural estates which shall be distributed
2. All lands of the public domain exceeding the to them in the manner provided by law”. (Phil
total area of five hectares and below to be Const., art. XIII, §6(2)). The “farmers” and “farm
retained by the landowner; workers” mentioned are not to be considered as
3. All government-owned lands that are devoted agricultural employees of the state but as resettlers
to or suitable for agriculture; and and eventual owners of the land once these estates
4. All private lands devoted to or suitable for are dissolved. The term “farm workers” also
agriculture, regardless of the agricultural includes laid-off industrial workers who might want
products raised or can be raised on these to return to the provinces to engage in farming.
lands.
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Section 7 makes specific reference to the rights of manner. No resettlement of urban or rural dwellers
small fishermen. The objects of protection are shall be undertaken without adequate consultation
“subsistence fishermen”. The right given to them is with them and the communities where they are to
preferential, but not exclusive, use of communal be relocated. (PHIL CONST., art. XIII, §10)
marine fishing resources, both inland and offshore.
The protection also extends to foreign intrusion in Eviction and demolition "in accordance with law
offshore fishing grounds. and in a just and humane manner" does not mean
that the validity or legality of the demolition or
Section 8 sees agrarian reform as a unique eviction is hinged on the existence of a
instrument for releasing locked up capital in land resettlement area designated or earmarked by the
for use in industrialization in particular and government." Rather, it means that "the person to
economic development in general. For this be evicted be accorded due process or an
purpose, government must create an atmosphere opportunity to controvert the allegation that his or
favorable to investment by, among others, her occupation or possession of the property
providing landowners with incentives to involved is unlawful or against the will of the
investment, and by placing usable capital in the landowner; that should the illegal or unlawful
hands of landowners subjected to agrarian reform. occupation be proven, the occupant be sufficiently
notified before actual eviction or demolition is done;
3. URBAN LAND REFORM AND HOUSING and there be no loss of lives, physical injuries or
unnecessary loss of or damage to properties.
The State shall, by law, and for the common good, (People v. Leachon, G.R. Nos. 108725-726, 1998)
undertake, in cooperation with the public sector, a
continuing program of urban land reform and The National Housing Authority is authorized to
housing which will make available at affordable order relocation of persons occupying the land and
cost decent housing and basic services to the demolition of the improvements thereon as part
underprivileged and homeless citizens in urban of its mandate to improve blighted areas.
centers and resettlements areas. It shall also
promote adequate employment opportunities to 4. HEALTH
such citizens. In the implementation of such
program the State shall respect the rights of small The State shall adopt an integrated and
property owners. (PHIL CONST., art. XIII, §9) comprehensive approach to health development
which shall endeavor to make essential goods,
The principal object of this constitutional mandate health and other social services available to all the
is “social housing program”. The objects of concern people at affordable cost. There shall be priority for
are not just the underprivileged in general but the the needs of the underprivileged sick, elderly,
“underprivileged and homeless.” disabled, women, and children. The State shall
endeavor to provide free medical care to paupers.
Different Kinds of Housing Programs: (PHIL CONST., art. XIII, §11)
1) Open Market Housing Program - addressed
to those of the higher income sector who can The key concepts in Section 11 are “integrated and
afford to choose the kind of houses they want comprehensive” and “affordable”. Integration
2) Economic Market Housing Program - connotes a unified health delivery system, a
addresses the lower income bracket who are combination of public and private sector while
in search of affordable housing comprehensiveness includes health promotion,
3) Social Housing Program - addresses those disease prevention, education, and planning.
who cannot afford even low-cost housing and Although the right to health should be enjoyed by
needs some sort of subsidy all, Sections 11 to 13 express a clear bias for the
underprivileged.
Urban or rural poor dwellers shall not be evicted
nor their dwellings demolished, except in 5. WOMEN
accordance with law and in a just and humane
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The State shall protect working women by documents or other evidence is necessary or
providing safe and healthful working conditions, convenient to determine the truth in any CHR
taking into account their maternal functions, and investigation.
such facilities and opportunities that will enhance 10. Request assistance from any department,
their welfare and enable them to realize their full bureau, office, or agency in the performance of
potential in the service of the nation (PHIL CONST., its functions.
art. XIII, §14). 11. Appoint its officers and employers in
accordance with law.
6. PEOPLE’S ORGANIZATION (PHIL CONST., art. XIII, §11)
Role and Rights of People’s Organizations Notes:

Section 15 embodies one of those elements of • Violations may be committed by public officers
direct democracy – a recognition of the direct role or by civilians or rebels.
which people have played and will play in setting • CHR cannot investigate violations of social
the directions the nation will take. It defines rights.
people’s organizations as – bona fide associations • CHR has NO adjudicatory powers over cases
of citizens with demonstrated capacity to promote involving human rights violations.
the public interest and with identifiable leadership, • They cannot investigate cases where no rights
membership, and structure. “People” here refers are violated. e.g., There is no right to occupy
not just to the electorate but to all the people. government land (squat). Therefore, eviction
therefrom is NOT a human rights violation.
C. COMMISSION ON HUMAN RIGHTS • The CHR can initiate court proceedings on
behalf of victims of human rights violations.
1. POWERS • The CHR can recommend the prosecution of
human rights violators, but it cannot itself
[IAC-PE2RM-IRA]
prosecute these cases.
1. Investigate all forms of human rights violations
• The CHR cannot issue restraining orders or
involving civil or political rights and
injunctions against alleged human rights
recommend.
violators. These must be obtained from the
2. Adopt operational guidelines and rules of
regular courts.
procedure.
3. Cite for Contempt for violations of its rules, in
2. COMPOSITION AND QUALIFICATION OF
accordance with the Rules of Court.
MEMBERS
4. Provide appropriate legal measures for the
protection of the human rights of all persons, The Commission is composed of a Chairman and
within the Philippines, as well as Filipinos four (4) members who must be natural born
residing abroad, and provide for preventive citizens of the Philippines and a majority of
measures and legal aid services to the whom must be members of the Bar. The term of
underprivileged whose human rights have been
office, other qualifications, and disabilities shall be
violated or need protection.
provided for by law. (PHIL CONST., art. XIII, §17[2])
5. Exercise visitorial powers over jails, prisons
and other detention facilities.
The appointment of the CHR members is not
6. Establish continuing programs for research,
subject to CA confirmation; and the CHR is not of
education and information in order to enhance
the same level as the COMELEC, CSC, or COA.
respect for the primacy of human rights.
7. Recommend to congress effective measures to
promote human rights and to provide
compensation to victims of human rights
violations or their families.
8. Monitor compliance by the government with
international treaty obligations on human rights.
9. Grant Immunity from prosecution to any person
whose testimony or whose possession of
Page 494 of 568
EDUCATION, SCIENCE,
TECHNOLOGY, ARTS,
CULTURE AND SPORTS
Political Law
ATENEO CENTRAL
XVI. EDUCATION, SCIENCE, RIGHT TO EDUCATION

TECHNOLOGY, ARTS, CULTURE AND
SPORTS The state shall protect and promote the right of all
citizens to quality education at all levels of
education and shall take appropriate steps to
make such education accessible. (PHIL CONST.,
XVI. EDUCATION, SCIENCE, TECHNOLOGY, art. XIV, § 1)
ARTS, CULTURE AND SPORTS
The State Must Promote and Protect:
A. ACADEMIC FREEDOM 1. Quality education – high academic standards
2. Affordable education – financially within the
reach not just of the wealthy
3. Education that is relevant to the needs of
society
Right to Education NOT Absolute

Limitations on right to education:
1. Subject to fair, reasonable, and equitable
admission and academic requirements (DECS
v. San Diego, G. R. No. 89572, Dec. 21, 1989)
2. Subject to right of schools to dismiss, after due
process, for disciplinary reasons (Ateneo de
Manila University v. Court of Appeals, G.R. No.
L-56180, Oct. 16, 1986)
Note: Minimum standards of procedural due

process must be followed.
Minimum Standards of Procedural Due

Process:
1. Must be informed in writing of the nature and
cause of the accusation against him
2. Right to answer charges against him, with the
assistance of counsel, if desired
3. Informed of the evidence against him
4. Right to adduce evidence in his behalf
5. Evidence must be duly considered by the
investigating committee or official designated by
the school to hear and decide the case (Ateneo
de Manila University v. Capulong, GR No.
99327, May 27, 1993)
Extent of Basic Education

The Constitution only provided a minimum
standard: that elementary education be
compulsory. The Constitution did not preclude
Congress from making kindergarten and
secondary education mandatory. (Council of
Teachers v. Secretary of Education, G.R. No.
216930, Oct. 9, 2018)
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Duty of the State Relative to Right to Education thinking, broaden scientific and technological
The State shall: knowledge, and promote vocational efficiency.
1. Establish, maintain, and support a complete, 3. At the option expressed in writing by the parents
adequate, and integrated system of education or guardians, religion shall be allowed to be
relevant to the needs of the people and society taught to their children or wards in public
elementary and high schools within the regular
2. Establish and maintain, a system of free public
class hours by instructors designated or
education in the elementary and high school approved by the religious authorities of the
levels. Without limiting the natural rights of religion to which the children or wards belong,
parents to rear their children, elementary without additional cost to the government. (PHIL
education is compulsory for all children of CONST., art XIV, § 3)
school age
3. Establish and maintain a system of scholarship Duty and Right to Discipline
grants, student loan programs, subsidies, and Private schools have the right to establish
other incentives which shall be available to reasonable rules and regulations for the admission,
deserving students in both public and private discipline and promotion of students. To freely
schools, especially to the under-privileged choose their field of study and to continue their
4. Encourage non-formal, informal, and course up to graduation is a right subject to the
indigenous learning systems, as well as self- established academic and disciplinary standards
learning, independent, and out-of- school study laid down by the academic institution. (Miriam
programs particularly those that respond to College v. CA, G.R. No. 127930, Dec. 15, 2000)
community needs
5. Provide adult citizens, the disabled, and out-of- Power of the School to Investigate
school youth with training in civics, vocational It is adjunct of its power to suspend or expel which
efficiency, and other skills is a necessary corollary to the enforcement of rules
(PHIL CONST., art XIV, § 2) and regulations and the maintenance of a safe and
orderly educational environment. That power is an
Integrated System of Education inherent part of academic freedom. (Miriam
This entails free movement from one school to College v. CA, G.R. No. 127930, Dec. 15, 2000)
another, public to private and back. There is the
same program. Disciplinary Actions Done Outside of School
School may only take disciplinary actions for
Compulsory elementary education actions done outside of school:
It is compulsory but not to the extent of limiting the 1. In respect to violations of school policies in
natural rights of parents to rear their children. connection with school sponsored activities
State’s interest in universal education is not totally 2. Where the misconduct affects the student’s
free from a balancing process when it impinges on status or the reputation of the school (Angeles
fundamental rights (Wisconsin v Yoder, 406 U.S. v. Sison, G.R. No. L-45551, Feb. 16,1982)
205, May 15, 1972). There is only moral
compulsion only, NOT legal compulsion. Thus, it Religious Instruction
cannot be subject to penal sanction. Religion may be taught in public elementary and
high schools subject to the following requisites:
Duty of Institutions 1. Express written option by parents and
1. All educational institutions shall include the guardians
study of the constitution. 2. Taught within regular class hours
2. They shall inculcate patriotism and nationalism, 3. Instructors are designated and approved by the
foster love of humanity, respect for human proper religious authorities
rights, appreciation of the role of national 4. Without additional cost to the government (PHIL
heroes in the historical development of the CONST., art XIV, § 3[3])
country, teach the rights and duties of
citizenship, strengthen ethical and spiritual
values, develop moral character and personal
discipline, encourage critical and creative
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State’s Power to Regulate Educational 2. No group of aliens shall comprise more than
Institution 1/3 of the enrollment in any school.
The State recognizes the complementary roles of • Exception – the limitations shall not apply
public and private institutions in the educational to:
system and shall exercise reasonable supervision 1. Schools established for foreign
and regulation of all educational institutions. (PHIL diplomatic personnel and their
CONST., art XIV, § 4, ¶ 1) dependents
2. Unless otherwise provided by law, for
Limitations on the Power to Regulate: other foreign temporary residents
1. Subject to requirement of reasonableness (PHIL CONST, art XIV, § 4, ¶ 2)
2. Regulation and supervision of educational
institutions only, NOT deprivation of rights Tax Exemption
All revenues and assets of non-stock, non-profit
Ownership and Control of Educational educational institutions used actually, directly, and
Institutions exclusively for educational purposes shall be
Educational institutions, other than those exempt from taxes and duties.
established by religious groups and mission
boards, shall be owned solely by citizens of the Upon the dissolution or cessation of the corporate
Philippines or corporations or associations at least existence of such institutions, their assets shall be
sixty per centum of the capital of which is owned by disposed of in the manner provided by law.
such citizens. The Congress may, however,
require increased Filipino equity participation in all Proprietary educational institutions, including those
educational institutions. cooperatively owned, may likewise be entitled to
such exemptions, subject to the limitations
The control and administration of educational provided by law, including restrictions on dividends
institutions shall be vested in citizens of the and provisions for reinvestment.
Philippines. (PHIL CONST., art XIV, § 4, ¶ 2) (PHIL CONST., art XIV, § 4, ¶ 3)
What is Filipinized? Two Kinds of Educational Institutions:

1. Ownership 1. Non-stock, non-profit educational institutions
2. Control and administration 2. Proprietary educational institutions
3. Student population
Revenue
Ownership Amounts earned by a person or entity from the
Educational institutions shall be owned solely by conduct of business operation
citizens of the Philippines or corporations or
associations at least sixty per cent of the capital of Assets
which is owned by such citizens. Tangible and intangible properties owned by a
• Exception: Institutions established by person or entity (i.e. lands, buildings, and
religious groups and mission boards. (PHIL improvements)
CONST., art XIV, § 4, ¶ 2)
Requisites for Tax Exemption
Control and Administration 1. The institution is a non-stock, non-profit
The control and administration of educational educational institutions.
institutions shall be vested in citizens of the 2. The revenues are used actually, directly, and
Philippines. (PHIL CONST., art XIV, § 4, ¶ 2) exclusively for educational purposes.
Limitations on Student Population NOTE: Revenues need NOT be sourced from

1. No educational institution shall be established educational activities. (CIR v. DLSU, G.R. No.
exclusively for aliens. 196596, Nov. 9, 2016).
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In comparison: The tax exemption granted to 3. Freedom from institutional censorship or

charitable institutions, churches, parsonages or discipline, when faculty members speak or
convents, mosques, and non-profit cemeteries write in their capacity as citizen.
applies ONLY to the assets actually, directly, and
exclusively used for religious, charitable, or Institutional Academic Freedom
educational purposes. (PHIL CONST., art VI, § 28, ¶ From the standpoint of the institution: to provide
3) that atmosphere which is most conducive to
speculation, experimentation, and creation. The
Proprietary education institutions are also entitled four essential freedoms of a university are:
to the same exemptions, but subject to limitations 1. Who may teach
imposed by law. 2. What may be taught
3. How it shall teach
Development of Policies and Programs 4. Who may be admitted to study
The State shall take into account regional and (Garcia v. Faculty Admission Committee, G.R.
sectoral needs and conditions and shall encourage No. L-40779, Nov. 28, 1975; citing J.
local planning in the development of educational Frankfurter, concurring in Sweezy v. New
policies and programs. (PHIL CONST., art XIV, § 5, Hampshire, 354 US 234, June 17, 1957)
¶ 1)
Right to Decide for Itself
A. ACADEMIC FREEDOM Institutional academic freedom includes the right of
the school or college to decide for itself, its aims
Academic freedom shall be enjoyed in all and objectives, and how best to attain them free
institutions of higher learning. (PHIL CONST., art from outside coercion or interference save possibly
XIV, § 5, ¶ 2) when the overriding public interest calls for some
restraint.
Whose Academic Freedom?
1. Institutions Right to Discipline Students
2. Faculty The right to discipline the student likewise finds
3. Students basis in the freedom "what to teach." Indeed, while
it is categorically stated under the Education Act of
Note: Freedom of the institution and freedom of the 1982 that students have a right "to freely choose
faculty are different. their field of study, subject to existing curricula and
to continue their course therein up to graduation,"
Freedom of the Faculty such right is subject to the established academic
It is the freedom of professionally qualified persons and disciplinary standards laid down by the
to inquire, discover, publish and teach the truth as academic institution. (DLSU Inc., v. CA, G.R. No.
they see it in the field of their competence, subject 127980, Dec. 19, 2007)
to control of the methods. (Garcia v. Faculty
Admission Committee, G.R. No. L-40779, Nov. 28, Freedom to Determine Who May be Admitted to
1975) Study Includes:
1. Right to determine who may be granted
Faculty Members Have: degrees
1. Full freedom in research and in the publication 2. Right to determine who are entitled to the grant
of the results, subject to the adequate of honors (University of San Carlos v. CA, G.R.
performance of their other academic duties. No. 79237, Oct. 18, 1988)
2. Freedom in the classroom in discussing their
subjects, but they should be careful not to Institutions cannot be compelled by mandamus to
introduce into their teaching controversial admit students because there is no duty to admit.
matter which has no relation to their subjects. At most, students can lay claim to a privilege, NOT
a right. (Garcia v. Faculty Admission Committee,
G.R. No. L-40779, Nov. 28, 1975)
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ATENEO CENTRAL
Right to Select Profession or Course of Study

Right to Education Subject to Academic Every citizen has a right to select a profession or
Freedom course of study, subject to fair, reasonable, and
Right to education is subject to broad academic equitable admission and academic requirements.
freedom to impose fair, reasonable, and equitable (PHIL CONST., art XIV, § 5, ¶ 3)
admission and academic requirements. Right to
receive education is not a right to be admitted to Rights of Teachers and Other Personnel
institutions. (Pimentel v. LEB, G.R. No. 230642, The State shall enhance the right of teachers to
July 2, 2019) professional advancement. Non-teaching
academic and non-academic personnel shall enjoy
General Rule on the State’s Power the protection of the State. (PHIL CONST., art. XIV,
The state’s power over educational institutions is § 5, ¶ 4)
only supervisory and regulatory. The state can only
impose minimum regulations. (Pimentel v. LEB, Non-teaching and non-academic personnel also
G.R. No. 230642, July 2, 2019) enjoy protection. They are essential to the success
of the education system.
• Exceptions:
1. Marked arbitrariness or grave abuse of
Highest Budgetary Priority to Education
discretion on the part of the institution
The State shall assign the highest budgetary
2. Overriding public welfare (Pimentel v.
priority to education and ensure that teaching will
LEB, G.R. No. 230642, July 2, 2019)
attract and retain its rightful share of the best
available talents through adequate remuneration
A state-imposed pass or fail exam that dictates
and other means of job satisfaction and fulfillment.
upon schools who are to be admitted exceeds
(PHIL CONST., art XIV, § 5, ¶ 5)
minimum standards. It goes beyond mere
supervision and regulation. It violates academic
This provision does not mean that all must yield to
freedom to determine who may be admitted.
giving highest budgetary priority to education. This
(Pimentel v. LEB, G.R. No. 230642, July 2, 2019)
cannot deprive the Congress from responding to
national interest and other state policies or
Rights of Students
objectives. For instance, allocation of larger share
Students have the right to enjoy in school the
to debt service than education is NOT
guarantees of the Bill of Rights.
unconstitutional. (Guingona v. Carague, G.R. No.
• Limitations: 9457, Apr. 22, 1991)
1. Police power of the State
2. Social interest of the community NATIONAL LANGUAGE
Constitutional Right of Speech and Assembly The national language of the Philippines is Filipino.
Academic freedom cannot be used to discriminate As it evolves, it shall be further developed and
against students exercising constitutional right of enriched on the basis of existing Philippine and
speech and assembly. However, it is NOT other languages.
protected when speech materially disrupts
classwork or causes disorder or invasion of the Subject to provisions of law and as the Congress
right. (Non v. Dames, G.R. No. 89317, May 20, may deem appropriate, the Government shall take
1990) steps to initiate and sustain the use of Filipino as a
medium of official communication and as language
of instruction in the educational system. (PHIL
CONST., art XIV, § 6)
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ATENEO CENTRAL
Official Language Incentives for Participation

For purposes of communication and instruction, The Congress may provide for incentives, including
the official languages of the Philippines are Filipino tax deductions, to encourage private participation
and, until otherwise provided by law, English. in programs of basic and applied scientific
research. Scholarships, grants-in-aid, or other
The regional languages are the auxiliary official forms of incentives shall be provided to deserving
languages in the regions and shall serve as science students, researchers, scientists,
auxiliary media of instruction therein. inventors, technologists, and specially gifted
citizens. (PHIL CONST., art XIV, § 11)
Spanish and Arabic shall be promoted on a
voluntary and optional basis. (PHIL CONST., art XIV, Utilization of Science and Technology
§ 7) The State shall regulate the transfer and promote
the adaptation of technology from all sources for
National Language the national benefit. It shall encourage the widest
Symbolic of the Filipino nation. participation of private groups, local governments,
and community-based organizations in the
Official Language generation and utilization of science and
Prescribed medium of communication for all official technology. (PHIL CONST., art. XIV, § 12)
acts of the government.
Rights of Scientists, Artists, etc.
Language of the Constitution The State shall protect and secure the exclusive
This Constitution shall be promulgated in Filipino rights of scientists, inventors, artists, and other
and English and shall be translated into major gifted citizens to their intellectual property and
regional languages, Arabic, and Spanish. (PHIL creations, particularly when beneficial to the
CONST., art XIV, § 8) people, for such period as may be provided by law.
(PHIL CONST., art XIV, § 13)
NOTE: The provision is silent on which language
should prevail in case of conflict. ARTS AND CULTURE
National Language Commission The State shall foster the preservation, enrichment,
The Congress shall establish a national language and dynamic evolution of a Filipino national culture
commission composed of representatives of based on the principle of unity in diversity in a
various regions and disciplines which shall climate of free artistic and intellectual expression.
undertake, coordinate, and promote researches for (PHIL CONST., art XIV, § 14)
the development, propagation, and preservation of
Filipino and other languages. (PHIL CONST., art XIV, State Patronage on Arts and Culture
§ 9) Arts and letters shall enjoy the patronage of the
State. The State shall conserve, promote, and
SCIENCE AND TECHNOLOGY popularize the nation’s historical and cultural
heritage and resources, as well as artistic
Science and technology are essential for national creations. (PHIL CONST., art XIV, § 15)
development and progress. The State shall give
priority to research and development, invention, Historical Sites
innovation, and their utilization; and to science and This provision on the conservation of historical
technology education, training, and services. It sites is not self-executory (Knights of Rizal v. DMCI
shall support indigenous, appropriate, and self- Homes, G.R. No. 213948, Apr. 18, 2007)
reliant scientific and technological capabilities, and
their application to the country’s productive The Court held that there was no violation of the
systems and national life. (PHIL CONST., art XIV, § Constitution when DMIC was allowed to construct
10) a condominium at the back of the Rizal’s
monument. No law prohibits the construction. City
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ATENEO CENTRAL
Ordinance 8119 on historic sites is a mere “guide” NOTE: Provisions on science and technology, arts
but does not prohibit construction of a building and culture, and sports are expression of national
outside a historic side or facility. R.A. 10066 policy and concern.
protects the physical integrity of heritage property
if there is a danger of destruction or significant ————- end of topic ————-
alteration from its original state. (Knights of Rizal v.
DMCI Homes, G.R. No. 213948, Apr. 18, 2017)
Historic Wealth
All the country’s artistic and historic wealth
constitutes the cultural treasure of the nation and
shall be under the protection of the State which
may regulate its disposition. (PHIL CONST., art XIV,
§ 16)
Protection of Indigenous Cultural Communities

The State shall recognize, respect, and protect the
rights of indigenous cultural communities to
preserve and develop their cultures, traditions, and
institutions. It shall consider these rights in the
formulation of national plans and policies. (PHIL
CONST., art XIV, § 17)
Opportunities and Access to Arts and Culture

The State shall ensure equal access to cultural
opportunities through the educational system,
public or private cultural entities, scholarships,
grants and other incentives, and community
cultural centers, and other public venues.
The State shall encourage and support researches

and studies on the arts and culture. (PHIL CONST.,
art XIV, § 18)
SPORTS
The State shall promote physical education and

encourage sports programs, league competitions,
and amateur sports, including training for
international competitions, to foster self-discipline,
teamwork, and excellence for the development of
a healthy and alert citizenry.
All educational institutions shall undertake regular

sports activities throughout the country in
cooperation with athletic clubs and other sectors.
(PHIL CONST., art XIV, § 19)
Page 502 of 568

PUBLIC
INTERNATIONAL
LAW
Political Law
ATENEO CENTRAL
XVII. PUBLIC INTERNATIONAL LAW 1. Extradition

a. Fundamental principles
TOPIC OUTLINE UNDER THE SYLLABUS: b. Procedure
c. Distinguished from deportation
XVII. PUBLIC INTERNATIONAL LAW
L. INTERNATIONAL HUMAN RIGHTS LAW
A. CONCEPTS 1. Universal Declaration of Human Rights
2. International Covenant on Civil and
Political Rights
B. RELATIONSHIP BETWEEN
3. International Covenant on Economic,
INTERNATIONAL AND PHILIPPINES
Social and Cultural Rights
DOMESTIC LAW
M. INTERNATIONAL HUMANITARIAN LAW

C. SOURCES OF INTERNATIONAL LAW
1. Categories of armed conflicts
1. Article 38. International Court of Justice
a. International armed conflicts
Statute
b. Internal or non- international armed
2. Effect of United Nations Declarations,
conflict
Security Council Resolutions, General
c. War on national liberation
Assembly Resolutions
2. Core international obligations of States
3. Effect of actions of organs of
3. Principles of international humanitarian
international organizations created by
law
treaty
a. Treatment of civilians
b. Prisoners of war
D. SUBJECTS OF INTERNATIONAL LAW
4. Law on neutrality
1. States
2. International organizations
3. Individuals N. LAW OF THE SEA
4. Others 1. Baselines
2. Archipelagic States
a. Straight archipelagic baselines
E. JURISDICTION OF STATES
b. Archipelagic waters
1. Basis of jurisdiction
c. Archipelagic sea lanespassage
a. Territoriality principle
d. Regime of islands
b. Nationality principle and
3. Internal waters
statelessness
4. Territorial sea
c. Protective principle
5. Contiguous zone
d. Universality principle
6. Exclusive economic zone
e. Passive personality principle
7. Continental shelf
2. Exemption from jurisdiction
8. International Tribunal for the Law of the
a. Act of State doctrine
Sea
b. International organizations andtheir
officers
O. INTERNATIONAL ENVIRONMENTAL LAW
1. Principle 21 of Stockholm Declaration
F. DIPLOMATIC AND CONSULAR LAW
2. Precautionary principle
G. NATIONALITY AND STATELESSNESS
H. GENERAL PRINCIPLES OF TREATY LAW
I. DOCTRINE OF STATE RESPONSIBILITY
J. REFUGEES
K. TREATMENT OF ALIENS
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PRELIMINARIES
What is the traditional definition of public What is hard law?

international law? This refers to binding international legal norms or
International law is a body of rules and principles those which have coercive character.
of action which are binding upon civilized states in (SARMIENTO)
their relations to one another (Bernas, Public
International Law, 2009). What is soft law?
It is used to describe international instruments that
What is the modern definition of public their makers recognize are not treaties, but have
international law? as their purpose the promotion of ‘norms’ which
International law as the law which deals with the are believed to be goods and therefore should
conduct of states and of internationalorganizations have general or universal application.
and with their relations inter se, as well as some of
their reasons with persons, whether natural or What is international comity (comitas
juridical. (Restatement (Third) of Foreign Relations gentium)?
Law of the United States).
Refers to the rules of politeness, convenience, and
What is private international law or conflict of goodwill observed by States in their mutual
laws? intercourse without being legally bound by them.
Private international law is really domestic law
which deals with cases where foreign law intrudes A. CONCEPTS
in the domestic sphere where there are questions
of the applicability of foreign law or the role of 1. WHAT ARE OBLIGATIONS ERGA
foreign courts. (Bernas, Public International Law, OMNES?
2009).
The term erga omnes (literal meaning: in
relation to everyone) in international law has
What is the difference between public and
been used asa legal term describing obligations
private international law?
owed by Statestowards the community of states
PUBLIC PRIVATE as a whole (Romulo v. Vinuya, G.R. 162230,
2010).
Governs the relation Deals with private
of sovereign States individuals.
By their very nature, these are the obligations of
and other entities with aState towards the international community as
an international a whole. Such obligations derive, for example,
personality. in contemporary international law, from the
They are generally It is really municipal outlawing of acts of aggression, and of
accepted principles of or national in genocide, as also from the principles and rules
public international character because concerning the basic rights of the human
law, giving the subject each State has its person, including protection from slavery and
an international own conflict rules. racial discrimination. Some of thecorresponding
nature. rights of protection have entered into the body
of general international law others are conferred
Sanctions may be in Relief prayed for may by international instruments of a universal or
the form of peaceful be obtained from quasi-universal character. (Vinuya v. Romulo,
remedies (i.e., municipal tribunals. G.R. 162230, April 28, 2010).
diplomatic negotiation,
mediation, What are the two types of obligations
conciliation, ergaomnes?
arbitration, diplomatic
efforts, settlement by the Some authorities classify erga omnes
ICJ) obligationsinto either:
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1. erga omnes omnium; or norm of general international law having the

2. erga omnes partes [see IDI, Resolution on same character. (Vienna Convention on the Law
Obligations erga omnes in International of Treaties, art. 53)
Law(2005), art. 1
Note, however, that the definition quoted here
What is the difference between erga omnes (referring to Article 53 of the Vienna Convention
omnium and erga omnes partes? on the Law of Treaties) is based on the legal
ERGA OMNES ERGA OMNES effect ofthe rule and not on its intrinsic nature. It
OMNIUM PARTES seems tosay that the rule is jus cogens because
no derogation from it is permitted. However,
Basis
General International Multilateral treaty what jus cogens really means is that no
Law derogation is allowed because it is jus
To whom owed cogens. It is the intrinsic nature of the rule that
The international All the other States disallows derogation. (Bernas, Public
community, in any parties to the same International Law, 2009) (emphasis supplied).
given case treaty in any given
What are Elements of Jus Cogens? (ADS)
case
(Vienna Convention on the Law of Treaties,
Interest
art.53)
The common values The common values
of the international of States parties and 1. A norm Accepted and recognized by the
community and their concern for international community of states as a
concern for compliance whole.
compliance 2. No Derogation is permitted.
3. It can only be modified by a
Subsequentnorm having the same
2. WHAT IS JUS COGENS? character.
In international law, the term "jus cogens" (literal What is the status of a later treaty which
meaning: compelling law) refers to norms is contrary to jus cogens?
accepted and recognized by the international
community of States as a whole, that A treaty is void, if at the time of its conclusion, it
command perempotory authority, superseding conflicts with a peremptory norm of general
conflicting treaties and custom. Jus cogens international law or jus cogens. (Vienna
norms are considered peremptory in the sense Convention on the Law of Treaties, art. 53)
that they are mandatory, do not admit
derogation, and can be modified only by general If a new peremptory norm of general
international norms of equivalent authority. international law emerges, any existing treaty
(Vinuya v. Romulo, G.R. 162230, April 28, which is in conflictwith that norm becomes void
2010) and terminates. (Vienna Convention on the Law
of Treaties, art. 64). (Jus cogens > Treaty)
“The term ‘jus cogens’ means the ‘compelling
law.’” Corollary, “a jus cogens norm holds the What is the difference between jus cogens
highest hierarchical position among all other and erga omnes?
customary norms and principles.” As a result, jus
cogens norms are deemed “peremptoryand non- Jus cogens is different from erga omnes. (One
derogable.” (Bayan Muna v. Romulo, is not the subset of the other). Jus cogens
G.R. No. 159618, February 1, 2011). pertains to the non-derogability of a norm and
the validity of rules and acts that conflict with it.
A peremptory norm of general international law Erga omnes pertains to obligations owed to the
is a norm accepted and recognized by the
humanity as a whole.
international community of States as a whole as
anorm from which no derogation is permitted and
which can be modified only by a subsequent
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3. WHAT IS EX AEQUO ET BONO?
Literally, justice and fairness. The ancient EQUITY EX AEQUO ET

concept is based upon the idea of ‘fundamental BONO
fairness’ as a guideline principle in arbitration
and other dispute settlement processes. (the When accepted, is an Pertains to the power
auspices of the Max Planck Institute for
instrument whereby of the International
Comparative Public Law and International Law)
conventional or Court of Justice to
Under the ICJ Statute, the International Court of customary law may be decide a case
Justice is given the authority to decide a case ex supplemented or equitably outside the
aequo et bono (according to what is fair and modified in order to rules of law at the
good)despite the existence of law provided that achieve justice. instance of the parties
the parties expressly agree. (ICJ Statute, art. Procedurally, it means to the case.
38(2) a mandate given to a
judge to excersice
What is equity? discretion in order to
Although not an independent source of achieve a determination
International Law, when accepted, is an that is more equitable
instrument whereby conventional or customary and fair
law may be supplemented or modified in order to
achieve justice. It has both a procedural and
B. RELATIONSHIP BETWEEN
substantive aspect. Procedurally, it means a INTERNATIONAL AND PHILIPPINES
mandate given toa judge to exercise discretion in DOMESTIC LAW
order to achieve a determination that is more
What is the difference between international
equitable and fair. (Bernas, Public International
law and domestic law?
Law, 2009)
INTERNATIONAL DOMESTIC LAW
What are the different types of equity? LAW
1. Equity intra legem (within the law)
Scope
– that is, the law is adapted to the
The conduct of States Apply to a single
facts ofthe case;
and international country or nation,
2. Equity praeter legem (beyond the
organizations, their within a determined
law)
relations with each territory and its
– that is, it is used to fill the gaps
other and, in certain inhabitants.
withinthe law; and
circumstances, their
3. Equity contra legem (against the law)
relations with persons,
– that is, a refusal to apply the law
natural or juridical.
whichis seen as unjust. (Bernas,
[American Third
Public International Law, 2009)
Restatement]
What is the difference between equity and How Made
ex aequo et bono? Through consent, Issued by a political
adopted by States asa superior for
The power to apply principles of equity in no way common rule of observance.
restricts the power of the ICJ to decide cases action.
based on Ex Aequo et Bono should the parties Relations Regulated
soagree that the controversy is to be decided on Regulates relations of Regulates relations of
the said principle States and other individuals among
international persons. themselves or with
(Bernas, Public their own States.
International Law, (Bernas, Public
2009) International Law, 2009)
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Sources prevail. (Bernas, Public International Law,

Derived principally Consists mainly of 2009)
from treaties, enactments from the
international custom lawmaking authority What is the difference between monism and
and general principles of each State. dualism?
of law. (ICJ Statute, MONISM DUALISM
art.38(1)) Monists Domestic and international
Settlement of Disputes have law are INDEPENDENT of
By means of State-to- By means of local a unitary each other.
State transactions administrative and concept of MUNICIPA INTERNATIONA
L LAW L LAW
judicial processes. law
and see all Regulate Regulates
Responsibility
laws (both relations relations
Collective Breach of domestic
internation of between
responsibility because law entails individual al individual states
it attaches directly to responsibility and s under a
the State and not to municipal state
its nationals. law) as an A Derived from
integral product such sources
part of of local as
What are the theoretical approaches to the SAME custom international
therelationship between international law SYSTEM. legislatio customs,
andnational law? If n conventions,
conflict or general
1. Monism – there is no substantial exists principles of
distinction between international law between law
andmunicipal law. Under this theory, internation Law of International
international law and domestic law al the law is a law
belong to only one system of law. law and sovereig between
municipal n over sovereign
a. Theory 1: Municipal law
subsumes and is superior to law, the states
international law. internation individual
b. Theory 2: International law is al
superior to domestic law. law must
2. Dualism – International law and national prevail.
law are essentially different from each
other as to source (i.e., municipal law is Under dualism, no conflict can ever arise
a product of local custom or legislation; between international and municipal law,
whereas sources of international law are because the two systems are mutually
treaties and custom grown among exclusive. If International lawis applied within a
states.); as regards the relations they state, it is only because it has been expressly
regulate (i.e., municipal law regulated incorporated by municipal law. ThePhilippines is
relations between individual persons a dualist state
under the state; whereas international
lawregulates relations between states); What are the theories as the manner of
and lastly, as to substance (i.e. adopting international law as part of the law of
municipal law is a law of the sovereign the State?
over individuals whereas international 1. Doctrine of Incorporation - A State is,
law is a law between sovereign states). by reason of its membership in the
(Bernas, Public International Law, family of nations, bound by the
2009). generally accepted principles of
For the dualists, when international law and international law, the same being
municipal law conflict, municipal law must considered as part of its own laws.
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2. Doctrine of Transformation – This is How to resolve conflict between international

based on a strict dualist approach. and municipal law?
Since the two systems are distinct and A. International Rule or Conflict
operate separately, for international law Resolvedby International Tribunal –
to becomepart of domestic law it must Before an international tribunal, a state
be expressly and specifically may not plead its own law as an excuse
transformed into domestic law through for failure to comply with international
the appropriate constitutional law. A State, which has contracted valid
machinery such as an act of Congress international obligations, must modify
of Parliament. (Bernas, Public its laws to ensure fulfillment of its
International Law, 2009) obligations under the treaty, unless the
constitutional violation is manifest and
concerns a rule of internal law of
What is the difference between doctrine of fundamental importance. National laws
incorporation and doctrine of transformation? must yield to the laws of nations
DOCTRINE OF DOCTRINE OF
because international law provides the
INCORPORATION TRANSFORMATION standards by which legality of State
conduct is to be determined.
The rules of The generally
international law form accepted rules of B. Municipal Rule of Conflict Resolved
part of the law of the international law are by Local Court – When the conflict
land, and no further not per se binding comes before a domestic court,
legislative action is upon the State but domestic courts are bound to apply the
needed to make such must first be domestic law. Rules of international law
rules applicable in the embodied in are given a standing equal, not
domestic sphere. legislation enacted by superior, to national legislative
the lawmaking body enactments. Should a conflict arise
Incorporation is and so transformed between an international agreement
recognized by the into municipal law. and the Constitution, the treaty would
Constitution. (e.g. Only when so not be valid and operative as domestic
customs and general transformed will they law. It does not, however, lose its
principles of become binding upon character as international law. (Bernas,
international law) the State as part of its Public International Law, 2009).
(PHIL. CONST., art. 2, municipal law. (e.g.,
§2). treaty obligations) How to resolve conflict between a state’s
constitution and international law?
What are the types of transformation theories? When the constitutional violation is manifest
and concerns a rule of internal law of
1. Hard Transformation Theory – Only
fundamental importance, treaty can be ignored
legislation can transform International
domestically but only at the risk of international
Law into domestic law. Courts may apply
repercussions before an international court.
International Law only when authorized
Should a conflict arise between an international
bylegislation.
agreement and the Constitution, the treaty
2. Soft Transformation Theory – Either a
would not be valid and operative as domestic
judicial or legislative act of a state can
law. The Constitution, in Article VIII, Section
transform International Law into
5(2)(a) explicitly recognizes the power of the
domestic law.
Supreme Court to declare a treaty
unconstitutional. (Bernas, Public International
Law, 2009).
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How to resolve conflict between treaty and Law: International custom, as evidence
domestic legislation? of ageneral practice accepted as law;
When the two instruments relate to the same 3. General Principles of Law: General
subject, try to give effect to both; if inconsistent, principles of law recognized by civilized
the later in date will control, provided that the nations. [ICJ Statute, art.38(1)(a)-(c)]
treaty stipulation is self-executing. But this rule This is not an independent source of
only applies in the domestic sphere. A treaty, international law.
even if contrary to a later statute, is binding in
international law. What are the subsidiary sources? (JT)
1. Judicial decisions; and
What is Fitzmaurice Compromise? 2. Teachings of the most highly qualified
Assumes that since the two systems, publicists of the various nations. [ICJ
internationaland national law, do not operate in Statute, art. 38(1)(d)]
common field,they can never come into conflict.
Each one of them is supreme in its own While the primary sources create law, the
domain, thereby any apparent conflict in the subsidiary sources constitute evidence of what
domestic field is automatically settled by the the law is.
domestic conflict rules of the forum and any
conflict in the international field would be There is no stare decisis: Case law is
resolved by International Law. considered only “subsidiary means.” Even the
decisions of theICJ itself do not create binding
C. SOURCES OF OBLIGATIONS
precedent since itonly binds the parties and in
INTERNATIONAL LAW respect of the particular case. (ICJ Statute, art.
59).
1. ARTICLE 38. INTERNATIONAL COURT
OF JUSTICE STATUTE
Teachings of publicists may include the work of
What are the sources of international law organizations such as the International Law
according to Article 38(1) of the ICJ Statute? Commission (a UN body), the Institut de Droit
1. international conventions, whether International, the International Law Association,
general or particular, establishing rules amultinational body, the (Revised) Restatement
expressly recognized by the contesting of Foreign Relations Law of the United States,
states; and the annual publication of the Hague
2. international custom, as evidence of a Academy of International Law. (Bernas, Public
general practice accepted as law; International Law, 2009).
3. the general principles of law recognized
International Law Commission
by civilized nations;
4. subject to the provisions of Article 59, The International Law Commission was
judicial decisions and the teachings of established by the General Assembly, in 1947,
themost highly qualified publicists of the to undertake the mandate of the Assembly,
various nations, as subsidiary means for under article 13 (1) (a) of the Charter of the
the determination of rules of law. (ICJ United Nations to "initiate studies and make
Statute, art.38(1)) recommendations for the purpose of ...
encouraging the progressive development of
What are the primary sources? (TCG) international law and its codification" (Legal
1. Treaties: Conventional International UN.org, International Law Commission, 2021)
Law; International conventions, whether
general or particular, establishing rules
expressly recognized by the contracting
states.
2. Customary International
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Treaties what they do are considered state

practice.
What is the definition of treaty? a. Duration of practice
b. Uniformity, consistency of
A treaty is an international agreement practice
concluded between States in written form and c. Generality (majority of specially
governed by international law, whether affected States) (Bernas, Public
embodied in a single instrument or in two or InternationalLaw, 2009).
more related instruments and whatever its 2. Opinio Juris Sive Necessitatis
particular designation. (VCLT, art. 2(1)(a)). (Opinio Juris) – As an element in the
formation of customary norm in
What are the requisites of a treaty? international law, it is required that
1. Must be concluded between States States, in their conduct amounting to
2. In written form general practice, must act out a sense of
3. Governed by International Law legal duty and not only by the motivation
4. Must be embodied in a single of courtesy, convenience ortradition.
instrumentor in two or more related
instruments Not only must acts amount to a settled practice,
but they must also be such or be carried out in
What is the basis of a treaty obligation? such a way, as to be evidence of a belief that this
Treaty obligation is based on consent. No state practice is rendered obligatory by the existence
may be bound by a treaty obligation unless it of a rule of law requiring it. (International Court of
has so consented. (VCLT, art. 34). Justice in the North Sea Continental Shelf
Cases, cited in Mijares v. Ranada, G.R. No.
What is pacta sunt servanda? 139325, April12, 2005)
Under the principle of pacta sunt servanda, a Unlike treaties, customary norms are legally
stateparty to a treaty is bound to comply with the binding upon all States regardless of whether
obligations it assumed under such treaty in they consent, subject to the persistent objector
good faith. (VCLT, art. 26) rule[infra]
What is pacta tertiis nec nocent nec No particular length of time is required for the
prosunt? formation of customary norms so long as the
A treaty binds the parties and only the parties; it existence of the two elements of custom are
does not create obligations for a third state. manifest (North Sea Continental Shelf Cases
(VCLT, art. 34) (ICJ) February 20, 1969).
Custom The number of parties, the explicit acceptance of

rules of law, and, in some cases, the declaratory
What is the definition of custom? nature of the provisions produces a strong law-
creating effect at least as great as the general
General and consistent practice of States practice considered sufficient to support a
followed by them from a sense of legal customary rule (BROWNLIE).
obligation. (Restatement (Third) of Foreign
Relations Law of the United States) What is the element of state practice?
The practice must be consistent and general.
What are the elements of International However, consistency requires substantial
Custom? uniformity and not necessarily complete
1. State Practice (DUG) – A consistent uniformity in practice (Asylum Case (ICJ),
anduniform external conduct of States. November 20, 1950). Generality likewise does
Generally, both what States say and not require universality.
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What is the evidence of state practice? process of formation, by such persistent objection
The following acts may evidence state practice: the norm will not be applicable as against that
1. Diplomatic correspondence; state. (MAGALLONA)
2. Policy statements;
3. Press releases; What is the principle of subsequent objector?
4. Opinions of official legal advisers; The court in the Anglo-Norwegian Fisheries case
5. Official manuals on legal decisions stated, "if a substantial group of states asserts a
(executive decisions and practices, and new rule, the momentum of increased defection,
government comments on drafts by the complemented by acquiescence, may result in a
ILC); new rule... If the process is slow and neither the
6. International and national new nor the old rule has an overwhelming majority
judicialdecisions; of adherents, the consequence is a network of
7. Recitals in treaties and international special relations based on opposability,
instruments; acquiescence and even perhaps historic title."
8. Practice of international organs
(HARRIS) What is regional custom?
A practice among states within a particular area for
UN General Assembly resolutions are generally the world which can be sufficiently well established
just recommendations. However, such and accepted as law that is binding among the
resolutionsmay be an evidence of state practice states of that region but not elsewhere.
that is relevant in the development of custom.
(See Nicaragua Case (ICJ, June 27, 1986). What is instant custom (Diritto Spontaneo)?
Customary law may emerge even within a
What is the element of opinion juris relatively short period of time, if within that period,
sivenecessitatis (opinion of law or necessity)? State practice has been uniform and extensive. It
comes out as a spontaneous activity of a great
This refers to the belief on the part of states that
number of states supporting a specific line of
aparticular practice is required by law, and not
action. (Bernas, Public International Law, 2009).
because of courtesy or political expedience
(North Sea Continental Shelf Cases (ICJ)
Example – War on Terror Post-9/11
February 20, 1969).
Over the past two decades, the coherence of the
law on the use of force has been subjected to
It is the existence of opinio juris that serious challenges, especially in the context of the
distinguishes binding custom from mere usage, ‘war on terror’ declared by the US administration in
from comity, andfrom courtesy or protocol. 2001. Various governments increasingly advanced
claims that would enhance their unilateral freedom
What is the scope of custom? to resort to force. The logical outcome of such
Custom may be: claims shaping the law would be the narrowing of
1. General, which is binding upon all or the core prohibition of the use of force and
moststates; or widening or loosening the scope of exceptions to it.
Claims of humanitarian intervention, self-defence
2. Particular, which is binding only
against non-State actors, or pre-emptive self-
between two or among a few states. defence exemplify such risks. (Akehurst, Modern
*The ICJ has recognized the possibility of Introduction to International Law, 2019)
regional custom (Asylum Case (ICJ) November
20, 1950) and of bilateral custom (Right of What is special or local custom?
Passage over Indian Territory Case (ICJ) April A long continued practice between two states,
12, 1960). accepted by them as regulating their relations that
form the basis of mutual rights and obligations.
What is the principle of persistent objector? (Portugal v. India (ICJ), April 12, 1960).
When a State has continuously objected to a new
customary norm at the time when it is yet in the
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What are the customary norms identified by 10. The principle that a State has the right
the Supreme Court of the Philippines? to protect itself and its revenues, a
right not limited to its own territory but
1. Rules and principles of land warfare extending to the high seas (Asaali v.
and of humanitarian law under the Commissioner, G.R. No. L-24170,
Hague Convention and the Geneva December 16, 1968).
Convention (Kuroda v. Jalandoni, G.R.
No. L-2662, March 26, 1949)
General Principles of Law
2. Pacta sunt servanda (La Chemise
Lacoste v. Fernandez, G.R. Nos. L- What is the definition of general principles of
63796- 97, May 2,1984)
law?
3. Human rights as defined under the
Universal Declaration of Human Rights
Principles based on natural justice common to
(Reyes v. Bagatsing, G.R. No. L-65366,
November 9, 1983) most national systems of law. These refer to those
4. The Principle of the Sovereign Equality general principles in municipal law (particularly
of States (Sanders v. Veridiano, G.R. those of private law) that may be appropriated to
No.L-46930, June 10, 1988) apply to the relations of states [OPPENHEIM].
5. The principle in diplomatic law that (e.g., good faith, estoppel, exhaustion of local
thereceiving state has the special
remedies, unjust enrichment).
duty to protect the premises of the
diplomatic mission of the sending
state (Reyes v.Bagatsing, G.R. No. 1. The ban on enforced disappearance is a
L-65366, November 9,1983) generally accepted principle of
6. The right of a citizen to return to his international law which is considered
own country (Marcos v. Manglapus, partof the law of the land (Razon v.
G.R. No.88211, September 15, 1989) Tagitis, G.R. No. 182498, December 3,
7. The principle that “a foreign army 2009).Note, however, that RA 10353 (An
allowed to march through friendly Act Defining and Penalizing Enforced or
country or to be stationed in it, by Involuntary Disappearance) was passed
permission of its government or
on December 21, 2012.
sovereign, is exempt from the civil and
criminal jurisdiction of the place” 2. The Yogyakarta Principles (the
(Raquiza v. Bradford, G.R. No. L-44, Application of International Human
September 13,1945) Rights Law In Relation to Sexual
8. The principle that judicial acts, not of a Orientation andGender Identity) has not
political complexion, of a de facto yet evinced an obligatory norm in the
government established by the military Philippines. There are declarations and
occupant in an enemy territory, are obligations outlined in said Principles
valid under international law. It is legal which are not reflective of the current
truism in political and international law state of international law, and do not find
that all acts and proceedings of the
basis in any of the sourcesof international
legislative, executive and judicial
departments of a de facto government law enumerated under Article 38(1) of
are good and valid (Montebon v. the Statute of the International Court of
Director of Prisons, G.R. No. L-1352, Justice. (Ang Ladlad LGBT Party v.
April 30, 1947) COMELEC, G.R. No. 190582, April 8,
9. The principle that private property 2010).
seized and used by the enemy in times 3. Rep. Act No. 9851 defines and provides
of war under circumstances not for the penalties of crimes against
constituting valid requisition does not humanity, serious violations of IHL,
become enemy property and its private genocide, and other crimes against
ownership is retained, the enemy
humanity. This law provides for the non-
having acquired only its temporary use
(Noceda v. Escobar, prescription of the prosecution of and
G.R. No. L-2939, August 29, 1950) execution of sentences imposed with
regard to the crimes defined in the Act. It
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also provides for the jurisdiction of the 5. Jurisdictional principles, such as the
Regional Trial Court over the crimes power of a tribunal to determine the
defined in the Act. These crimes are, extent of its own jurisdiction
therefore, separate from or independent (competence de la competence).
from the crime of rebellion even if they
occur on the occasion of or argued to be What are the secondary sources?
connected with the armed uprisings. 1. Judicial decisions
(Ocampo v. Abando, Leonen’s 2. Teachings of the Most Highly Qualified
Concurring Opinion, G.R. No. 176830, Publicists (ICJ statute, art. 38).
2014).
Judicial decisions
What principles are considered as general
principles of international law? What are judicial decisions?
Roman Principles A subsidiary means for the determination of
rules of law that are acceptable so long as they
1. Principles such as estoppel, res
correctly interpret and apply international law.
judicata, res inter alios acta, and
prescription; e.g.., With respect to
estoppel, when Thailand did not object Decisions of national courts, when applying
to, and has in fact benefited from, the international law, are acceptable.
Treaty of 1904 for 50 years, it is deemed
to have accepted said treaty. It is Does stare decisis apply?
thereby precluded from questioning
The ICJ Statute directs the Court to apply judicial
Annex I thereof, which showed that the
decisions as subsidiary means for the
Temple of Preah Vihear was within
determination of the rules of law, but this is made
Cambodian territory (Temple of Preah
subject to Article 59 of the same statute, which
Vihear Case (ICJ, June 15, 1962)).
states that “the decisions of the court have no
2. Other substantive principles, such as
binding force except between the parties and in
the duty to make reparations (Chorzow
respect of that particular case.” (Bernas, Public
Factory Case, PCIJ, September 13,
International Law, 2009).
1928), principle of reciprocity, pacta
sunt servanda, separate corporate
Teachings of the Most Highly Qualified
personality (see Barcelona Traction
Publicists
Case, ICJ, February 5, 1970).
3. Procedural rules, such as rules
governingthe use of circumstantial and What is a “publicist”?
hearsay evidence are likewise so
considered. E.g..,Press reports can be The word “publicist” means “learned writer.”
used to corroborate the existence of a Learned writings, like judicial decisions, can be
fact. When theydemonstrate matters of evidence of customary law, and can also play a
public knowledge which have received subsidiary role in developing new rules of law.
extensive press coverage, they can be
used to prove a factto the satisfaction of “Publicists” are institutions which write on
the court (Nicaragua Case, ICJ, June international law. (Bernas, Public International
27, 1986). Law, 2009).
4. Circumstantial evidence is admitted as
indirect evidence in all systems of law
What are “Highly-qualified publicists?”
and its use is recognized by
international decisions. Such Highly-qualified publicists are writers whose main
circumstantial evidence, however, must value depends on the extent to which their books
consist of a series of factsor events that and articles are cited as works of scholarship (i.e
lead to a single conclusion (Corfu based on thorough research into what the law is
Channel Case, ICJ, April 9, 1949). said to be (lex lata) rather than comparing the
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views of other writers as to what they think the law the Security Council concerning enforcement
out to be (lex ferenda). action under Articles 41 and 42 of the Charter
that is to say if it were only such decisions which
A highly qualified publicist is a scholar of public had binding effect then Article 25 would be
international law and the term usually refers to superfluous…..” (Advisory Opinion on Namibia,
legal scholars or “academic writers. (Bayan Muna June 21, 1971)
v. Romulo, G.R. No. 159618, February 1, 2011).
What is the effect of General Assembly
What are the requisites for a “Highly Qualified Resolutions?
Publicist”? UN General Assembly resolutions are generally
1. Fair and impartial representation of law. just recommendations. However, such
2. Acknowledged authority in the field. resolutionsmay be an evidence of state practice
that is relevant in the development of custom.
2. EFFECT OF UNITED NATIONS (See Nicaragua Case (ICJ, June 27, 1986).
DECLARATIONS, SECURITY COUNCIL
RESOLUTIONS, GENERAL ASSEMBLY 3. EFFECT OF ACTIONS OF ORGANS OF
RESOLUTIONS INTERNATIONAL ORGANIZATIONS
CREATED BY TREATY
What is the effect of United
Nations Declarations and Resolutions? What is the effect of actions of organs of
Declarations of legal principles and Resolutions international organizations created by
bythe United Nations are generally considered treaty?
merely recommendatory Resolutions can also Although international organizations have
bea reflection of what has become customary personality in international law, their powers and
law (Bernas, Public International Law, 2009). privileges are by no means like those of states.
They are considered recommendatory except Their powers and privileges are limited by the
on matters involving membership. constituent instrument that created them.
(Bernas,Public International Law, 2009).
What is opinio juris communis?
International organizations are governed by the
When the UN Declarations and Resolutions are
“principle of speciality,” that is to say, they are
supported by all the states, they are an
invested by the States which create them with
expressionof opinion juris communis. (Bernas,
powers, the limits of which are a function of the
Public International Law, 2009).
common interests whose promotion those
States entrust to them. (Bernas citing Advisory
Are UN Security Council Resolutions binding?
Opinion on the Use of Nuclear Weapons, July 8,
YES. The Members of the United Nations agree
1996)
to accept and carry out the decisions of the
SecurityCouncil in accordance with the present D. SUBJECTS OF INTERNATIONAL LAW
Charter. (UN Charter, art. 25.).
What is a subject of international law?
It has been contended that Article 25 of the It is an entity that has rights and responsibilities
Charter applies only to enforcement measures under international law and which has the
adopted under Chapter VII of the Charter. It is capacity to maintain its rights by bringing
notpossible to find in the Charter any support for international claims. (NACHURA)
this view. Article 25 is not confined to decisions
in regard to enforcement action but applies to They are entities endowed with rights and
“the decisions of the Security Council” adopted obligations in the international order and
in accordance with the Charter. (Advisory possessing the capacity to take certain kinds of
Opinion on Namibia, June 21, 1971) actions on the international plane. In other
words, they are those who have international
If Article 25 had reference solely to decisions of
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personality (Bernas, Public International Law, personality.

2009).
What are the elements of a State? GSPoT
What are examples of subjects of international 1. Government – the physical
law? manifestation of a state. Government
1. States must be organized, exercising control
2. Colonies and dependencies over and capable of maintaining law
3. Mandates and trust territories and order within its territory.
4. Belligerent communities 2. Sovereignty – the capacity to enter into
5. International administrative bodies relations with other States.
6. The United Nations 3. Permanent Population – The
7. The Vatican and the Holy See population does not have to be
homogeneous racially, ethnically,
What are objects of international law? tribally, religiously, linguistically, or
Those who directly have rights under or are otherwise. But it must be a settled
beneficiaries of international law through population, although the presence of
subjects of international law. (Bernas, Public certain nomadic inhabitants does not
International Law, 2009). matter.
They are those who indirectly have rights under Defined Territory – State territory is that
orare beneficiaries of international law through defined portion of the surface of the globewhich
subjects of international law. (Bernas, Public is subjected to the sovereignty of the State.
International Law, 2009) (OPPENHEIM) A state must exercise control
over certain area. It neednot be exactly defined
What is the difference between subjects by metes bounds so long as there exists a
and objects? reasonable certainty of identifying it. No
SUBJECT OBJECT minimum land area is required. (Montevideo
Convention, art. 1).
Has the rights and Does not have rights
duties under and duties but are What are the modes of acquiring territory?
international law. merely the object of There are four modes of acquiring territory.
subject’s rights and Thefirst two are original modes while the last
duties. two arederivative modes.
Directly governed by Indirectly governed by
the rules of the rules of 1. Occupation - refers not to mere
international law. international law. discovery, but to effective exercise of
It can be a proper Its rights are received sovereignty over a territory which is terra
party in transactions and its obligations nullius (i.e., not subject to the
involving the imposed, indirectly sovereignty of any other state). It is the
application of through the acquisition of territory that is terra nullius
international law instrumentality of an by any State which has the intention to
among members of international agency. claim sovereignty and occupies that
the international territory by exercising effective and
community. continued control.
2. Accession or accretion - the natural
1. STATES process of land formation resulting in the
increase of territory.
What are States? 3. Cession - the transfer of territory from
State, as a subject of international law, has one state to another by treaty
international personality which means that it (derivative). It is the only bilateral mode
has the right to have its claims respected of acquiringterritorial sovereignty.
internationally. A state has absolute
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4. Prescription - title is acquired by

continuous and undisturbed exercise of What is effective government?
sovereignty over a period of time. General Rule: There must be a central
5. Conquest - the taking of a territory government operating as a political body within
of another sovereign by force of arms. the law of the land in effective control of the
Conquest is generally accepted to have territory. [AUST].
been prohibited and considered as acts Exception: The requirement of effective
of aggression and violative of the government is not strictly applied when the
prohibition on the use of force and State, already long-existing, happens to
territorial integrity. [See Definition of undergo a period of civil strife or internal chaos
Aggression, UN GA Res. 3314 (XXIX) due to naturaldisaster or invasion.
(1974)
What is a failed state?
What are the classifications of states? One which has not had a government in control
1. Sovereign states – those enjoying full ofmost of the territory for several years. [AUST]
membership in the international A failed State does not cease to be a State.
community (See,
2. Neutralized States – those upon which e.g. Somalia, which has not had an effective
the status of permanent neutrality was government in years, but continues to be
formally imposed recognized by the UN).
Dependent Sates – those that have
practically complete control of their Further, some States were deemed States even
domestic affairs while they have been before their governments were very well-
subject to a greater or lesser degree of organized (e.g., Poland, Burundi, and Rwanda).
dependence upon another State in
respect of their control over their What are governments de facto and de
relationswith third States. jure?
3. Confederation and Union – States 1. Government de jure – government
whichare associated for certain specific from law, that is, one with a color of
purposes: legitimacy.
a. Real Union - 2 or more 2. Government de facto – one that
severallysovereign States have governs without a mandate of law. So
the same monarch and for long as it is in place, it may command
international purposes act as obedience from the inhabitants of the
one State occupied area. The de facto ruler may
b. Federal States - control of suspend laws and enact new ones.
the external relations of all the
member States has been
permanently surrendered to a What are the kinds of de facto governments?
central government so that the
only State which exists for 1. De facto Proper/Government by
international purposes is the Revolution – That which usurps, either
byforce or will of the majority, the legal
Stateformed by the union
c. Confederation - though a government and maintains control
central government exists and againstit;
exercises certain powers, it 2. Government by
does not controlall the external paramount force/Government by
relations of themember States, Occupation – Results from the
and therefore for international occupation of a state or a part thereof by
purposes there exists not one invading forces in time ofwar; and
but a number of States 3. Government by Secession –
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Government established as an extra-constitutional means [e.g.

independent government by inhabitants revolution, civil war, coup d’etat or other
of a country who rise in insurrection forms of internal violence] should not be
against the parent state. [See Co Kim recognized, at least until the change
Cham v. Valdez Tan Keh (November 16, had been accepted by the people.
1945)] [After US President Wilson, 1913 and
Ecuadorian FM Tobar (1907)]
What is jus postlimium? 2. Stimson Doctrine - Doctrine of not
recognizing any situation, treaty or
Acts (executive, legislative, and judicial) done agreement brought about by non- legal
under the control of a de facto government, when means. Precludes recognition of any
they are not of a political complexion remain government established as a result of
goodeven upon the restoration of the legitimate external aggression. [After US Sec. of
government. [See Co Kim Cham v. Valdez Tan State Henry Stimson (1932)]
Keh (November 16, 1945)] 3. Estrada Doctrine - States should
refrain from recognizing governments,
What is recognition? as such are superfluous. Change in
Recognition is an act by which a state government does not affect the change
acknowledges the existence of another state, in status of a state. This in effect results
government or belligerent community and in the automatic recognition of
indicates willingness to deal with the entity as governments in all circumstances.
suchunder international law. Posits that dealing or not dealing with
the government established through a
Recognition is not a legal duty. As a public act of political upheaval is not a judgment on
state, recognition is an optional and political act the legitimacy of the said government.
and there is no legal duty in this regard. (Note that [After Mexican Minister Genaro Estrada
this is under the Declaratory School) (1930)] [SHAW]
What are the two views regarding recognition? 4. Sovereignty v. Independence

Sovereignty and Independence
Declarative Theory - recognition is are different. Sovereignty refers to
merely “declaratory” of the existence the supreme and uncontrollable power
of the state and that its being a state inherent in the state by which the State
depends upon its possession of the isgoverned. Independence refers to the
required elements and not upon power of a State to manage its external
recognition. (Bernas, Public affairs without direction or interference
International Law, 2009). from another state.
1. Constitutive Theory - recognition
“constitutes” a state, that is, it is what it Principle of Auto-Limitation
makes a state a state and confers legal The concept of sovereignty as auto- limitation is
personality on the entity. (Bernas, the property of State-force dueto which it has the
Public International Law, 2009). exclusive capacity of legal self-determination
and self- restriction. (People v. Gozo, G.R. No.
The weight of authority favors the “declaratory L- 36409, October 26, 1973, citing Jellinek). Any
view.” (Bernas, Public International Law, 2009). State may, by its consent, express or implied,
submit to a restriction of its sovereign rights.
What are the doctrines on Recognition of de (People v. Gozo, G.R. No. L-36409, October 26,
facto governments? 1973).
1. Wilson/Tobar Doctrine - Also known
as “Doctrine of Legitimacy” or “Policy of What is the concept of association of
Democratic Legitimacy.” Holds that states?
governments which came into power by An association is formed when two States of
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unequal power voluntarily establish durable threat or use of force

links. In the basic model, one State, the 7. To treat all persons under its jurisdiction
associate, delegates certain responsibilities to with respect for human rights and
the other, the principal, while maintaining its fundamental rights, without
international status as a State. However, this discrimination
concept is not recognized under the present 8. To refrain from intervening
Constitution. The Constitution does not 9. To settle its disputes with other States
contemplate any State in this jurisdiction other by peaceful means
than the Philippine State, much less does it
provide for a transitory status that aimsto prepare 2. INTERNATIONAL ORGANIZATIONS
any part of Philippine territory forindependence.
(The Province of North Cotabato v.GRP Panel on What are international organizations?
Ancestral Domains, G.R. No.183591, October International organizations are created
14, 2008). by sovereign Stated and whose functioning are
regulated by international law, not the law of any
What is the principle of state continuity? given country. They have functional personality
which is limited to what is necessary to carry out
The State continues as a juristic being
their functions as found in the instruments of the
notwithstanding the changes in its
organizations.
circumstances,provided only that such changes
do not result in the loss of any of its essential
What is its personality?
elements.
General Rule - The status and powers of an
What are the rights of states? international organization is determined by
agreement and not by general or customary
1. Jurisdiction
international law. They are considered subjects
2. Equality
of international law “if their legal personality is
3. Individual or collective self-defense
established by their constituent instrument.”
4. Independence
5. Legation the right of the State to send
and receive diplomatic missions, which Further, its constituent rights and duties, or
enables States to carry on friendly capacities and immunities, are limited to those
intercourse setforth in the treaty creating the international
organization. Thus, legal personality in this
What are the duties of states? contextis a relative concept. (MAGALLONA)
1. To carry out in good faith all its

obligations; Exception – United Nations. It has objective
2. To refrain from recognizing any international personality. Its personality is
territorial acquisition by another State binding on the whole international community,
which resorts to war or to the use of including States who are not UN members.
threat or force; (Reparations for Injuries Advisory Opinion, ICJ,
3. To refrain from giving assistance to any April 11, 1949).
State which resorts to war or threat or
useof force, or against which the UN is What are the preconditions for international
taking preventive or enforcement personality?
actions 1. It must constitute a permanent
4. To conduct its relations with other associationof states, with lawful objects,
States in accordance with International equippedwith organs;
Law 2. There must be a distinction, in terms of
5. To ensure that conditions prevailing in legal powers and purposes, between the
its territory do not menace international organization and its member states; and
peace and order 3. It must have legal powers that it may
6. To refrain from resorting to war and the exercise on the international plane and
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notsolely within the national systems of 3. The London Agreement of the

one or more states. [BROWNLIE] International Military Tribunal at
Nuremberg, relating to crimes against
3. INDIVIDUALS peace, war crimes and crimes against
humanity, imposed duties and liabilities
What is the personality of individuals? upon individuals as well as upon states.
Under modern international law, an individual has 4. Convention on the Prevention and
limited personality. Punishment of the Crime of Genocide,
art. VI defined “parties charged with
The question whether the Philippine government genocide” as including individuals.
should espouse claims of its nationals against a (MAGALLONA)
foreign government is a foreign relations matter,
the authority for which is demonstrably committed
The International Criminal Court has jurisdiction
by our Constitution not to the courts but to the
over individuals who commit genocide, crimes
political branches. In the Comfort Women Case,
against humanity and war crimes, subject to
the Executive Department has decided that it is to
conditions under the ICC Statute. (ICC Statute,
the best interest of the country to waive all claims
art. 25(1) inrelation to art. 5)
of its nationals for reparations against Japan in the
Treaty of Peace of 1951. The wisdom of such 4. OTHERS
decision is not for the courts to question; thus, said
determination by the Executive Department National Societies
cannot be questioned through a petition for
certiorari. (Vinuya v. Romulo G.R. No. 162230, What are national societies?
April 28, 2010).
National societies such as the Philippine National
What is the special personality of individuals? Red Cross act as auxiliaries to the public
Individuals may assume the status of subjects of authorities of their own countries in the
international law only on the basis of agreement by humanitarian field and provide a range of services
states and in specific context, not in accordance including disaster relief and health and social
with general or customary international law. programmes. National societies were held to be
organizations that are directly regulated by
What are its examples? international humanitarian law, in contrast to other
UNCLOS, art. 187(c)-(e) provides for jurisdiction ordinary private entities, including NGOs. The
of the Sea-Bed Disputes Chamber of the ITLOS auxiliary status of a Red Cross Society means that
over disputes between parties to contracts it is at the same time a private institution and a
relating to the exploitation of marine resources. public service organization, because the very
Parties to such contracts may be natural or nature of its work implies cooperation with the
juridical persons. authorities, a link with the State. The PNRC, as a
1. The Claims Settlement Declaration of national society of the International Red Cross and
1981 between US and Iran provides for Red Crescent Movement, can neither “be
direct access to the Iran-US Claims classified as an instrumentality of the State, so as
Tribunal to individuals for the settlement not to lose its character of neutrality” as well as its
of their claims involving more than independence, nor strictly be as a private
$250,000either against Iran or the US. corporation, since it is regulated by international
2. The Mixed Claims Tribunals established humanitarian law and is treated as an auxiliary of
in the Treaties of Peace concluded at the State. (Liban v. Gordon, G.R. No. 175352,
the end of World War I provided for January 18, 2011)
locus standi of individuals in actions
against states relating to contracts,
debts, and property adversely affected
by the war.
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Corporations 2. They are seen as having treaty making

capacity. (Bernas, Public International
What are “internationalized contracts”? Law, 2009).
Internationalized contracts between a foreign
corporation and a State gives the corporation What are the requirements for material field of
limited personality by invoking in international law application of Protocol II?
the rights that may be derived from the contract. 1. The armed residents must be under
responsible command;
Incomplete Subjects 2. They must exercise such control over a
part of its territory as to enable them to
Who are incomplete subjects? carry out sustained and concerted
militaryoperations and to implement this
1. Protectorates – Dependent states Protocol. (Bernas, Public International
which have control over their internal Law, 2009).
affairs but whose external affairs are
controlled by another State. (Bernas,
PublicInternational Law, 2009). Belligerents
2. Federal State – Union of previously
While they all conduct armed struggle against an
autonomous entities. The central organ
established national government, categorisation
will have personality in international law,
is difficult, and there is no clear-cut legal
but the extent of the international
distinction between belligerents and insurgents.
personality of the component entities
In terms of their actual status, civil wars ordinarily
can be a problem. (Bernas, Public
begin with insurgency, while subsequent attitudes
of third States may qualify the relevant insurgents’
3. Mandated and Trust Territories –
status as belligerents. The Permanent Court of
Territories placed by the League of
International Justice
Nations under one of the victorious allies
of World War I. The mandate system (PCIJ) has suggested that the conclusion of
wasreplaced by the trusteeship system armistice implies recognition of belligerency.
after World War II under the Trusteeship
Council. (Bernas, Public International States are not under any obligation to recognise
Law, 2009). any fighting unit as belligerent or insurgent. The
applicability of the law of internal armed conflicts
Insurgents to the conduct of the State fighting insurgents
does not depend on the recognition of insurgency
What are insurgent groups and their or belligerency either. (Akehurst, Modern
personality? Introduction to International Law, 2019)
Insurgent groups which satisfy the material field of Rebels

application of Protocol II may be regarded as
“para-statal entities possessing, definite if limited, The least legally significant form, for third states,
form of international personality.” (Bernas, Public of conflict categorization was that of “rebellion.”
International Law, 2009). “Text-books and treatises on international law do
not as a rule “refer specifically to the question of
What are the specific attributes of the state responsibility for revolutionary acts by
personality of the insurgent groups? private persons against foreign states.”This level
1. They are recognized as having of the customary conflict categorization scheme
belligerent status against the de jure is not readily equated to less-than-NIAC civil
government.Other states are therefore unrest and riot, but was nevertheless assessed to
required to maintain neutrality be (then, as now) fundamentally a matter of
regarding them, domestic criminal law, with no alteration in either
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conflict state or third state rights and power of a State to makes its law
responsibilities (Mclaughlin, Recognition of applicable to the activities, relations, or
Belligerency and the Law of Armed Conflict, 2020) status of persons, or the interests of
persons in things, whether by legislation,
National Liberation Movements by executive act or order, by
administrative rule or regulation, or by
What are national liberation movements? determination by a court.
They are organized groups fighting in behalf of a 2. Adjudicative jurisdiction refers to a
whole people for freedom from colonial powers. State’s jurisdiction to subject persons or
(Bernas, Public International Law, 2009). things to the process of its courts or
administrative tribunals, whether in civil
What are the characteristics of national orin criminal proceedings, whether or not
liberation movements? thestate is a party to the proceedings.
1. They can be based within the territory 3. Enforcement jurisdiction refers to a
which they are seeking to liberate or State’s jurisdiction to enforce or compel
they might find a base in friendly compliance or to punish noncompliance
country. Control of territory, therefore, with its laws or regulations, whether
is not a necessary factor. through the courts or by use of
2. Their legitimacy comes from their goal: executive,administrative, police, or other
to free themselves from colonial nonjudicialaction.
domination,or a racist regime or foreign
occupation. Briefly, their goal is self- 1. BASIS OF JURISDICTION
determination.
a. What is Territoriality Principle?
3. Although control over territory and
peopleis not essential to their legitimacy, The fundamental source of jurisdiction is
the ultimate goal of controlling a definite sovereignty over territory. A State has absolute,
territory is necessary for them to be but not necessarily exclusive, powerto prescribe,
recognized as international subjects. adjudicate and enforce rules for conduct that
4. They must have an organization capable occurs within its territory. (Bernas, Public
of coming into contact with other International Law, 2009)
international organizations.
What is the effects doctrine?
With these characteristics, they can claim
A State also has jurisdiction over acts occurring
international status. (Bernas, Public International
outside its territory but having effects within it.
Law, 2009).
(Bernas, Public International Law, 2009)
What are the two principles of effects

E. JURISDICTION OF STATES
doctrine?
OVERVIEW 1. Subjective territorial principle – a
state has jurisdiction to prosecute and
What is jurisdiction? punish for crime commenced within the
state but completed or consummated
Jurisdiction means the power of a state under abroad.
international law to govern persons and property 2. Objective territorial principle – a
by its municipal law. This may be criminal or civil, state has jurisdiction to prosecute and
and may be exclusive or concurrent with other punish for crime commenced without
states. [HARRIS] the state but consummated within its
territory. (Bernas, Public International
What are the kinds of jurisdiction? Law, 2009)
1. Prescriptive jurisdiction refers to the 3.
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b. What is Nationality Principle?

What are the modes to resolve the conflict?
Every state has jurisdiction over its nationals
1. Balancing test – Employed tripartite
even when those nationals are outside the
analysis to determine whether to
state. (Bernas, Public International Law, 2009)
assume jurisdiction or not:
c. What is the Protective Principle? a. Was there an actual or
intended effect on the State
A State may exercise jurisdiction over acquiringjurisdiction?
conductoutside its territory that threatens its b. Is the effect sufficiently large to
security, as long as that conduct is generally present a cognizable injury?
recognized as criminal by states in the c. Are the interest and link to the
international community. (Bernas, citing State sufficiently strong, vis-à-
Restatement (402)[3]) vis those of other nations, to
justify an assertion of
d. What is the Universality Principle? extraordinaryauthority?
If the answer is yes to all, then the court
Recognizes that certain offenses and will assume jurisdiction. (Timberlane
activities are so heinous, universally Lumber Co. v. Bank of America, 549
dangerous to the states and their subjects F2d 597, 1976).
and so widely condemned that any State,
if it captures the offender, may prosecute 2. International Comity – If exercising
and punish that person on behalf of the jurisdiction will be unreasonable, the
international community, regardless of the State should refrain from doing so.
nationality of the offender or victim or where Unreasonableness is determined by
the crime was committed or absent any link evaluating various factors, such as the
between the state and the parties to such linkof the activity to the territory of the
actions. (Bernas, citing Bassiouini). regulating State, the connection, such
as nationality and residence or
e. What is the Passive Personality
economic activity, between the
Principle?
regulating state and the person
A State may apply law – particularly criminal principally responsible for the activity to
law – to an act committed outside its territory be regulated, the character of the
by a person not its national where the victim activity to be regulated, the existence of
ofthe act was its national. justified expectations that might be
protected or hurt by the regulation, the
The principle has not been ordinarily likelihood of conflict with regulation by
acceptedfor ordinary torts or crimes, but is another state. (Hartford Fire Insurance
increasingly accepted as applied to terrorist Co. v. California, 509 US 764, 1993).
and other organized attacks on a state’s
nationals by reason of their nationality, or to 3. Forum non conveniens – The
assassination of a state’s diplomatic principle is based on the real unfairness
representatives or other officials. (Bernas, to one of the suitors in permitting the
citing The Comment on § 402 of Third choice of a forum which is not the
Restatement) natural or proper forum, either on the
ground of convenience of trial or the
When is there a conflict of jurisdiction? residence or domicile of parties or of its
being the locus contractus, or locus
Since there are various accepted principles for
solutionis. Its application is
assuming jurisdiction, more than one State may
discretionary on the part of the court.
have a valid claim to jurisdiction. (Bernas, Public
Forum conveniens presumption is with
the plaintiff. (Piper Aircraft Co. v.
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Reyno, 545 U.S. 235, 1981). submit to adjudication in a national court or to

settlement of their disputes without their consent.
What are the requisites for forum non It requires the forum court to exercise restraint in
conveniens? the adjudication of disputes relating to legislative
or other governmental acts which a foreign State
Under the rule of forum non conveniens, a has performed within its territorial limits. (PCGG
Philippine court or agency may assume v.Sandiganbayan, G.R. No. 124772, August 14,
jurisdictionover the case if it chooses to do so, 2007).
provided:
1. that the Philippine court is one to which b. What are the immunities of international
the parties may conveniently resort to; organizations and its officers?
2. that the Philippine court is in a position
One of the basic immunities of an international
to make an intelligent decision as to the
organization is immunity from local jurisdiction,
law and the facts; and
i.e., it is immune from the legal writs and
3. that the Philippine court has or is likely to
processes issued by the tribunals of the country
have power to enforce its decision.
where it is found. The obvious reason for this is
(Manila Hotel v. NLRC, G.R. No.
that the subjection of such anorganization to the
120077,October 13, 2000).
authority of the local courts would afford a
convenient medium thru which the host
What is reserved domain of domestic
government may interfere in their operations or
jurisdiction?
even influence or control its policies and
It is the domain of state activities where the
decisions of the organization; besides, such
jurisdiction of the state is not bound by
subjection to local jurisdiction would impair the
international law. The extent of this domain
capacity of such body to discharge its
depends on international law and varies
responsibilities impartially on behalf of its
accordingly to its development (i.e., when a norm
member-states. (Southeast Asian Fisheries v.
crystallizes into custom).
NLRC, G.R. No. 86773, February14, 1992).
The reservation of this domain is without
There are basically three propositions underlying
prejudice to the use of enforcement measures
the grant of international immunities to
under UN Charter, Ch. VII.
international organizations. These principles,
2. EXEMPTION FROM JURISDICTION contained in the ILO Memorandum are stated
thus:
a. What is the act of state doctrine? 1. International institutions should have a
status which protects them against
Courts of one country will not sit in judgment control or interference by any one
onthe acts of the government of another in due government in the performance of
deference to the independence of sovereignty functions for the effective discharge of
which they are responsible to
of every sovereign State (PCGG v.
democratically constituted international
Sandiganbayan, G.R. No. 124772, August 14, bodies in which all the nations
2007). concerned are represented;
2. No country should derive any national
financial advantage by levying fiscal
The Act of State doctrine is one of the methods charges on common international
bywhich States prevent their national courts from funds; and
deciding disputes which relate to the internal 3. The international organization should,
affairs of another State, the other two being as a collectivity of States members, be
immunity and non-justiciability. It is an avoidance accorded the facilities for the conduct of
technique that is directly related to a State’s its official business customarily
obligation to respect the independence and extended to each other by its individual
member States. (International Catholic
equality of other States by not requiring them to
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Immigration Commission v. Calleja, (China National Machinery &

G.R. No. 85750, September 28, 1990) Equipment Corp. v. Santamaria, G.R. No. 185572,
February 7, 2012)
What is the doctrine of state immunity?
It refers to a principle by which a state, its agents, What is the rule on criminal jurisdiction on
and property are immune from the jurisdiction of board merchant ships and government ships
another state (MAGALLONA). operated for commercial purpose?
The criminal jurisdiction of the coastal State should
This principle is premised on the juridical equality
not be exercised on board a foreign ship passing
of states, according to which a state may not
through the territorial sea to arrest any person or
impose its authority or extend its jurisdiction to
to conduct any investigation in connection with any
another state without the consent of the latter
crime committed on board the ship during its
through a waiver of immunity.
passage.
Thus, domestic courts must decline to hear cases
What are the exceptions to the rule above?
against foreign sovereigns out of deference to their
role as sovereigns. 1. If the consequences of the crime extend tothe
coastal State;
What are the types of immunity? 2. If the crime is of a kind to disturb the peaceof
the country or the good order of the territorial
1. Absolute sovereign immunity – where a
sea;
state cannot be sued in a foreign court no
3. If the assistance of the local authorities has
matter what the act it is sued for; or
been requested by the master of the ship or
2. Restrictive sovereign immunity – where a
by a diplomatic agent or consular officer of
state is immune from suits involving
the flag State; or
governmental actions (jure imperii), but not
4. If such measures are necessary for the
from those arising from commercial or non-
suppression of illicit traffic in narcotic drugs
governmental activity (jure gestionis).
or psychotropic substances.
(Bernas, Public International Law, 2009)
What is the status of principle of sovereign Except as provided in Part XII (Protection and
immunity from suits in international law? Preservation of the Marine Environment) or with
It is a customary norm of international law that respect to violations of laws and regulations
holds, unless waived by the state concerned. adopted in accordance with Part V (Exclusive
Economic Zone), the coastal State may not take
Such immunity applies even if the claim against any steps on board a foreign ship passing
the state is for violation of a jus cogens norm in throughthe territorial sea to arrest any person or
international law. to conduct any investigation in connection with
Furthermore, State assets are also immune from any crime committed before the ship entered the
execution in connection with such claim. territorial sea, if the ship, proceeding from a
(Germany v. Italy, Jurisdictional Immunities of the foreignport, is only passing through the territorial
State Case, ICJ, February 3, 2012). sea without entering internal waters. (UNCLOS,
art. 27).
Who determines immunity in the Philippines?
Under Philippine law, the DFA’s function includes Can the immunity be invoked in non-
the determination of persons and institutions commercial transactions of ships owned and
covered by diplomatic immunities. While exclusive operated by a State?
to the DFA, the DFA’s determination is not Unless otherwise agreed between the States
conclusive. Even with a DFA certification, however concerned, a State which owns or operates a ship
the court is not precluded from makingan inquiry cannot invoke immunity from jurisdiction before a
into the intrinsic correctness of such certification. court of another State which is otherwise
competent in a proceeding which relates to the
operation of that ship if, at the time the cause of
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action arose, the ship was used for other than communication
government non-commercial purposes. (UN 7. Immunity from search of diplomatic
Convention on Jurisdictional Immunities of States bag
and Their Property, art. 16) (Vienna Convention on Diplomatic
Relations (1961)
What is the rule on immunity of warships from
execution? What is the difference between diplomatic
A state’s naval vessel may not be proceeded immunity and consular immunity?
against to answer for said state’s financial DIPLOMATIC
liabilities to a third party. It stated that “in IMMUNITY CONSULARIMMUNITY
accordance with the general international law a (Vienna Convention (Vienna Convention on
warship enjoys immunity and that any act which onDiplomatic Consular Relations)
prevents by force a warship from discharging its Relations)
mission and duties is a source of conflict that may “Premises of the “Consular premises” –
endanger friendly relations among states” mission” – include the include the buildings
[Argentina v. Ghana (ITLOS, December 15, 2012)] buildings or parts of or parts of the
the buildings and the buildings and the land
F. DIPLOMATIC AND CONSULAR LAW land irrespective of irrespective of
ownership used for ownership used
What is the difference between diplomats and the purpose of the exclusively for the
consuls vis-à-vis the relations they are mission including the purposes of consular
concerned with? residence of the head post.
DIPLOMATS CONSULS of mission.
The consular premises,
Political relations of Administrative and their furnishings, the
the state (Bernas, economic issues of property of the consular
Public International the state (Bernas, post and its means of
Law, 2009) Public International transport shall be
Law, 2009) immune from any form
of requisitionfor
What is the right of legation? purposes of national
The right of a state to maintain diplomatic defense or public utility.
relations with other states. If expropriation is
necessary for such
purposes, all possible
What are the types of legation?
steps shall be taken to
1. Active – Right to send diplomatic
avoid impeding the
representatives
performance of consular
2. Passive – Right to receive diplomatic functions, and prompt,
representatives. adequateand effective
compensation shall be
What are the diplomatic and consular paid to the sending
immunities? State.
1. Personal inviolability
2. Inviolability/Immunity of premises
3. Right of protection
4. Immunity from local jurisdiction on
the basis of international custom
5. Exemption from taxes and personal
services
6. Inviolability of means of
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The agents of the The agents of the property. function except in case
receiving State may receiving State may not Exception: He of:
not enter the enter the premises holds it in behalf 1. Civil action arising
premises except with except with the consent of the sending out of a contract
the consent of the of the head of consular Statefor the concluded by a person
head of the mission. post. purposes of the whodid not contract
mission. expressly or impliedly
The consent may be 2. Actions for as an agent of the
assumed in case of succession. sendingState.
fire or other disaster 3. Professional or 2. Civil action bya third
requiring prompt commercial activity party for damage
protective action. arising from an
The diplomatic bag The consular bag shall accident inthe
shall not be opened or not be opened or receiving State
detained. detained. caused by a
Authorities may request vehicle, vessel or
that the bag be opened aircraft.
in their presence by an
authorized The Agreement between the Asian Development
representative of the Bank and the Philippines only provides officers
sending state if they and staff of the bank immunity from legal process
have serious reason to with respect to acts performed by them in their
believe that the bag official capacity, except when the Bank waives
contains objects other the immunity. Slander cannot be considered as
than articles, falling within the purview of the immunity granted
documents, since it is not an act performed in an official
correspondence of capacity. (Jeffrey Liang v. People of the
articles. Philippines G.R. No. 125865, March 26, 2001)
A diplomatic agent is Members of the consular
not obliged to give post may becalled upon The establishment of a diplomatic mission as well
evidence as a witness. to attendas witnesses. If
as its upkeep and maintenance are acts jure
a consular officer should
decline to do so, no imperii. Hence, the State may enter into contracts
coercive measure or with private entities to maintain the premises,
penalty may be applied. furnishings, and equipment of the embassy and
the living quarters of its agents and officials. (Rep.
of Indonesia v. Vinzon, G.R. No. 154705, June
26, 2003)
State and Diplomatic Immunity
What is the general rule on immunity?

The jurisdiction of a State within its territory is
A diplomatic agent Members of the complete and absolute.
shall enjoy immunity consular post shall
from the jurisdiction of enjoy immunity from What is the exception?
the receiving State the jurisdiction of the
Sovereign immunity and diplomatic immunity.
except in case of: receiving State in
1. Real action respect of acts
relating to private performed in the What is state immunity?
immovable exercise of consular The State may not be sued without its consent.
This is based on the principle of par in parem non
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habet imperium (an equal has no power over an Forces Agreements involving foreign military
equal). (Bernas, Public International Law, 2009) units around the world vary in terms and
conditions, according to the situation of the
What is the scope of state immunity? parties involved and their bargaining
1. Absolute power(Nicolas v. Romulo, G.R. No. 175888,
2. Qualified immunity or restrictive February 11, 2009).
application of State immunity.
G. NATIONALITY AND STATELESSNESS
State immunity now extends only to acts jure
imperii. When the proceedings arise out of NATIONALITY
commercial transactions of the foreign sovereign,
its commercial activities or economic affairs, such The Universal Declaration of Human Rights
are jus gestionis, which are not covered by provides that:
immunity. However, it does not apply where the (1) Everyone has the right to a nationality.
contract relates to the exercise of its sovereign (2) No one shall be arbitrarily deprived of his
functions (USA v Guinto, G.R. No. 76607, nationality nor denied the right to change his
February 26, 1990). nationality. (Universal Declaration of Human
Rights, Article 15)
What is the doctrine of sovereign immunity?
Immunity from jurisdiction is enjoyed by both the
head of State and by the State itself (Bernas, It is for each State to determine under its own
Public International Law, 2009). law who are its nationals. This law shall be
recognized by other States in so far as it is
consistent with international conventions,
What is the process of suggestion?
international custom, and the principles of law
In the Philippines, the practice is for the foreign
generally recognized with regard to nationality.
government of the international organization tofirst
secure an executive endorsement of its claim of (The Hague Draft Conventionof 1930, Article I)
sovereign or diplomatic immunity. The DFA has
According to the practice of States, to arbitral
made the endorsement through the following:
1. A letter that the defendant cannot be and judicial decisions and to the opinions of
suedbecause it has diplomatic immunity. writers, nationality is a legal bond having as its
(International Catholic Migration basis a social fact of attachment, a genuine
Commission v. Calleja, G.R. No. 85750, connection of existence, interests and
September 28, 1990). sentiments, together with the existence of
2. A manifestation in Court and reciprocal rights and duties. (Liechtenstein v.
memorandum as amicus curiae (Baer v. Guatemala, 1955)
Tizon, G.R. L-24294, May 3, 1974).
In the Nottebohm case, the ICJ said that “it is for
The fact that the Solicitor General has endorsed Liechtenstein, as it is for every sovereign State,
aclaim of a State’s immunity from suit does not tosettle by its own legislation the rules relating to
sufficiently substitute for the DFA certification the acquisition of its nationality, and to confer
(GTZ v. CA, G.R. No. 152318, April 16, 2009). that nationality by naturalization granted by its
own organs in accordance with that legislation.
The determination by the department is
It is not necessary to determine whether
considered a political question that is conclusive
international law imposes any limitations on its
upon Philippine courts.
freedom of decision in this domain.”
(Liechtenstein v. Guatemala, 1955)
What is the immunity of foreign armed
forces? The rule in international law is that Nationality has its most immediate, its most far-
foreign armed forces allowed to enter one’s reaching and, for most people, its only effects
territory are immune from local jurisdiction, within the legal system of the State conferring it.
except to the extent agreed upon. The Status of Nationality serves above all to determine that the
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person upon whom it is conferred enjoys the subsequently they were not given any
rights and is bound by the obligations which the nationality, or because during their lifetime
law of the State in question grants to or imposes they lost their own nationality and did not
on its nationals. This is implied in the wider acquire a new one. (UN Study of
concept that nationality is within the domestic Statelessness, p.7)
jurisdiction of the State.” (Liechtenstein v.
Guatemala, 1955) 2. De Facto Stateless Persons —Those
who have a nationality but to whom
The United Nations Convention on the Rights of protection is denied by their state when
the Child which is ratified by the Philippines out of the state. This is the situation of
provides that “The child shall be registered many refugees. (Bernas, Public
International Law, 2009)
immediately after birth and shall have the right
from birth to a name, the right to acquire a
Persons who, having left the country of
nationality and as far as possible, the right to
which they were nationals, no longer enjoy
know and be cared for by his or her parents.”
the protection and assistance of their
(United Nations Convention on the Rights of the
national authorities, either because these
Child, Article 7(1)).
authorities refuse to grant them assistance
and protection, or because they
STATELESSNESS
themselves renounce the assistance and
Definition protection of the countries of which they
are nationals. (UN Study of Statelessness,
Statelessness is the condition or status of an p. 7)
individual who is born without any nationality or
who loses his nationality without retaining or Asylum Seeker
acquiring another (Cruz) A person who has left their country of origin and
formally applied for asylum in another country but
Under the Convention Relating to the Status of whose application has not yet been concluded
Stateless Persons (1960), a stateless person is
entitled to, among others, the right to religion and Foundlings
religious instruction, access to courts,
A child whose parents are both unknown, shall
elementary education, public relief and
have the nationality of the country of his or her
assistance and rationing of products in short
birth. A foundling is, until the contrary is proved,
supply, as well as treatment of no less favorable
presumed to have been born on the territory of the
than that accorded to aliens.
State in which he or she is found. (Poe-
Stateless Person Llamanzares v. COMELEC, G.R. No. 221697,
2016, citing 1961 Convention on the Reduction of
A person who is not considered as a national by
Statelessness, art. 2; 1930 Hague Convention on
any State under the operation of its law. (1954
Certain Questions Relating to the Conflict of
Convention Relating to the Status of Stateless
Nationality Laws, art. 14)
Persons, art. 1).
Types of Stateless Persons Under the 1987 Constitution, an international law

can become part of the sphere of domestic law
1. De Jure Stateless Persons —Those
either by transformation or incorporation. This
whohave lost their nationality if they had
one, and have not acquired a new one. presumption in favor of foundlings is a generally
(Bernas, Public International Law, 2009) accepted principle of international law. (Poe-
Persons who are not nationals of any 2016).
State, either because at birth or
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While the Philippines is not a party to the 1961

Convention on the Reduction of Statelessness Under the VCLT, the term “treaty” includes all
(UNCRS) and the 1930 Hague Convention, it is a agreements between states, regardless of how
signatory to the Universal Declaration on Human they are called. Thus, for purposes of international
Rights (UDHR). Article 2 of the UNCRS and Article law, treaties, executive agreements, exchanges of
14 of the Hague Convention merely give effect to notes, etc., are all treaties.
Article 15(1) of the UDHR. (Poe-Llamanzares v.
Under the E.O. 459, a treaty is defined as
COMELEC, G.R. No. 221697, 2016).
international agreements entered into by the
Citizenship of Foundlings
Philippines which require legislative concurrence
after executive ratification. This term may include
Foundlings are citizens under international law.
compacts like conventions, declarations,
Article 24 of the International Covenant on Civil
covenants and acts. (E.O. 459, Section 2)
and Political Rights provides for the right of every
child “to acquire a nationality.” The Philippines is Requisites of a Valid Treaty
obligated under various conventions such as the
ICCPR to grant nationality from birth and ensure 1. Treaty making capacity, which is possessed
that no child is stateless. (Poe-Llamanzares v. by all States as an attribute of sovereignty.
COMELEC, G.R. No. 221697, 2016). International organizations also possess
treaty- making capacity, although limited by
the organization’s purpose;
This grant of nationality must be at the time of birth, 2. Competence of the representative/organ
and it cannot be accomplished by the application making the treaty, which may be the head of
of our present naturalization laws, state, which generally has full powers,or other
Commonwealth Act No. 473, as amended, and persons called plenipotentiaries, which must
RA 9139, both of which require the applicant to produce an instrument showing authority to
sign a treaty bindingtheir government;
be at least 18 years old. (Poe-Llamanzares v.
3. Consent freely given by the parties. If consent
COMELEC, G.R. No. 221697, 2016). was given erroneously, or was induced by
fraud, the treaty shall be voidable;
In a case decided by the Supreme Court, the 4. Object and subject matter, which must be
Chief Justice pointed out that in 166 out of 189 lawful;
countries surveyed (or 87.83%), foundlings are 5. Ratification in accordance with the
recognized as citizens. These circumstances, constitutional process of the parties
concerned.
including the practice of jus sanguinis countries,
show that it is a generally accepted principle of Effect of an Unwritten Treaty
international law to presume foundlings as having
been born of nationals of the country in which the 1. Convention rules on Matters governed by
foundling is found. (Poe-Llamanzares v. international law independently of
COMELEC, G.R. No. 221697, Mar. 8, 2016) convention shall apply
2. Convention rules apply to the Relations of
H. GENERAL PRINCIPLES OF TREATY states as between themselves under
LAW international agreement with othersubjects
as parties; and
Definition of a Treaty
3. Has Legal force
A treaty is an international agreement concluded
between States in written form and governed by
international law, whether embodied in a single
instrument or in two or more related instruments
and whatever its particular designation. (Article 2,
Vienna Convention on the Law of Treaties.)
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Treaty v. Executive Agreement legislative powers, may not interfere in the field of
TREATY EXECUTIVE treaty negotiations. While Article VII, Section 21
AGREEMENT provides for Senate concurrence, such pertains
only to the validity of the treaty under
Subject Matter: Subject Matter: consideration, not to the conduct of negotiations
attendant to its conclusion. Moreover, it is not even
1. Political issues 1. Arrangements of
Congress as a whole that has been given the
2. Changes in Temporary Nature
National Policy 2. Implementation of authority to concur as a means of checking the
3. International Treaties and treaty-making power of the President, but only the
arrangements of a Statutes Senate (AKBAYAN v. Aquino, G.R. No. 170516,
Permanent 3. Transitory July 16, 2008).
Character effectivity
4. Adjustment of
The signing of a treaty is composed of two
details carrying out
separate and distinct processes to which each
established
requires the exclusive prerogative and act of the
national policies
executive and legislative:
and tradition
Must be ratified by 2/3 Does not need to be
of the Senate to ratified by the Senate. • One is the signing of the treaty which is
become valid and handled by the executive department
effective (1987 during the negotiation stage.
Constitution, art. 7, § • The other is the ratification stage where
21). the president ratifies a treaty but with the
concurrence of 2/3 of the Senate.
Under international law, there is no difference
between treaties and executive agreements in It is within the authority of the President to refuse
terms of their binding effects on the contracting to submit a treaty to the Senate or, having refused
states concerned, as long as the negotiating its consent for ratification, refuse to ratify it. The
functionaries have remained within their Senate’s role is limited only to giving or withholding
its concurrence to the ratification. The Senate
powers. (Bayan Muna v. Romulo, G.R. No.
cannot, by mandamus, compel the executive to
159618, 2011). transmit a treaty for concurrence (Pimentel v.
There are no hard and fast rules on the propriety Executive Secretary, G.R. No. 158088, July 6,
of entering, on a given subject, into a treaty or an 2005).
executive agreement as an instrument of
international relations. The primary consideration EDCA remained within the parameters set by the
in the choice of the form of agreement is the two treaties (the MDT and the VFA). Mere
parties’ intent and desire to craft an international adjustments in detail to implement the MDT and
the VFA can be in the form of executive
agreement in the form they so wish to further
agreements. The “activities” referred to in the MDT
theirrespective interests. Verily, the matter of are meant to be specified and identified in further
form takes a back seat when it comes to agreements. EDCA is an example of such
effectiveness and binding effect of the agreement. The President’s choice to enter into
enforcement of a treaty or an executive EDCA by way of executive agreement is in view of
agreement, as the parties in either international the vast constitutional powers and prerogatives
granted to him in the field of foreign affairs.
agreement each labor under the pacta sunt
(Saguisag v. Executive Secretary, G.R. Nos.
servanda principle. (Bayan Muna v. Romulo, 212426/212444, July 26,2016)
G.R. No. 159618, Feb 1, 2011).
Full Powers
Power to Negotiate and Senate Concurrence The authority granted by a Head of State or
In the realm of treaty-making, the President has Government to a delegation head enabling the
the sole authority to negotiate with other States. It latter to bind his country to the commitments
follows that Congress, while possessing vast made in the negotiations to be pursued. (E.O No.
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459) effect;or
c. The intention of the state to give
In addition to the constitutional requirement, that effect to the signature
ratification is necessary under internationallaw appears from the full powers of
when: its representative or was
1. The treaty provides for consent to be expressed during negotiation
expressed by means of ratification; (VCLT, Article 12 (1));
2. It is otherwise established that the
negotiating states agreed that Practice of Alternat:
ratification should be required; Arrangement under which each
3. The representative of the state has negotiator is allowed to sign first on the
signed the treaty subject to ratification copy of the treaty which he will bring
[VCLT, art. 14(1)], that is, when the home to his own country, the purpose
intent was to make it subject to being to preserve the formal
ratification. appearance of equality among the
contracting states and to avoid delicate
Treaty-making Process questions of precedence among the
1. NEGOTIATION. The state signatories.
representative1 discuss the terms and
provisions of the treaty. Effect of Signature with respect Ratification
2. ADOPTION. When the form and Signature does not create an obligation
content have been settled by the toratify.
negotiating states, the treaty is
adopted. This is only preparatory to (1) Obligation not to defeat the object andpurpose
the authentication of the text of the of a treaty before its Entry into Force:
treaty and (2) the signing thereof. A state is obliged to refrain from acts
(VCLT, art. 9) which would defeat the object and
3. ADOPTION. A definitive text of the purpose of a treaty when:
treaty is established as the correct and a. It has signed the treaty or has
authenticone; exchanged instruments constituting
4. EXPRESSION OF CONSENT. The the treaty subject to ratification,
state parties express their consent to acceptance or approval, until it shall
be boundby the terms of the treaty. The have made its intention clear not to
modes of such expression are provided become a party to the treaty; or
in the VCLT.
it has expressed its consent to be bound by the
REGISTRATION. The treaty is then registered treaty, pending the entry into force of the treaty
with the Secretariat of the United 5 Nations. and provided that such entry into force is not
Otherwise, the treaty may not be invoked before unduly delayed. (VCLT, Art.18)
any UN organ(UN Charter, art. 102(2)) including
the ICJ 2. EXCHANGE OF INSTRUMENTS. The
In the Philippines, the negotiation of treaties and consent of States to be bound by a treaty
their ratification are executive functions, subject constituted by instruments exchanged
to concurrence of the Senate. between them is expressed by that
exchange when:
Consent to be bound by the terms of a treaty a. The instruments provide that the
may be expressed through: exchange will have such effect
b. It is established that those states
1. SIGNATURE. The consent to be bound were agreed that the exchange of
by a treaty is expressed by the instruments shall have that effect
signatureof its representative when: (VCLT, Article 13)
a. The treaty provides that
signatureshall have that effect; 3. RATIFICATION, ACCEPTANCE or
APPROVAL. The consent of the State to
b. It is otherwise established that
be bound by a treaty is expressed by
the negotiating states agreed
ratification when:
that signature should have that
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a. The treaty provides for such Amendment or modification of treaty

consent to be expressed through General rule: Consent of all the parties is
ratification required.
b. It is established that the negotiating
state were agreed that ratification Exception: If the treaty itself so allows, two
should be required states may modify a provision only insofar as
c. The representative of the Statehas their relationship inter se.
signed the treaty subject to
ratification; or Reservations
d. The intention of the State to sign
General rule: A reservation is a unilateral
the treaty subject to ratification
statement made by a state upon entering a treaty
appears from the full powers of its
and operates to exclude or modify the legal effect
representative or was expressed
of certain provision/s of the treaty in their
during negotiation. (VCLT, Article
application to the reserving state. [VCLT, art. 19]
14)
Exceptions: A reservation shall not operate to
4. ACCESSION. Consent is expressed by
modify or exclude the provisions of a treaty:
accession when: 1. Where the treaty expressly prohibits
a. The treaty provides that such reservations in general;
consent may be expressed by that
2. Where the treaty expressly prohibits
State by means of accession.
thatspecific reservation being made; or
b. It is otherwise established that the
3. Where the reservation is incompatible
negotiation states were agreed that
with the object and purpose of the
such consent may beexpressed by
treaty. (Reservation to the Genocide
that State by meansof accession; or
Conventions Advisory Opinion, ICJ,
c. All the parties have subsequently
1951)
agreed that such consent may be
expressed by that state by meansof
Invalid treaties
accession. (VCLT, Article 15)
1. If the treaty violates a jus cogens norm
ofinternational law;
Kinds of Accession
2. If the conclusion of a treaty is procured
1. Accession proper — non- signatory
bythreat or use of force;
becomes a party to all the provisions of
3. Error of fact, provided that such fact
the treaty
formed an essential basis of a state’s
2. Adhesion or Adherence - non-signatory consent to be bound;
4. If the representative of a state was
becomes a party in some of the
corrupted to consent by another
provisions of the treaty negotiating state;
Interpretation of Treaties
5. If consent was obtained through
1. Actuality – based on actual text
fraudulent conduct of another
Natural and Ordinary Meaning
negotiating state;
2. Integration – interpreted as a whole
6. If the representative consented in
3. Effectiveness – based on object
violation of specific restrictions on
andpurpose
authority provided the restriction was
Subsequent Practice
notified to the other negotiating states
4. Contemporaneity - interpreted in prior to the representative expressing
lightof linguistic usage existing at the such consent;
time the treaty was concluded 7. If consent was given in violation of
provisions of internal law regarding
Travaux Preparatoires competence to conclude treaties that is
The ‘preparatory work; of a treaty that contains manifest and of fundamental
its legislative history. It is used as a importance. (VCLT)
supplementary means of interpretation of a
treaty. (VCLT, Art. 32)9.
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Grounds for termination of a treaty A state can avoid performance if the treaty
1. Expiration of the term, or withdrawal of collideswith its Constitution, but it cannot escape
a party in accordance with the treaty; liability that it may incur as a result of such non-
2. Extinction of a party to the treaty, when performance.
the treaty rights and obligations would
not devolve upon the successor- state; From the perspective of public international law,
3. Mutual agreement of parties; atreaty is favored over municipal law pursuant to
4. Denunciation or desistance by a party; theprinciple of pacta sunt servanda. A party to a
5. Supervening impossibility of treatyis not allowed to invoke the provisions of its
performance; internal law as justification for its failure to
6. Conclusion of a subsequent perform a treaty. Nevertheless, as far as the
inconsistenttreaty; Court is concerned, a treaty is always subject to
7. Loss of subject matter qualification or amendment by a subsequent law,
8. Material breach or violation of treaty or that, it is subject to the police power of the State
9. Fundamental change in circumstance (Lim v. Executive Secretary, G.R. No. 151445,
(similar to the customary norm of rebus 2002).
sic stantibus) such that the foundation
upon which the consent of a state to be Rebus Sic Stantibus
bound initially rested has disappeared.
General Rule: A fundamental change of
(VCLT, art. 62). The requisites are:
circumstances is not a ground for a treaty to
a. The change is so substantial that
besuspended or terminated.
the foundation of the treaty has
altogether disappeared;
b. The change was unforeseen or Exceptions:
unforeseeable at the time of the 1. The circumstance is the essential basis
perfection of the treaty; ofconsent.
c. The change was not caused by the 2. The obligation is transformed radically
party invoking the doctrine that it becomes burdensome or
d. The doctrine was invoked within a unreasonable.
reasonable time;
e. The duration of the treaty is Exceptions to the Exceptions:
indefinite; 1. If the treaty establishes a boundary;
f. The doctrine cannot operate 2. If the fundamental change is the result of
retroactively (it must not adversely a breach by the party invoking it either of
affect provisions which have an obligation under the treaty or of any
already been complied with prior to other international obligation owed to
the vital change); anyother party to the treaty. (VCLT, art.
10. Outbreak of war between the parties, 62)
unless the treaty relates to the conduct Note: Rebus Sic Stantibus is an exception to
of war therule of Pacta Sunct Servanda
11. Severance of diplomatic relations, if
such relationship is indispensable for the
treaty’s application; Grounds for Invalidity of a Treaty: DJ-FEC
12. Jus cogens application, or the 1. Duress
emergenceof a new peremptory norm of 2. Jus cogens
general international law which renders 3. Fraud
void any existing, conflicting treaty. 4. Error of fact
5. Corruption
Pacta Sunt Servanda (VCTL Art. 48 – 53)
Every treaty in force is binding upon the parties
Clean Slate Rule
toit and must be performed by them in good faith.
General Rule: When one State ceases to exist
(Vienna Convention on the Law of Treaties, art.
and is succeeded by another on the same
26). territory, the newly independent State is not
bound to maintain in force, or become a party
to, any treatymade by its predecessor although,
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at the date of succession of States, the Elements

treaty was in force with respect to the territory to There is an internationally wrongful act of a State
which the succession of State relates. (Vienna when conduct consisting of an action or omission:
Convention on the Succession of States in a. is attributable to the State under
Respect of Treaties, art. 16) international law; and
b. constitutes a breach of an international
Exceptions:
obligation of the State. (ASR, art. 2)
1. When the new State agrees to be
boundby the treaties made by its
The characterization of an act of a State as
predecessor.
2. Treaties affecting boundary regime (uti internationally wrongful is governed by
possidetis juris). international law. Such characterization is not
3. Customary international law affected by the characterization of the same act as
lawful by internal law. (ASR, art. 3)
Withdrawal from Treaty Attribution of Conduct to States
1. A treaty which contains no provision a. Conduct of Organs of a State;

regarding its termination and which does not The conduct of any State organ shall be
provide for denunciation or withdrawal is not considered an act of that State under
subject to denunciation or withdrawal unless:
international law, whether the organ exercises
(a) it is established that the parties intended legislative, executive, judicial or any other
to admit the possibility of denunciation or functions, whatever position it holds in the
withdrawal; or organization of the State, and whatever its
(b) a right of denunciation or withdrawal may character as an organ of the central
be implied by the nature of the treaty. Government or of a territorial unit of the State.
2. A party shall give not less than 12 months' An organ includes any person or entity which
notice of its intention to denounce or withdraw has that status in accordance with the internal
from a treaty under paragraph 1. (VCLT, Art. law of the State. (ASR, art. 4)
56)
I. DOCTRINE OF STATE RESPONSIBILITY b. Conduct of persons or entities exercising

elements of governmental authority;
Definition The conduct of a person or entity which is not
State responsibility is a fundamental principle of an organ of the State under article 4 but which
international law whereby a State, either by an act is empowered by the law of that State to
or omission, has breached an international exercise elements of the governmental
obligation in force and incurs, in the absence of authority shall be considered an act of the State
circumstances precluding wrongfulness of its under international law, provided the person or
conduct, certain legal consequences for the entity is acting in that capacity in the particular
internationally wrongful act attributable to it, instance. (ASR, art. 5)
including the obligation to cease the wrongful
conduct and make such full reparation of any c. Conduct of organs placed at the disposal of
material and moral damage to the injured State or a State by another State;
States as is reasonably adequate depending on The conduct of an organ placed at the disposal
the merits of the case in question. (Boczek, The A of a State by another State shall be considered
to Z of International Law, 121, 2010). an act of the former State under international
law if the organ is acting in the exercise of
Every internationally wrongful act of a state entails elements of the governmental authority of the
the international responsibility of that State [Articles State at whose disposal it is placed. (ASR, art.
on State Responsibility (“ASR”), art. 1] 6)
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d. Excess of authority or contravention of h. Conduct acknowledged and adopted by a

instructions; State as its own
The conduct of an organ of a State or of a Conduct which is not attributable to a State
person or entity empowered to exercise under the preceding articles shall nevertheless
elements of the governmental authority shall be be considered an act of that State under
considered an act of the State under international law if and to the extent that the
international law if the organ, person or entity State acknowledges and adopts the conduct in
acts in that capacity, even if it exceeds its question as its own. (ASR, art. 11)
authority or contravenes instructions. (ASR, art.
7) Effective Control
It was clarified in Bosnian genocide case that to
e. Conduct directed or controlled by a State; prove effective control, it must be shown that
The conduct of a person or group of persons “…State’s instructions were given, in respect of
shall be considered an act of a State under each operation in which the alleged violations
international law if the person or group of occurred, not generally in respect of the overall
persons is in fact acting on the instructions of, actions taken by the persons or groups of persons
or under the direction or control of, that State in having committed the violations.” [Case
carrying out the conduct. (ASR, art. 8) Concerning Application of the Convention on the
Prevention and Punishment of the Crime of
f. Conduct carried out in the absence or Genocide (“Bosnian Genocide Case”), ¶400, Feb.
default of the official authorities; 26, 2007]
The conduct of a person or group of persons
shall be considered an act of a State under Lack of Effective Control
international law if the person or group of In the case of U.S. v. Nicaragua, on the question of
persons is in fact exercising elements of the the U.S.’ responsibility for the action of contras in
governmental authority in the absence or Nicaragua, the I.C.J. held that the:
default of the official authorities and in
circumstances such as to call for the exercise of “United States participation… in the financing,
those elements of authority. (ASR, art. 9) organizing, training, supplying and equipping of the
contras, the selection of its military or paramilitary
g. Conduct of an insurrectional or other targets, and the planning of the whole of its
movement; and operation, is still insufficient in itself… for the
The conduct of an insurrectional movement purpose of attributing to the United States the acts
which becomes the new Government of a State committed by the contras in the course of their
shall be considered an act of that State under military or paramilitary operations in Nicaragua… “
international law.
Overall Control
The conduct of a movement, insurrectional or In order to attribute the acts of a military or
other, which succeeds in establishing a new paramilitary group to a State, it must be proved that
State in part of the territory of a pre-existing the State wields overall control over the group, not
only by equipping and financing the group, but also
State or in a territory under its administration
by coordinating or helping in the general planning
shall be considered an act of the new State of its military activity. (Prosecutor v. Tadić, Appeals
under international law. Chamber, ¶131, Jul. 15, 1999)
This article is without prejudice to the attribution Genocide will be considered as attributable to a
to a State of any conduct, however related to State if and to the extent that the physical acts
that of the movement concerned, which is to be constitutive of genocide that have been committed
considered an act of that State by virtue of
by organs or persons other than the State’s own
articles 4 to 9. (ASR, art. 10)
agents were carried out, wholly or in part, on the
instructions or directions of the State, or under its
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effective control. (Bosnian Genocide Case, ¶401, albeit incidentally, a breach of its obligations under
Feb. 26, 2007) …1955 Treaty of Amity, Economic Relations, and
Consular Rights which, in addition to the
Effective Control Overall Control obligations of Iran existing under general
international law, requires the parties to ensure ‘the
Used to determine the Used to determine most constant protection and security’ to each
attributability of act/s to whether or not an other’s nationals in their respective territories (U.S.
States in the context of armed conflict is v. Iran, ¶67, May 24, 1980).
State Responsibility international or not.
Requires a higher Requires a lower Serious Breach of Obligation Under

Peremptory Norms of General International
threshold of control as threshold of control as
Law
it must be shown that it only requires that
State’s instructions another State wields A breach of such an obligation arising under a
peremptory norm of general international law is
were given, in respect overall control over the
of each operation in group, not only by serious if it involves a gross or systematic failure by
the responsible State to fulfil the obligation. (ASR,
which the alleged equipping and
art. 40)
violations occurred, financing the group,
not generally in but also by
Consequences:
respect of the overall coordinating or helping
actions taken by the in the general planning 1. States shall cooperate to bring to an end
through lawful means any serious breach
persons or groups of of its military activity
within the meaning of article 40.
persons having
committed the 2. No State shall recognize as lawful a
situation created by a serious breach
violations.
within the meaning of article 40, nor render
aid or assistance in maintaining that
Breach of International Obligation
situation.
There is a breach of an international obligation by
3. This article is without prejudice to the other
a State when an act of that State is not in
consequences referred to in this part and
conformity with what is required of it by that
to such further consequences that a
obligation, regardless of its origin or character.
breach to which this chapter applies may
(ASR, art. 12)
entail under international law. (ASR, art.
41)
An act of a State does not constitute a breach of an
international obligation unless the State is bound
Extension of Breaches of International
by the obligation in question at the time the act
Obligation
occurs. (ASR, art. 13)
1. The breach of an international obligation by
an act of a State not having a continuing
Example:
character occurs at the moment when the act
“This inaction of the Iranian Government by itself
is performed, even if its effects continue.
constituted clear and serious violation of Iran's
2. The breach of an international obligation by
obligations to the United States under…the 1961
an act of a State having a continuing
Vienna Convention on Diplomatic Relations, and
character extends over the entire period
…the 1963 Vienna Convention on Consular
during which the act continues and remains
Relations. Similarly, with respect to the attacks on
not in conformity with the international
the Consulates at Tabriz and Shiraz, the inaction of
obligation.
the Iranian authorities entailed clear and serious
3. The breach of an international obligation
breaches of its obligations under the provisions of
requiring a State to prevent a given event
several further articles of the 1963 Convention on
occurs when the event occurs and extends
Consular Relations. So far as concerns the two
over the entire period during which the event
private United States nationals seized as hostages
by the invading militants, that inaction entailed,
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continues and remains not in conformity with defense taken in conformity with the Charter of the
that obligation. (ASR, art. 14) United Nations. (ASR, art. 21)
Responsibility of a State in connection with the Requisites of Self-Defense:

Act of Another State a. A State must have been the victim of an
armed attack;
b. That State must declare itself as a victim of
1. A State which aids or assists another State in an armed attack. The assessment on
the commission of an internationally wrongful whether an armed attack had taken place
act by the latter is internationally responsible or not, is done by the State who was
for doing so if: subjected to the attack.
a. that State does so with knowledge of the c. In the case of collective self-defense, the
circumstances of the internationally victim State must request for assistance.
wrongful act; and (U.S. v. Nicaragua, ¶195)
b. the act would be internationally wrongful if
committed by that State. (ASR, art. 16) Countermeasure in Respect of an
2. A State which directs and controls another Internationally Wrongful Act
State in the commission of an internationally The wrongfulness of an act of a State not in
wrongful act by the latter is internationally conformity with an international obligation towards
responsible for that act if: another State is precluded if and to the extent that
a. that State does so with knowledge of the the act constitutes a countermeasure taken against
circumstances of the internationally the latter State. (ASR, art. 22)
wrongful act; and
b. the act would be internationally wrongful if Force Majeure
committed by that State. (ASR, art. 17) The wrongfulness of an act of a State not in
3. A State which coerces another State to commit conformity with an international obligation of that
an act is internationally responsible for that act State is precluded if the act is due to force majeure,
if: that is the occurrence of an irresistible force or of
a. the act would, but for the coercion, be an an unforeseen event, beyond the control of the
internationally wrongful act of the coerced State, making it materially impossible in the
State; and circumstances to perform the obligation.
b. the coercing State does so with
knowledge of the circumstances of the
This does not apply if:
act. (ASR, art. 18)
a. the situation of force majeure is due,
either alone or in combination with other
Circumstances Precluding Wrongfulness factors, to the conduct of the State
1. Consent invoking it; or
2. Self-Defense b. the State has assumed the risk of that
3. Countermeasure in Respect of an situation occurring. (ASR, art. 23)
Internationally Wrongful Act
4. Force Majeure Distress
5. Distress The wrongfulness of an act of a State not in
6. Necessity conformity with an international obligation of that
7. Compliance with Peremptory Norms (ASR, State is precluded if the author of the act in
Ch. V). question has no other reasonable way, in a
situation of distress, of saving the author’s life or
Consent the lives of other persons entrusted to the author’s
Valid consent by a State to the commission of a care.
given act by another State precludes the
wrongfulness of that act in relation to the former
This does not apply if:
State to the extent that the act remains within the
a. the situation of distress is due, either alone
limits of that consent. (ASR, art. 20)
or in combination with other factors, to the
conduct of the State invoking it; or
Self-defense
b. the act in question is likely to create a
The wrongfulness of an act of a State is precluded
comparable or greater peril. (ASR, art. 24)
if the act constitutes a lawful measure of self-
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Necessity failure to comply with its obligations to make

Necessity may not be invoked by a State as a reparations. (ASR, art. 32)
ground for precluding the wrongfulness of an act
not in conformity with an international obligation of Three forms of Reparation:
that State unless the act: a. Restitution
a. is the only way for the State to safeguard b. Compensation
an essential interest against a grave and c. Satisfaction
imminent peril; and Either singly or in combination (ASR, art. 34).
b. does not seriously impair an essential
interest of the State or States towards Restitution
which the obligation exists, or of the A State responsible for an internationally wrongful
international community as a whole. act is under an obligation to make restitution, that
is, to reestablish the situation which existed before
In any case, necessity may not be invoked by a the wrongful act was committed, provided and to
State as a ground for precluding wrongfulness if: the extent that restitution:
a. the international obligation in question a. Is not materially impossible;
excludes the possibility of invoking b. Does not involve a burden out of all
necessity; or proportion to the benefit of the party
b. the State has contributed to the situation deriving from restitution instead of
of necessity. (ASR, art. 25) compensation. (ASR, art. 35)
Compliance with Peremptory Norms Compensation

Nothing in the ASR precludes the wrongfulness of The State responsible for an internationally
any act of a State which is not in conformity with an wrongful act is under an obligation to compensate
obligation arising under a peremptory norm of for the damage caused thereby, insofar as such
general international law. (ASR, art. 26) damage is not made good by restitution.
Implications and Consequences of State The compensation shall cover any financially
Responsibility assessable damage including loss of profits insofar
as it is established. (ASR, art. 36)
A. Duty to cease the act
The State responsible for the wrongful act is under Satisfaction
the obligation to: The State responsible for an internationally
1. Cease the act if it is still continuing; and wrongful act is under an obligation to give
2. Offer appropriate assurances and satisfaction for the injury caused by that act insofar
guarantees of non-repetition, if as it cannot be made good by restitution or
circumstances so require (ASR, art. 30). compensation.
The legal consequences of an internationally Satisfaction may consist in an acknowledgement of

wrongful act under this part do not affect the the breach, an expression of regret, a formal
continued duty of the responsible State to perform apology or another appropriate modality.
the obligation breached. (ASR, art. 29)
Satisfaction shall not be out of proportion to the
B. Duty to make reparations injury and may not take a form humiliating to the
The responsible State is under an obligation to responsible State. (ASR, art. 37)
make full reparation for the injury caused by the
internationally wrongful act. Objects and limits of countermeasures
1. An injured State may only take
Injury includes any damage, whether material or countermeasures against a State which is
moral, caused by the internationally wrongful act of responsible for an internationally wrongful act
a State. (ASR, art. 31) in order to induce that State to comply with its
obligations.
State cannot invoke internal law 2. Countermeasures are limited to the non-
The responsible State may not rely on the performance for the time being of international
provisions of its internal law as justification for obligations of the State taking the measures
towards the responsible State.
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3. Countermeasures shall, as far as possible, be Termination of Countermeasures

taken in such a way as to permit the Countermeasures shall be terminated as soon as
resumption of performance of the obligations in the responsible State has complied with its
question. (ASR, art. 49) obligations under part two in relation to the
internationally wrongful act. (ASR, art. 53)
Proportionality of countermeasures
Countermeasures must be commensurate with the J. REFUGEES
injury suffered, taking into account the gravity of the
internationally wrongful act and the rights in Definition
question. (ASR, art. 51)
As a result of events occurring before January 1,
Conditions for Countermeasures
1951, and owing to a well-founded fear of being
1. Before taking countermeasures, an injured
State shall: persecuted for reason of race, religion, nationality,
a. call upon the responsible State, in membership of a particular social group or political
accordance with [the procedure for putting opinion, is outside the country of his nationality,
forward claims], to fulfil its obligations; and is unable, or owing to such fear, is unwilling to
b. notify the responsible State of any decision avail himself of the protection of that country.
to take countermeasures and offer to
negotiate with that State. It is also one who, not having a nationality and
2. Notwithstanding paragraph 1 (b), the injured being outside the country of his former habitual
State may take such urgent countermeasures
residence as a result of such events, is unable or,
as are necessary to preserve its rights.
3. Countermeasures may not be taken, and if owing to such fear, is unwilling to return to it. [1951
already taken must be suspended without Convention Relating to the Status of Refugees
undue delay if: (“1951 Convention”), art. 1(A)(2)]
a. the internationally wrongful act has ceased;
and Governing Statutes
b. the dispute is pending before a court or
tribunal which has the authority to make The controlling international convention on refugee
decisions binding on the parties. law is the 1951 Convention relating to the Status of
4. Paragraph 3 does not apply if the responsible Refugees (1951 Convention) and its 1967 Optional
State fails to implement the dispute settlement
Protocol relating to the Status of Refugees.
procedures in good faith. (ASR, art. 52)
Persons not covered by the 1951 Convention
Obligations not Affected by Countermeasures
Countermeasures shall not affect: Relating to the Status of Refugees
a. the obligation to refrain from the threat or
use of force as embodied in the Charter of 1. One who has committed a crime against
the United Nations; peace, a war crime, or a crime against
b. obligations for the protection of fundamental humanity, as defined in the international
human rights; instruments drawn up to make provision in
c. obligations of a humanitarian character respect of such crimes;
prohibiting reprisals; 2. One who has committed a serious non-political
d. other obligations under peremptory norms of crime outside the country of refuge prior to his
general international law. admission to that country as a refugee;
3. One who has been guilty of acts contrary to the
A State taking countermeasures is not relieved purposes and principles of the United Nations.
from fulfilling its obligations: [1951 Convention, art 1(F)].
a. under any dispute settlement procedure
applicable between it and the responsible
State; Rights of Refugees
b. to respect the inviolability of diplomatic or
consular agents, premises, archives and Refugee law and international human rights law
documents. (ASR, art. 50)
are closely intertwined; refugees are fleeing
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governments that are either unable or unwilling to a. The right to choose their place of
protect their basic human rights. Additionally, in residence (art. 26)
cases where the fear of persecution or threat to life b. The right to move freely within the
country (art. 26)
or safety arises in the context of an armed conflict,
refugee law also intersects with international
Principle of Non-Refoulement
humanitarian law.
No Contracting State shall expel or return
Specific Rights under the 1951 Convention
(“refouler”) a refugee in any manner whatsoever to
1. Right to have rights previously acquired and the frontiers of territories where his life or freedom
dependent on personal status, more would be threatened on account of his race,
particularly rights attaching to marriage, be religion, nationality, membership of a particular
respected, subject to compliance [art. 12(2)] social group or political opinion.
2. Free access to courts of law [art. 16(1)]
3. Right to receive the same treatment as The benefit of the present provision may not,
nationals of the receiving country with regard however, be claimed by a refugee whom there are
to the following rights:
reasonable grounds for regarding as a danger to
a. Free exercise of religion and religious
education (art. 4) the security of the country in which he is, or who,
b. Protection of rights in literary, artistic and having been convicted by a final judgment of a
scientific works (art. 14) particularly serious crime, constitutes a danger to
c. Protection of intellectual property, such as the community of that country. (1951 Convention,
inventions and trade names (art. 14) art. 33)
d. Free access to the courts, including legal
assistance and exemption from caution It does not distinguish between returning them to
judicatum solvi [art. 16(2)]
the State from which they might have come or to
e. Access to elementary education [art.
22(1)] one that will also maltreat them.
f. Access to public relief and assistance (art.
23) Internally Displaced Persons
g. Protection provided by social security [art.
24(1)(b)] Persons or groups of persons who have been
h. Equal treatment by taxing authorities [art. forced or obliged to flee or to leave their homes of
29(1)] places of habitual residence, in particular as a
4. Right to receive the most favorable treatment result of or in order to avoid the effects of armed
provided to nationals of a foreign country with conflict, situations of generalized violence,
regard to the following rights: violations of human rights or natural or human-
a. Right of association (art. 15)
made disasters, and who have not crossed an
b. The right to engage in wage-earning
employment [art. 17(1)] internationally recognized State border. (UN
5. Right to receive the most favorable treatment Guiding Principles on Internal Displacement, par.
possible, which must be at least as favorable 2)
to that accorded aliens generally in the same
circumstances, with regard to the following Stateless Convention Not Applicable to the
rights: Following:
a. The right to own property (art. 13)
b. The right to self-employment (art. 18) 1. To persons who are at present receiving from
c. The right to practice a profession [art. organs or agencies of the United Nations other
19(1)] than the United Nations High Commissioner for
d. Access to housing (art. 21) Refugees protection or assistance so long as
e. Access to higher education [art 22(2)] they are receiving such protection or
6. Right to receive the same treatment as that assistance;
accorded to aliens generally with regard to the 2. To persons who are recognized by the
following rights: competent authorities of the country in which
they have taken residence as having the rights
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and obligations which are attached to the Extradition means the surrender of a person by one
possession of the nationality of that country; state to another state where he is wanted for
3. To persons with respect to whom there are prosecution or, if already convicted, for
serious reasons for considering that: punishment.
a. they have committed a crime against
peace, a war crime, or a crime against a. Fundamental Principles
humanity, as defined in the
international instruments drawn up to General Rule: There can only be extradition if
make provisions in respect of such there is a treaty between the States. (Philippine
crimes;
Extradition Law, Sec. 3) Outside a treaty, there is
b. they have committed a serious non-
political crime outside the country of no rule in international law compelling a State to
their residence prior to their admission extradite anyone.
to that country;
c. they have been guilty of acts contrary Extradition may also sometimes take place as a
to the purposes and principles of the matter of comity in the absence of an extradition
United Nations. [Statelessness treaty, if the states concerned are willing to allow it,
Convention, art. 1(2)] although this has occasioned protests from a third
state whose nationals are extradited in such
Rights of Stateless Persons circumstances [Oppenheim’s International Law,
Vol. 1 Peace (9th Ed.), 2008, pp. 951-952]
Under the Statelessness Convention, a stateless
person is entitled to, among others, the right to Exception: Political criminals are, as a rule, not
religion and religious instruction, access to courts, extradited, and according to many extradition
elementary education, public relief and assistance treaties, military deserters and persons who have
and rationing of products in short supply, as well as committed offences against religion are likewise
treatment of no less favorable than that accorded excluded from extradition; and many states refuse
to aliens. extradition if the death penalty will be enforced for
the crime. [Oppenheim’s International Law, Vol. 1
Also, under the Universal Declaration of Human Peace (9th Ed.), 2008, p. 959]
Rights:
Exceptions to the Exception:
a. Everyone has a right to the nationality. 1. Attentat clause - murder of the Head of a
9art. 15(1)]
foreign Government or of a member of his
b. No one shall be arbitrarily deprived of his
nationality nor denied the right to change family, should not be considered a political
his nationality. [art. 15(2)] crime.
K. TREATMENT OF ALIENS Although the attentat clause originated in

Belgium in 1856, it has since been widely
1. EXTRADITION adopted. [Oppenheim’s International Law,
Vol. 1 Peace (9th Ed.), 2008, p. 969]
Definition
The removal of an accused from the Philippines 2. Article 7 of the Genocide Convention 1948
with the object of placing him at the disposal of provides that the crime of genocide shall
foreign authorities to enable the requesting state or not be considered a political crime for the
government to hold him in connection with any purpose of avoiding extradition in
criminal investigation directed against him or the accordance with laws and treaties in force.
execution of a penalty imposed on him under the [Oppenheim’s International Law, Vol. 1
penal or criminal law of the requesting state or Peace (9th Ed.), 2008, p. 970]
government. [Philippine Extradition Law, Section
2(a)] Principle of Specialty
A condition of extradition that the surrendered
individual shall be tried and punished for those
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crimes exclusively for which his extradition has the prohibition against ex post facto laws. The
been asked and granted, or for those at least which constitutional prohibition applies to penal laws only.
the extradition treaty concerned enumerates. An extradition treaty is not a penal law. (Wright v.
[Oppenheim’s International Law, Vol. 1 Peace (9th CA, G.R. No. 113213, Aug. 15, 1994).
Ed.), 2008, p. 961]
b. Notice and Hearing
Who may be Extradited
In principle, any individual, whether he is a national A person does not have the right to notice and
of the prosecuting state, or of the state which is hearing during the evaluation stage of the
required to extradite him, or of a third state, may be extradition process. Extradition is a proceeding sui
extradited. [Oppenheim’s International Law, Vol. 1 generis. It is not a criminal proceeding which will
Peace (9th Ed.), 2008, p. 955] call into operation all the rights of an accused
guaranteed by the Bill of Rights. The process of
Absence of a Special Agreement extradition does not involve the determination of
In the absence of special agreement, the offense the guilt or innocence of an accused. There is no
must have been committed within the territory or deprivation of the right to due process. (Secretary
against the interests of the demanding state. of Justice v. Hon. Lantion and Mark Jimenez, G.R.
No. 139465, Oct. 17, 2000).
Aut dedere aut judicare
This means “either extradite or prosecute.” Right to Bail
An extraditee should not be deprived of his right to
This principle is found in several multilateral apply for bail, provided that a certain standard for
treaties dealing with offences evoking the general the grant is satisfactorily met. The standard of proof
condemnation of the international community have required in granting or denying bail in extradition
adopted the practice of obliging parties either to cases is clear and convincing evidence that the
extradite persons found on their territory but extraditee is not a flight risk and will abide with the
wanted for trial on such an offence by another orders of the extradition court. (Government of
party, or to try such persons themselves. Hong Kong v. Olalia, Jr., G.R. No.153675, Apr. 19,
[Oppenheim’s International Law, Vol. 1 Peace (9th 2007).
Ed.), 2008, p. 953]
If bail can be granted in deportation proceedings,
A state subject to this obligation is bound to there is no justification not to allow it for extradition
extradite if it does not prosecute, and prosecute if because both are administrative proceedings
it does not extradite. where the innocence or guilt of the parties is not in
issue. (Government of Hong Kong v. Olalia, Jr.,
Principle of Double Criminality G.R. No.153675, Apr. 19, 2007).
According to this, extradition is only granted in
respect of a deed which is a crime according to the a. Procedure for Extradition
law of the state which is asked to extradite, as well 1. Foreign diplomat of the Requesting State
as of the state which demands extradition— or Government requests for extradition
although not necessarily a crime of the same name with Secretary of Foreign Affairs.
in each, so long as there is a substantial similarity 2. DFA forwards request to DOJ.
between the offences in each state. This is usually 3. DOJ files a petition for extradition with
included in extradition treaties. [Oppenheim’s RTC.
International Law, Vol. 1 Peace (9th Ed.), 2008, p. 4. RTC issues summons or Warrant of Arrest
958] to compel the appearance of the individual.
5. Hearing (provide for counsel de officio if
Extradition for a crime before treaty effectivity the accused does not have a legal counsel
A party to an extradition treaty may ask the other at the day of the hearing).
party to extradite a person for a crime committed 6. Appeal to CA within 10 days whose
before the effectivity of a treaty. It does not violate decision shall be final and executory
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7. Decision forwarded to DFA through the Immigration Act of 1940, as amended and
DOJ administrative issuances pursuant thereto. (Sec. of
8. Individual placed at the disposal of Justice v. Koruga, G.R. No. 166199, Apr. 24,
authorities of the requesting State. The 2009).
costs and expenses is to be shouldered by
the Requesting State. (Philippine 2. EXPROPRIATION
Extradition Law, §§ 4-8, 12, 16 & 18).
Direct
c. Distinguished from deportation Expropriation is a sovereign right of every State
and is thus not inherently illegal under international
(a) Extradition is the “removal of an law. A broad definition is suggested, whereby
accused from the Philippines with the “‘Expropriation’ is commonly understood to refer to
object of placing him at the disposal of unilateral interference by the State with the
foreign authorities.” (PD 1069, §2(a)). It is property or comparable rights of an owner in
a form of international judicial assistance general terms.” (Akehurst, Modern Introduction to
designed to deny criminals a safe haven International Law, 2019)
abroad. It is a formal procedure whereby
an individual, accused or convicted of a “shall be based on grounds or reasons of public
crime under the laws of one State, is utility, security or the national inters which are
arrested in another State and handed
recognized as overriding purely individual or
over to the former State, at that State’s
request, for trial or punishment. (Boczek, private interests, both domestic and foreign. In
The A to Z of International Law, 60, such cases the owner shall be paid appropriate
2010). compensation in accordance with the rules in force
(b) Deportation is the act or an instance of in the state taking such measures in the exercise
removing a person to another country. of its sovereignty and in accordance with
(Black’s Law Dictionary, 504, 2004). It is international law (1962 UN General Assembly
exercised by the President to expel or Resolution on the Sovereignty over Natural
deport aliens whose presence is deemed Resources)
inimical to the public interest. Deportation
is based on the face that since the aliens
Indirect
are not part of the nation, their admission
to the territory is a matter of purse Any act which deprives a foreigner indefinitely of all
permission and simple tolerance which benefit from his property is regarded by
creates no obligation on the part of the international law as an expropriation, even though
government to permit them to stay. a formal change of ownership may not have
(Djumantan v. Domingo, G.R. No. 99358, occurred. It is the treatment rendering property
Jan. 30, 1995) rights useless even if not actually involving
expropriation of the property. (Akehurst, Modern
Extradition v. Deportation Introduction to International Law, 2019)
EXTRADITION DEPORTATION
Effected at the request Unilateral act of the Most Favored Nation (MFN)
of another state State A most-favoured-nation (‘MFN’) clause is a treaty
Based on Offenses Based on causes provision whereby one State (the granting State)
Committed in the arising in the local undertakes the obligation to accord to another
State or origin State
State (the beneficiary State), in a designated
Calls for the return of An undesirable alien
sphere of economic or other relations, treatment
the fugitive to the may be deported to a
requesting state State other than his not less favourable than the treatment it extends in
own or the State of the same sphere to any other third State (Rasulov,
origin Most Favoured Nation Clause)
Aliens may be expelled or deported from the Fair and Equitable Treatment
Philippines only on grounds and in the manner the precise formulation of these promises of fair
provided for by the Constitution, the Philippine and equitable treatment and the conditions
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attached thereto vary considerably among treaties, Rights Classification

fair and equitable treatment is a core concept
embedded in nearly all international investment 1. First generation rights consist of civil and
agreements. political rights;
2. Second generation rights consist of
economic, social and cultural rights;
Its undefined and potentially elastic nature has
3. Third generation rights consist of the
made it a favourite of aggrieved investors and their rights to development, to peace, and to
lawyers when seeking compensation for the environment. (Vasak)
allegedly injurious acts of host country
governments. Indeed, some have claimed that a 1. UNIVERSAL DECLARATION OF HUMAN
majority of successful claims in investor–state RIGHTS (“UDHR”)
arbitrations have been based on the fair and
equitable clausethe concept of fair and equitable Overview
treatment in investment treaties has its origins in
the post-World War II era. It arose within The UDHR, adopted by the UN General Assembly
international efforts to foster international in 1948, was the first legal document to set out the
investment specifically.(Salacuse, The Law of fundamental human rights to be universally
Investment Treaties (3rd Edition) protected. (OHCHR Website, What are human
rights?, ¶ 2).
L. INTERNATIONAL HUMAN RIGHTS LAW
It is not a treaty. It has no obligatory character
PRELIMINARIES because it was adopted by the UN General
Assembly as Resolution 217A (III). As a resolution,
Definition of Human Rights it is merely recommendatory.
Human rights are rights that every human being Despite this, the UDHR is considered a normative
has by virtue of his or her human dignity. [OHCHR,
Human Rights Handbook for Parliamentarians instrument that creates binding obligations for all
(“HR Handbook”), p. 19] states because of the consensus evidenced by the
practice of states that the UDHR is now binding as
Basic Principles of Human Rights part of international law (Carillo).
Human rights are: UDHR as Customary International Law
a. Universal - Human rights are universal Rights covered by UDHR are customary
because they are based on every human
international law; hence, even during the times
being's dignity, irrespective of race, color, sex,
ethnic or social origin, religion, language, when the Bill of Rights under the Constitution are
nationality, age, sexual orientation, disability or inoperative, rights under UDHR remained in effect.
any other distinguishing characteristic. (HR (Republic v. Sandiganbayan, G.R. No. 104768, Jul.
Handbook, p. 21) 21, 2003)
b. Inalienable – No person may be divested of his
or her human rights, save under clearly defined Rights Covered
legal circumstances. (HR Handbook, p. 22)
c. Indivisible and Interdependent - Each human The UDHR embodies both first and second
right entails and depends on other human generation rights.
rights, violating one such right affects the
exercise of other human rights. (HR Handbook, The civil and political rights enumerated
p. 22)
include:
d. Non-discriminatory - The right to equality and
the prohibition of discrimination, explicitly set
1. The right to life, liberty, and security of
out in international and regional human rights
person (art. 3);
treaties, are central to the protection of all
2. Prohibition against slavery or servitude
human rights. (HR Handbook, p. 23)
(art. 4);
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3. Prohibition against torture or cruel, 6. Freedom from slavery and servitude [arts.
inhuman or degrading treatment or 8(1)-(2)]
punishment (art. 5); 7. Right to liberty and security of person [art.
4. The right not to be subjected to arbitrary 9(1)]
arrest, detention or exile (art. 9); 8. Right to be treated with humanity in cases
5. The right to a fair and public hearing by an of deprivation of liberty [art. 10(1)]
independent and impartial tribunal, in the 9. Freedom from imprisonment for failure to
determination of his rights and obligations fulfill a contractual obligation (art. 11)
and of any criminal charge against him (art. 10. Freedom of movement and the right to
10); travel [art. 12(1)]
6. The right to a nationality, to not be 11. Right to a fair, impartial and public trial [art.
arbitrarily deprived of such and to not be 14(1)]
denied the right to change it (art. 15). 12. Freedom from ex post facto laws [art.
7. The right to freedom of thought, 15(1)]
conscience and religion (art. 18); 13. Right of recognition everywhere as a
8. The right to freedom of opinion and person before the law (art. 16)
expression (art. 19); 14. Right to privacy [art. 17(1)]
9. Right to peaceful assembly and 15. Freedom of thought, conscience, and
association (art. 20); religion [art. 18(1)]
10. The right to take part in the government of 16. Freedom of expression [art. 19(2)]
his country [art. 21(1)]. 17. Freedom of peaceful assembly (art. 21)
18. Freedom of association [art. 22(1)]
The economic, social and cultural rights 19. Right to marry and found a family [art.
enumerated include: 23(2)]
20. Right of a child to protection, a name and
1. The right to social security (art. 22); nationality (art. 24)
2. The right to work and protection against 21. Right to participation, suffrage, and access
unemployment [art. 23(1)]; to public service (art. 25)
3. The right to equal pay for equal work [art. 22. Right to equal protection before the law
23(2)]; (art. 26)
4. The right to form and join trade unions 23. Right of minorities to enjoy their own
[art. 23(4)]; culture, to profess and practice their
5. The right to rest and leisure [art. 24]. religion and to use their own language (art.
27).
2. INTERNATIONAL COVENANT ON CIVIL
AND POLITICAL RIGHTS (ICCPR) Nature of the Obligations under ICCPR
Overview The legal obligation under article 2, paragraph 1, is

both negative and positive in nature.
The ICCPR is an international covenant and is
binding on the respective state parties. It embodies States Parties must refrain from violation of the
the first generation of human rights, although it lists rights recognized by the Covenant, and any
more rights than the UDHR. restrictions on any of those rights must be
permissible under the relevant provisions of the
Rights Guaranteed Covenant.
1. Right of the peoples to self-determination Where such restrictions are made, States must
[art. 1(1)] demonstrate their necessity and only take such
2. Right to an effective remedy [art. 2(3)(a)] measures as are proportionate to the pursuance of
3. Equal rights of men and women in the
legitimate aims in order to ensure continuous and
enjoyment of civil and political rights/non-
discrimination on the basis [arts. 3 & 4(1)] effective protection of Covenant rights.
4. Right to life [art. 6(1)]
5. Freedom from torture or cruel, inhuman or In no case may the restrictions be applied or
degrading treatment or punishment (art. invoked in a manner that would impair the essence
7) of a Covenant right. [General Comment No. 31, ¶6]
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States Parties are required by article 2, paragraph 5. Prohibition of imprisonment because of

1, to respect and to ensure the Covenant rights to inability to fulfil contractual obligation (art.
all persons who may be within their territory and to 11);
6. Principle of legality in criminal law i.e. the
all persons subject to their jurisdiction. This means
requirement that criminal liability and
that a State party must respect and ensure the punishment is limited to clear and precise
rights laid down in the Covenant to anyone within provisions in the law, that was in force at
the power or effective control of that State Party, the time the act or omission took place,
even if not situated within the territory of the State except in cases where a later law imposes
Party. [General Comment No. 31, ¶10] a lighter penalty (art. 15);
7. Recognition everywhere as a person
Obligations of State Parties under the ICCPR before the law (art. 16);
(art.2) 8. Freedom of thought, conscience and
religion (art. 18)
1. State parties undertake to respect and to
ensure to all individuals within their Lawful Derogation Under ICCPR
territory and subject to their jurisdiction the
rights enumerated therein, without Before a State moves to invoke article 4 (and
distinction of any kind, such as race, color, temporarily derogates from its obligations), two
sex, language, religion, political or other fundamental conditions must be met:
opinion, national or social origin, birth or
other status. a. the situation must amount to a public
2. State parties are required to take the emergency which threatens the life of the
necessary steps to adopt legislative or nation, and
other measures that are necessary to give b. the State party must have officially
effect to the rights recognized in the proclaimed a state of emergency. (General
ICCPR. Comment No. 29, ¶2)
3. State parties must ensure that any person
whose rights or freedoms are violated Permissible Derogations
have an effective remedy, notwithstanding
that the violation has been committed by 1. During a state of emergency threatening
persons action in an official capacity. the life of the nation; and
4. State parties must ensure that any person 2. subject to compliance with conditions:
claiming such remedy shall have his right a. Prescribed by Law
thereto determined by competent judicial, b. Legitimate Aim
administrative or legislative authority, and c. Reasonableness
that they shall enforce the remedy when d. Necessity: necessary to protect
granted. the invoked legitimate aim
e. Proportionality: it is the least
Non-Derogable Rights intrusive measure available.
f. Compatibility with the aims and
Article 4 of the ICCPR provides that even in times provisions of the ICCPR:
of public emergency that threatens the life of the derogation should not undermine
nation, no derogation may be made from the the state’s ability to respect and
protect other rights found in the
following rights:
ICCPR
Right to Life
1. Right to life [art. 6);
2. Prohibition of torture, cruel, inhuman and
The right to life is a right that should not be
degrading treatment (art. 7);
3. Prohibition of medical or scientific interpreted narrowly. It concerns the entitlement of
experimentation without consent (art. 7); individuals to be free from acts and omissions that
4. Prohibition of slavery, slave trade and are intended or may be expected to cause their
servitude (art. 8); unnatural or premature death, as well as to enjoy a
life with dignity. Article 6 of the Covenant
guarantees this right for all human beings, without
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distinction of any kind, including for persons Minimum Core Obligations

suspected or convicted of even the most serious
crimes. (General Comment No. 36, ¶3) Governments, no matter what level of resources
are at their disposal, are obligated to make sure
3. INTERNATIONAL COVENANT ON that people living under their jurisdiction enjoy at
ECONOMIC, SOCIAL, AND CULTURAL least essential levels of protection of each of their
RIGHTS (ICESCR) economic, social, and cultural rights. While the
ICESCR recognizes the principle of progressive
The ICESCR, like the ICCPR, is an international realization of ESCR, this does not mean that states
covenant and is binding on the respective State are free to postpone undertaking their duties vis-à-
Parties. It embodies the second generation of vis ESCR until a later date. Protection from
human rights, although it lists more rights than the starvation, primary education, emergency
UDHR. healthcare, and basic housing are among the
minimum requirements to live a dignified life and it
Rights Guaranteed
is the duty of governments to ensure these at all
1. Right of self-determination times. Even in cases of economic downturn or
2. Right to work and accompanying rights other emergency, these core requirements must be
thereto guaranteed to everyone. States should use all the
3. Right to social security and other social available resources, including international
rights assistance, to make sure that every individual in
4. Adequate standard of living including: their territory enjoys a bare minimum of ESCR.
a. Right to adequate housing
b. Right to adequate food (ESCR-net, Minimum Core Obligations)
c. Right to adequate clothing
d. Right to the continuous Right to Health
improvement of living conditions
5. Right to health The right to health is not to be understood as a right
6. Right to education to be healthy. The right to health contains both
7. Cultural rights freedoms and entitlements. The freedoms include
the right to control one’s health and body, including
State Parties’ Obligations In ICESCR sexual and reproductive freedom, and the right to
be free from interference, such as the right to be
General Duties/ Obligations of States
free from torture, non-consensual medical
1. Respect - Refrain from interfering with treatment and experimentation. By contrast, the
enjoyment of rights. entitlements include the right to a system of health
2. Protect (negative obligation) - Prevent protection which provides equality of opportunity
violations by third parties. for people to enjoy the highest attainable level of
3. Fulfill (positive obligation) - Take health. (General Comment No. 14, ¶8)
appropriate measures towards the full
realization of the rights. (OHCHR, FAQ on States are obligated to provide health facilities,
Economic, Social, and Cultural Rights, p. goods and services that are available, accessible,
11)
acceptable, and of quality (AAAQ). (General
Specific Obligations Under Article 2 of the Comment No. 14, ¶12)
ICESCR (Progressive Realization Clause)
M. INTERNATIONAL HUMANITARIAN LAW
1. Take steps to the maximum extent of
available resources, towards the Overview
progressive realization of the rights in the
covenant. International humanitarian law (IHL) regulates
2. Non-discrimination - States guarantee relations between States, international
the exercise of the rights without organizations and other subjects of international
discrimination. law. It is a branch of public international law that
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consists of rules that, in times of armed conflict, IHRL IHL

seek – for humanitarian reasons – to protect
persons who are not or are no longer directly Both are aimed at protecting the individual and
participating in the hostilities, and to restrict means apply simultaneously in times of international
and methods of warfare. & non-international armed conflicts.
In other words, IHL consists of international treaty Protects the individual Regulates the conduct
or customary rules (i.e. rules emerging from State from abusive or of hostilities and the
practice and followed out of a sense of obligation) arbitrary exercise of protection of persons
that are specifically meant to resolve humanitarian power by State in situations of armed
issues arising directly from armed conflict, whether authorities conflict
of an international or a non-international character. Human rights law The personal, material
[International Committee of the Red Cross applies only where and territorial
(“ICRC”)]. individuals find applicability
themselves within of IHL essentially
Jus ad Bellum v. Jus in Bello territory controlled by a depends on the
State, including existence of a nexus
1. Jus ad bellum refers to the conditions occupied territories with an armed
under which States may resort to war or to (territorial jurisdiction), conflict
the use of armed force in general. The or where a State
prohibition against the use of force
exercises effective
amongst States and the exceptions to it
control, most
(self-defense and UN authorization for the
use of force), set out in the United Nations commonly physical
Charter of 1945, are the core ingredients custody, over
of jus ad bellum individuals outside its
2. Jus in bello regulates the conduct of territorial jurisdiction
parties engaged in an armed conflict. IHL (personal jurisdiction).
is synonymous with jus in bello; it seeks to Human rights law IHL also directly
minimize suffering in armed conflicts, protects, for example,
notably by protecting and assisting all focuses specifically on livestock, civilian
victims of armed conflict to the greatest human beings
extent possible. (ICRC) objects, cultural
property, the
Two Branches environment and the
political order of
1. Law of The Hague - the body of rules occupied territories.
establishing the rights and obligations of
belligerents in the conduct of hostilities, Human rights law is IHL is binding on all
and which limits means and methods of
binding only on States parties to an armed
warfare.
conflict, including non-
2. Law of Geneva - the body of rules that State armed groups
protects victims of armed conflict, such as
military personnel who are hors de combat
and civilians who are not or are no longer
directly participating in hostilities (ICRC
International Human Rights Law v.

International Humanitarian Law
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Human rights law IHL applies only in Types of Armed Conflict

applies armed conflicts and is
specifically designed IHL distinguishes two types of armed conflicts,
irrespective of whether for such situations. namely:
there is an armed Therefore, unless
conflict. In times of 1. International armed conflicts (“IAC”),
expressly foreseen in opposing two or more States
public emergency, the relevant treaty a. Wars of National Liberation are
however, human rights provisions, the rules also considered IAC. [How is the
law allows for and principles of IHL Term “Armed Conflict” Defined in
derogations from cannot be derogated International Humanitarian Law?,
protected rights to the from ICRC, Opinion Paper, March
extent actually 2008, p. 2 (“ICRC Opinion
required by the Paper”)]
2. Non-international armed conflicts
exigencies of the
(“NIAC”), between governmental forces
situation. and non-governmental armed groups, or
between such groups only. (ICRC Opinion
[Table made from IHL: A Comprehensive Paper, p. 1)
Introduction (“Intro to IHL”), p. 27-30]
Armed conflicts subject to foreign intervention are
a special form of armed conflict sometimes also
less accurately referred to as “internationalized”
1. CATEGORIES OF ARMED CONFLICT
armed conflicts. In essence, this concept refers to
Armed Conflict v. War a State, or coalition of States, intervening in a pre-
existing non-international armed conflict, thereby
ARMED CONFLICT WAR
becoming a (co-belligerent) party to that conflict.
Today, an Traditionally, States (Intro to IHL, p. 73).
international expressed their
a. International Armed Conflicts (IAC)
belligerent intent
armed conflict is (animus An international armed conflict occurs when one or
presumed to exist belligerendi) more States have recourse to armed force against
as soon as a State through formal another State, regardless of the reasons or the
uses armed force declarations of war, intensity of this confrontation. No formal
against another declaration of war or recognition of the situation is
which, ipso facto,
State, regardless of required.
created a political
the reasons for or state of war and The existence of an international armed conflict,
intensity of the triggered the and as a consequence, the possibility to apply IHL
confrontation, and applicability of the to this situation, on what actually happens on the
irrespective of law of war (jus in ground. It is based on factual conditions. (ICRC)
whether a political bello) between
state of war has General Rule: Under Article 2(4) of the UN
them, even in the Charter, all Members shall refrain in their
been formally absence of open international relations from the threat or use of
declared or hostilities. force against the territorial integrity or political
recognized. independence of any state, or in any other manner
inconsistent with the Purposes of the United
(Table made from Intro to IHL, p. 56)
Nations.
Exception: Nothing in the present Charter shall

impair the inherent right of individual or collective
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self-defense if an armed attack occurs against a b. Internal or Non-International Armed

Member of the United Nations, until the Security Conflict (NIAC)
Council has taken measures necessary to maintain
international peace and security. (UN Charter, art. These are armed conflicts that take place in the
51) territory of a High Contracting Party between its
armed forces and dissident armed forces or other
Anticipatory Self Defense organized armed groups which, under responsible
command, exercise such control over a part of its
Article 51 of the UN Charter recognizes the territory as to enable them to carry out sustained
inherent right of States to self-defense if an armed and concerted military operations.
attack occurs.
It does not include situations of internal
Collective Self-Defense disturbances and tensions, such as riots, isolated
and sporadic acts of violence and other acts of a
Before a State can be justified in assisting another
similar nature, as not being armed conflicts.
by way of collective self -defense:
[Additional Protocol II to the Geneva Conventions
1. A State must have been the victim of an of 1949 (AP II)], art. 1].
armed attack;
2. That State must declare itself as a victim of Difference of AP II, art. 1 and Common Article
an armed attack. The assessment of 3 of the Geneva Conventions
whether an armed attack had taken place
or not, is done by the State who was A NIAC within the meaning of common Article 3
subjected to the attack. A third State does not necessarily have to involve a government;
cannot exercise a right of collective self- it can also take place entirely between organized
defense based on that third State’s own armed groups, a scenario that is particularly
assessment;
relevant in areas
3. In the case of collective self-defense, the
victim State must request for assistance.
of weak governance, such as so-called “failed
(U.S. v. Nicaragua, ¶232, Jun. 27, 1986)
States.”
Self Defense v. Just War
In order for a non-State armed group to be
SELF-DEFENSE JUST WAR
considered a “party” to a conflict, common Article 3
It refers to the use of Once a State has a does not require any recognition of belligerency by
force to repel an valid reason for the opposing State, nor popular support, territorial
attack or imminent resorting to control or political motivation. (Intro to IHL, p. 68)
threat of attack
force, there is no limit Requisites of an NIAC:
directed against
oneself or others or a on the extent of force
a. Protracted armed violence
legally protected which could be b. Such armed violence is between
interest. employed. governmental authorities and organized
armed groups or between such groups
Self-defense in within a State. (Prosecutor v. Tadić Trial
international law Decision, ¶561, May 7, 1997)
refers to the inherent
Threshold of Protracted Armed Violence
right of a State to use
of force in response to A criterion that in practice has been interpreted as
an armed referring more to the intensity of the armed violence
attack. (ICRC) than to its duration.
Indicative factors for assessing “intensity” have
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included: “the number, duration and intensity of Internationalized Armed Conflict

individual confrontations; the type of weapons and
other military equipment used; the number and An internationalized armed conflict refers to an
caliber of munitions fired; the number of persons internal conflict that had become internationalized
and type of forces partaking in the fighting; the because of external support. An NIAC becomes
number of casualties; the extent of material internationalized when another State has overall
destruction; and the number of civilians fleeing control over an organized armed group, which is
combat zones. (Intro to IHL, p.70) going beyond the mere financing and equipping of
such forces and involving also participation in the
Organized Armed Group planning and supervision of military operations.
(Prosecutor v. Tadić)
The armed wing of a non-state party to a non-
international armed conflict, and may be comprised c. Wars of National Liberation
of either:
Armed conflicts in which people are fighting against
a. dissident armed forces (for example, colonial domination and alien occupation and
breakaway parts of state armed forces); or against racist regimes in the exercise of their right
b. other organized armed groups which of self-determination. Those engaged in such a
recruit their members primarily from the
conflict receive combatant status and are entitled
civilian population but have developed a
sufficient degree of military organization to to combatant rights and duties. This conflict is
conduct hostilities on behalf of a party to considered an international armed conflict under
the conflict. Article 1, 3rd and 4th pars., Protocol 1. (Additional
Protocol I to the Geneva Conventions of 1949).
The term organized armed group refers exclusively
to the armed or military wing of a non-state party to Wars by peoples against racist, colonial and alien
a non-international armed conflict. It does not
include those segments of the civilian population domination “for the implementation of their right to
that are supportive of the non-state party such as self-determination and independence is legitimate
its political wing. (ICRC) and in full accord with principles of international
law,” and that any attempt to suppress such
The level of organization of non-State armed struggle is unlawful [Resolution 3103 (XXVIII)].
groups has in practice been assessed based on a
series of indicative factors including elements such When peoples subjected to alien domination resort
as: “the existence of a command structure and to forcible action in order to exercise their right to
disciplinary rules and mechanisms within the self-determination, they “are entitled to seek and to
group; the existence of a headquarters; the fact receive support in accordance with the purposes
that the group controls a certain territory; the ability and principles of the Charter.” [UN GA Reso. 2625
of the group to gain access to weapons, other (XXV)]
military equipment, recruits and military training; its
2. CORE INTERNATIONAL OBLIGATIONS
ability to plan, coordinate and carry out military
OF STATES IN INTERNATIONAL
operations, including troop movements and
HUMANITARIAN LAW
logistics; its ability to define a unified military
strategy and use military tactics; and its ability to Common Article 1 of all four Geneva Conventions
speak with one voice and negotiate and conclude is a key provision when it comes to a state’s
agreements such as cease-fire or peace accords. responsibilities under IHL. It provides that states
[Additional Protocol II to the Geneva Conventions are responsible to “respect and ensure respect” for
of 1949 (AP II), art. 1]. (Intro to IHL, p.69) the conventions in all circumstances.
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In general, IHL defines the following determines whether the taking of life in times of war
obligations: has been arbitrary.
1. Persons hors de combat and those who do International Humanitarian Law covers two
not take a direct part in hostilities are areas:
entitled to respect for their lives and their
moral and physical integrity. They shall in 1. the protection of those who are not, or no
all circumstances be protected and treated longer, taking part in the fighting; and
humanely without any adverse distinction. 2. restrictions on the means of warfare, in
2. It is forbidden to kill or injure an enemy who particular, weapons and methods of
surrenders or who is hors de combat . warfare, such as military tactics. (What is
3. The wounded and sick shall be collected International Humanitarian Law?, Advisory
and cared for by the party to the conflict Service on International Humanitarian
which has them in its power. Protection Law, ICRC, Jul. 2004)
also covers medical personnel,
establishments, transports and equipment. Obligations are found primarily in the four Geneva
The emblem of the red cross or the red Conventions of 1949 and the Additional Protocols I
crescent is the sign of such protection and
and II thereto. Other sources include:
must be respected.
4. Captured combatants and civilians under
• 1954 Convention for the Protection of
the authority of an adverse party are
Cultural Property in the Event of Armed
entitled to respect for their lives, dignity,
Conflict, and its two protocols;
personal rights and convictions. They shall
be protected against all acts of violence • 1972 Biological Weapons Convention;
and reprisals. They shall have the right to • 1980 Conventional Weapons Convention
correspond with their families and to and its five protocols;
receive relief. • 1993 Chemical Weapons Convention;
5. Everyone shall be entitled to benefit from • 1997 Ottawa Convention on anti-
fundamental judicial guarantees. No one personnel mines;
shall be held responsible for an act he has • 2000 Optional Protocol to the Convention
not committed. No one shall be subjected on the Rights of the Child on the
to physical or mental torture, corporal involvement of children in armed conflict
punishment or cruel or degrading (What is International Humanitarian Law?,
treatment. Advisory Service on International
6. Parties to a conflict and members of their Humanitarian Law, ICRC, Jul. 2004)
armed forces do not have an unlimited
choice of methods and means of warfare. 3. PRINCIPLES ON INTERNATIONAL
It is prohibited to employ weapons or HUMANITARIAN LAW
methods of warfare of a nature to cause
unnecessary losses or excessive 4 Principles of IHL
suffering.
7. Parties to a conflict shall at all times 1. Humanity
distinguish between the civilian population 2. Proportionality
and combatants in order to spare civilian 3. Distinction
population and property. Neither the 4. Military Necessity
civilian population as such nor civilian
persons shall be the object of attack. Principle of Humanity
Attacks shall be directed solely against
military objectives. (Basic Rules of The principle of humanity forbids the infliction of all
International Humanitarian Law in Armed suffering, injury or destruction not necessary for
Conflicts, ICRC, Dec. 31, 1988) achieving the legitimate purpose of a conflict.
(ICRC)
The ICCPR, particularly its protection on the right
to life, does not determine the legality of the use of
nuclear weapons in an armed conflict. What
applies is the lex specialis, which is the IHL. It
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Principle of Proportionality conflict, with intent to betray that confidence, shall

constitute perfidy.
The principle of proportionality prohibits attacks
against military objectives which are “expected to The following acts are examples of perfidy:
cause incidental loss of civilian life, injury
to civilians, damage to civilian objects, or a a. The feigning of an intent to negotiate under
a flag of truce or of a surrender;
combination thereof, which would be excessive in
b. the feigning of an incapacitation by
relation to the concrete and direct military wounds or sickness;
advantage anticipated”. c. the feigning of civilian, non-combatant
status; and
d. the feigning of protected status by the use
In other words, the principle of proportionality of signs, emblems or uniforms of the
seeks to limit damage caused by military United Nations or of neutral or other States
operations by requiring that the effects of not Parties to the conflict. (AP I, art. 37)
the means and methods of warfare used must not
Ruses of War
be disproportionate to the military advantage
sought. (ICRC) Ruses of war are not prohibited. Such ruses are
acts which are intended to mislead an adversary or
Military Necessity
to induce him to act recklessly but which infringe no
The principle of military necessity permits only that rule of international law applicable in armed conflict
degree and kind of force required to achieve the and which are not perfidious because they do not
legitimate purpose of a conflict, i.e. the complete or invite the confidence of an adversary with respect
partial submission of the enemy at the earliest to protection under that law. The following are
possible moment with the minimum expenditure of examples of such ruses: the use of camouflage,
life and resources. It does not, however, permit the decoys, mock operations and misinformation. (AP
taking of measures that would otherwise be I, art. 37)
prohibited under IHL. (ICRC)
Hors de combat
Principle of Distinction
Under Article 41(2), Protocol I, a person is hors de
The principle of distinction is a fundamental combat if:
principle of international humanitarian law which
1. He is in the power of an adverse party;
provides that parties to an armed conflict must “at
2. He clearly expresses an intention to
all times distinguish between the civilian surrender; or
population and combatants and between civilian 3. He has been rendered unconscious or is
objects and military objectives and accordingly otherwise incapacitated by wounds or
shall direct their operations only against military sickness, and is therefore incapable of
objectives”. defending himself;
Provided that in any of these cases, he
This implies that indiscriminate attacks and the use abstains from any hostile act and does not
of indiscriminate means and methods of attempt to escape.
warfare are prohibited. (ICRC)
Protected Persons
Perfidy
Those who enjoy or are entitled to protection under
It is prohibited to kill, injure or capture an adversary the Geneva Conventions. Including:
by resort to perfidy. Acts inviting the confidence of
an adversary to lead him to believe that he is 1. The wounded, the sick, and shipwrecked;
2. Prisoners of war;
entitled to, or is obliged to accord, protection under
3. Civilians
the rules of international law applicable in armed
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Civilians clearly separated and distinct military

objectives located in a city, town,
A civilian is any person who does not belong to one village or other area containing a
of the categories of persons referred to in Article 4 similar concentration of civilians or
A (1), (2), (3) and (6) of the Third Convention and civilian objects; and
b. an attack which may be expected to
in Article 43 of AP I. In case of doubt whether a
cause incidental loss of civilian life,
person is a civilian, that person shall be considered injury to civilians, damage to civilian
to be a civilian. objects, or a combination thereof,
which would be excessive in relation
The civilian population comprises all persons who to the concrete and direct military
are civilians. The presence within the civilian advantage anticipated.
population of individuals who do not come within 6. Attacks against the civilian population or
the definition of civilians does not deprive the civilians by way of reprisals are prohibited.
population of its civilian character. (AP I, art. 50) 7. The presence or movements of the civilian
population or individual civilians shall not
a. Treatment of Civilians be used to render certain points or areas
immune from military operations, in
1. The civilian population and individual particular in attempts to shield military
civilians shall enjoy general protection objectives from attacks or to shield, favour
against dangers arising from military or impede military operations. The Parties
operations. To give effect to this to the conflict shall not direct the
protection, the following rules, which are movement of the civilian population or
additional to other applicable rules of individual civilians in order to attempt to
international law, shall be observed in all shield military objectives from attacks or to
circumstances. shield military operations.
2. The civilian population as such, as well as 8. Any violation of these prohibitions shall not
release the Parties to the conflict from their
individual civilians, shall not be the object
of attack. Acts or threats of violence the legal obligations with respect to the civilian
primary purpose of which is to spread population and civilians, including the
terror among the civilian population are obligation to take the precautionary
prohibited. measures provided for in Article 57. (AP I,
3. Civilians shall enjoy the protection afforded ART. 51)
by this Section, unless and for such time
as they take a direct part in hostilities. Combatants are not entitled to the rights afforded
4. Indiscriminate attacks are prohibited. to civilians.
Indiscriminate attacks are:
a. those which are not directed at a b. Prisoners of War (POW)
specific military objective;
b. those which employ a method or Prisoners of war are captured for security reasons
means of combat which cannot be and not for punishment.
directed at a specific military
objective; or General Rule: A prisoner of war shall not be liable
c. those which employ a method or to judicial prosecution even if he has committed to
means of combat the effects of which facilitate escape (e.g., theft, drawing of false
cannot be limited as required by this papers).
Protocol; and consequently, in each
such case, are of a nature to strike Exception: When the escapee has used violence
military objectives and civilians or
against life and limb during his escape.
civilian objects without distinction.
5. Among others, the following types of
attacks are to be considered as Who are POWs?
indiscriminate:
a. an attack by bombardment by any Generally, persons who have fallen into the power
methods or means which treats as a of an adverse party to a conflict are entitled to
single military objective a number of prisoner-of-war status if they qualify as:
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a. combatants (members of the armed forces • Receive food, clothing, religious articles,
or participants in a levée en masse); medicine
b. civilians formally authorized to accompany • Bare minimum of information
the armed forces; • Keep personal belongings
c. demobilized military personnel in occupied • Proper burial
territory; • Grouped according to nationality
d. military personnel interned in neutral • Establishment of an informed bureau
territory. (Intro to IHL, p. 178) • Repatriation for sick and wounded
Under the third Geneva Convention, POWs are The wounded and the sick shall be collected and
persons belonging to one of the following cared for by the party to the conflict which has them
categories, who have fallen into the power of the in its power. Protection also covers medical
enemy: personnel, establishments, transports and
equipment.
1. Members of the armed forces of a party to
the conflict, including militias or volunteer Combatants
corps;
2. Militias or volunteer corps operating in or Members of the armed forces of a party to a
outside their own territory, even if such conflict. They have the right to participate directly
territory is occupied provided:
and indirectly in hostilities [AP I, art. 43(2)]. Only
a. They are being commanded by a
person responsible for his combatants are allowed to engage in hostilities.
subordinates;
b. Have a fixed distinctive sign A combatant is allowed to use force, even to kill,
recognizable at a distance; and will not be held personally responsible for his
c. Carries arms openly; acts, as he would be where he to the same as a
d. Conducts their operations in normal citizen (Gasser).
accordance with the laws and
customs of war; Martens clause/principle of humanity
3. Members of regular armed forces who
profess allegiance to a government or In cases not covered by Additional Protocol I or by
authority not recognized by the detaining other international agreements, civilians and
power; combatants remain under the protection and
4. Civilians who accompany the armed
forces, provided that they have received authority of the principles of international law
authorization from the armed forces which derived from established custom, from the
they accompany; principles of humanity and from the dictates of
5. Members of crews of merchant marine and public conscience. (Legality of the Threat or Use of
the crews of civil aircraft of the parties to Nuclear Weapons, ¶78, Jul. 8, 1996)
the conflict;
6. Inhabitants of a non-occupied territory who Levée en masse
on the approach of the enemy
spontaneously take up arms to resist the Used to describe the inhabitants of a non-occupied
invading forces, without having had time to territory who, on the approach of the enemy,
form themselves into regular armed units,
spontaneously take up arms to resist the invading
provided they carry arms openly and
respect the laws and customs of war (AP I, forces without having had time to form themselves
art. 4) into regular armed units, provided they carry arms
openly and respect the laws and customs of war.
Rights of Prisoners of War: HIT-PNB2-CFR [Geneva Convention III, art. 4(A)(6)]
• To be treated humanely Participants in a levée en masse are the only

• Not subject to torture armed actors who are excluded from the civilian
• Allowed to communicate with their population although, by definition, they operate
families
spontaneously and lack sufficient organization and
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command to qualify as members of the armed 3. A neutral power is forbidden to allow

forces. All other persons who directly participate in belligerents to use its territory for moving
hostilities on a merely spontaneous, sporadic or troops, establishing communication
facilities, or forming corps of combatants.
unorganized basis must be regarded as civilians.
(art. 5)
[Interpretative Guidance on the Notion of Direct 4. Troops of belligerent armies received by a
Participation in Hostilities under International neutral power in its territory shall be
Humanitarian Law, ICRC, Part 2-A(I)(3), May 2009] interned away from the theatre of war. (art.
11)
4. LAW ON NEUTRALITY 5. The neutral power may supply the interned
with food, clothing or relief required by
In a conflict, there are some who wish to stay out humanity. (art. 12)
of the way and adopt an attitude of impartiality. 6. If the neutral power receives escaped
Such an attitude must be recognized by the prisoners of war, it shall leave them at
opposing Party-States and creates both rights and liberty. It may assign them a place of
residence if it allows them to remain in its
duties in the neutral States.
territory. (art. 13)
7. The neutral power may authorize the
The decision to employ a neutral stance is dictated
passage into its territory of the sick and
by political/internal mechanisms. Neutral States wounded if the means of transport bringing
must not engage in activities which interfere with them does not carry personnel or materials
the activities of the belligerents while the latter of war. (art. 14)
respect the former’s rights.
The Geneva Convention (III) allows neutral powers
Neutral power to cooperate with the parties to the armed conflict
in making arrangements for the accommodation in
In essence, the law of neutrality has three aims: the former’s territory of the sick and wounded
prisoners of war. (Geneva Convention III, art. 109)
a. to protect neutral States (i.e. all States that are
not party to an international armed conflict) Interned persons among the civilian population, in
from belligerent action;
particular the children, the pregnant women, the
b. to ensure neutral States do not militarily
support belligerent States; and mothers with infants and young children, wounded
c. to maintain normal relations between neutral and sick, may be accommodated in a neutral state
and belligerent States. (ICRC) in the course of hostilities, by agreement between
the parties to the conflict.
A neutral State may not openly participate in
hostilities, nor (1) lend assistance to belligerents; Protecting power
(2) recruit troops for the belligerents or allow third
parties to do so on its territory; (3) supply military A protecting power is:
equipment on any pretext whatsoever; (4) supply
1. Either a neutral State or other State not a
military intelligence. Apart from these prohibitions
Party to the conflict;
a neutral State retains the right to trade with all 2. Designated by a Party to the conflict and
belligerent States. (ICRC) accepted by the enemy Party; and
3. Has agreed to carry out the functions
The Hague Convention Respecting the Rights and assigned to a Protecting Power under
Duties of Neutral Powers (1907) governs the status international humanitarian law. (ICRC)
of neutrality by the following rules:
1. The territory of the neutral power is The Protecting Power’s duty is to safeguard the
inviolable (art. 1) interests of the Parties to the conflict. (Geneva
2. Belligerents are forbidden to move troops Conventions I, II, III, art. 8)
or convoys of either munitions of war or
supplies across the territory of a neutral
power. (art. 2)
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Responsibility to Protect or to abstain from doing any act, which constitute

offenses within the scope of and as defined in the
The State carries the primary responsibility for international conventions and protocols relating to
protecting populations from genocide, war crimes, terrorism, are under no circumstances justifiable by
crimes against humanity and ethnic cleansing, and considerations of a political, philosophical,
their incitement; ideological, racial, ethnic, religious or other similar
nature (UN Security Council Resolution 1566,
The international community has a responsibility to
2004, ¶3).
encourage and assist States in fulfilling this
responsibility; Right to unilateral secession or external self-
determination under International Law?
The international community has a responsibility to
use appropriate diplomatic, humanitarian and other General Rule: The people's right to self-
peaceful means to protect populations from these determination should not be understood as
crimes. If a State is manifestly failing to protect its extending to a unilateral right of secession.
populations, the international community must be
prepared to take collective action to protect Exception: International law, at best, only
populations, in accordance with the Charter of the recognizes the right to external self-determination
United Nations (UN General Assembly Resolution in situations of (1) former colonies; (2) where a
60/1, 2005). people is oppressed, as for example under foreign
military occupation; or (3) where a definable group
International Terrorism is denied meaningful access to government to
pursue their political, economic, social and cultural
Article 2(b) of the International Convention for the
development (Province of North Cotobato v. GRP,
Suppression of the Financing of Terrorism (1999)
G.R. No. 183591, Oct. 14, 2008)
provides:
N. LAW OF THE SEA
“Any other act intended to cause death or serious
bodily injury to a civilian, or to any other person not Overview
taking an active part in the hostilities in a situation The United Nations Convention on Law of the Sea
of armed conflict, when the purpose of such act, by (UNCLOS) is the body of treaty rules and
its nature or context, is to intimidate a population, customary norms governing the use of the sea, the
or to compel a Government or an international exploitation of its resources, and the exercise of
organization to do or to abstain from doing any act.” jurisdiction over maritime regimes (Magallona).
Criminal acts intended or calculated to provoke a It is the branch of public international law which
state of terror in the general public, a group of regulates the relations of states with respect to the
persons or particular persons for political purposes use of the oceans.
are in any circumstance unjustifiable, whatever the
considerations of a political, philosophical, 1. BASELINES
ideological, racial, ethnic, religious or any other
nature that may be invoked to justify them. (UN Definition
A baseline is the line from which a breadth of the
General Assembly Resolution 51/210, 1996, ¶2).
territorial sea and other maritime zones, such as
Criminal acts, including against civilians, the contiguous zone and the exclusive economic
committed with the intent to cause death or serious zone is measured. Its purpose is to determine the
bodily injury, or taking of hostages, with the starting point to begin measuring maritime zones
boundary of the coastal state.
purpose to provoke a state of terror in the general
public or in a group of persons or particular
Kinds of Baselines
persons, intimidate a population or compel a
a. NORMAL BASELINE METHOD. The
government or an international organization to do
normal baseline for measuring the breadth
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of the territorial sea is the low-water line The drawing of such baselines shall not depart to
along the coast as marked on large-scale any appreciable extent from the general
charts officially recognized by the coastal configuration of the archipelago. (UNCLOS, art.
State. (UNCLOS, art. 5) 47).
b. STRAIGHT BASELINE METHOD.
Straight lines are drawn connecting The waters inside the lines are considered internal.
selected points on the coast without This is the method used by the Philippines in
departing to any appreciable extent from drawing baselines.
the general direction of the coast. The seas
lying within the lines must be sufficiently
closely linked to the land domain to be b. Archipelagic Waters
subject to the regime of internal waters.
(UNCLOS, art. 7) The sovereignty of an archipelagic State extends
to the waters enclosed by the archipelagic
2. ARCHIPELAGIC STATES baselines drawn in accordance with article 47,
described as archipelagic waters, regardless of
Definition their depth or distance from the coast. (UNCLOS.
A State constituted wholly by one or more art. 49)
archipelagos and may include other islands.
[UNCLOS, art. 46(a)] Where the establishment of a straight baseline in
accordance with the method set forth in article 7
Archipelago has the effect of enclosing as internal waters areas
A group of islands, including parts of islands, which had not previously been considered as such,
interconnecting waters and other natural features a right of innocent passage as provided in the
which are so closely interrelated that such islands, UNCLOS shall exist in those waters. (UNCLOS,
waters and other natural features form an intrinsic art. 8)
geographical, economic and political entity, or
which historically have been regarded as such. Island and Rocks; Distinguished
[UNCLOS, art. 46(b)] An island is a naturally formed area of land,
surrounded by water, which is above water at high
There are two kinds of archipelagos: tide. (UNCLOS, art. 121, Par. 1)
1. COASTAL. Situated close to a mainland
and may be considered part thereof (i.e., Rocks which cannot sustain human habitation or
Norway); economic life of their own shall have no exclusive
economic zone or continental shelf. (UNCLOS, art.
2. MID-OCEAN. situated in the ocean at
121, Par. 3)
such distance from the coasts of firm land,
(i.e., Indonesia). Although, it may be possible for rocks to have a
territorial sea and a contiguous zone (UNCLOS art.
The archipelagic state provisions apply only to mid- 121, Par. 2)
ocean archipelagos composed of islands, and not
to a partly continental state. c. Archipelagic Sea Lanes Passage
a. Straight Archipelagic Baselines An archipelagic State may designate sea lanes and
air routes there above, suitable for the continuous
An archipelagic State may draw straight and expeditious passage of foreign ships and
archipelagic baselines joining the outermost points aircraft through or over its archipelagic waters and
of the outermost islands and drying reefs of the the adjacent territorial sea.
archipelago provided that within such baselines are
included the main islands and an area in which the All ships and aircraft enjoy the right of archipelagic
ratio of the area of the water to the area of the land, sea lanes passage and air routes.
including atolls, is between 1 to 1 and 9 to 1.
Archipelagic sea lanes passage means the
exercise in accordance with the UNCLOS of the
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rights of navigation and overflight in the normal with respect to navigational and hydrographical
mode solely for the purpose of continuous, characteristics [UNCLOS, art. 38(1)]
expeditious and unobstructed transit between one
part of the high seas or an exclusive economic INNOCENT TRANSIT PASSAGE
zone and another part of the high seas or an PASSAGE
exclusive economic zone. [UNCLOS, art. 53 (1-3)] Pertains to navigation Includes the right of
of ships only overflight
The archipelagic state designates the sea lanes as Requires submarines Submarines are
proposals to the “competent international and other underwater allowed to navigate in
organization.” It is the International Marine vehicles to navigate “normal mode” – i.e.
Organization (IMO) which adopts them through on the surface and submerged
Article 53(9), UNCLOS, which states that “the show their flag
organization may adopt only such sea lanes and Can be suspended but Cannot be suspended
traffic separation schemes as may be agreed with under the condition
the archipelagic State, after which the archipelagic that it does not
State may designate, prescribe or substitute them.” discriminate among
foreign ships and such
Right of Innocent Passage suspension is
Passage refers to navigation through the territorial essential for the
sea for the purpose of: protection of its
a. Traversing that sea without entering security, and
internal waters or calling at a roadstead or suspension is
port facility outside internal waters; or effective only after
b. Proceeding to or from internal waters or a having been duly
call at such roadstead or port facility. published
[UNCLOS, art. 18(1)] In the designation of Designation of sea
sea lanes and traffic lanes and traffic
Passage is innocent so long as it is not prejudicial separation schemes, separation schemes is
the coastal state shall subject to adoption by
to the peace, good order or security of the coastal
only take into account competent
State. Such passage shall take place in conformity
with the UNCLOS and with other rules of the recommendations international
international law. (UNCLOS, art. 19) of the competent organization upon the
international proposal and
organization agreement of States
Transit Passage bordering the straits.
Transit passage refers to the right to exercise
freedom of navigation and overflight solely for the Hot pursuit
purpose of continuous and expeditious transit of Involves a foreign vessel and where there is good
the strait between one part of the high seas or an reason to believe that the ship has violated laws or
exclusive economic zone and another part of the regulations of a coastal State.
high seas or an exclusive economic zone.
[UNCLOS, art. 38(2)] Rules
1. The pursuit must commence when the
In straits which are used for international foreign vessel is within the: (CITA)
navigation between one part of the high seas or an a. Contiguous zone
exclusive economic zone and another part of the b. Internal waters
high seas or an exclusive economic zone c. Territorial sea
(UNCLOS, art. 37), all ships and aircraft enjoy the d. Archipelagic waters of the
right of transit passage, which shall not be pursuing state
impeded. [UNCLOS, art. 38(1)] 2. It may continue into the high seas if the
pursuit has not been interrupted.
Exception: If the strait is formed by an island of a 3. If the foreign ship is in the contiguous zone,
State bordering the strait and its mainland, transit it may be pursued only for violations of the
passage shall not apply if there exists seaward of rights of the coastal State in the contiguous
the island a route through the high seas or through zone (customs, fiscal, immigration, or
an exclusive economic zone of similar convenience sanitary).
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4. Hot pursuit must stop as soon as the ship archipelagic State of its sovereignty over
pursued enters the territorial waters of its such waters and their air space, bed and
own State or of a third State. subsoil, and the resources contained
5. It may be carried out only by warships or therein. (Magallona v. Ermita, G.R. No.
military aircraft, or any other ship or aircraft 187167, Aug. 16, 2011)
properly marked for that purpose.
(UNCLOS, art. 111) In the absence of municipal legislation,
international law norms, now codified in UNCLOS
Other Rights relating to Archipelagic Waters III, operate to grant innocent passage rights over
1. Contractual Rights: Rights under existing
the territorial sea or archipelagic waters, subject to
agreement on the part of third states
should be respected by the archipelagic the treaty's limitations and conditions for their
state. exercise. Significantly, the right of innocent
2. Fishing Rights: Within its archipelagic passage is a customary international law, thus
waters, the archipelagic state shall automatically incorporated in the corpus of
recognize traditional fishing rights and Philippine law. (Magallona v. Ermita, G.R. No.
other legitimate activities of immediately 187167, Aug. 16, 2011)
adjacent neighboring states
3. Submarine Cables: The archipelagic Also, under Article 47 of the UNCLOS, it is not
state shall respect existing submarine mandatory upon concerned states to declare
cables laid by other states and passing themselves as archipelagic states; the Philippines
through its waters without making a did, under its new baselines law, RA 9522, which
landfall. (UNCLOS, art. 51) was upheld as constitutional (Magallona v. Ermita,
G.R. No. 187167, Aug. 16, 2011)
Under Article 1 of the 1987 Constitution, the
archipelagic waters of the Philippines are d. Regime of Islands
characterized as forming part of “the internal
waters of the Philippines.” The “regime of islands” is:
1. An island naturally formed area of land,
surrounded by water which is above water
Whether referred to as Philippine "internal waters" at high tide;
under Article I of the Constitution or as 2. Except as provided for in the next number,
"archipelagic waters" under UNCLOS III (Article 49 the territorial sea, the contiguous zone, the
[1]), the Philippines exercises sovereignty over the exclusive economic zone and the
body of water lying landward of the baselines, continental shelf of an island are
determined in accordance with the
including the air space over it and the submarine
provisions of this Convention applicable to
areas underneath. UNCLOS III affirms this. The other land territory;
Court cited: 3. Rocks which cannot sustain human
habitation or economic life of their own
1. Article 49(1): The sovereignty of an shall have no exclusive economic zone or
archipelagic State extends to the waters continental shelf. (UNCLOS, Art. 121)
enclosed by the archipelagic
baselines drawn in accordance with article 3. INTERNAL WATERS
47, described as archipelagic waters,
regardless of their depth or distance from Definition
the coast; Except as provided in Part IV (Archipelagic States),
2. Article 49(2): This sovereignty extends to waters on the landward side of the baseline of the
the air space over the archipelagic waters, territorial sea form part of the internal waters of the
as well as to their bed and subsoil, and the State. (UNCLOS, art. 8)
resources contained therein; and
3. Article 49(4): The regime of archipelagic Sovereignty over these waters is the same in
sea lanes passage established in this extent as sovereignty over land, and there is no
Part shall not in other respects affect the right of innocent passage.
status of the archipelagic waters, including
the sea lanes, or the exercise by the
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Where the establishment of a straight baseline in 6. EXCLUSIVE ECONOMIC ZONE

accordance with the method set forth in Article 7
has the effect of enclosing as internal waters areas Definition
which had not previously been considered as such, The exclusive economic zone shall not extend
a right of innocent passage as provided in this beyond 200 nautical miles from the baselines from
Convention shall exist in those waters. (UNCLOS, which the breadth of the territorial sea is measured.
art. 8) (UNCLOS, art. 57)
4. TERRITORIAL SEA The exclusive economic zone is an area beyond

and adjacent to the territorial sea, subject to the
Every State has the right to establish the breadth specific legal regime established in this Part, under
of its territorial sea up to a limit not exceeding 12 which the rights and jurisdiction of the coastal State
nautical miles, measured from baselines and the rights and freedoms of other States are
determined in accordance with the UNCLOS. governed by the relevant provisions of the
(UNCLOS, art. 3). UNCLOS (UNCLOS, art. 55).
Sovereignty over these waters (including the Jurisdiction over EEZ

airspace above it and the seabed under it) is the In the exclusive economic zone, the coastal State
same extent as its sovereignty over land. There is has:
a right of innocent passage (UNCLOS, art. 7), and a. sovereign rights for the purpose of exploring
in case of certain straits, to transit passage. and exploiting, conserving and managing the
natural resources, whether living or non-living,
Under the UNCLOS, features that are above water of the waters superjacent to the seabed and of
at high tide generate an entitlement to at least a 12 the seabed and its subsoil, and with regard to
nautical mile territorial sea, whereas features that other activities for the economic exploitation
are submerged at high tide generate no entitlement and exploration of the zone, such as the
to maritime zones. (The South China Sea production of energy from the water, currents
Arbitration, 2013-19, Jul. 12, 2016) and winds;
b. jurisdiction as provided for in the relevant
5. CONTIGUOUS ZONE provisions of the UNCLOS with regard to:
1. the establishment and use of artificial
Definition islands, installations and structures;
The contiguous zone may not extend beyond 24 2. maritime scientific research;
nautical miles from the baselines from which the 3. the protection and preservation of the
breadth of the territorial sea is measured. marine environment;
(UNCLOS, art. 33) c. Other rights and duties provided for in the
UNCLOS. (UNCLOS, art. 56)
Area of water not exceeding 24 nautical miles from
the baseline. It thus extends 12 nautical miles from Under the UNCLOS, states have the sovereign
the edge of the territorial sea (UNCLOS, art. 33). right to exploit the resources of this zone, but shall
share that part of the catch that is beyond its
Jurisdiction over Contiguous Zone capacity to harvest. (UNCLOS, art. 62)
In the contiguous zone, the coastal State may
exercise the control necessary to: Obligations of Coastal State
• Prevent infringement of its customs, fiscal, In exercising their rights and performing their duties
immigration, or sanitary laws and under the UNCLOS in the exclusive economic
regulations within its territory or territorial
zone, the coastal State shall have due regard to the
sea;
• Punish infringement of the above laws and rights and duties of other States and shall act in a
regulations committed within its territory or manner compatible with the provisions of the
territorial sea. (UNCLOS, art. 33) UNCLOS (UNCLOS, art. 56)
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Obligations of States in EEZ The coastal state has the right to enforce all laws
and regulations enacted to conserve and manage
In exercising their rights and performing their duties the living resources in its EEZ. It may board and
under the UNCLOS in the exclusive economic inspect a ship, arrest a ship and its crew and
zone, States: institute judicial proceedings against them. In
detention of foreign vessels, the coastal state has
1. shall have due regard to the rights and the duty to promptly notify the flag state of the
duties of the coastal State and; action taken. (UNCLOS, art. 73)
2. shall comply with the laws and regulations
adopted by the coastal State in Conflicts regarding the attribution of rights and
accordance with the provisions of the jurisdiction in the EEZ must be resolved on the
UNCLOS and other rules of international basis of equity and in the light of all relevant
law. (UNCLOS, art. 58) circumstances, taking into account the respective
importance of the interests involved to the parties
as well as to the international community as a
Other obligations of coastal states: whole (UNCLOS, art. 59).
1. Ensuring conservation and management

measures that the living resources of the Geographically Disadvantaged States
EEZ are not subject to overexploitation.
(UNCLOS, art. 61) Definition
2. Promote the objective of “optimum Coastal States, including states bordering enclose
utilization” of the living resources. or semi- enclosed seas, whose geographical
(UNCLOS, art. 62) situation makes them dependent upon the
exploitation of the living resources of the EEZ of
The entitlement of a feature to an exclusive other states in the subregion or region for adequate
economic zone depends on the objective capacity supplies of fish for the nutritional purposes of their
of a feature, in its natural condition, to sustain either populations or parts thereof, and coastal States
a stable community of people or economic activity which can claim no exclusive economic zones of
that is neither dependent on outside resources nor their own. (UNCLOS, art. 70).
purely extractive in nature. The current presence of
official personnel on the features is not enough to Geographically disadvantaged states have the
establish the right to an EEZ. (The South China right to participate, on equitable basis, in the
Sea Arbitration, 2013-19, Jul. , 2016) exploitation of the surplus of the living resources in
the EEZ of coastal states of the same sub region
If after determining the maximum allowable catch, or region (UNCLOS, art. 70).
the coastal State does not have the capacity to
harvest the entire catch, it shall give other states A coastal state whose economy is overwhelmingly
access to the surplus by means of arrangements dependent on the exploitation of its EEZ, however,
allowable under the UNCLOS. (UNCLOS, art. 62) is not required to share its resources. (UNCLOS,
The UNLCOS, however, does not specify the art. 71).
method for determining “allowable catch.”
7. CONTINENTAL SHELF
Within its EEZ, a coastal state may also:
Also known as the archipelagic or insular shelf
1. Establish and use of artificial islands,
which refers to:
installations and structures; (UNCLOS, art.
1. The seabed and subsoil of the submarine
60)
areas adjacent to the coastal State but
2. Conduct scientific research; and
outside the territorial sea, to a depth of 200
3. Preserve and protect its marine
meters, or beyond that limit, to where the
environment.
depth allows exploitation, and
2. The seabed and subsoil of areas adjacent
However, under Article 58, UNCLOS, all states
to islands. (UNCLOS, art. 76).
enjoy the freedom of navigation, over flight, and
laying of submarine cables and pipelines in the
EEZ of coastal states.
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Extended Continental Shelf These rights are exclusive in the sense that when
It is part of the Continental Shelf that lies beyond the coastal state does not explore its continental
the 200 nautical miles from the coastal baselines. shelf or exploit its resources, no one may
It is the seabed and subsoil of the submarine areas undertake these activities without the coastal
extending beyond the territorial sea of the coastal state’s consent. (UNCLOS, art. 77)
state throughout the natural prolongation of its
lands territory up to: CONTINENTAL EXCLUSIVE
1. The outer edge of the continental margin; SHELF ECONOMIC ZONE
or Duty to conserve and manage living resources
2. A distance of 200 nautical miles from the No duty The coastal state is
baselines of the territorial sea where the obliged to manage
outer edge of the continental margin does and conserve the
not extend up to that distance. (UNCLOS, living resources in the
art. 76) EEZ
Rights of the coastal state to natural resources
Continental margin Relate to mineral and Have to do with
The submerged prolongation of the land mass of other non-living natural resources of
the coastal state, and consists of the seabed and resources of the both waters super
subsoil of the shelf, the slope and the rise. seabed and the adjacent to the seabed
(UNCLOS, art. 76) subsoil and those of the
seabed and the
Limits of the Continental Shelf subsoil
The juridical or legal continental shelf covers the Rights of the coastal state to living resources
area until 200 nautical miles from baselines. Apply only to Do not pertain to
sedentary species of sedentary species
The extended continental shelf covers the area such living resources
from the 200-mile mark to 350 nautical miles from
the baselines depending on geomorphologic or High Seas
geological data and information. All parts of the sea that are not included in the
exclusive economic zone, in the territorial sea or in
When the continental shelf extends beyond 200
nautical miles, the coastal state shall establish its the internal waters of a State, or in the archipelagic
outer limits. waters of an archipelagic State. (UNCLOS, Art. 86)
At any rate, the continental shelf shall not extend Allowable Acts in the High Seas
beyond 350 nautical miles from the baseline of the 1. Freedom of navigation
territorial sea, or 100 nautical miles from the 2500- 2. Freedom of overflight
meter isobath (i.e., the point where the waters are 3. Freedom of scientific research
2500 meters deep). 4. Freedom to construct artificial islands and
structures
Rights of the Coastal State 5. Freedom of fishing
The continental shelf does not form part of the 6. Freedom to lay submarine cables and
territory of the coastal state. pipelines (UNCLOS, art. 87).
It only has sovereign rights with respect to the China’s “nine-dash line” and its claim to resources
exploration and exploitation of its natural based on historic right is incompatible with the
resources, including the mineral and other non- detailed allocation of rights and maritime zones
living resources of the seabed and subsoil together under the UNCLOS. Even if China had historic
with living organisms belonging to the sedentary rights to resources in the waters of the South China
species. (UNCLOS, art. 77) Sea, such rights were extinguished by the entry
into force of the Convention to the extent they were
The coastal state has the exclusive right to incompatible with the Convention’s system of
authorize and regulate oil-drilling on its continental maritime zones. Further, China’s historical
shelf. (UNCLOS, art. 81) navigation and fishing in the waters of the South
China sea represents the exercise of high seas
freedom, not the exercise of historic right. (The
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South China Sea Arbitration, 2013-19, July. 12, including the transporting, processing and
2016) marketing of minerals (UNCLOS, art. 170)
Bays Activities in the Area

Well-marked indentation whose penetration is in The Enterprise carries out mining activities on
such proportion to the width of its mouth as to behalf of the Authority:
contain landlocked waters and constitute more 1. Directly; or
than a mere curvature of the coast. An indentation 2. By joint ventures with: a. State parties; b.
shall not, however, be regarded as a bay unless its State enterprises; or c. Natural or juridical
area is as large as, or larger than, that of the semi- persons sponsored by state parties.
circle whose diameter is a line drawn across the
mouth of that indentation. [UNCLOS, art. 10(2)] Applicants for license in deep seabed mining are
limited to those controlled by states parties to the
The Area UNCLOS or by their nationals.
Definition 8. INTERNATIONAL TRIBUNAL FOR THE

"Area" means the seabed and ocean floor and LAW OF THE SEA
subsoil thereof, beyond the limits of national
jurisdiction. (UNCLOS, art. 1) Definition
The International Tribunal for the Law of the Sea is
Legal Status of the Area and Its Resources an independent judicial body to adjudicate disputes
No State shall claim or exercise sovereignty or arising out of the interpretation and application of
sovereign rights over any part of the Area or its the UNCLOS. It is the proper venue to resolve the
resources, nor shall any State or natural or juridical issue on the Baselines Law.
person appropriate any part thereof. (UNCLOS,
art. 137) Jurisdiction of the ITLOS
Its jurisdiction comprises all disputes and all
The Area and its resources are the common applications submitted to it in accordance with the
heritage of mankind. (UNCLOS, art. 136) Activities UNCLOS. It also includes all matters specifically
in the Area shall be carried out for the benefit of provided for in any other agreement which confers
mankind as a whole. (UNCLOS, art. 140) jurisdiction on the Tribunal (UNCLOS, Annex VI,
Art. 21). It has jurisdiction to deal with disputes
The Area shall be open to use exclusively for (contentious jurisdiction) and legal questions
peaceful purposes by all States. (UNCLOS, art. (advisory jurisdiction) submitted to it.
141)
The Tribunal, however cannot exercise jurisdiction
International Seabed Authority over certain types of disputes such as disputes
over sovereignty over the islands of South China
Definition Sea and the delimitation of maritime boundary.
It is the organization established by UNCLOS (The South China Sea Arbitration, 2013-19, Jul.
which acts on behalf of mankind in governing the 12, 2016)
regime of resources in the Area. It organizes,
carries out and controls the activities of the Area on Certain preconditions must be present before the
behalf of mankind as a whole. (UNCLOS, art. 157) Tribunal can exercise jurisdiction. This includes a
dispute settlement mechanism entered into by
Composition State Parties and an exchange of views between
The following form the Authority: the State Parties on the means of settling their
1. The Assembly – all state parties to the dispute. This requirement was met in the record of
UNCLOS (UNCLOS, arts. 156 & 159) diplomatic communications between Philippines
2. The Council – the executive organ whose and China. (The South China Sea Arbitration,
36 members are elected by the Assembly 2013-19, Jul. 12, 2016)
(UNCLOS, art. 161)
3. The Enterprise – the organ directly Both the Philippines and China are parties to the
engaged in the exploration and Convention and bound by its provisions on the
exploitation of the resources of the Area, settlement of disputes. China’s decision not to
participate does not deprive the Tribunal of
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jurisdiction and Philippines’ decision to commence (Sands, Principles of International Environmental

arbitration unilaterally was not an abuse of the Law).
Convention’s dispute settlement procedures. (The
South China Sea Arbitration, 2013-19, Jul. 12, 1. Principle 21 of Stockholm Declaration
2016) States have, in accordance with the Charter of the
United Nations and the principles of international
Peaceful Settlement of Disputes law, the sovereign right to exploit their own
Under Article 2, 3rd par., UN Charter, states have
resources pursuant to their own environmental
the duty to settle disputes by peaceful means. This
obligation extends to state parties of the UNCLOS, policies, and the responsibility to ensure that
underscoring the right of the parties to resort to activities within their jurisdiction or control do not
peaceful means of their own choice on which they cause damage to the environment of other States
can agree any time. or of areas beyond the limits of national jurisdiction.
(Declaration of the United Nations Conference on
Compulsory Settlement of Disputes the Human Environment, Principle 21)
Where no successful settlement can be achieved,
or if the parties are unable to agree on the means This principle is the cornerstone of International
of settlement of a dispute concerning the
Environmental Law (IEL). The rules of IEL have
application of UNCLOS, such dispute may be
governed by the principle of compulsory developed within the context of two fundamental
settlement, where procedures entail binding objectives pulling in opposing directions:
decisions.
1. That states have sovereign rights over
The parties may choose, through a written their natural resources and;
revocable and replaceable declaration, to submit 2. That states must not cause damage to the
the dispute to: environment of other states or of areas
1. ITLOS; beyond the limits of national jurisdiction.
2. ICJ; (Sands, Principles of International
3. Arbitral tribunal; Environmental Law).
4. Special arbitral tribunal (UNCLOS, art.
287) The principle of state sovereignty allows states
within limits established by international law to
The court or tribunal has jurisdiction over: conduct or authorize such activities as they choose
1. Any dispute submitted to it concerning the within their territories, including activities that may
application or interpretation of UNCLOS;
have adverse effects on their own environment.
or
2. Any dispute concerning the interpretation (Sands, Principles of International Environmental
or application of an international Law).
agreement:
a. Related to the purposes of the The responsibility of states not to cause
UNCLOS; environmental damage in areas outside their
b. When such dispute is submitted to it jurisdiction pre-dates the Stockholm Conference,
in accordance with that agreement. and is related to the obligation of all states ‘to
(UNCLOS, art. 288) protect within the territory the rights of other states,
in particular their right to integrity and inviolability in
O. INTERNATIONAL ENVIRONMENTAL peace and war. (Sands, Principles of International
LAW Environmental Law citing Palmas Case, 1928)
Overview Under the principles of IEL, no state has the right

It is the branch of public international law to use or permit the use of territory in such a
comprising those substantive, procedural, and manner as to cause injury by fumes in or in the
institutional rules which have as their primary territory of another or the properties or persons
objective the protection of the environment, the therein, when the case is of serious consequence
term environment being understood as and the injury is established by clear and
encompassing “both the features and the products
convincing evidence. (U.S. v. Canada, Mar. 11,
of the natural world and those of human civilization”
1941)
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2. Precautionary Principle damage to the environment, cannot be established

with full scientific certainty. (West Tower
In order to protect the environment, the Condomimium v. First Philippine Industrial
precautionary approach shall be widely applied by Corporation, G.R. No. 194239, Jun. 16, 2015)
States according to their capabilities. Where there
are threats of serious or irreversible damage, lack Other Principles Covered by International
of full scientific certainty shall not be used as a Environmental Law
reason for postponing cost-effective measures to
prevent environmental degradation (Principle 15, Principle of Preventive Action
Rio Declaration). The principle requiring the prevention of damage to
the environment, and otherwise to reduce, limit or
Factors to be Considered control activities that might cause or risk such
1. Threatening to human life or health; damage. The ‘duty of prevention’ is now ‘a principle
2. Inequity to present or future generations; of general international law’ that ‘applies not only in
or autonomous activities but also in activities
3. Prejudice to the environment without legal undertaken in implementation of specific treaties
consideration of the environmental rights between the parties. (Sands, Principles of
of those affected (International Service for International Environmental Law)
the Acquisition of Agri-Biotech
Applications v. Greenpeace, G.R. No. The interconnection of the obligation to prevent
209271, Dec. 8, 2015, citing Part V, Rule harm and a requirement to exercise due diligence
20 of the Rules) was underscored by the ICJ, which characterized
the obligation to act with due diligence as an
For purposes of evidence, the precautionary obligation which entails not only the adoption of
principle should be treated as a principle of last appropriate rules and measures, but also a certain
resort, where application of the regular Rules of level of vigilance in their enforcement and the
Evidence would cause in an inequitable result for exercise of administrative control applicable to
the environmental plaintiff. (International Service public and private operators such as the monitoring
for the Acquisition of Agri-Biotech Applications v. of activities undertaken by such operators. (Pulp
Greenpeace, G.R. No. 209271, Dec. 8, 2015) Mills Case, Apr. 20, 2010)
The case for the precautionary principle is Environmental Impact Assessment (EIA)
strongest when the following features coincide;
1. Settings in which the risks of harm are The point of departure of environmental impact
uncertain; assessment (‘EIA’) is the idea that the impact of
2. Settings in which harm might be (potentially) environmentally harmful projects
irreversible and what is lost is should be analysed before the authorization of the
irreplaceable; and project is granted, in order to be able to take a
3. Settings in which the harm that might result decision in view of all impacts of a project. In this
would be serious. (International Service sense, EIA is also a direct consequence of the
for the Acquisition of Agri-Biotech precautionary principle (Precautionary
Applications v. Greenpeace, G.R. No. Approach/Principle): in order to prevent
209271, Dec. 8, 2015) environmental harm, it is necessary to understand
the environmental impacts of a project as early as
When in doubt, cases must be resolved in favor of possible (OXFORD)
the constitutional right to a balanced and healthful
ecology. Parenthetically, judicial adjudication is Principle of Co-operation
one of the strongest fora in which the precautionary The principle of ‘good-neighbourliness’ enunciated
principle may find applicability. (International in Article 74 of the UN Charter in relation to social,
Service for the Acquisition of Agri-Biotech economic and commercial matters has been
Applications v. Greenpeace, G.R. No. 209271, translated into the development and application of
Dec. 8, 2015) rules promoting international environmental co-
operation. (Sands, Principles of international
The precautionary principle only applies when the Environmental Law)
link between the cause, that is the human activity
sought to be inhibited, and the effect, that is the
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Cooperation through multilateral or bilateral

arrangements or other appropriate means is
essential to effectively control, prevent, reduce and
eliminate adverse environmental effects resulting
from activities conducted in all spheres, in such a
way that due account is taken of the sovereignty
and interests of all States. Such cooperation shall
done in good faith and in a spirit of partnership to
fulfill the principles of the Rio Declaration and the
furtherance of sustainable development in
International Law (Stockholm Declaration,
Principle 24; Rio Declaration Principle 27)
Sustainable Development
It is development that meets the needs of the
present without compromising the ability of future
generations to meet their own needs (Sands,
Principles of International Environmental Law).
Polluter Pays Principle

The polluter pays principle indicates that the costs
of pollution should be borne by the person
responsible for causing the pollution. The meaning
of the principle, and its application to particular
cases and situations, remains open to
interpretation, particularly in relation to the nature
and extent of the costs included and the
circumstances in which the principle will, perhaps
exceptionally, not apply. (Sands, Principles of
International Environmental Law).
Principle of Common but differentiated

Responsibility
States shall cooperate in a spirit of global
partnership to conserve, protect and restore the
health and integrity of the Earth’s ecosystem. In
view of the different contributions to global
environmental degradation, States have common
but differentiated responsibilities. The developed
countries acknowledge the responsibility that they
bear in the international pursuit to sustainable
development in view of the pressures their
societies place on the global environment and of
the technologies and financial resources they
command (Rio Declaration, Principle 7).
Page 568 of 568

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PHILIPPINE COPYRIGHT

THE ATENEO CENTRAL BAR OPERATIONS 2020-2021

All Rights Reserved

This material is an intellectual creation of the Ateneo Central Bar Operations

Ad maiorem Dei gloriam.

KATHLEEN KAE Z. ENDOZO MEG V. BUENSALIDO

CARLOS ROSAURO N. MANALO

DEAN SEDFREY M. CANDELARIA ATTY. MARIA LUISA ISABEL l. ROSALES

KIM ABBYGALE C.RIBO CHEY ABUEG

JEFFREY ABRAZALDO SHAULA FLORESTA AIMIEL MARIAN F. REYES

JOSEPH BILL P. QUINTOS STEFI MONIKA S. SUERO

AINA RAE L. CORTEZ CHRISTIAN GIO R. SENARLO

DONN MARIE ISABELLE BALINA MELISSA GABRIELLE P. REMULLA

YVES PETER CARLO D. MEDINA THERESE ANNE C. ESPINOSA

EUNICE A. MALAYO MEG V. BUENSALIDO

DEAN SEDFREY M. CANDELARIA

ANDREA FAUSTINE R. DE VERA KIM ABBYGALE C.RIBO

JOSIAH M. LIM ANNA BEATRICE L. SALAZAR FONSO RAMOS

I. THE 1987 CONSTITUTION ................................................................................................................ 2

7. DIPLOMATIC POWER ............................................................................................................. 91

2. HEIGHTENED OR INTERMEDIATE SCRUTINY TEST ....................................................... 146

A. UPON LAWFUL ORDER OF THE COURT ....................................................................... 176

1. CONCEPT .............................................................................................................................. 222

T. EX POST FACTO LAWS AND BILLS OF ATTAINDER .......................................................... 261

A. ADMINISTRATIVE DUE PROCESS: (HIP DESK) ............................................................ 339

B. PRINCIPLES OF LOCAL AUTONOMY ................................................................................... 421

K. TREATMENT OF ALIENS ........................................................................................................ 542

I. THE 1987 CONSTITUTION A. NATURE AND CONCEPT OF A

C. AMENDMENTS AND REVISIONS Subjects covered by Philippine Political Law

Classes of Constitution Note: The Philippine Constitution is written,

as an additional qualification for election to revision” (Lambino v. COMELEC, G.R. No.

3. People’s Initiative Ways of Proposing Revisions

N.B. The process of revision is the same in all

Ratification of Proposal if made through Presidential proclamation is NOT required for

CAN BE DONE BY: HOW RATIFICATION

By a majority vote of all its

By a majority vote of all its

D. METHODS OF INTERPRETING THE should be interpreted in accordance with

GENERAL PROVISIONS GOVERNMENT

GOVERNMENT who rise in Insurrection against the parent

2. Ministrant — Discretionary or optional functions

Principles to Determine Whether or Not

The growing complexities of modern society,

II. BASIC CONCEPTS A. DECLARATION OF PRINCIPLES AND

E. CHECKS AND BALANCES Examples:

The Philippines renounces aggressive war as an

1. There is an actual or threatened violation

B. SOVEREIGNTY Note: Even though the country allows a foreign

Definition of Sovereignty Doctrine of State Immunity

Two types of Sovereignty Principle of Equality of States

State's Business Contracts Difference between Jure Gestionis and Jure

3. Ultra Vires Act: Where a public officer has

Payment of interest by the Government in

2. Delegation to Local Government Units –

Reorganization “involves the reduction of

IV. CITIZENSHIP A. KINDS OF CITIZENSHIP

TOPIC OUTLINE UNDER THE SYLLABUS

Who are Naturalized Citizens

Natural Born Citizens v. Naturalized Citizens

Treaties & Status of Foundlings Foundlings v. Natural Born Citizens

B. WHO ARE CITIZENS C. WHO CAN BE CITIZENS

The following are citizens of the Philippines: &

1. A person's citizenship must be raised as a 4. Marriage by a Filipino woman to an alien, if by

Repatriation under R.A. No. 9225 Dual Citizenship v. Dual Allegiance